Executive Order 13957 was revoked, and Schedule F was abolished, by Executive Order 14003, “Protecting the Federal Workforce.” Image: Mark Van Scyoc/Shutterstock.com
By: FEDweek StaffFollowing is the section of an OPM notice of proposed rulemaking to prevent a future excepted service Schedule F listing the potential impacts, including allowing affected employees to be fired at will, allowing positions to be filled by less qualified hirees and allowing political appointees to “burrow in” to career civil service jobs.
On October 21, 2020, President Donald Trump, through Executive Order 13957, “Creating Schedule F in the Excepted Service,” sought to alter the carefully crafted legislative balance that Congress struck in the CSRA. That Executive order, if fully implemented, could have transformed the civil service by purportedly stripping adverse action rights under chapter 75, performance-based action rights under chapter 43, and appeal rights from large swaths of the Federal workforce—thereby turning them into at-will employees—and by eliminating statutory requirements built into the Federal hiring process intended to promote the objective of merit based hiring decisions. It would have upended the longstanding principle that a career Federal employee’s tenure should be linked to their performance, rather than to the nature of the position that the employee encumbers. It also could have reversed longstanding requirements that, among other things, prevent political appointees from “burrowing in” to career civil service jobs in violation of merit system principles. Executive Order 13957 was revoked, and Schedule F was abolished, by President Joseph Biden through Executive Order 14003, “Protecting the Federal Workforce.”
1. Adverse Action Rights, Performance-Based Action Rights, and Appeals
Section 5 of Executive Order 13957 directed agency heads to review their entire workforces to identify any employees covered by chapter 75’s adverse action rules (which apply broadly to employees in the competitive and excepted service) who occupied positions of a “confidential, policy-determining, policy-making, or policy-advocating character”—including positions the agency assessed, for the first time, to arguably include these characteristics—and to petition OPM for its approval to place them in Schedule F, a newly-created category of positions excepted from the competitive service. If these positions had, in fact, been placed in Schedule F, the employees encumbering them would purportedly have been stripped of the adverse action procedural rights under chapter 75 and MSPB appeal rights discussed supra, thus allowing them to be terminated at will, by virtue of the placement of the positions they occupied in this new schedule (and regardless of any rights they had already accrued).
An express rationale of this action was to make it easier for agencies to “expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation.” This new sweeping authority was purportedly necessary for the President to have “appropriate management oversight regarding” the career civil servants working in positions deemed to be of a “confidential, policy-determining, policy-making or policy-advocating character,” and to incentivize employees in these positions to display what presidential appointees at an agency would deem to be “appropriate temperament, acumen, impartiality, and sound judgment,” in light of the importance of these functions. Executive Order 13957 did not acknowledge existing mechanisms to provide “appropriate management oversight,” such as chapter 43 and chapter 75 procedures, or the multiple management controls that agencies have in place to escalate matters of importance to agency administrators.
Executive Order 13957 instructed agency heads to review existing positions to determine which, if any, should be placed into Schedule F. The Executive order also instructed that, after agency heads conducted their initial review, they were to move quickly and petition OPM by January 19, 2021—the day before Inauguration Day—to place positions within Schedule F. After that, agency heads had another 120 days to petition OPM to place additional positions in Schedule F. In contrast to past excepted service schedules designed to address unique hiring needs upon a determination that appointments through the competitive service was “not practicable,” movement into Schedule F was designed to be broad and numerically unlimited, potentially affecting a substantial number of jobs across all Federal agencies. For example, according to the Government Accountability Office, the Office of Management and Budget petitioned to place 68 percent of its workforce, more than 400 employees, within Schedule F.
2. Hiring
Section 3 of Executive Order 13957 provided that “[a]ppointments of individuals to 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 shall be made under Schedule F.” The stated rationale for removing these positions from the competitive hiring process (or from other excepted service schedules in which some of these positions were previously placed) was, again, said to be because of the importance of their corresponding duties, and the need to have employees in these positions that display “appropriate temperament, acumen, impartiality, and sound judgment.” The stated purpose was to “provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures” or, presumably, for positions already in the excepted service, without the constraints imposed by 5 CFR part 302. Executive Order 13957 indicated that this change was intended to “mitigate undue limitations on their selection” and relieve agencies of “complicated and elaborate competitive service processes or rating procedures that do not necessarily reflect their particular needs.” These changes were to give agencies “greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment, and ability to meet the particular needs of the agency.” Executive Order 13957 failed to address the fact that the competitive hiring process permits agencies to assess all competencies that are related to successful performance of the job, including appropriate temperament, acumen, impartiality, and sound judgment and fulfill the congressional policy to confer a preference on eligible veterans or their family members entitled to derived preference. The qualifications requirements, specialized experience, interview process and other assessment methodologies available to hiring managers facilitate an agency’s ability to identify the best candidate. Executive Order 13957 also failed to address the existence of longstanding rules, grounded in the need to establish lack of unlawful bias in proceedings under Federal anti-discrimination statutes, that require assessment of any such competencies. The summary imposition of new competencies without validating them would be contrary to existing statutory requirements and could potentially be discriminatory in application, even if that were not the agency’s intent.
3. Political Appointees in Career Civil Service Positions
An additional concern relating to Executive Order 13957 was that it could have facilitated burrowing. “Burrowing” 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 without having to compete for that position or having been appropriately selected in accordance with merit system principles and the normal competitive or excepted service procedures applicable to the position under civil service law. OPM has long required that “politics play no role when agencies hire political appointees for career Federal jobs.” Indeed, OPM adopted procedures to review appointments of such individuals for compliance, and Congress has now essentially codified that procedure by requiring OPM to submit periodic reports of its findings. Executive Order 13957 potentially would have allowed agency heads to move current political appointees into new Schedule F positions, or vacancies in existing positions transferred to Schedule F, without competition and in a manner not based on merit system principles—in effect, allowing political appointees on Schedule C appointments, who would normally expect to depart upon a presidential transition, to “burrow” into permanent civil service appointments.
Ultimately, Executive Order 13957 was rescinded before any positions could be placed into Schedule F. As noted above, on January 22, 2021, President Joseph Biden issued Executive Order 14003, “Protecting the Federal Workforce,” stating that “it is the policy of the United States to protect, empower, and rebuild the career Federal workforce,” and that the Schedule F policy “undermined the foundations of the civil service and its merit system principles.” Executive Order 14003 rescinded Executive Order 13957 and abolished Schedule F.
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