Lewis Baach Kaufmann Middlemiss Investigates Trump’s New Schedule F
In the dying days of his administration, President Trump has moved to smash the civil service. Through Executive Order 13957 (“EO 13957” or the “EO”), the President aims to carve out an entire new class of civil servants, sheering them from long-standing federal protections designed to create a professional, apolitical federal workforce. Lewis Baach Kaufmann Middlemiss is investigating the scope of the Executive Order and possible remedies available to affected civil servants.
The Pendleton Act of 1883 was enacted to protect professional federal employees from political pressure and to do away with rampant political patronage. Its basic tenets have lasted for almost 140 years, providing key protections to those federal employees who keep our government running. All Executive Branch appointive positions not requiring Senate confirmation and not in the Senior Executive Service are in what is known as the “competitive service” unless specifically excepted by statute. Presidents are authorized to create new excepted service employees when warranted by “conditions of good administration,” but this EO is particularly pernicious and capacious in its reach. Crucially, competitive service employees are protected from political pressure; they can only be terminated for cause. Through EO 13957, the Trump Administration is seeking to change that.
EO 13957 creates a new category (or “schedule”) of excepted employees, Schedule F. The EO also directs agencies to identify positions currently in the competitive service to be moved into Schedule F. The EO defines Schedule F excepted employees as those in “positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition.” In other words, the EO takes aim at federal employees in the most important and sensitive career-positions who have traditionally been protected from politically-based termination, and in one broad stroke, makes them susceptible to political partisanship. These employees would be stripped of their employment protections and could be immediately removed from the federal workforce on a political whim.
LBKM has studied the EO and its ramifications as well as the various remedies available to federal employees facing exception into Schedule F. Although individual particulars and federal employment law itself may limit judicial access, and doctrines such as administrative exhaustion and the need for final agency action may preclude a particular suit, affected individuals are not without redress. Possible remedies include:
- Appeals to the Merit Systems Protection Board, which exercises appellate jurisdiction over employment-related matters for competitive service and some excepted service employees;
- Claims in federal court under the Administrative Procedures Act, including pre-enforcement challenges to agency regulations; and
- Claims under the Fifth Amendment’s Due Process Clause and the First Amendment’s Free Speech Clause.
Ultimately, the answer may be a political one. President-elect Biden could reverse this EO and restore the long-held protections to career public servants. In addition, or in the alternative, Congress could clarify the law in a way that limits future presidents’ discretion to take such widespread action. Meanwhile, LBKM attorneys continue to investigate the EO and its ramifications, and are prepared to marshal their experience representing federal employees unfairly deprived of their positions.
For further information please contact:
- Adam S. Kaufmann at adam.kaufmann@lbkmlaw.com or +1.212.826.7001
- A. Katherine Toomey at katherine.toomey@lbkmlaw.com or +1.202.659.7216
- Tara J. Plochocki at tara.plochocki@lbkmlaw.com or +1.202.659.7217
- Jon Gryskiewicz at jon.gryskiewicz@lbkmlaw.com or +1.202.659.6749
The foregoing is for informational purposes only. It is not intended as legal advice and no attorney-client relationship is formed by the provision of this information.