Report: Key Differences between Schedule F and ‘Schedule Policy/Career’

Following is the section of a Congressional Research Service report on the key differences between President Trump’s original 2020 Schedule F excepted service order and the “Schedule Policy/Career positions” under his new order.

On October 21, 2020, the first Trump Administration issued EO 13957, “Creating Schedule F in the Excepted Service.” On January 22, 2021, President Biden signed EO 14003, “Protecting the Federal Workforce,” which revoked EO 13957—in addition to other presidential and regulatory actions by the prior administration—and ordered all executive departments and agencies to suspend or rescind all proposed actions, rules, regulations, or other guidance to effectuate Schedule F. On January 20, 2025, the second Trump Administration reinstated EO 13957 with some amendments and rescinded the Biden Administration’s EO 14003. In issuing the original EO 13957 and the 2025 amendments, President Trump cited his authority under Sections 3301, 3302, and 7511 of Title 5 of the U.S. Code to regulate the civil service. EO 13957 directs each agency head to identify federal government career positions appropriately categorized as having a “confidential, policy-determining, policy-making, or policy-advocating character that are not normally subject to change as a result of a Presidential transition” and provides processes for placing those positions in a new schedule (previously called “Schedule F”) in the excepted civil service.

Section 5 of EO 13957 provides that when conducting a review of positions to include in the new schedule, agency heads should “give particular consideration” to positions whose duties include “substantive participation in the advocacy for or development or formulation of policy,” especially in the “development or drafting of regulations or guidance” or in an agency “component that primarily focuses on policy,” “the supervision of attorneys,” “substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law,” “working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations generally covered by deliberative process privilege” and either reporting to or regularly working with a certain level of politically appointed employees or working in an executive secretariat or equivalent, or “conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code.” The 2025 amendments add two more categories of positions to consider for inclusion in the new schedule: positions “directly or indirectly supervising employees in Schedule Policy/Career positions” and positions with “duties that the Director otherwise indicates may be appropriate for inclusion.” Those additional categories, particularly the latter one, could substantially expand the scope of positions considered for inclusion in the new schedule. The 2025 amendments require the Director of OPM to issue guidance about the additional positions that may be appropriate for inclusion within 30 days from the EO’s issuance.

For competitive service positions and excepted service Schedule A, Schedule B, or Schedule D positions meeting the new schedule criteria, EO 13957 had required agency heads to petition OPM to reschedule such employees. For positions already excepted from the competitive service by statute, agency heads were required to determine which excepted service positions met the criteria of the new schedule and to publish that determination in the Federal Register. OPM’s grant of a petition and an agency head’s publication would appear to constitute final agency action for purposes of a possible legal challenge under the Administrative Procedure Act (APA). These kinds of challenges are discussed in more detail below.

The 2025 amendments change EO 13957’s process for transitioning competitive service employees to the new schedule (but retains the process for positions excepted from the competitive service by statute). Instead of giving OPM authority to reschedule the competitive service employees upon petition, the 2025 amendments provide that “[t]he Director shall promptly recommend to the President which positions should be placed in Schedule Policy/Career.” Agency recommendations, in contrast to decisions, are less likely to constitute final agency action under the APA, meaning they may be less likely to form a basis for certain judicial challenges. Additionally—as discussed further below—courts may be less likely to entertain challenges to the President’s decision to reschedule a competitive service position, at least under the APA.

Section 5 of EO 13957 also requires that each agency head shall “expeditiously petition the Federal Labor Relations Authority (FLRA) to determine whether any new schedule position must be excluded from a collective bargaining unit” under the Federal Service Labor-Management Relations Statute, based on “whether incumbents in such positions are required or authorized to formulate, determine, or influence the policies of the agency,” and thereby removing such employees from federal labor-management protections.

Seemingly recognizing that EO 13957 would result in employees being reorganized into a personnel category without a statutory mandate against prohibited personnel practices, Section 6 of EO 13957 requires that agencies “establish rules to prohibit the same personnel practices prohibited by section 2302(b) of title 5, United States Code” for new schedule employees and applicants. Neither the original text of EO 13957 nor its 2025 amendments address, however, whether the OSC should be involved with remediating alleged prohibited personnel practices. It seems possible that the new schedule employees could be subject to a prohibited personnel practice investigation and enforcement process that is not only different from what is currently available, but that varies across agencies.

The 2025 amendments also add a new paragraph specifying that employees in, or applicants for, the new schedule positions “are not required to personally or politically support the current President” but “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.” It continued, “[f]ailure to do so is grounds for dismissal.” This language may be intended to lower the likelihood of lawsuits based on claims that the new schedule infringes on civil service employees’ free speech rights, but some may argue that it nonetheless represents a potential conflict with the oath that civil service employees (other than the President) are required to take. Section 3331 of Title 5, U.S. Code, requires elected and appointed civil service employees to swear that they “will support and defend the Constitution of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.”