During the last election, President-elect Trump made clear his belief that he considered the federal civil service to be a “deep state” that was hostile to his ability to govern. His plans for the federal workforce were clearly articulated in Project 2025. Following the 2024 election, and in light of his announced nominees for Cabinet and other senior positions, the future of the civil service and its employees is a topic of major concern.
Brief History of the Civil Service
Until 1883, the federal civil service was comprised entirely of employees hired by the governing Administration. As a result, whenever a President was elected, the entire federal workforce was replaced with new employees, who were hired based on connections rather than merit or experience. Indeed, hiring recommendations from Senators were so fierce, at one point President James Garfield wrote in his diary that he needed to remind himself “whether I was the registering Clerk of the Senate or the Executive of the government.” Pressure to change that system arose when President Garfield was assassinated by an office-seeker, who was trying to ingratiate himself with a New York Senator who controlled virtually all federal employment in that State.
The result of that pressure was the Pendleton Act of 1883. The Act 1) created the Civil Service Commission to administer the civil service; 2) required that employees be selected through competitive examinations and based on merit; and 3) forbade politically motivated firing or demotion of covered employees. The Hatch Act of 1939, currently administered by the Office of Special Counsel,
limits certain political activities of federal employees . . . The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.
Without question, with the exception of Presidential nominees (who must be confirmed by the Senate) and political appointees (who can be hired and fired at will), the motivating principle of the current federal workforce is that they are hired and retained based on merit and, importantly, insulated from political considerations during their employment.
The Current Civil Service
The federal workforce consists of three major “services”: the competitive service; the excepted service; and the Senior Executive Service. The vast majority of federal employees are in the competitive service. Congress has provided by law that competitive service employees who are not serving a probationary or trial period, or who have completed one year of continuous service in their position, are entitled to due process before they can be fired or suspended for more than 14 days. Congress has also defined due process in this instance to mean 30 days advance notice, an opportunity to review the evidence and respond, entitlement to an attorney or other representative, a written decision, and the ability to appeal the decision to the Merit Systems Protection Board.
OPM regulations define the excepted service as including positions for which common competitive hiring procedures are “not practicable.” The most common excepted service positions are found in Schedule A, which includes attorneys and those hired with a disability; and Schedule C, which includes positions of a confidential, policy-determining, policy-making, or policy-advocating character. The distinction between Schedules A and C is important. The due process protections available to competitive service employees are also available to excepted service employees who are not probationary or who have completed two years of continuous service in the same or similar positions. However, Congress specifically provided that Schedule C employees who are in the excepted service are not entitled to those protections. In other words, Schedule C employees – commonly called “political appointees” – may be terminated without notice or appeal.
Moreover, while Congress has protected most federal employees from retaliation for whistleblowing, and from discrimination “on the basis of . . . political affiliation, as prohibited under any law, rule, or regulation,” among other things, those protections are not available to employees in positions “excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character.”
Schedule F
In October 2020, the Trump Administration issued an executive order that would have created a new classification of federal employees, Schedule F, which would include most positions at grades GS-13 to GS-15. According to the Executive Order, “the Civil Service Rules and Regulations [providing appeal rights and other protections] shall not apply to removals from positions listed in Schedules A, C, … or F” unless otherwise required by law.
The basis for the due process exemption was clear: The Schedule defined these positions, primarily attorneys and mid-level managers, as “[p]ositions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition.” Because Schedule C and the statutes cited above already excluded positions requiring “confidential” and “policy-determining” responsibilities, the underlying premise for Schedule F was to remove a large segment of the federal workforce from positions protected by due process and, instead, permit hiring employees more politically inclined towards the Administration. In other words, a retreat from the non-partisan civil service that has existed for almost 150 years.
Dealing with Schedule F
When President Biden took office in January 2021, he was quick to rescind Trump’s executive order during his first week in office. Project 2025 laments the fate of the original Schedule F and strongly indicates that it will promptly be reinstated under a new Trump Administration. With a second Trump Administration set to begin on January 20, 2025, Schedule F is back on the table. Reports indicate that roughly 50,000 career civil service employees have been identified for inclusion, leaving them at risk.
If Schedule F is reinstated, the Administration’s ability to implement it will not be easy. First, in 2024, OPM issued new regulations, 89 FR 24982 (April 9, 2024), placing limitations on Schedule F. These limits include:
- “Clarifying that the status and civil service protections an 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;”
- “Clarifying 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;” and
- “Establishing procedural requirements for moving positions from the competitive service to the excepted service and within the excepted service.”
Unfortunately, a new Administration will be able to revise or rescind the above regulations, though that effort will potentially delay implementation of Schedule F by several months.
Second, Schedule F will be subject to litigation brought by affected employees and by federal employee labor unions and other organizations. These lawsuits will likely assert that Schedule F violates the Supreme Court’s decision upholding the Hatch Act, in which it affirmed Congress’ recognition
“over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service, and that the political influence of federal employees on others and on the electoral process should be limited” . . .
and that
It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof.
Moreover, these lawsuits will argue that, once Congress has granted due process protections to particular groups of federal employees, clearly enumerating the exceptions to those protections, any changes to those protections must be made by the Congress and are not subject to revision by the Executive branch.
Finally, the MSPB has long held that any effort to reassign employees from a position in which they have appeal rights to positions that lack those rights must be accompanied by notice of that consequence. While the employee may then decline the reassignment, and risk removal, the agency may then have to prove that the new position meets the criteria of Schedule F, i.e., that in fact it is policy determining, etc. That may be a difficult argument to make in many instances.
In sum, the new Administration’s urge to impose political allegiance on both legal staffs and ordinary mid-level managers is particularly troubling and inconsistent with the historic effort to shield these employees from political influence. Whether these efforts will succeed is not clear at the moment, but those potentially affected are wise to seek advice with respect to their risks.
If you need legal advice or representation regarding your rights, KCNF may be able to help. Contact us for a consultation.
(This article was written by George Chuzi and Olivia Carrara and also appeared in Westlaw Today on January 13, 2025.)