As expected, the order was one of the first actions Trump took on retaking office, bringing back a late-2020 directive to have agencies identify and then shift to the excepted service competitive service positions involved with making, advising on or carrying out policy. Image: Joseph Sohm/Shutterstock.com
By: FEDweek StaffPresident Trump’s executive order stating that the short-lived excepted service Schedule F he instated during his first term “is hereby immediately reinstated with full force and effect” also includes an order to OPM to “promptly” rescind rules the Biden administration issued in an effort to block one.
Until those rules are rescinded, it adds, they “shall be held inoperative and without effect,” it says.
However, the NTEU union already has asked a federal court to block the order, arguing that it “wrongly applies employment rules for political appointees to career staff; deprives federal employees of due process rights that they were promised when they were hired; and ignores Office of Personnel Management regulations.”
In an apparent move to shield the order from such challenges, the new version adds this language to the original: “Employees in or applicants for Schedule Policy/Career positions are not required to personally or politically support the current President or the policies of the current administration.” (Changing the terminology from Schedule F to Schedule Policy/Career is one of several technical changes in the new order.)
“They are required to faithfully implement administration policies to the best of their ability, consistent with their constitutional oath and the vesting of executive authority solely in the President. Failure to do so is grounds for dismissal,” it adds.
As expected, the order was one of the first actions Trump took on retaking office, bringing back a late-2020 directive to have agencies identify and then shift to the excepted service competitive service positions involved with making, advising on or carrying out policy. That would end many of the civil service rights, including those of union representation, in those positions and allow them to be filled without competition.
It is unclear how long it would take agencies to identify such positions, which under the original order—which presumably applies again with that order “reinstated”—required review by OPM before they could be converted. Agencies made little progress toward carrying out that order in the several months before the Biden administration revoked it, and then further issued rules against it. Estimates were that some 50,000 career positions could be affected—and potentially many more, depending on how broadly agencies interpreted which jobs involve policy matters.
The order also calls on OPM to issue within 30 days “guidance about additional categories of positions that executive departments and agencies should consider recommending for Schedule Policy/Career.”
Reinstatement of the order revived familiar arguments that first arose when it was first issued and that have continued since, even though it has not been in effect for the last four years.
The order argues that the policy is needed because “there have been numerous and well-documented cases of career federal employees resisting and undermining the policies and directives of their executive leadership. Principles of good administration, therefore, necessitate action to restore accountability to the career civil service, beginning with positions of a confidential, policy-determining, policy-making, or policy-advocating character.”
However, the NTEU said the order “threatens the nonpolitical nature of our federal workforce and injects politics where it doesn’t belong. To be clear, this order is not about removing poor performers – the government already has that ability. This order is about administering political loyalty tests to everyday employees in the federal workforce who took an oath to uphold the Constitution and serve their country.”
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