The Schedule F order would have moved potentially 50,000 career employees into the excepted service, basically turning them into political appointees. Image: Rob Wilson/Shutterstock.com
By: FEDweek StaffIn what amounts to a preemptive strike against a potential future Republican administration, the Biden administration has proposed rules that effectively would block — at least for a time — the return of a future excepted service category for policy-related jobs that currently are in the competitive service.
Proposed rules in the September 18 Federal Register would, in the words of the notice from OPM, “reinforce and clarify longstanding civil service protections and merit system principles, codified in law, as they relate to the movement of federal employees and positions from the competitive service to the excepted service.”
Once finalized — as they almost certainly will be before the 2024 elections — the rules would provide guarantees against the possible impacts of another excepted service Schedule F such as the one under an executive order late in the Trump administration. That order would have moved potentially 50,000 or more career employees involved with making, advising on or carrying out policy from the competitive service into the excepted service — essentially turning those jobs into political appointees without civil service protections and without requirements for competitive hiring.
The Biden administration revoked that order with its own order before any positions were converted, but several Republican candidates for the presidency, including Trump, have said they would promptly bring back that policy if elected.
Efforts by Democrats in Congress to change the law to prevent a future Schedule F have been unsuccessful, even in the prior Congress where they controlled both chambers.
The rules would have the same impact as those proposed changes in law, although they could be revoked in turn by a future administration. That process would take some time, however, putting the ability to enforce a future Schedule F order in question for the meantime—a period in which legal challenges doubtlessly would be filed.
The rules would state that positions of a “confidential, policy-determining, policy-making, or policy-advocating” nature—the definition Schedule F used for being subject to conversion to the excepted service—are limited only to positions already designated as politically appointive, not career.
They also would state that a move from the competitive service to the excepted service, or from one excepted service category to another, an employee “retains the status and civil service protections they had already accrued by law” and there would be a right to appeal to the MSPB “to the extent any such move purportedly strips employees of their civil service status and protections.”
“Improperly applying the term “of a confidential, policy-determining, policy-making, or policy-advocating character” to describe positions held by career employees, who have an expectation of continuing employment beyond the presidential administration during which they were appointed, and to strip them of civil service protections, would be contrary to congressional intent and decades of applicable case law and practice,” says the notice, which has a 60-day comment period.
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See also,
How Do Age and Years of Service Impact My Federal Retirement
The Best Ages for Federal Employees to Retire
