On Oct. 21, President Trump issued an executive order that, for many federal employees, effectively overturned the civil service system that has existed in the United States since 1883. By creating a new type of federal position, Schedule F, Executive Order 13957 empowers federal agencies to involuntarily move scores of career federal employees into positions for which statutory and constitutional job protections would be eliminated—putting them at risk of being fired at will. Just as perniciously, the executive order allows agency heads to move current political appointees into these newly created Schedule F positions without competition and not based on merit—in essence, creating a new category of political appointee. The creation of Schedule F is nothing more than an attempt to gut the career civil servant class and further marginalize career civil service employees.
According to the executive order, positions fall in the definition of Schedule F if they are those of “a confidential, policy-determining, policy-making, or policy-advocating character[.]” The order states that the creation of Schedule F was necessary because the president must have “appropriate management oversight regarding” the career civil servants working in positions of a “confidential, policy-determining, policy-making or policy-advocating character”—and that, because of the importance of these functions, employees in these positions must display “appropriate temperament, acumen, impartiality, and sound judgment.”
Of course, no one doubts these maxims. Indeed, all federal employees are and should be subject to rigorous standards in hiring and performance. But the executive order posits that because of the importance of these roles, the long-standing rules relating to hiring based on competition and merit, and the legal protections against summary firings of civil service employees, should not apply to Schedule F employees. It’s true that these roles are important—but that’s why the nonpartisan, experienced civil servants already in these jobs should be protected, rather than face the threat of replacement by inexperienced current political appointees.
Under 5 U.S.C. §§ 2102 and 2103, most federal employees fall into one of two types of civil service positions—the competitive service or the excepted service. (The third category of civil service position is the Senior Executive Service, which is made up of executives who serve at the highest levels of the federal government.) Typically, that means that applicants applied for a job, competed with others, and were ultimately selected for that job based on the merits of their job application. Although the excepted service permits using hiring methods other than competition, federal law generally requires agencies to follow the competitive service rules when filling excepted service positions.
Most competitive and excepted service employees have legal protections against being fired at will. That is, agencies that wish to fire employees in the competitive and excepted services need to prove either that those employees engaged in some misconduct or that their performance is unacceptable. And before firing an employee, agencies are required by statute and the Constitution to provide due process to include notice of the proposed action and an opportunity to respond. Further, if employees are fired, they have the right to appeal the termination to the U.S. Merit Systems Protection Board (MSPB) under 5 U.S.C. §§ 7511(a)(1)(A) and (C). The groundwork for these civil service protections and principles was laid in 1883 through the Pendleton Act, and they have been around in some form or another since then.
But this new executive order exempts agencies from following the civil service rules for hiring and firing Schedule F employees. If you are a career civil servant in either the competitive or the excepted service, your agency can simply move you into Schedule F—after which you lose your civil service job protections and can be fired at will. You would also lose the right to file an appeal to the MSPB if you are fired from a Schedule F position.
What’s more, current political appointees can be placed into Schedule F positions without competition—a form of “burrowing in,” which the Office of Personnel Management (OPM) is supposed to guard against. Improper “burrowing in” occurs when a current (or recently departed) political appointee is hired into a permanent competitive service, nonpolitical excepted service, or career Senior Executive Service position. As recently as September 2020, the OPM reiterated that “agency heads … need to ensure all personnel actions remain free of political influence … and meet all relevant civil service laws, rules, and regulations.” Further, the OPM has reasserted its role in ensuring “that politics play no role when agencies hire political appointees for career Federal jobs.”
According to the executive order, Schedule F positions will include those positions that “the agency head determines to be of a confidential, policy-determining, policy-making, or policy-advocating character and that are not normally subject to change as a result of a Presidential transition.” Agency heads are instructed to review existing positions to determine which should be placed into Schedule F. In conducting this review, agency heads are to consider including in Schedule F positions whose duties include the following:
(i) substantive participation in the advocacy for or development or formulation of policy, especially:
(A) substantive participation in the development or drafting of regulations and guidance; or
(B) substantive policy-related work in an agency or agency component that primarily focuses on policy;
(ii) the supervision of attorneys;
(iii) substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law;
(iv) viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations generally covered by deliberative process privilege and either:
(A) directly reporting to or regularly working with an individual appointed by either the President or an agency head who is paid at a rate not less than that earned by employees at Grade 13 of the General Schedule; or
(B) working in the agency or agency component executive secretariat (or equivalent); or
(v) conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code.
The types of positions whose duties include those listed in the executive order could constitute a substantial amount of jobs in all federal agencies. Indeed, according to a Nov. 21 article on RealClearPolitics, the Office of Management and Budget has already determined that 88 percent of its workforce—more than 400 employees—would fall within the parameters of Schedule F.
After agency heads conduct their initial review, the executive order instructs them to move quickly and petition the OPM by Jan. 19, 2021—the day before Inauguration Day—to place positions within Schedule F. After that, agency heads have another 120 days to petition the OPM to place additional positions in Schedule F.
Once agency heads provide the OPM with their list of jobs to be placed in Schedule F, the OPM director is required to “promptly determine whether to grant any petition” to place positions in Schedule F. The executive order also instructs the OPM director to adopt regulations “necessary to implement this order, including, as appropriate, amendments to or rescissions of regulations that are inconsistent with, or that would impede the implementation of this order[.].”
To date, although the OPM has issued guidance to agency heads on implementing the executive order, it has not issued proposed regulations. For example, the executive order itself does not amend 5 U.S.C. Chapters 43 or 75 or the implementing regulations at 5 C.F.R. Parts 432 or 752. The OPM director must issue proposed regulations to do so. It is unclear if OPM will issue such proposed regulations—or if it does, whether they will be released prior to Jan. 20.
If fully implemented, Schedule F would gut the civil service system for thousands of career federal officials. Gone will be hiring based on merit. Gone will be important job protections. Although limited now, political burrowing into civil service jobs—a long prohibited practice—could become a routine endeavor every four years.
There is an important balance in government between nonpartisan civil servants and political appointees who are hired to establish and implement a new administration’s goals. Career civil servants, with institutional knowledge and experience, provide vital guidance to political appointees to properly and legally implement new policies. With legal and constitutional job protections, career employees can feel free to guide political appointees in the correct way. However, without those long-standing job protections, those same civil servants might just keep quiet when faced with a difficult situation for fear of being fired at will. Similarly, these career employees may simply do just enough—or just not enough—to avoid getting fired, rather than focusing on doing the best job they can.
Yes, hiring and firing civil servants can at times be inefficient. But these job protections exist pursuant to federal law and the Constitution. As the Supreme Court has said, the Framers of the U.S. Constitution “ranked other values higher than efficiency.” A well-trained, experienced cadre of public servants hired based on merit and competition and protected from the whims of political appointees should be a priority for the new administration.
It is possible that Schedule F will be much ado about nothing. But that depends mostly on what, if anything, the Trump administration does within its waning days. There have been efforts to prevent Schedule F from moving ahead. The National Treasury Employees Union has filed a lawsuit to stop its implementation. Members of Congress sent a letter to Michael J. Rigas, the acting OPM director and acting deputy director for the Office of Management and Budget, expressing their “grave concerns” about Schedule F. Congressional appropriators may threaten to withhold funds from federal agencies that would be used to implement Schedule F.
But the only person who can do something concrete about the executive order and Schedule F’s implementation is President-elect Joe Biden. In the meantime, thousands of career federal civil servants will wait nervously until Jan. 20.