Businessman Elon Musk (C), President-elect Donald Trump's pick to lead the newly-created Department of Government Efficiency (DOGE), with his son X Æ A-Xii, leave a meeting with the next Senate Majority Leader John Thune on Capitol Hill, Washington, DC - 05 Dec 2024. DOGE co-leader, US businessman Vivek Ramaswamy, is also on the Hill meeting with Senators. Image: JIM LO SCALZO/EPA-EFE/Shutterstock
By: Justin Schnitzer, Esq.As we approach 2025, two major initiatives threaten to reshape federal employment: the proposed reinstatement of Schedule F and the creation of the Department of Government Efficiency (DOGE).
As a federal employment attorney who has spent over a decade protecting civil service rights, I believe these changes warrant close legal analysis.
A History of Merit-Based Federal Employment
Our modern civil service system rests on over a century of carefully crafted protections. Beginning with the Pendleton Act of 1883, which established merit-based hiring, through the Civil Service Reform Act of 1978, these safeguards have built and protected a professional, non-partisan workforce serving the American people regardless of political winds. Schedule F and DOGE are the most significant challenges to this system in generations.
In April 2024, the Office of Personnel Management (OPM) erected regulatory barriers against Schedule F’s return. These rules specifically restrict the conversion of competitive service positions to excepted service status — a crucial firewall against politicization. The regulations establish that positions of a “confidential, policy-determining, policy-making, or policy-advocating” nature must be limited to existing political appointments, not career positions. This seemingly technical distinction carries weight.
How Could Trump’s Administration Overcome the OPM Rule?
Any incoming administration would need to initiate a new regulatory process to dismantle the current OPM protections. This isn’t simply a matter of issuing an executive order, however.
Legal and Rulemaking Hurdles
The Administrative Procedure Act requires formal rulemaking, including public notice and comment periods that typically extend 6-12 months. During this time, legal challenges would almost certainly emerge, potentially leading to preliminary injunctions that could freeze implementation.
The proposed Department of Government Efficiency adds another layer of complexity. As a non-governmental advisory entity led by Elon Musk and Vivek Ramaswamy, DOGE’s legal authority to restructure federal agencies is questionable.
While advisory committees can make recommendations, their ability to directly implement workforce changes is severely limited by existing law. The proposed mandatory return-to-office policy, for instance, would likely conflict with multiple agency collective bargaining agreements and established workplace flexibility programs.
Employee protections under current OPM regulations are robust and specific. Agencies must document the need for any position conversion, obtain certification from their chief HR official, and secure OPM approval. Further, employees must retain their earned competitive status and procedural rights. These requirements create an administrative burden for agencies contemplating widespread conversions.
Another backstop is the Merit Systems Protection Board (MSPB), to which federal employees have the right to appeal involuntary conversions. This includes situations where seemingly voluntary moves were coerced.
Logistical Hurdles
Implementation faces practical challenges beyond legal hurdles. Previous attempts to identify Schedule F-eligible positions revealed widely varying interpretations among agencies. The Office of Management and Budget’s 2020 proposal to convert two-thirds of its workforce demonstrates the potential scope.
However, most agencies struggled to complete the required position reviews within the given timeframe, suggesting that rapid implementation would be logistically challenging.
Can DOGE Enact Mass RIF Efforts or Buyouts?
DOGE itself lacks direct authority to implement Reductions in Force (RIFs) or establish buyout programs. As a non-governmental advisory entity, DOGE can only make recommendations — it cannot unilaterally create or implement personnel policies. Any RIF or buyout authority must flow through proper statutory and regulatory channels.
RIFs are governed by complex regulations under 5 CFR Part 351, requiring specific justifications like lack of work or funding. Agencies must follow strict procedures involving competitive areas, retention registers, and bump-and-retreat rights.
Similarly, Voluntary Separation Incentive Payment (buyout) programs require authority from Congress or OPM under 5 USC Chapter 35. An agency that wants to offer buyouts must submit a plan to OPM explaining why they need them, how many they want to offer, and how this fits their workforce strategy. OPM then decides whether to approve that agency’s buyout authority.
However, DOGE could indirectly influence these actions by recommending budget cuts or reorganizations that might create conditions justifying RIFs. For instance, if DOGE’s recommendations led Congress to reduce agency funding, this could create a legitimate basis for a RIF. The key distinction is that the authority would come from Congress’s appropriation decisions or OPM’s regulatory authority, not from DOGE directly.
Federal employees should understand that while DOGE may shape policy discussions, actual workforce reduction tools remain firmly under established legal frameworks that include significant employee protections and procedural requirements.
What Happens While Legal Challenges Play Out?
During any gap between a Schedule F executive order and its final implementation or rejection, federal employees retain their existing civil service protections. Courts would likely issue preliminary injunctions freezing any Schedule F conversions while litigation proceeds. This means agencies couldn’t start reclassifying positions or changing employee status until the courts make final decisions.
Your SF-50s, position descriptions, and appeal rights would remain unchanged during this period. However, employees should still document any attempts to change their positions, as this evidence could prove crucial in future legal proceedings.
What Should Federal Employees Do Now?
Looking ahead, federal employees should take several protective steps:
- Document your current position description and competitive status — meaning, save offline copies of your SF-50s (personnel action forms), position description, and any documentation showing your competitive service designation, as these will be crucial evidence if you need to challenge a conversion.
- Maintain records of any conversations or directions regarding potential conversion. Specifically, create a detailed log of any meetings, emails, or discussions about changing your position’s status, including dates, participants, and what was said, since this contemporaneous documentation could be vital evidence in an MSPB appeal.
- Third, be aware that “voluntary” moves to excepted service positions may carry risks to your civil service protections. What might be presented as an optional transfer or promotion could actually strip you of essential job protections, so consult with your union representative or an employment lawyer before accepting any position changes.
- Finally, stay informed about your appeal rights and the specific requirements for position conversions under current OPM guidance. you can do this by regularly checking OPM’s website at opm.gov, subscribing to updates from your agency’s HR department, and staying in touch with your union representatives who often receive early notifications about potential workforce changes.
Many are wondering whether all these rules, laws, and customs will protect them: what if the Trump administration simply ignores them? For that to be successful, the administration would need unprecedented cooperation from career civil servants across multiple agencies who handle personnel actions, plus acquiescence from the courts that have consistently upheld civil service protections as vital to maintaining a merit-based government workforce that serves the American people rather than political interests.
Ultimately, the federal employment system rests upon the same foundation as the entire legal system: a critical mass of people agree it is valid and abide by its mandates. It is hard to see a situation in which this is entirely upended overnight.
Attorney Justin Schnitzer (see, fedelaw.com) represents federal employees in cases of employment violations just as he would want to be represented, all with the aim of achieving decisive victories. His passion for employment law and the fight for fundamental fairness began when he served as a judicial intern for the Equal Employment Opportunity Commission. He is admitted to the State Bar of Maryland.
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See also,
Legal: How to Challenge a Federal Reduction in Force (RIF) in 2025
The Best Ages for Federal Employees to Retire
Alternative Federal Retirement Options; With Chart
Primer: Early out, buyout, reduction in force (RIF)
Retention Standing, ‘Bump and Retreat’ and More: Report Outlines RIF Process
