CRS said the new order may have weakened potential challenges by shifting final decision-making from OPM to the White House, potentially avoiding challenges under the Administrative Procedure Act. Image: Vitalii Vodolazskyi/Shutterstock.com
The Schedule Policy/Career category based on the previous Schedule F appears likely to encompass more federal employees than the first, but could be vulnerable to legal challenges on several grounds, says a report for Congress.
The analysis by the Congressional Research Service notes that the order President Trump issued as one of his first actions last week in several ways goes beyond his short-lived and largely unimplemented late 2020 order telling agencies to identify competitive service positions of a “confidential, policy-determining, policy-making, or policy-advocating character that are not normally subject to change as a result of a Presidential transition” and to ask OPM to move them into the excepted service, where they would lose many civil service rights.
The new order includes such positions, CRS noted, while adding two categories: positions “directly or indirectly supervising employees in Schedule Policy/Career positions” and positions with duties that OPM “otherwise indicates may be appropriate for inclusion.”
Those additional categories “could substantially expand the scope of positions considered for inclusion in the new schedule,” it said. Further, the new order told OPM to “issue guidance about the additional positions that may be appropriate for inclusion”; in interim guidance, OPM said agencies “should consider” including a range of other roles that could expand the scope considerably.
The report contains no estimate of how many more positions the new order might affect; the generally accepted estimate of the first order was 50,000, although unions said the number could have been much higher even then, depending on how agencies interpreted the terms.
The CRS said that there are three potential grounds for challenging the order: arguing that the order itself is unlawful; challenging OPM’s or an agency’s implementation; and claiming that the order or its implementation “harmed specified individuals (such as persons fired after reclassification.” Both the NTEU and AFGE unions have separately filed suits making such claims.
It said that while a suit on the first ground was filed against the original order, those arguments never were resolved because the case was dropped after the Biden administration revoked that order; it later further issued rules against a return.
CRS said the new order may have weakened potential challenges on the second ground by shifting final decision-making from OPM to the White House, potentially avoiding challenges under the Administrative Procedure Act. A challenge under the third category, it said, might rest on the unresolved issue of whether employees had a property interest in any protections they had while in the competitive service that they lost by being converted to the excepted service.
CRS noted that like the first, the new order tells agencies move to bar converted positions from union representation–and while it tells agencies to continue protections against prohibited personnel practices such as retaliation for whistleblowing, it does not specify that the Office of Special Counsel would continue to have a role in enforcing those protections for them.
“It seems possible that the new schedule employees could be subject to a prohibited personnel practice investigation and enforcement process that is not only different from what is currently available, but that varies across agencies,” it said.
The report added that under the timeframes set in the order, it could be August or later before positions are converted. “If the amended and reinstated EO 13957 or a specific reclassification becomes subject to legal challenges, or if repeal of the 2024 OPM rule creates delays, that timeline could also be delayed,” it said.
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