OPM: The Order attempted to subject employees to removal, at will, by virtue of the involuntary placement of the positions they occupied in this new schedule. Image: tomertu/Shutterstock.com
By: FEDweek StaffFollowing is the section of final rules issued by OPM designed to block the return of an excepted service Schedule F where the agency discusses the order that was issued in late 2020 by the then-Trump administration but that was quickly revoked by the Biden administration in early 2021.
OPM received many comments related to Schedule F from both proponents and critics of it and Executive Order 13957. The lawfulness and wisdom of the policy choices embodied in now-revoked Schedule F are in most respects outside the scope of this rulemaking. Regardless of whether Executive Order 13957 was a valid exercise of authority, it is not directly at issue here. Nonetheless, numerous commenters addressed the topic and OPM has determined that it would be prudent to set forth its views in response to those comments. The various parts of the Executive Order, Schedule F, and related comments are thus addressed below. The validity of this rule does not depend on the legality or wisdom of Executive Order 13957.
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 services) who occupied positions of a “confidential, policy-determining, policy-making, or policy-advocating character.” These included positions the agency assessed for the first time, without guidance or precedent, to allegedly include these characteristics. Agencies were then to petition OPM for its approval to place them in Schedule F, a newly-created category of positions to be excepted from the competitive service. If these positions had been placed in Schedule F, the employees encumbering them would have, according to the text of the Executive Order, been stripped of any adverse action procedural rights and MSPB appeal rights under chapter 75 discussed supra. Thus, the Order attempted to subject employees to removal, at will, by virtue of the involuntary placement of the positions they occupied in this new schedule (and regardless of any rights they had already accrued or any reliance on those rights).
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 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 the Inauguration—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 within Schedule F. Moreover, the Executive Order did not make the underlying determination that particular positions were “of a confidential, policy-determining, policy-making or policy-advocating character.” In essence, the exception was created in advance of any determination. The Executive Order instead announced that any position that could be described in these terms, and which was not encumbered by an appointee under Schedule C, should be placed in a separate and new excepted service schedule. The Executive Order then directed agencies to determine which of their positions met that criterion and compile a list of individuals for OPM to consider placing in Schedule F.
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, 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. The Order 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.”
The Executive Order did not address 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. They also permit agencies to 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. The Order also did not 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 would be contrary to existing statutory requirements and could potentially be discriminatory in application, even if that were not the agency’s intent. Finally, the Order recited that the normal statutory veterans’ preference requirements that would have applied to identified positions would not apply, and that agencies would be required to apply veterans’ preference requirements only “as far as administratively feasible.”
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