Final Schedule F regulations to describe civil service protections as ‘unconstitutional overcorrections’

Draft final regulations from the Office of Personnel Management will cite “accountability to the president” as grounds for stripping tens of thousands of federal employees of their civil service protections, according to excerpts reviewed by Government Executive.

First devised late in President Trump’s first term and reissued in January, Schedule F—now renamed Schedule Policy/Career—is a new job classification within the government’s excepted service for "policy-related" positions. Employees in positions targeted for conversion would become effectively at-will employees.

Last week, OPM promulgated an early copy of its final rule implementing the initiative to federal agencies for review and comment, a sign that its publication could be imminent. That followed all agencies recently turning over to OPM their proposed lists of positions for conversion, and the human resources agency making initial recommendations on those proposals. OPM estimated in its proposed rule issued in April that around 50,000 federal workers would be placed in the new job category, or around 2% of the civilian workforce.

The updated regulations cite the president’s authority under Article II of the Constitution and appears to describe the 1978 Civil Service Reform Act and other laws insulating the federal workforce from politicization as “unconstitutional overcorrections” to the excesses of former President Richard Nixon, who resigned in the wake of the Watergate scandal and efforts to make federal agencies more “politically responsive.”

“Critical to the success of any presidency is the ability to implement an agenda endorsed by the American people free from antidemocratic, unaccountable bureaucratic resistance,” the rule states. “As explained in greater detail in the proposed rule, the federal service has matured to the point where the status quo removal restrictions are unconstitutional overcorrections over fears of a return to the spoils system of the past.”

The final version of the rule still could be subject to change after agencies submit feedback. 

According to an OPM email summarizing the regulations, the rule states that employees transferred into Schedule Policy/Career will no longer be protected by the removal protections in Chapter 75 of Title 5 of the U.S. Code or the right to adverse action appeals and unwinds the Biden administration’s regulations seeking to block the new job category’s resurrection.

During a conference call for more than 200 agency HR leaders Tuesday, Noah Peters, a senior advisor to OPM Director Scott Kupor, argued that Congress granted the president the authority to exempt government jobs from civil service rules when it passed the CSRA.

“Congress, in 5 U.S.C. 7511, exempted from Chapter 75 removal procedures employees whose positions have been determined by the president or by OPM to be of a confidential, policy-determining or policy-incluencing character,” Peters said. “It’s been in the CSRA since it was drafted in 1978–it’s kind of a longstanding delegation from Congress to say that presidents who are in the position to influence policy have a closer relationship to the president and to the executive, where he really needs the ability to remove them at will.”

Most civil service experts agree that the CSRA’s definition of policy-related positions was confined solely to political appointees, not career federal workers.

Peters said that the rule allows for current recipients of agency recruitment, retention and relocation agreements or student loan repayment benefits to be “grandfathered” into continuing to receive those benefits, but suggested such benefits would not be offered to future job applicants. Generally, excepted service employees are ineligible for such perks. Peters added the final rule will note that retirement benefits and eligibility for performance awards will also not be affected by placement into Schedule Policy/Career. 

One agency official asked how Schedule Policy/Career might affect bargaining unit employees, which could trigger management’s duty to bargain over the change in removal procedures. Peters suggested that the final rule’s issuance could open a new front in the Trump administration’s war with most federal employee unions.

“We envision there will be a number of unit clarification petitions filed with the [Federal Labor Relations Authority] to clarify [Schedule Policy/Career] positions’ bargaining unit status,” he said. “Anybody who’s in one of these positions really shouldn’t be in a bargaining unit–they should be management employees.”

OPM reported that during its public comment period, the Schedule Policy/Career regulatory proposal garnered the most submissions in the agency’s history at 40,500 comments, of which 94% were opposed.

Peters told HR officials that those comments helped them strengthen the rule, namely by reiterating claims that Schedule Policy/Career employees and job applicants will remain insulated from politically motivated hiring and firing decisions.

“One of, if not the, most frequent comments reflected a misunderstanding that this creates a new schedule of political appointees, and that’s completely not true,” he said. “There are lots of sections in the final rule that recognize the importance of the career civil service and the irreplaceability of a career civil service that remains consistent between presidential administrations.”

He added the goal was to allow for the efficient removal of some federal workers without overhauling the entire civil service. 

“Agencies should not use this new final rule to reshape their workforces or skip [reduction-in-force] procedures or do kind of mass firings or anything like that,” Peters said. “The purpose of this rule is to address poor performance, misconduct, resistance to policy.”

OPM said it will roll out implementation guidance and a frequently asked questions document to accompany the final rule. Trump will then need to issue an executive order to finalize each delegated position as subject to Schedule Policy/Career.