The Biden administration is implementing a new rule designed to thwart any future attempts to revive Schedule F. The Office of Personnel Management (OPM) issued the new rule which will be published in the Federal Register on April 9, 2024.
The new rule outlines the following:
- It clarifies that the status and civil service protections a federal employee has accrued cannot be taken away by an involuntary move from the competitive service to the excepted service, or from one excepted service schedule to another. Once a career civil servant earns protections, that employee retains them unless waived voluntarily.
- It clarifies that the phrase “confidential, policy determining, policymaking, or policy-advocating” positions—a term of art to describe positions that lack civil service protections—means noncareer, political appointments. This rule prevents that exception from being misapplied to career civil servants.
- It establishes procedural requirements for moving positions from the competitive service to the excepted service and within the excepted service. OPM says that this change both creates transparency and establishes an appeals process for federal employees when any such movement is involuntary and characterized as stripping employees of their civil service protections.
OPM issued a proposed rule on September 18, 2023, seeking public comment. This final rule is the outcome of that process.
Rationale for Issuing the New Rule
Statements from Biden administration officials articulate why the agency is issuing the rule change.
OPM Director Kiran Ahuja said, “This final rule honors our 2.2 million career civil servants, helping ensure that people are hired and fired based on merit and that they can carry out their duties based on their expertise and not political loyalty. The Biden-Harris Administration is deeply committed to the federal workforce, as these professionals are vital to our national security, our health, our economic prosperity, and much more.”
White House Office of Management and Budget Deputy Director for Management Jason Miller said, “The Biden-Harris Administration knows that career civil servants are the backbone of the federal workforce and should be able to provide the expertise and experience necessary for the critical functioning of the federal government. As part of the President’s Management Agenda, it is a clear policy of the United States government to protect, empower, and rebuild the career federal workforce, and this final rule does just that.”
President Biden said, “Day in and day out, career civil servants provide the expertise and continuity necessary for our democracy to function. They provide Americans with life-saving and life-changing services and put opportunity within reach for millions. That’s why since taking office, I have worked to strengthen, empower, and rebuild our career workforce. This rule is a step toward combatting corruption and partisan interference to ensure civil servants are able to focus on the most important task at hand: delivering for the American people.”
Congressman Gerry Connolly (D-VA) said last year when he introduced legislation to ban Schedule F, “The former President’s attempt to remove qualified experts and replace them with political loyalists was a direct threat to our national security and our government’s ability to function the way the American people expect it to. Expertise, not political fealty, must define our civil service.”
Arguments Against the New Rule
Not everyone supports the new rule or the underlying political agenda.
The new rule is based on the fear of Donald Trump’s actions should he become president again. As noted below, he issued an executive order late in his administration that could have resulted in thousands of career civil services positions being reclassified and would have made it easier to fire them.
While the federal civil service is designed to help the current administration implement its policies, the workforce has changed. When President Kennedy issued an executive order establishing federal employee unions, the political nature of the workforce started to change.
Unions are allowed to participate in political activity and they do. Money, time, and effort are devoted to electing their preferred candidates and disparaging the opposition. In the vast majority of cases, this means the federal unions are actively supporting Democrats and working against Republicans.
As noted in this article, most union donations go to support Democrats. The Biden administration has been a strong supporter of unions. The Office of Personnel Management no longer reports the cost of unions working on “official time” and appointees to political positions making decisions impacting the human resources program for federal employees often have a union background.
Most political donations from federal employees support Democrats, and that has been the case for a number of years.
The federal government now sets policies in a wide variety of areas impacting Americans by issuing new rules and regulations, often without Congressional approval. Federal employees who are strong advocates for climate change actions by the government, for example, will still be in their positions should Donald Trump become president again. It is doubtful that strong advocates for liberal policies will work to support a different agenda.
History of Schedule F
The history behind Schedule F has become an intense political debate. It was enacted during the Trump administration when President Trump issued an Executive Order on “Creating Schedule F in the Excepted Service.” The OPM guidance to agencies outlined how they were to implement the order.
The Executive Order would have removed some federal positions from the competitive service. The positions impacted would have been those of a confidential, policy-determining, policy-making, or policy-advocating character. These jobs are often filled by people who are not normally replaced when a new president assumes office.
They would be exempt from both the competitive hiring rules and adverse action procedures under Chapter 75 of Title 5 of the United States Code.
This was Trump’s rationale for issuing the Executive Order:
…I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character….Placing these positions in the excepted service will mitigate undue limitations on their selection. This action will also 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….
Unfortunately, the Government’s current performance management is inadequate, as recognized by Federal workers themselves. For instance, the 2016 Merit Principles Survey reveals that less than a quarter of Federal employees believe their agency addresses poor performers effectively.
Executive Order on Creating Schedule F In The Excepted Service
On January 21, 2021, the day after his inauguration, President Biden revoked this Executive Order along with some others that placed restrictions on federal employee unions. It was one of his first actions as president.
Since then, it has continued to stir political emotions along party lines. Democrats generally oppose it, while Republicans generally favor it.
What is the Future of Schedule F?
Does OPM’s new rule mean we have heard the last of Schedule F? Not necessarily. It is not a law which means a new rule could be issued under a future presidential administration. Only Congress can make law, so Congress would have to pass a law to make any definitive lasting change to Schedule F. Consequently, the political debate can continue, which is a likely possibility during an election year.
FedSmith author Ralph Smith summarized the situation while also presciently predicting that OPM’s proposed rule on Schedule F would turn into a final rule. He wrote:
Creating a system to enable easy removal of federal employees in “confidential, policy-determining, policy-making, or policy-advocating” and “confidential or policy-determining” positions is a hot topic. Some see making it easier to remove employees in these jobs as a system that will “diminish faith in our democracy, terrorize the federal workforce, and inject politics into the routine day-to-day operations of government agencies.” Others see the OPM proposal as one that will “protect incompetent or intransigent employees” and will “shield career bureaucrats from accountability for how they exercise federal power.”
The OPM proposal is obviously about politics and political power. Those on both sides of the issue hold strong positions and often claim to want the same result (a competent, non-partisan federal workforce) but see the issue from different perspectives.
There is little doubt the OPM proposal will be implemented quickly. It is not a new law. As it is a regulation to be issued by OPM, it can be changed by subsequent administrations. It is also likely to be the topic of court review in the future.
