On September 30, 2025, the Under Secretary of Defense for Personnel and Readiness Anthony Tata (signing as ‘Under Secretary of War’) issued a new memorandum, “Separation of Employees with Unacceptable Performance.” This memorandum implemented performance-based personnel policies announced the same day by Secretary Hegseth (previously discussed in this blog).
The memorandum suspended for two years certain DoD policies that might have provided employees with additional civil service protections that specifically derived from DoDI 1400.25, Vo. 431. The memorandum expressly did not claim to suspend the underlying procedures for discipline under Chapter 75 of the Civil Service Reform Act (CSRA). The memorandum did not purport to overturn Chapter 43 of the CSRA (which the Under Secretary would have no authority to do, as Chapter 43 is a statute), nor did it purport to modify OPM adverse action or performance regulations (which it could not, as OPM has statutory authority to issue such rules under 5 U.S.C. §§ 4305, 7514). The memorandum also noted that any additional provisions under union collective bargaining agreements still remain in force, although as previously discussed in this blog, DoD has only exempted a small portion of its civilian employees from executive orders which stripped many federal civilian employees of their collective bargaining rights, a matter currently in litigation).
Notably omitted from the memorandum were discussion of possible disciplinary actions less than full removal which are permitted under relevant statutes and MSPB precedent (for example, reprimand, suspension, demotion, or performance under a last chance agreement), in apparent favor of moving straight to removal of any civil service employee whom a manager deems to be performing unsuccessfully.
The memorandum imposed hard deadlines for completion of adverse actions, with responses to proposed discipline due in 7 days and decisions due in 30 days. Managers who fail to issue decisions within 30 days, or who decide not to remove employees with proposals for performance-based discipline, are subject to the review by Under Secretary Tata’s office. No similar internal review applies if the decision is to remove the employee within 30 days, creating an additional incentive for deciding officials to favor imposing removal when it is proposed. These hard deadlines will complicate employees’ ability to request extensions of response deadlines (and the boilerplate proposed removal notice attached to the memorandum omits any mention of the possibility of requesting additional time). This hard line on decision deadlines represents the return of a policy under the first Trump Administration, which had been rescinded by the Biden Administration and then reinstated in the present Administration.
The memorandum encouraged managers to implement performance-based discipline under Chapter 75 rules rather than Chapter 43 rules. Longstanding MSPB precedent permits use of either statute to propose discipline for alleged poor performers. Preferencing use of Chapter 75 over Chapter 43 allows discipline to be implemented faster, as it does not require precursors such as a Performance Improvement Plan and an opportunity to show improvement prior to proposing discipline. However, the tradeoff is that disciplinary actions under Chapter 75 are more vulnerable on appeal than Chapter 43 disciplinary actions, as the agency has a higher factual burden of proof to defend its action (preponderance of evidence under Chapter 75 versus substantial evidence under Chapter 43), and Chapter 75 adverse actions are subject to review for whether the penalty exceeds the bounds of reasonableness under the Douglas factor analysis. In possible recognition of the Douglas factor issue, the memorandum included an attached sample Douglas factor analysis.
The memorandum announced that DoD was giving blanket authority to offer separation incentives to allow employees to settle removal cases, including Voluntary Early Retirement Authority (VERA), Voluntary Separation Incentive Payments (VSIP), and Individualized Deferred Resignation Program (DRP) authority. Attached to the memorandum is a draft DRP waiver agreement.
As noted above, the memorandum included several attachments: DoD’s analysis of what constitutes unacceptable performance sufficient to warrant a Chapter 75 removal and Douglas factor analysis, sample boilerplate proposed removals and removal decisions, and a boilerplate deferred resignation wavier agreement with a default 12 week period to remain on the rolls prior to separation.
If you are a DoD civilian employee and wish to discuss the impacts of the new memoranda on your rights, please consider contacting Gilbert Employment Law to request an initial consultation.