Schedule F
"Schedule F" was a proposed federal employee category introduced by an executive order signed by Donald Trump in October 2020. This category aimed to reclassify certain federal employees in policy-making and policy-implementing roles as "Schedule F," effectively exempting them from civil service protections, making them easier to hire and fire. However, the exact number of employees who would have been reclassified under Schedule F remains unclear, as it was never fully implemented. Estimates suggest that tens of thousands of federal employees, potentially up to 50,000 or more, could have been reclassified under this category, depending on how agencies interpreted and applied the criteria. The order was revoked by President Joe Biden shortly after he took office in January 2021.
At the same time that the administrative state was being built, reforms were underway to ensure that these new bureaucracies would be “professional.” According to the theory of the Progressives, bureaucracies would have to be staffed by people who were nonpartisan and not susceptible to the pressures of public opinion. Their work would be scientific, not political, and this meant that elected officials should not be able to appoint or remove them from office. The old way of staffing administrative agencies by appointment by elected officials, which led to the patronage system of the 19th century, would have to give way to a new model: the civil service system.
The Pendleton Act created the modern system of competitive examinations for federal office. At first, only 10 percent of the federal workforce was covered under the Pendleton Act, but the President was given power to increase that ratio by executive order. Theodore Roosevelt extended the civil service program to cover over 60 percent of the federal workforce; today, the percentage of federal employees who are not covered is less than 0.001 percent. What this means is that the overwhelming majority of the decision makers in the administrative state are neither elected by the people nor directly responsible to someone who is elected by the people. They are, literally, unelected bureaucrats.
Much has changed since the Civil Service Act of 1883 (Pendleton Act) first laid the foundation for the federal personnel system, which has continued to develop through the passage of subsequent laws, including the Civil Service Reform Act of 1978.1 Agencies’ missions have evolved and employees’ expectations of work and the workplace are changing. Agencies have faced challenges maintaining a workforce that can meet agencies’ obligations. In response to these challenges, Congress and the President established a category of positions that are not generally required to meet certain competitive service requirements — known as excepted service positions.
President Trump issued Executive Order 13957 (E.O.) in October 2020, which required federal agencies to conduct a preliminary review to determine which of their workforces' positions met criteria for placement into a newly created Schedule F category of federal positions (see figure). These positions would have had a streamlined hiring process. In addition, certain due process rights, such as notice of removal and the right to appeal removals to the Merit Systems Protection Board, would be unavailable to individuals in these positions. No agency placed positions into Schedule F before the executive order that created it was revoked in January 2021 — although a few considered doing so.
President Biden subsequently revoked E.O. 13957 in January 2021 through E.O. 14003.4 E.O. 14003 stated “[Schedule F] not only was unnecessary to the conditions of good administration but also undermined the foundations of the civil service and its merit system principles, which were essential to the [Pendleton Act’s] repudiation of the spoils system.”
On 21 October 2020 Trump issued an executive order creating Schedule F in the Excepted Service. "To effectively carry out the broad array of activities assigned to the executive branch under law, the President and his appointees must rely on men and women in the Federal service employed in positions of a confidential, policy-determining, policy-making, or policy-advocating character. Faithful execution of the law requires that the President have appropriate management oversight regarding this select cadre of professionals.
"The Federal Government benefits from career professionals in positions that are not normally subject to change as a result of a Presidential transition but who discharge significant duties and exercise significant discretion in formulating and implementing executive branch policy and programs under the laws of the United States. The heads of executive departments and agencies (agencies) and the American people also entrust these career professionals with non-public information that must be kept confidential.
"With the exception of attorneys in the Federal service who are appointed pursuant to Schedule A of the excepted service and members of the Senior Executive Service, appointments to these positions are generally made through the competitive service. Given the importance of the functions they discharge, employees in such positions must display appropriate temperament, acumen, impartiality, and sound judgment.
"Due to these requirements, agencies should have a greater degree of appointment flexibility with respect to these employees than is afforded by the existing competitive service process.
"Further, effective performance management of employees in confidential, policy-determining, policy-making, or policy-advocating positions is of the utmost importance. 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.
"Separating employees who cannot or will not meet required performance standards is important, and it is particularly important with regard to employees in confidential, policy-determining, policy-making, or policy-advocating positions. High performance by such employees can meaningfully enhance agency operations, while poor performance can significantly hinder them. Senior agency officials report that poor performance by career employees in policy-relevant positions has resulted in long delays and substandard-quality work for important agency projects, such as drafting and issuing regulations.
"Pursuant to my authority under section 3302(1) of title 5, United States Code, 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. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures. 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. These are all qualities individuals should have before wielding the authority inherent in their prospective positions, and agencies should be able to assess candidates without proceeding through complicated and elaborate competitive service processes or rating procedures that do not necessarily reflect their particular needs.
"Conditions of good administration similarly make necessary excepting such positions from the adverse action procedures set forth in chapter 75 of title 5, United States Code. Chapter 75 of title 5, United States Code, requires agencies to comply with extensive procedures before taking adverse action against an employee. These requirements can make removing poorly performing employees difficult. Only a quarter of Federal supervisors are confident that they could remove a poor performer. Career employees in confidential, policy-determining, policy-making, and policy-advocating positions wield significant influence over Government operations and effectiveness. Agencies need the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation."
The phrase “normally subject to change as a result of a Presidential transition” refered to positions whose occupants are, as a matter of practice, expected to resign upon a Presidential transition and includes all positions whose appointment requires the assent of the White House Office of Presidential Personnel. Appointments of individuals to positions of a confidential, policy-determining, policy-making, or policy-advocating character that are not normally subject to change as a result of a Presidential transition shall be made under Schedule F of the excepted service, as established by this order.
Office of Personnel Management lists positions that it excepts from the competitive service in Schedules A, B, C, D, E, and F, which schedules shall constitute parts of this rule, as follows:
Schedule A. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be listed in Schedule A.
Schedule B. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination shall be listed in Schedule B. Appointments to these positions shall be subject to such noncompetitive examination as may be prescribed by OPM.
Schedule C. Positions of a confidential or policy-determining character normally subject to change as a result of a Presidential transition shall be listed in Schedule C.
Schedule D. Positions other than those of a confidential or policy-determining character for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs. These positions, which are temporarily placed in the excepted service to enable more effective recruitment from all segments of society by using means of recruiting and assessing candidates that diverge from the rules generally applicable to the competitive service, shall be listed in Schedule D.
Schedule E. Position of administrative law judge appointed under 5 U.S.C. 3105. Conditions of good administration warrant that the position of administrative law judge be placed in the excepted service and that appointment to this position not be subject to the requirements of 5 CFR, part 302, including examination and rating requirements, though each agency shall follow the principle of veteran preference as far as administratively feasible.
Schedule F. Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition shall be listed in Schedule F. In appointing an individual to a position in Schedule F, each agency shall follow the principle of veteran preference as far as administratively feasible.”
Schedule F would include positions whose duties include: substantive participation in the advocacy for or development or formulation of policy, especially: substantive participation in the development or drafting of regulations and guidance; or substantive policy-related work in an agency or agency component that primarily focuses on policy; the supervision of attorneys; substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law; viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations generally covered by deliberative process privilege: directly reporting to or regularly working with an individual appointed by either the President or an agency head who is paid at a rate not less than that earned by employees at Grade 13 of the General Schedule; or working in the agency or agency component executive secretariat (or equivalent); or conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code.
The question remains open regarding the possibility of replacing non-party officials with people who are exclusively loyal to Trump. As evidenced by a 2023 survey of the Partnership for Public Service organization, 87% of Americans believe that "nonpartisan public service is important for democracy."
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