Part of the package of executive orders issued on January 20, 2025 was an executive order entitled, “Restoring Accountability To Policy-Influencing Positions Within the Federal Workforce.” This executive order sought to reinstate “Schedule F,” although the fate of the initiative remains uncertain as of the date of this blog entry.
The original Schedule F was proposed in the waning days of the first Trump Administration, under E.O. 13957. This executive order sought to add a new sixth category employees to the Excepted Service. The schedule was designed to cover “Positions of a confidential, policy-determining, policy-making, or policy-advocating character” which were not sufficiently political that the incumbents would be expected to resign at the change of administration. Employees moved into Schedule F positions who were subject to adverse actions were to be denied Merit Systems Protection Board (MSPB) appeal rights irrespective of their time in service, and were also denied the ability to pursue whistleblower reprisal complaints or other Prohibited Personnel Practice (PPP) claims before the Office of Special Counsel or MSPB; the order contemplated the agencies creating restrictions similar to PPP rules, but with no clarity on how such claims would be enforced. E.O. 13957 required agencies to review their employee rosters and identify positions for reassignment into Schedule F, including from positions previously in the Competitive Service. Agencies were also to seek to have Schedule F employees excluded from union collective bargaining units.
Schedule F was not fully implemented at the time President Biden took office, and was rescinded by E.O. 14003. At the time of the original Schedule F’s rescission, only a few agencies had substantially completed their process of identifying how many employees should be reclassified into Schedule F, but some of those agencies identified high numbers of their employees as potentially qualifying for Schedule F. For example, according to a 2022 Government Accountability Office report, the Office of Management and Budget had identified a full 68 percent of its workforce, including employees as low as GS-9 level, as warranting reclassification into Schedule F.
As previously discussed in this blog, during the Biden Administration, OPM conducted a formal rulemaking to modify the Code of Federal Regulations with an intent to make future attempts to recreate Schedule F more difficult, with a Final Rule issued in 2024. Those protections included giving employees involuntarily reclassified into a future Schedule F the ability to retain the pre-reclassification MSPB appeal rights, and a right to appeal their reclassification to the MSPB.
The new executive order rescinded E.O. 14003 and claimed to reinstate E.O. 13957 with some limited modifications. The category of employees was renamed from “Schedule F” to “Policy/Career” employees. Decisions on whether to finally reclassify employees on a schedule prepared by a given agency is to be made by the President directly, as opposed to E.O. 13957 which had delegated that decision to the Director of the Office of Personnel Management (OPM). Two additional categories of employees were identified as candidates for reclassification as “Schedule Policy/Career” employees: employees who supervised other Policy/Career employees and a catch-all category of employees performing “duties that the Director [of OPM] otherwise indicates may be appropriate for inclusion in Schedule Policy/Career. OPM was also directed to initiate rulemaking proceedings to cancel OPM’s April 2024 Final Rule and purporting to “h[o]ld inoperative and without effect” the MSPB appeal rights for involuntary reclassifications from the April 2024 Final Rule discussed above. Finally, the new executive order added a new provision specifying that “Employees in or applicants for Schedule Policy/Career positions are not required to personally or politically support the current President or the policies of the current administration. They 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. Failure to do so is grounds for dismissal.”
A subsequent January 27, 2025 OPM guidance memorandum provided further elaboration on the Administration’s alleged legal authority for declaring the April 2024 Final Rule inoperative. The guidance memorandum set a deadline of April 20, 2025 for agencies to submit their lists of employees proposed for Schedule Policy/Career reclassification. The memorandum also claimed that the Schedule Policy/Career jobs would not be politically-appointed patronage jobs, and that the positions would remain subject to their prior appointment methods (former competitive service positions to still be appointed in the manner of the competitive service, and positions reclassified from other excepted service scheduled to still be appointed in the fashion from their prior excepted service schedule).
As of the date of this blog post, at least one lawsuit has been filed (specifically, by the National Treasury Employees Union) seeking an injunction against the new executive order, leaving the final outcome of the new “Schedule Policy/Career” up in the air, especially in light of the newer less-deferential judicial standard of review of agency regulations under the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo.
If you are a federal employee and wish to discuss how Schedule F may impact your job and your rights, consider contacting Gilbert Employment Law to request an initial consultation.