Rule2024-06815
Upholding Civil Service Protections and Merit System Principles
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 9, 2024
Effective
May 9, 2024
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is issuing final regulations to reinforce and clarify longstanding civil service protections and merit system principles, codified in law, as they relate to the involuntary movement of Federal employees and positions from the competitive service to the excepted service, or from one excepted service schedule to another. In this final rule, OPM adopts many of the provisions from the proposed rule with some modifications and clarifications based on comments received from the public. The final regulations will better align OPM regulations with relevant statutory text, congressional intent, legislative history, legal precedent, and OPM's longstanding practice.
Full Text
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[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Rules and Regulations]
[Pages 24982-25049]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06815]
[[Page 24981]]
Vol. 89
Tuesday,
No. 69
April 9, 2024
Part III
Office of Personnel Management
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5 CFR Parts 210, 212, 213, et al.
Upholding Civil Service Protections and Merit System Principles; Final
Rule
Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules
and Regulations
[[Page 24982]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 210, 212, 213, 302, 432, 451, and 752
[Docket ID: OPM-2023-0013]
RIN 3206-AO56
Upholding Civil Service Protections and Merit System Principles
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to reinforce and clarify longstanding civil service
protections and merit system principles, codified in law, as they
relate to the involuntary movement of Federal employees and positions
from the competitive service to the excepted service, or from one
excepted service schedule to another. In this final rule, OPM adopts
many of the provisions from the proposed rule with some modifications
and clarifications based on comments received from the public. The
final regulations will better align OPM regulations with relevant
statutory text, congressional intent, legislative history, legal
precedent, and OPM's longstanding practice.
DATES: Effective May 9, 2024.
FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at
<a href="/cdn-cgi/l/email-protection#c8ada5b8a4a7b1adada9ababa7bda6bca9aaa1a4a1bcb188a7b8a5e6afa7be"><span class="__cf_email__" data-cfemail="aecbc3dec2c1d7cbcbcfcdcdc1dbc0dacfccc7c2c7dad7eec1dec380c9c1d8">[email protected]</span></a> or by phone at (202) 606-2930.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Digest of Public Comments
III. Background and Related Comments
A. The Career Civil Service, Merit System Principles, and Civil
Service Protections
B. Conduct and Performance Under the Civil Service Reform Act of
1978
C. The Competitive, Excepted, and Senior Executive Services
D. The Prior Schedule F
E. General Comments
F. OPM's Authority To Regulate
IV. Regulatory Amendments and Related Comments
A. Retention of Status and Civil Service Protections Upon a Move
B. Positions of a Confidential, Policy-Determining, Policy-
Making, or Policy-Advocating Character
C. Agency Procedures for Moving Employees
V. Regulatory Analysis and Related Comments
A. Statement of Need
B. Regulatory Alternatives
C. Impact
D. Costs
E. Benefits
VI. Procedural Issues and Regulatory Review
A. Severability
B. Regulatory Flexibility Act
C. Regulatory Review
D. Executive Order 13132, Federalism
E. Executive Order 12988, Civil Justice Reform
F. Unfunded Mandates Reform Act of 1995
G. Congressional Review Act
H. Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
VII. Regulatory Amendments
I. Executive Summary
The Office of Personnel Management (OPM) is issuing final
regulations governing competitive service and competitive status,
employment in the excepted service, and adverse actions. The final rule
also makes conforming changes to the regulations governing performance-
based actions and awards.
This rule clarifies and reinforces longstanding civil service
protections and merit system principles, reflected in the passage of
the Pendleton Civil Service Reform Act of 1883. The Act ended the
patronage, or ``spoils,'' system for Federal employment and initiated
the competitive civil service. For the past 140 years, Congress has
enacted statutes and agencies have promulgated rules that govern the
civil service, beginning with laws that limited political influence in
employment decisions and growing over the years to establish
comprehensive laws regulating many areas of Federal employment. These
changes were designed to further good government. Subsequent statutes,
including, among others, the Lloyd-La Follette Act of 1912, the
Veterans' Preference Act of 1944, as amended, the Civil Service Reform
Act of 1978 (CSRA), and the Civil Service Due Process Amendments Act of
1990, extended and updated these civil service provisions.
Whereas the Pendleton Act eliminated the spoils system and
introduced a merit-based civil service as a key pillar of our
democratic system, the CSRA was the signature, bipartisan reform that
has most shaped the system we have today.\1\ It created an elaborate
``new framework'' \2\ of the modern civil service, protected career
Federal employees from undue partisan political influence, and extended
adverse action rights by statute to a larger cohort of employees, so
that the business of government can be carried out efficiently and
effectively, in compliance with the law, and in a manner that
encourages individuals to apply to participate in the civil service.
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\1\ See Lindahl v. OPM, 470 U.S. 768, 773 (1985) (explaining
that the CSRA ``overhauled the civil service system'').
\2\ Id. at 774; see United States v. Fausto, 484 U.S. 439, 443
(1988).
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The 2.2 million career civil servants active today are the backbone
of the Federal workforce. They are dedicated and talented professionals
who provide the continuity of expertise and experience necessary for
the Federal Government to function optimally across administrations.
These employees take an oath to uphold the Constitution and are
accountable to agency leaders and managers who, in turn, are
accountable to the President, Congress, and the American people for
their agency's performance. At the same time, these civil servants must
carry out critical tasks requiring that their expertise be applied
objectively (performing data analysis, conducting scientific research,
implementing existing laws, etc.).
Congress has dictated a well-established way in which agencies can
control their workforces. If a Federal employee refuses to implement
lawful direction from leadership, there are mechanisms for agencies to
respond through discipline, up to and including removal, as
appropriate, under chapter 75 of title 5, U.S. Code. If a Federal
employee's performance has been determined to be unacceptable, the
agency may respond under chapter 75 (on the basis that action is
necessary to promote the efficiency of the service) or pursue a
performance-based action under chapter 43 of title 5, U.S. Code, at the
agency's discretion. Under the law, however, a mere difference of
opinion with leadership does not qualify as misconduct or unacceptable
performance or otherwise implicate the efficiency of the service in a
manner that would warrant an adverse action.
Career civil servants have a level of institutional experience,
subject matter expertise, and technical knowledge that incoming
political appointees have found to be useful and may lack themselves.
Such civil servants' ability to offer their objective analyses and
educated views when carrying out their duties, without fear of reprisal
or loss of employment, contribute to the reasoned consideration of
policy options and thus the successful functioning of incoming
administrations and our democracy. These rights and abilities must
continue to be protected and preserved, as envisioned by Congress when
it enacted the CSRA, and expanded and strengthened those protections
through subsequent enactments such as the Civil Service Due Process
Amendments Act.\3\
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\3\ Public Law 101-376, 104 Stat. 461, H.R. 3086 (Aug. 17,
1990); see also H.R. Rep. 101-328 (Nov. 3, 1989).
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[[Page 24983]]
Congress has generally charged the OPM Director with executing,
administering, and enforcing the laws governing the civil service.\4\
In chapter 75, Congress provided certain Federal employees with
specified procedural rights and provided OPM with broad authority to
prescribe regulations to carry out the chapter's purposes.\5\ Moreover,
OPM regulations govern the movement of positions from the competitive
service to the excepted service.\6\ Pursuant to its authority, OPM
issues this rule to clarify and reinforce longstanding civil service
protections and merit system principles as codified in the CSRA. OPM
amends its regulations in 5 CFR chapter I, subchapter B, as follows:
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\4\ See 5 U.S.C. 1103(a)(5)(A).
\5\ See 5 U.S.C. 7504, 7514.
\6\ See, e.g., 5 CFR part 212.
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First, the rule amends 5 CFR part 752 (Adverse Actions) to clarify
that civil servants in the competitive service or excepted service who
qualify as ``employees'' under 5 U.S.C. 7501, 7511(a)--meaning they
have fulfilled their probationary or trial period requirement or
durational requirement and are not excluded from the definition of
``employee'' by 5 U.S.C. 7511(b) \7\--will retain the rights previously
accrued upon an involuntary move \8\ from the competitive service to
the excepted service, or from one excepted service schedule to another,
or any subsequent involuntary move, unless the employee relinquishes
such rights or status by voluntarily encumbering a position that
explicitly results in a loss of, or different, rights.\9\ The rule also
conforms the regulation for non-appealable adverse actions with
statutory language in 5 U.S.C. 7501 and Federal Circuit precedent to
clarify which employees are covered. The rule amends 5 CFR part 212
(Competitive Service and Competitive Status) to further clarify a
competitive service employee's status in the event the employee and/or
their position is moved involuntarily to an excepted service schedule.
OPM also updates the regulations to reflect the repeal of 10 U.S.C.
1599e, effective December 31, 2022, and restores a one-year
probationary period for covered Department of Defense employees
appointed to permanent positions within the competitive service in the
Department of Defense on or after December 31, 2022.
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\7\ OPM notes that employees appointed pursuant to Schedule C
have no expectation of accruing such rights, considering the
longstanding interpretation of 5 U.S.C. 7511(b)(2) and E.O. 10577,
Rule VI, Schedule C, as amended. There are a small number of
additional, discrete, positions for which the appointing authority
similarly precludes the accrual of such rights, by the appointing
authority's own terms.
\8\ The final rule further discusses the differences between
voluntary and involuntary moves in Section IV(A).
\9\ As explained further infra, an individual can voluntarily
relinquish rights when moving to a position that explicitly results
in the loss of, or different, rights. An agency's failure to inform
an employee of the consequences of a voluntary transfer cannot
confer appeal rights to an employee in a position which has no
appeal rights by statute. This is distinguishable from situations
where the individual was coerced or deceived into taking the new
position with different rights. See Williams v. MSPB, 892 F.3d 1156
(Fed. Cir. 2018).
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Second, the rule amends 5 CFR part 210 (Basic Concepts and
Definitions (General)) to interpret the phrases ``confidential, policy-
determining, policy-making, or policy-advocating'' and ``confidential
or policy-determining'' \10\ in 5 CFR 210.102. These terms of art--
which would apply throughout OPM's Civil Service Regulations in 5 CFR
chapter I, subchapter B \11\--describe positions of the character
generally excepted from chapter 75's protections. OPM reinforces the
longstanding interpretation that, in creating this exception in 5
U.S.C. 7511(b)(2), Congress intended to except noncareer political
appointees \12\ from civil service protections.
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\10\ See 5 CFR 213.3301, 302.101, 432.102, 451.302, 752.202,
752.401.
\11\ The relevant regulatory language currently varies slightly.
For instance, 5 CFR part 752 refers to positions ``of a
confidential, policy-determining, policy making, or policy-
advocating character.'' But 5 CFR part 213 describes these positions
as being ``of a confidential or policy-determining character,'' 5
CFR part 302 uses ``of a confidential, policy-determining, or
policy-advocating nature,'' and 5 CFR part 451 uses ``of a
confidential or policy-making character.'' In this final rule, OPM
adopts ``confidential, policy-determining, policy making, or policy-
advocating'' and ``confidential or policy-determining'' as two,
interchangeable alternatives to describe these positions.
\12\ The term ``career employee,'' as used here, refers to
appointees to competitive service permanent or excepted service
permanent positions. The terms ``noncareer political appointee'' and
``political appointee,'' as used here, refer to individuals
appointed by the President or his appointees pursuant to Schedule C
(or similar authorities) who serve at the pleasure of the current
President or his political appointees and who have no expectation of
continued employment beyond the presidential administration in which
the appointment occurred.
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Third, the rule amends 5 CFR part 302 to provide specific
procedures that apply when moving individuals or positions from the
competitive service to the excepted service, or from one excepted
service schedule to another, for the purposes of good administration,
to add transparency, and to provide a right of appeal to the Merit
Systems Protection Board (MSPB or Board) to the extent any such move is
involuntary and characterized as stripping individuals of any
previously accrued civil service status and protections.
On September 18, 2023, OPM issued a notice of proposed rulemaking,
which was published at 88 FR 63862. After consideration of public
comments on the proposed regulatory amendments, OPM has determined that
the issuance of these revised regulations is essential to strengthen
and protect the foundations of the civil service and its merit system
principles.\13\ These principles were critical to the Pendleton Act's
repudiation of the spoils system; essential to continued compliance
with the statutory schemes for performance management, as enacted by
Congress (and subsequently expanded) to extend procedural entitlements
to most career employees following a specified period of service; and
essential to the creation of the modern civil service on which this
country depends and under which it has thrived for 140 years.\14\ The
final rule is also critical to the Federal Government's ability to
recruit and retain the talent that agencies need to deliver on their
complex missions. Individuals considering whether to accept a career
civil service position need to know that they will be valued for their
knowledge, skills, and abilities; evaluated based on merit; and not
only protected from retribution for offering their candid opinions but
encouraged to do so. Policies that cast doubt on these fundamental
characteristics of a career civil service job restrict the pool of
applicants interested in Federal Government jobs and disadvantage
agencies in competing for top talent.
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\13\ OPM's authorities to issue regulations only extend to title
5, U.S. Code. A position may be placed in the excepted service by
presidential action, under 5 U.S.C. 3302, by OPM action, under
authority delegated by the President pursuant to 5 U.S.C. 1104, or
by Congress. These proposed regulations apply to any situation where
an agency moves positions or people from the competitive service to
the excepted service, or between excepted services, whether pursuant
to statute, Executive order, or an OPM issuance, to the extent that
these provisions are not inconsistent with applicable statutory
provisions. For example, to the extent that a position is placed in
the excepted service by an act of Congress, an OPM regulation will
not supersede a statutory provision to the contrary. However, an OPM
regulation may prescribe the procedures by which agencies would be
required to move positions unless inconsistent with that statutory
provision. Similarly, these regulatory provisions also apply where
positions previously governed by title 5 will be governed by another
title going forward, unless the statute governing the exception
provides otherwise.
\14\ E.O. 14003, sec. 2.
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OPM may set forth policies, procedures, standards, and
supplementary guidance for the implementation of this final rule.
[[Page 24984]]
II. Digest of Public Comments
In response to the proposed rule, OPM received 4,097 comments
during the 60-day public comment period from a variety of individuals
(including current and former civil servants), organizations, and
Federal agencies. At the conclusion of the public comment period, OPM
reviewed and analyzed the comments. In general, the comments ranged
from enthusiastic support of the proposed regulations to categorical
rejection. Approximately 67 percent of the overall comments were
supportive of the proposed regulatory amendments.\15\ Of the
approximately 33 percent of comments that were opposed, more than 95
percent of those comments consisted of one of four form letters.\16\
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\15\ Approximately five of the 4,097 comments could be
considered neutral--neither supportive nor opposed.
\16\ The form letters are described below where relevant.
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In the proposed rule, OPM requested comments on a variety of topics
regarding the implementation and impacts of this rulemaking.\17\ OPM
received many comments in response and incorporated them in the
relevant sections that follow. Such information was useful for better
understanding the effect of these final revisions on civil service
protections, merit system principles, and the effective and efficient
business of government, in compliance with the law.
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\17\ See 88 FR 63862, 63881.
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In the next section, we address the background for these regulatory
amendments and related comments. In subsequent sections, we address the
specific amendments, provide a regulatory analysis, and list procedural
considerations. OPM concludes with the amended regulatory text.
III. Background and Related Comments
A. The Career Civil Service, Merit System Principles, and Civil Service
Protections
It is critical to our government that career Federal employees be
protected from undue partisan influence so that business can be carried
out efficiently and effectively, in compliance with the law.
President George Washington based most of his federal appointments
on merit. Subsequent presidents, though, deviated from this policy, to
varying degrees.\18\ ``By the time Andrew Jackson was elected president
in 1828,'' the patronage or `` `spoils system,' . . . was in full
force.'' Under this system, Federal employees were generally appointed,
retained, or removed based on their political affiliations and support
for the political party in power rather than their capabilities or
competence.\19\ A change in administration often triggered the
widespread removal of Federal employees to provide jobs for the
supporters of the new President, his party, and party leaders.\20\ This
spoils system often resulted in party managers ``pass[ing] over
educated, qualified candidates and distribut[ing] offices to `hacks'
and ward-heelers who had done their bidding during campaigns and would
continue to serve them in government.'' \21\ Theodore Roosevelt, who
served as a Civil Service Commissioner before becoming the Vice
President and then President of the United States, described the spoils
system as ``more fruitful of degradation in our political life than any
other that could possibly have been invented. The spoilsmonger, the man
who peddled patronage, inevitably bred the vote-buyer, the vote-seller,
and the man guilty of misfeasance in office.'' \22\ George William
Curtis, a reformer and proponent of a merit-based civil service,
described that, under the spoils system, ``[t]he country seethe[d] with
intrigue and corruption. Economy, patriotism, honesty, honor, seem[ed]
to have become words of no meaning.'' \23\ Ethical standards for
Federal employees were at a low ebb under this system. ``Not only
incompetence, but also graft, corruption, and outright theft were
common.'' \24\
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\18\ See, e.g., Nat'l Archives, Milestone Documents, ``Pendleton
Act (1883),'' <a href="https://www.archives.gov/milestone-documents/pendleton-act">https://www.archives.gov/milestone-documents/pendleton-act</a>.
\19\ U.S. Merit Sys. Prots. Bd., ``What is Due Process in
Federal Civil Service,'' p. 4. (May 2015), <a href="https://www.mspb.gov/studies/studies/What_is_Due_Process_in_Federal_Civil_Service_Employment_1166935.pdf">https://www.mspb.gov/studies/studies/What_is_Due_Process_in_Federal_Civil_Service_Employment_1166935.pdf</a>.
\20\ U.S. Off. of Pers. Mgmt., ``Biography of an Ideal,'' p. 83
(2003), <a href="https://dml.armywarcollege.edu/wp-content/uploads/2023/01/OPM-Biography-of-an-Ideal-History-of-Civil-Service-2003.pdf">https://dml.armywarcollege.edu/wp-content/uploads/2023/01/OPM-Biography-of-an-Ideal-History-of-Civil-Service-2003.pdf</a>.
\21\ See Anthony J. Gaughan, ``Chester Arthur's Ghost: A
Cautionary Tale of Campaign Finance Reform,'' 71 Mercer L. Rev. 779,
at pp. 787-78 (2020), <a href="https://digitalcomons.law.mercer.edu/cgi/viewcontent.cgi?article=1313&context=jour_mlr">https://digitalcomons.law.mercer.edu/cgi/viewcontent.cgi?article=1313&context=jour_mlr</a>.
\22\ U.S. Off. of Pers. Mgmt., supra note 20 at pp. 182-83.
\23\ Id. at p. 182. In 1871, Curtis was appointed by President
Ulysses S. Grant to chair the first Civil Service Commission. See
id. at p. 196.
\24\ Id. at pp. 183-84.
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To protect career Federal employees from undue partisan influence,
civil service advocates and then Congress sought to establish a Federal
nonpartisan career civil service that would be selected based on merit
rather than political affiliation.\25\ Such a workforce, though
initially limited in scope, would reinvigorate government, making it
more efficient and competent.\26\ This reform movement came to a head
in 1881 when President James Garfield was shot by a disappointed office
seeker who believed he was entitled to a Federal job based on the work
he had done for Garfield and his political party.\27\
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\25\ See Gaughan, supra note 21 at p. 787; U.S. Merit Sys.
Prots. Bd., supra note 19 at pp. 3-5.
\26\ See Gaughan, supra note 21 at p. 787.
\27\ See U.S. Merit Sys. Prots. Bd., supra note 19 at pp. 4-5;
U.S. Off. of Pers. Mgmt., supra note 20 at pp. 198-201.
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The Pendleton Act of 1883 \28\ ended this patronage system for
covered positions and created the competitive civil service. Coverage
has grown as a proportion of the Federal workforce over time to cover
nearly all career positions.\29\ The Pendleton Act required agencies to
appoint Federal employees covered by the Act based on competency and
merit.\30\ It also established the Civil Service Commission (CSC) to
help implement and enforce the government's adherence to merit-based
principles.\31\
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\28\ Public Law 16; Civil Service Act of 1883, (Jan. 16, 1883)
(22 Stat. 403).
\29\ Nat'l Archives, supra note 18.
\30\ 22 Stat. 403-04 (stating that hiring should be based on an
``open, competitive examination'' of the employee's ``relative
capacity and fitness . . . to discharge the duties of the service
into which they seek to be appointed.'').
\31\ Id. at 403.
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Commenters generally agreed \32\ with this background,\33\
especially the point that the corruption of the spoils era and evolving
complexity of government necessitated a nonpartisan career civil
service. A professor concurred with OPM's contention that the growing
complexity of issues facing the United States in the late nineteenth
century, ``combined with the pathologies engendered by the Jacksonian
spoils system (culminating in the assassination of President Garfield)
led to the creation of a competitive civil service.'' Comment 42.\34\
Other commenters noted that the Pendleton Act was intended to eliminate
the influence of personal loyalty and partisan activity as the key
qualifications for career appointees, and replace them with ``fitness,
capacity,
[[Page 24985]]
honesty [and] fidelity.'' Comment 2816; see also Comments 2822, 3029.
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\32\ One notable dissent comes in Comment 4097, from an advocacy
nonprofit organization. Commenter opposed the rule and did not
dispute the factual bases of the Pendleton Act but argued that its
limited treatment of removal rights supports a view that modern
removal protections can now be eliminated for certain career civil
servants. OPM disagrees with this argument as explained in later
sections.
\33\ See 88 FR 63862, 63863-67 (detailing background in proposed
rule).
\34\ Comments filed in response to this rulemaking are available
at <a href="http://www.regulations.gov/comment/OPM-2023-0013-nnnn">http://www.regulations.gov/comment/OPM-2023-0013-nnnn</a>, where
``nnnn'' is the comment number. Note that the number must be four
digits, so insert preceding zeroes as appropriate.
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The contours of the civil service and merit system principles that
resulted were borne of extensive debates in which one view clearly
prevailed. A former federal official commented that ``Congress decided
to target the threats of increased incompetence and patronage in a
spoils system, and decided that the benefits of a professionalized
civil service outweighed concerns about bureaucratic inertia.'' Comment
2816. Commenter noted that ``opponents of the Pendleton Act argued [at
the time] that civil service protections were `one step in the
direction of the establishment of an aristocracy in this country, the
establishment of another privileged class.' '' Id. Commenter concluded
that ``arguments that the civil service should be responsive to, rather
than insulated from, the churn of partisan politics are echoed by
contemporary critics of civil service protections. But these arguments
against a professional civil service were soundly rejected with the
passage of the Pendleton Act and have been proven to have been
incorrect over more than a century of experience.'' Id.
A legal nonprofit organization similarly commented that the
features of the ``civil service that frustrate its critics--fealty to
Congressional programs, dedication to government institutions,
consideration of the public interest, and a mission broader than simply
serving political appointees--are core components of the system
established by an elected Congress almost 150 years ago.'' Comment
2822. Congress ``has spoken clearly about its vision for the civil
service for a century and a half, and consistently rejected a civil
service that is merely an extension of a President's will.'' Id.
Several commenters noted that the Pendleton Act was extraordinarily
successful in establishing the foundation for the modern civil service.
A former federal official explained that the Act had the qualitative
benefit of improving targeted employees' professional backgrounds.
Comment 2816. As discussed further in Section III(E), the nonpartisan
civil service ensured that the United States government would be
capable of combating problems ``unimagined when the Pendleton Act was
passed, including auto safety, climate change, and the airworthiness of
planes.'' See Comment 42.
Even with respect to the enactment of the Pendleton Act, a
subsequent President saw the need to address removals more specifically
not long afterward.\35\ In 1897, President William McKinley addressed
removals by issuing Executive Order 101, which mandated that ``[n]o
removal shall be made from any position subject to competitive
examination except for just cause and upon written charges filed with
the head of the Department, or other appointing officer, and of which
the accused shall have full notice and an opportunity to make
defense.'' \36\ Congress, far from objecting to this Order, later
essentially codified these requirements in the Lloyd-La Follette Act of
1912 \37\ to establish that covered Federal employees were to be both
hired and removed based on merit. Specifically, section 6 of the Act
provided no person in the ``classified civil service'' \38\ of the
United States can be removed ``except for such cause as will promote
the efficiency of said service'' and for reasons given in writing. The
Act also mandated providing notice to the person whose removal is
sought and ``of any charges [proffered] against him, and be furnished
with a copy thereof, and also be allowed a reasonable time for
personally answering the same in writing; and affidavits in support''
of the removal.
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\35\ The Pendleton Act does specify that ``no person in the
public service is . . . under any obligations to contribute to any
political fund, or to render any political service, and that he will
not be removed or otherwise prejudiced for refusing to do so.'' 22
Stat. at 404.
\36\ U.S. Merit Sys. Prots. Bd., supra note 19 at p. 5.
\37\ 37 Stat. 555 (1912).
\38\ The ``classified civil service'' refers to the competitive
service. See 5 U.S.C. 2102.
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Congress, over time, has codified, renewed, and expanded
protections to civil servants. A former federal official quoted Rep.
James Tilghman Lloyd, one of the Lloyd-La Follette Act's namesakes, as
saying the Act sought to ``do away with the discontent and suspicion
which now exists among the employees [of the civil service] and [ ]
restore that confidence which is necessary to get the best results from
the employees.'' Comment 2816. It would, according to Rep. Lloyd,
ensure that civil servants ``being dismissed from service would have
the benefit of a written record of charges against them, with reports
made to Congress, and the ability to have Congress subject their
dismissal to `special inquiry' if department heads `trump up charges'
to dismiss civil servants.'' \39\ Id.
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\39\ Citing 48 Cong. Rec. 2653-54 (1912).
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Thereafter, Congress enacted further requirements and reforms. In
1944, Congress passed the Veterans' Preference Act,\40\ which, among
other things, granted federally employed veterans extensive rights to
challenge adverse employment actions, including the right to file an
appeal with the CSC and provide the CSC with documentation to support
the appeal. Based on the evidence presented, the CSC would issue
findings and recommendations regarding the adverse employment action.
In short, the Veterans' Preference Act provided eligible veterans with
adverse action protections and access to an appeals process.\41\ Then,
in 1962, President John F. Kennedy issued Executive Order 10988 to
extend similar adverse action rights to a broader swath of the civil
service, specifically, employees in the competitive service.\42\
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\40\ 58 Stat. 387 (1944).
\41\ Agencies initially were not required to comply with the
CSC's recommendations in adverse action appeals, but Congress
amended the Veterans' Preference Act in 1948 to require compliance.
See 67 Stat. 581 (1948); see also U.S. Merit Sys. Prots. Bd., supra
note 19 at pp. 7-8.
\42\ E.O. No. 10988, 27 FR 551 (Jan. 19, 1962) (``The head of
each agency, in accordance with the provisions of this order and
regulations prescribed by the Civil Service Commission, shall extend
to all employees in the competitive civil service rights identical
in adverse action cases to those provided preference eligibles under
section 14 of the Veterans' Preference Act of 1944, as amended.'')
(emphasis added).
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B. Conduct and Performance Under the Civil Service Reform Act of 1978
To synthesize, expand upon, and further codify the patchwork of
processes that had developed over almost a century, and to protect a
broader group of civil servants and govern personnel actions, Congress
in 1978 passed the CSRA \43\--the most comprehensive Federal civil
service reform since the Pendleton Act.
---------------------------------------------------------------------------
\43\ 92 Stat. 1111 (1978); see. Fausto, 484 U.S. at 455 (``The
CSRA established a comprehensive system for reviewing personnel
action taken against federal employees.'').
---------------------------------------------------------------------------
One factor that led to the CSRA, as a whistleblower protection
nonprofit organization explained, was that ``whistleblowers at the
Senate Watergate hearings'' showed that the Nixon Administration
``tried to implement the Malek Manual, a secret blueprint to replace
the civil service merit system with a political hiring scheme'' that
would have begun ``by purging all Democrats from federal employment.''
Comment 3340.\44\ Those abuses led to passage of the CSRA ``to shield
the merit system with enforceable rights against similar future
abuses.'' Id.\45\
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\44\ Citing Dobrovir, Gebhardt and Devine, ``Blueprint for Civil
Service Reform,'' Fund for Constitutional Government (1976).
\45\ That these concerns have been ongoing can be seen in
Congress' enactment of the Presidential Transitions Improvements Act
of 2015 referenced in note 155, infra.
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[[Page 24986]]
The CSRA made significant organizational changes to civil service
management, adjudications, and oversight. It replaced the CSC, dividing
its duties among OPM \46\ and the MSPB, which initially encompassed the
Office of Special Counsel (OSC).\47\ OSC later became a separate agency
to which specific duties were assigned.\48\ OPM inherited the CSC's
policy, managerial, and administrative duties, including the obligation
to establish standards, oversee compliance, and conduct examinations as
required or requested.\49\ OPM was also obligated to, among other
things, advise the President regarding appropriate changes to the civil
service rules, administer retirement benefits, adjudicate employees'
entitlement to these benefits, and defend adjudications at the
Board.\50\ The MSPB adjudicates challenges to personnel actions taken
under the civil service laws,\51\ among other things, and OSC
investigates and prosecutes prohibited personnel practices.\52\ Other,
more specific enactments confer upon these entities the obligations or
authorities to promulgate regulations on specific topics.
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\46\ Congress envisioned that: ``OPM would be the administrative
arm of Federal personnel management, serve as Presidential policy
advisor, . . . promulgate regulations, set policy, run research and
development programs, implement rules and regulations, and would
manage a centralized, innovative Federal personnel program.'' 124
Cong. Rec. S27538 (daily ed. Aug. 24, 1978) (bill summary of the
CSRA of 1978, S. 2540).
\47\ U.S. Gov't Accountability Off., ``Civil Service Reform--
Where it Stands Today,'' at p. 2 (May 13, 1980), <a href="https://www.gao.gov/assets/fpcd-80-38.pdf">https://www.gao.gov/assets/fpcd-80-38.pdf</a>. The Equal Employment Opportunity
Commission and Office of Government Ethics also handle duties
previously covered by the CSC.
\48\ See Cong. Rsch. Serv., ``Merit Systems Protection Board
(MSPB): A Legal Overview,'' p. 4 (March 25, 2019), <a href="https://crsreports.congress.gov/product/pdf/R/R45630">https://crsreports.congress.gov/product/pdf/R/R45630</a>.
\49\ See 5 U.S.C. 1103(a)(5), (a)(7).
\50\ Id.; see 5 U.S.C. 8461.
\51\ See 5 U.S.C. 1204, 7513(d).
\52\ See 5 U.S.C. 1212.
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The CSRA codified fundamental merit system principles, which had
developed since 1883.\53\ These principles are summarized here:
---------------------------------------------------------------------------
\53\ See 47 Cong. Ch. 27 (Jan. 16, 1883), 22 Stat. 403.
---------------------------------------------------------------------------
Merit System Principles \54\
---------------------------------------------------------------------------
\54\ See 5 U.S.C. 2301.
---------------------------------------------------------------------------
1. Recruit, select, and advance on merit after fair and open
competition.
2. Treat employees and applicants fairly and equitably.
3. Provide equal pay for equal work and reward excellent
performance.
4. Maintain high standards of integrity, conduct, and concern for
the public interest.
5. Manage employees efficiently and effectively.
6. Retain or separate employees on the basis of their performance.
7. Educate and train employees if it will result in better
organizational or individual performance.
8. Protect employees from improper political influence.
9. Protect employees against reprisal for the lawful disclosure of
illegality and other covered wrongdoing.
The CSRA also established an ``elaborate new framework'' related to
civil service protections for employees in the competitive and excepted
services. Challenges to non-appealable adverse actions, appealable
adverse actions, and ``prohibited personnel practices'' are channeled
into separate procedural tracks.\55\ The procedures an agency must
follow in taking an adverse action and whether the agency's action is
appealable to the MSPB depend on the action the agency seeks to impose.
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\55\ See Fausto, 484 U.S. at 443, 445-47; see 5 U.S.C. 1212,
1214, 2301, 2302, 7502, 7503, 7512, 7513; see also 5 U.S.C. 4303
(review of actions based on unacceptable performance).
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Suspensions of 14 days or less are not directly appealable to the
MSPB.\56\ But an employee against whom such a suspension is proposed is
entitled to certain procedural protections, including notice, an
opportunity to respond, representation by an attorney or other
representative, and a written decision.\57\
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\56\ 5 U.S.C. 7503; Fausto, 484 U.S. at 446.
\57\ 5 U.S.C. 7503(b)(1)-(4); 5 CFR part 752, subpart B.
---------------------------------------------------------------------------
More rigorous procedures apply before agencies may pursue removals,
demotions, suspensions for more than 14 days, reductions in grade and
pay, and furloughs for 30 days or less, if the subject of the
contemplated action meets the definition of an ``employee'' under 5
U.S.C. 7511(a) by satisfying probationary or length of service
conditions.\58\ These employees, other than those who are statutorily
excepted from chapter 75's protections, receive the civil service
protections outlined in 5 U.S.C. 7513.\59\ Under section 7511(a)(1),
``employee'' refers to an individual who falls within one of three
groups: (1) an individual in the competitive service who either (a) is
not serving a probationary or trial period \60\ under an initial
appointment; or (b) has completed 1 year of current continuous service
under other than a temporary appointment limited to 1 year or less; (2)
a preference eligible \61\ in the excepted service who has completed 1
year of current continuous service in the same or similar positions in
an Executive agency, or in the United States Postal Service or Postal
Regulatory Commission; or (3) an individual in the excepted service
(other than a preference eligible) who either (a) is not serving a
probationary or trial period under an initial appointment pending
conversion to the competitive service; or (b) has completed 2 years of
current continuous service in the same or similar positions in an
Executive agency under other than a temporary appointment limited to 2
years or less.\62\
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\58\ See 5 CFR 752.401, 404, and 1201.3; see also 5 U.S.C.
7512(1)-(5), 7514; Fausto, 484 U.S. at 446-47.
\59\ 5 U.S.C. 7513(d), 7701(a).
\60\ The term ``probationary period'' generally applies to
employees in the competitive service. ``Trial period'' applies to
employees in the excepted service and some appointments in the
competitive service, such as term appointments, which have a 1-year
trial period set by OPM. A fundamental difference between the two is
the duration in which employees must serve. The probationary period
is set by law to last 1 year. When the trial period is set by
individual agencies, it can last up to 2 years. See 5 CFR 315.801
through 806; see also U.S. Merit Sys. Prots. Bd., Navigating the
Probationary Period After Van Wersch and McCormick, (Sept. 2006),
<a href="https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_276106.pdf">https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_276106.pdf</a>.
\61\ The term ``preference eligible'' refers to specified
military veterans and family members with derived preference
pursuant to statute, such as an unmarried widow, and the wife or
husband of a veteran with a service-connected disability. See 5
U.S.C. 2108(3).
\62\ 5 U.S.C. 7511(a)(1).
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In the event of a final MSPB decision adverse to the employee,
employees may seek judicial review by petitioning to the appropriate
Federal appellate or district court.\63\
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\63\ 5 U.S.C. 7513(d), 7701-7703, 7703(a)(1), (b)(2). The
appropriate federal appellate court will generally be the U.S. Court
of Appeals for the Federal Circuit but, in some instances, where
appellant asserts whistleblower retaliation, employees may appeal to
the Federal Circuit or another circuit court. Cases that include
claims under certain discrimination statutes are appealable to
Federal district courts. See 5 U.S.C. 7703(b)(2).
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Excepted from these procedural protections and rights to appeal
conferred on other employees under chapter 75 are certain civil
servants described in 5 U.S.C. 7511(b), including, among other
categories not relevant here, those officers appointed by the President
with the advice and consent of the Senate and other officers whom the
President is permitted to appoint himself or herself. Also excepted are
individuals ``whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character.'' \64\ These determinations must be made by ``(A) the
President for a position that the President has excepted from the
competitive service; (B) the Office of Personnel Management for a
position
[[Page 24987]]
that the Office has excepted from the competitive service; or (C) the
President or the head of an agency for a position excepted from the
competitive service by statute.'' \65\ As detailed further in Section
IV(B), it is evident that Congress, in using this and similar language
in various parts of title 5, U.S. Code, intended this exception to
apply to the voluntary filling of noncareer political appointments that
carry no expectation of continued employment beyond the presidential
administration during which the appointment occurred.\66\
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\64\ 5 U.S.C. 7511(b)(2)(A), (B), and (C).
\65\ 5 U.S.C. 7511(b)(2).
\66\ See infra, Sec. IV.(B); see also 5 CFR 6.2 (``Positions of
a confidential or policy-determining character shall be listed in
Schedule C''); 213.3301 Schedule C (``positions which are policy-
determining or which involve a close and confidential working
relationship with the head of an agency or other key appointed
officials''). Political appointees serve at the pleasure of the
President or other appointing official and may be asked to resign or
be dismissed at any time. They are not covered by civil service
removal procedures, have no adverse action rights, and generally
have no right to appeal terminations. See, e.g., 5 U.S.C. 7511(b)(2)
(excluding noncareer, political appointees from definition of
``employees'' eligible for adverse action protections); 5 CFR
317.605 (``An agency may terminate a noncareer or limited
appointment at any time, unless a limited appointee is covered under
5 CFR 752.601(c)(2).''); 734.104 (listing employees who are
appointed by the President, noncareer SES members, and Schedule C
employees as ``employees who serve at the pleasure of the
President.''); 752.401(d)(2) (excluding noncareer, political
appointees under Schedule C from adverse action protections).
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The unique responsibilities of politically appointed employees,
many of whom are listed under excepted service Schedule C, allow hiring
and termination to be done purely at the discretion of the President or
the President's political appointees. This is a specific exception from
the competitive service and, for that reason, each position listed in
Schedule C is revoked immediately upon the position becoming
vacant.\67\ Agencies may terminate political appointees at any time.
This also means that, absent any unique circumstance provided in law
\68\ or a request to stay by an incoming administration, these
positions are vacated following a presidential transition.
---------------------------------------------------------------------------
\67\ See 5 CFR 213.3301.
\68\ Such as 5 CFR 212.401, discussed further in Section IV.
---------------------------------------------------------------------------
Prior to the CSRA, agencies relied only on provisions codified at
chapter 75 to remove Federal employees or to change an employee to a
lower grade, even if the reason for removal was for unacceptable
performance. The CSRA created chapter 43 of title 5, U.S. Code, as an
additional process for empowering supervisors to address performance
concerns.\69\ Accordingly, in addition to using the provisions of
chapter 75, agencies can address performance concerns under chapter 43.
Under this scheme established by Congress, the decision of which
chapter to use is left to the discretion of the manager tasked with
pursuing the action.
---------------------------------------------------------------------------
\69\ U.S. Merit Sys. Prots. Bd., ``Addressing Poor Performers
and the Law,'' p. 4. (Sept. 2009), <a href="https://www.mspb.gov/studies/studies/Addressing_Poor_Performers_and_the_Law_445841.pdf">https://www.mspb.gov/studies/studies/Addressing_Poor_Performers_and_the_Law_445841.pdf</a>.
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Through various enactments currently reflected in chapters 43 and
75, Congress has created conditions under which certain employees--
i.e., those with the requisite tenure in continued employment--may earn
a property interest in that continued employment. For such employees,
Congress has mandated that removal and the other actions described in
subchapter II of chapter 75 may be taken only ``for such cause as will
promote the efficiency of the service.'' \70\ This property interest in
continued employment has been a feature of the Federal civil service
since at least 1912, when the Lloyd-La Follette Act required just cause
to remove a Federal employee. The Supreme Court in Board of Regents of
State Colleges v. Roth, recognized that restrictions on loss of
employment, such as tenure, can create a property right.\71\ In
Cleveland Board of Education v. Loudermill,\72\ the Court also held:
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\70\ See 5 U.S.C. 7503(a), 7513(a); 5 CFR 752.102(a),
752.202(a).
\71\ 408 U.S. 564, 576-77 (1972). The Court described three
earlier decisions--Slochower v. Bd. of Educ., 350 U.S. 551 (1956),
Wieman v. Updegraff, 344 U.S. 183 (1952), and Connell v.
Higginbotham, 403 U.S. 207 (1971)--where the Court held that public
employees had due process rights. Before the Court explicitly
recognized that restrictions on the loss of employment could create
a property right, the Court protected statutorily-conferred public
employment rights under other legal theories. See, e.g., United
States v. Wickersham 210 U.S. 390, 398-399 (1906); Keim v. United
States, 177 U.S. 290, 296 (1900); see also Indiana ex rel. Anderson
v. Brand (303 U.S. 95 (1938); Hall v. Wisconsin, 103 U.S. 5 (1880)
(enforcing statutory rights to public employment benefits under
theories of contractual entitlement, even when legislatures changed
those statutory entitlements).
\72\ 470 U.S. 532 (1985).
Property cannot be defined by the procedures provided for its
deprivation any more than can life or liberty. The right to due
process is conferred, not by legislative grace, but by
constitutional guarantee. While the legislature may elect not to
confer a property interest in public employment, it may not
constitutionally authorize the deprivation of such an interest once
conferred, without appropriate procedural safeguards.\73\
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\73\ Id. at 541.
In short, once a government requires cause for removals,
constitutional due process protection will attach to that property
interest and determine the minimum procedures by which a removal may be
carried out. Any new law addressing the removal of a Federal employee
with a vested property interest in the employee's continued employment
must, at a minimum, comport with due process. This obligation drives
some of the procedures in both chapters 43 and 75, while other
procedures have been developed in accordance with Congress' assessments
of what is good policy.\74\ Regardless of the nature of the particular
action specified, agencies must follow the procedures specified by
Congress to effectuate a removal under those chapters, as a matter of
law, unless they are changed by Congress.
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\74\ The exact procedures required will turn on the factual
situation and may be different from instance to instance.
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An advocacy nonprofit organization opposed to this rule argued that
the Lloyd-La Follette Act and predecessor executive orders ``were not
understood (or applied)'' to give federal employees a property right to
their jobs before ``the Supreme Court interpreted the Act as having
that effect in Arnett v. Kennedy (1974).'' Comment 4097. Commenter's
point is incorrect, and, in any event, irrelevant. As observed in note
71 above, the Supreme Court recognized in earlier cases that due
process rights could attach to public employment. And Congress, far
from limiting or ending such rights, has enacted new statutes since
Arnett, notably the CSRA and the Civil Service Due Process Amendments
Act, conferring robust procedural rights on broader groups of Federal
employees. In any event, although Congress has, from time to time,
tinkered with the procedures required in various agency settings, it
has done nothing since Arnett purporting to remove due process rights
from incumbents who have accrued them, which suggests approval of the
Supreme Court's approach in that case.
Finally, in addition to establishing the requirements and
procedures for challenging adverse actions and performance-based
actions, the CSRA includes a mechanism for an employee in a ``covered
position'' to challenge a ``personnel action'' that constitutes a
``prohibited personnel practice'' because it has been taken for a
prohibited reason.\75\ ``Covered position'' means any position in the
competitive service, a career appointee in the Senior Executive
Service, or a position in the excepted service unless ``conditions of
good administration warrant'' a necessary
[[Page 24988]]
exception on the basis that the position is of a ``confidential,
policy-determining, policy-making, or policy-advocating character.''
\76\
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\75\ 5 U.S.C. 2302(a)(1), (a)(2), (b). Challenges to a personnel
action on the basis that it constitutes a prohibited personnel
practice may be brought by anyone in a covered position, regardless
of their entitlement to adverse action rights.
\76\ 5 U.S.C. 2302(a)(2)(B), 3302.
---------------------------------------------------------------------------
At 5 U.S.C. 2302(a)(2)(A), Congress lists personnel actions that
can form the basis of a prohibited personnel practice under 5 U.S.C.
2302(b). The CSRA, as described in the proposed rule,\77\ also codified
a comprehensive list of prohibited personnel practices.\78\
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\77\ See 88 FR 63862, 63866.
\78\ 5 U.S.C. 2302(b). OSC investigates allegations of
prohibited personnel practices brought by employees in covered
positions and may investigate in the absence of such an allegation,
to determine if a prohibited personnel practice occurred. 5 U.S.C.
1214(a)(1)(A), (a)(5). If OSC concludes that a prohibited personnel
practice has occurred and, if OSC is unable to obtain a satisfactory
correction from an agency responsible for a prohibited personnel
practice, OSC may petition the MSPB to grant corrective action. If
OSC proves its claim, the MSPB may order the corrective action it
deems appropriate. See 5 U.S.C. 1214(b)(2)(B), (C), (b)(4)(A).
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C. The Competitive, Excepted, and Senior Executive Services
The CSRA also established a new service--the Senior Executive
Service, or SES--``to ensure that the executive management of the
Government of the United States is responsive to the needs, policies,
and goals of the Nation and is otherwise of the highest quality.'' \79\
As described further below, the SES is distinct from the competitive
service and the excepted service.\80\ It consists of senior government
officials, both noncareer and career, who share a broad set of
responsibilities to help lead the work of the Federal Government.
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\79\ 5 U.S.C. 3131.
\80\ 5 U.S.C. 2101(a) (definition of civil service), 2102(a)(1)
(competitive service), 2103(a) (excepted service) 3132(a)(2) (Senior
Executive Service).
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In the competitive service, individuals must complete a competitive
hiring process before being appointed. This process may include a
written test or an equivalent evaluation of the individual's relative
level of knowledge, skills, and abilities necessary for successful
performance in the position to be filled.\81\
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\81\ See 5 U.S.C. 3304 (``An individual may be appointed in the
competitive service only if he has passed an examination or is
specifically excepted from examination under section 3302 of this
title.''); see also U.S. Off. of Pers. Mgmt., ``Competitive
Hiring,'' <a href="https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/">https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/</a>.
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Although most government employees are in the competitive service,
about one-third are in the excepted service.\82\ The excepted service
includes all positions in the Executive Branch that are specifically
excepted from the competitive service by statute, Executive order, or
by OPM regulation.\83\ For positions excepted from the competitive
service by statute, selection must be made pursuant to the provisions
Congress enacted for those positions. Applicants for excepted service
positions under title 5, U.S. Code, like applicants for the competitive
service, are to be selected ``solely on the basis of relative ability,
knowledge, and skills, after fair and open competition which assures
that all receive equal opportunity.'' \84\ Agencies filling positions
in the excepted service ``shall select . . . from the qualified
applicants in the same manner and under the same conditions required
for the competitive service.'' \85\ This means that agencies should
generally afford veterans' preference in the same manner they would
have for the competitive service, though, in a few situations \86\
where the reason for the exception makes this essentially impossible,
OPM (or the President) has exempted the position from regulatory
requirements and imposed a less stringent standard.\87\
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\82\ See Cong. Rsch. Serv., ``Categories of Federal Civil
Service Employment; A Snapshot,'' at p. 4 (May 26, 2019), <a href="https://sgp.fas.org/crs/misc/R45635.pdf">https://sgp.fas.org/crs/misc/R45635.pdf</a>.
\83\ See 5 U.S.C. 2103; 5 CFR parts 213, 302.
\84\ 5 U.S.C. 2301(b)(1).
\85\ 5 U.S.C. 3320. Part 302 of title 5 of OPM's regulations
establishes the mechanisms by which compliance with section 3320 can
be achieved.
\86\ See infra notes 357-361.
\87\ 5 CFR 302.101(c).
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The President is authorized by statute to provide for ``necessary
exceptions of positions from the competitive service'' when warranted
by ``conditions of good administration.'' \88\ The President has
delegated to OPM--and, before that, to its predecessor, the CSC--
concurrent authority to except positions from the competitive service
when it determines that appointments thereto through competitive
examination are not practicable.\89\ The President has further
delegated authority to OPM to ``decide whether the duties of any
particular position are such that it may be filled as an excepted
position under the appropriate schedule.'' \90\
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\88\ 5 U.S.C. 3302.
\89\ E.O. 10577, sec. 6.1(a) (1954); 5 CFR 6.1(a) (1988) (``The
Commission is authorized to except positions for the competitive
service whenever it determines that appointments thereto through
competitive examination are not practicable'' and that ``[u]pon the
recommendation of the agency concerned, it may also except positions
which are of a confidential or policy-determining character.'').
\90\ E.O. 10577, sec. 6.1(b); 5 CFR 6.1(b); see 28 FR 10025
(Sept. 14, 1963) (reorganizing the civil service rules).
---------------------------------------------------------------------------
OPM has exercised its delegated authority, and implemented
exercises of presidential authority, by prescribing five schedules for
positions in the excepted service, which are currently listed in 5 CFR
part 213:
<bullet> Schedule A--Includes positions that are not of a
confidential or policy-determining character for which it is not
practicable to examine applicants, such as attorneys, chaplains, and
short-term positions for which there is a critical hiring need.
<bullet> Schedule B--Includes positions that are not of a
confidential or policy-determining character for which it is not
practicable to examine applicants. Unlike Schedule A positions,
Schedule B positions require an applicant to satisfy basic
qualification standards established by OPM for the relevant occupation
and grade level. Schedule B positions engage in a variety of
scientific, professional, and technical activities.
<bullet> Schedule C--Includes positions that are policy-determining
or which involve a close and confidential working relationship with the
head of an agency or other key appointed officials. These positions
include most political appointees below the cabinet and subcabinet
levels.
<bullet> Schedule D--Includes positions that are not of a
confidential or policy-determining character for which competitive
examination makes it difficult to recruit certain students or recent
graduates. Schedule D positions generally require an applicant to
satisfy basic qualification standards established by OPM for the
relevant occupation and grade level. Positions include those in the
Pathways Programs.
<bullet> Schedule E--Includes positions of administrative law
judges.\91\
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\91\ 5 CFR 6.2.
---------------------------------------------------------------------------
As described supra, competitive and excepted service incumbents,
except those in Schedule C--and others excluded under 5 U.S.C.
7511(b)--become ``employees'' for purpose of civil service protections
after they satisfy the probationary or length of service requirements
in 5 U.S.C. 7511(a). Excepted service employees, except those in
Schedule C and others excluded under section 7511(b), maintain the same
notice and appeal rights for adverse actions and performance-based
actions as competitive service employees.\92\
[[Page 24989]]
However, and as noted here, excepted service employees must satisfy
different durational requirements before these rights become available.
So-called ``preference eligibles''--specified military veterans and
family members with derived preference pursuant to statute \93\--in an
executive agency, the Postal Service, or the Postal Regulatory
Commission must complete 1 year of current continuous service to avail
themselves of the relevant notice and appeal rights.\94\ Employees in
the excepted service who are not preference eligibles and (1) are not
serving a probationary or trial period under an initial appointment
pending conversion to the competitive service, or (2) have completed 2
years of current or continuous service in the same or similar position,
have the same notice and appeal rights as qualifying employees in the
competitive service.\95\
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\92\ See 5 U.S.C. 4303, 7513(d). There are, however, some
notable differences between non-removal protections afforded to
competitive service and excepted service employees, such as
assignment rights in the event of a reduction in force. See 5 CFR
351.501 and 502. Employees who are reached for release from the
competitive service during a reduction in force are entitled to an
offer of assignment if they have ``bump'' or ``retreat'' rights to
an available position in the same competitive area. ``Bumping''
means displacement of an employee in a lower tenure group or a lower
subgroup within the same tenure group. ``Retreating'' means
displacement of an employee in the same tenure group and subgroup.
Meaning, they are entitled to the positions of employees with fewer
assignment rights. Employees in excepted service positions have no
assignment rights to other positions unless their agency, at the
agency's discretion, chooses to offer these rights to positions.
Even with these differences, merit system principles are at the core
of civil service protections relating to hiring, conduct, and
performance matters as applied to both career competitive and
excepted service employees.
\93\ See 5 U.S.C. 2108(3); see also supra note 61.
\94\ See 5 U.S.C. 7511(a)(1)(B).
\95\ See 5 U.S.C. 7511(a)(1)(C).
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Likewise, any employee who is (1) a preference eligible; (2) in the
competitive service; or (3) in the excepted service and covered by
subchapter II of chapter 75, and who has been reduced in grade or
removed under chapter 43, is entitled to appeal the action to the
MSPB.\96\ However, these appeal rights do not apply to (1) the
reduction to the grade previously held of a supervisor or manager who
has not completed the probationary period under 5 U.S.C. 3321(a)(2);
(2) the reduction in grade or removal of an employee in the competitive
service who is serving a probationary or trial period under an initial
appointment or who has not completed 1 year of current continuous
employment under other than a temporary appointment limited to 1 year
or less; or (3) the reduction in grade or removal of an employee in the
excepted service who has not completed 1 year of current continuous
employment in the same or similar positions.\97\
---------------------------------------------------------------------------
\96\ See 5 U.S.C. 4303(e).
\97\ See 5 U.S.C. 4303(f).
---------------------------------------------------------------------------
Finally, the SES is a service separate from the competitive and
excepted services.\98\ The SES has a separate system for hiring
executives, managing them, and compensating them.\99\ The SES is also
governed by separate adverse action procedures, in Subchapter V of
chapter 75. As described more fully in Section IV, the adverse action
processes in 5 U.S.C. 7501-7515 and the exclusion from such rights and
coverage in 5 U.S.C. 7511(b), do not apply to the SES. The SES adverse
action procedures, unlike the rules governing the competitive and
excepted services, make no mention--let alone an exception--for
positions of ``a confidential, policy-determining, policy-making, or
policy-advocating character.'' \100\
---------------------------------------------------------------------------
\98\ See 5 U.S.C. 2102 (competitive service does not include
SES), 2103 (excepted service does not include SES),
\99\ See 5 U.S.C. 5131-5136.
\100\ See 5 U.S.C. 7541-7543.
---------------------------------------------------------------------------
A member of the SES can be a career appointee, noncareer appointee,
limited term appointee or limited emergency appointee. These terms are
defined at 5 U.S.C. 3132(a).\101\ Congress established rules
restricting noncareer appointments, as well as limited term and limited
emergency appointments.\102\ The adverse action rights for SES set out
in Subchapter V, 5 U.S.C. 7541-7543, apply only to career appointees to
the SES. Removal of career employees for less than fully successful
executive performance is governed by a separate provision at 5 U.S.C.
3592. By contrast, none of these provisions affect an agency head's
ability to remove a member of the noncareer SES.
---------------------------------------------------------------------------
\101\ 5 U.S.C. 3393, 3394.
\102\ 5 U.S.C. 3134.
---------------------------------------------------------------------------
D. The Prior Schedule F
On October 21, 2020, President Donald Trump issued Executive Order
13957, ``Creating Schedule F in the Excepted Service,'' which risked
altering the carefully crafted legislative balance that Congress struck
in the CSRA.\103\ That Executive Order, if fully implemented, could
have transformed the civil service by purportedly stripping adverse and
performance-based action grievance and appeal rights from large swaths
of the Federal workforce--thereby turning them into at-will employees.
It could have also sidestepped statutory requirements built into the
Federal hiring process intended to promote the objective of merit-based
hiring decisions. It would have upended the longstanding principle that
a career Federal employee's tenure should be linked to their
performance and conduct, rather than to the nature of the position that
the employee encumbers. It also could have reversed longstanding
requirements that, among other things, prevent political appointees
from ``burrowing in'' to career civil service jobs in violation of
merit system principles.
---------------------------------------------------------------------------
\103\ 85 FR 67631 (Oct. 21, 2020).
---------------------------------------------------------------------------
Before it could be implemented, however, Executive Order 13957 was
revoked, and Schedule F abolished, by President Biden through Executive
Order 14003, ``Protecting the Federal Workforce.'' \104\
---------------------------------------------------------------------------
\104\ 86 FR 7231 (Jan. 22, 2021).
---------------------------------------------------------------------------
OPM received many comments related to Schedule F from both
proponents and critics of it and Executive Order 13957. The lawfulness
and wisdom of the policy choices embodied in now-revoked Schedule F are
in most respects outside the scope of this rulemaking. Regardless of
whether Executive Order 13957 was a valid exercise of authority, it is
not directly at issue here. Nonetheless, numerous commenters addressed
the topic and OPM has determined that it would be prudent to set forth
its views in response to those comments. The various parts of the
Executive Order, Schedule F, and related comments are thus addressed
below. The validity of this rule does not depend on the legality or
wisdom of Executive Order 13957.
1. Adverse Action Rights, Performance-Based Action Rights, and Appeals
Section 5 of Executive Order 13957 directed agency heads to review
their entire workforces to identify any employees covered by chapter
75's adverse action rules (which apply broadly to employees in the
competitive and excepted services) who occupied positions of a
``confidential, policy-determining, policy-making, or policy-advocating
character.'' These included positions the agency assessed for the first
time, without guidance or precedent, to allegedly include these
characteristics. Agencies were then to petition OPM for its approval to
place them in Schedule F, a newly-created category of positions to be
excepted from the competitive service. If these positions had been
placed in Schedule F, the employees encumbering them would have,
according to the text of the Executive Order, been stripped of any
adverse action procedural rights and MSPB appeal rights under chapter
75 discussed supra. Thus, the Order attempted to subject employees to
removal, at will, by virtue of the involuntary placement of the
positions they occupied in this new schedule (and regardless of any
rights they had already
[[Page 24990]]
accrued or any reliance on those rights).\105\
---------------------------------------------------------------------------
\105\ Since performance-based actions under 5 U.S.C. 4303 are
tied, in part, to subchapter II of chapter 75, employees would
purportedly have also been stripped of performance-based action
procedural rights and MSPB appeal rights, had an agency chosen to
proceed with an action under chapter 43.
---------------------------------------------------------------------------
An express rationale of this action was to make it easier for
agencies to ``expeditiously remove poorly performing employees from
these positions without facing extensive delays or litigation.'' \106\
This new sweeping authority was purportedly necessary for the President
to have ``appropriate management oversight regarding'' the career civil
servants working in positions deemed to be of a ``confidential, policy-
determining, policy-making, or policy-advocating character,'' and to
incentivize employees in these positions to display what presidential
appointees at an agency would deem to be ``appropriate temperament,
acumen, impartiality, and sound judgment,'' in light of the importance
of these functions.\107\ Executive Order 13957 did not acknowledge
existing mechanisms to provide ``appropriate management oversight,''
such as chapter 43 and chapter 75 procedures, or the multiple
management controls that agencies have in place to escalate matters of
importance to agency administrators.\108\
---------------------------------------------------------------------------
\106\ E.O. 13957, sec. 1.
\107\ The Executive Order stated that ``[c]onditions of good
administration . . . make necessary excepting such positions from
the adverse action procedures set forth in chapter 75 of title 5,
United States Code.'' E.O. 13957, sec. 1. The ``conditions of good
administration'' language appears in 5 U.S.C. 3302. We note that
Section 3302 is placed in Subchapter I of chapter 33, a subchapter
addressing examination, certification, and appointment. It relates
only to exclusions of positions from the competitive service
requirements relating to those topics when conditions of good
administration warrant and does not purport to confer authority on
the President to except positions from the adverse action provisions
of chapter 75. Similarly, chapter 75 does not itself purport to
confer authority on the President to except positions from the scope
of chapter 75. The authority to regulate under chapter 75 is
conferred directly upon OPM unlike the authority to regulate under
section 3302, which is conferred upon the President. Compare 5
U.S.C. 7514 (``The Office of Personnel Management may prescribe
regulations to carry out the purpose of this subchapter . . .) to 5
U.S.C. 3302 (``The President may prescribe rules governing the
competitive service.''). Of course, a President could order the
Director of OPM to promulgate regulations relating to chapter 75.
Any such rule, however, would then be subject to the requirements of
the Administrative Procedure Act.
\108\ Matters of importance can be raised to agency
administrators in various ways, such as by filing a complaint with
an agency's Inspector General, raising concerns with an agency's
human resources office, and filing a grievance.
---------------------------------------------------------------------------
Executive Order 13957 instructed agency heads to review existing
positions to determine which, if any, should be placed into Schedule F.
The Order also instructed that, after agency heads conducted their
initial review, they were to move quickly and petition OPM by January
19, 2021--the day before the Inauguration--to place positions within
Schedule F. After that, agency heads had another 120 days to petition
OPM to place additional positions in Schedule F.
In contrast to past excepted service schedules designed to address
unique hiring needs upon a determination that appointments through the
competitive service was ``not practicable,'' \109\ movement into
Schedule F was designed to be broad and numerically unlimited,
potentially affecting a substantial number of jobs across all Federal
agencies. For example, according to the Government Accountability
Office, the Office of Management and Budget petitioned to place 68
percent of its workforce within Schedule F.\110\ Moreover, the
Executive Order did not make the underlying determination that
particular positions were ``of a confidential, policy-determining,
policy-making or policy-advocating character.'' \111\ In essence, the
exception was created in advance of any determination. The Executive
Order instead announced that any position that could be described in
these terms, and which was not encumbered by an appointee under
Schedule C, should be placed in a separate and new excepted service
schedule. The Executive Order then directed agencies to determine which
of their positions met that criterion and compile a list of individuals
for OPM to consider placing in Schedule F.
---------------------------------------------------------------------------
\109\ See infra notes 355-359.
\110\ Gov't Accountability Off., ``Civil Service--Agency
Responses and Perspectives on Former Executive Order to Create a New
Schedule F Category for Federal Positions,'' (Sept. 2022), <a href="https://www.gao.gov/assets/gao-22-105504.pdf">https://www.gao.gov/assets/gao-22-105504.pdf</a>.
\111\ 5 U.S.C. 7511(b)(2) (``This subchapter does not apply to
an employee . . . (2) whose position has been determined to be of a
confidential, policy-determining, policy-making or policy-advocating
character by--(A) the President for a position that the President
has excepted from the competitive service.''); see also E.O. 13957,
sec. 5 (only listing broad duties--including ``viewing'' or
``circulating'' proposed regulations and other non-public policy
proposals--that agency heads should consider when petitioning the
OPM Director to place positions in Schedule F).
---------------------------------------------------------------------------
2. Hiring
Section 3 of Executive Order 13957 provided that ``[a]ppointments
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.'' \112\ The stated rationale for removing these
positions from the competitive hiring process (or from other excepted
service schedules in which some of these positions were previously
placed) was, again, because of the importance of their corresponding
duties and the need to have employees in these positions that display
``appropriate temperament, acumen, impartiality, and sound judgment.''
\113\ The stated purpose was to ``provide agency heads with additional
flexibility to assess prospective appointees without the limitations
imposed by competitive service selection procedures'' \114\ or,
presumably, for positions already in the excepted service, without the
constraints imposed by 5 CFR part 302. The Order indicated that this
change was intended to ``mitigate undue limitations on their
selection'' and relieve agencies of ``complicated and elaborate
competitive service processes or rating procedures that do not
necessarily reflect their particular needs.'' \115\ These changes were
to 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.''
\116\
---------------------------------------------------------------------------
\112\ 85 FR 67631, 67632.
\113\ 85 FR 67631.
\114\ Id.
\115\ 85 FR 67631, 67632. The procedures Congress has adopted
for hiring in the competitive service were designed, in part, to
implement the stated congressional policy of veterans' preference.
See 5 U.S.C. 1302. How this congressional mandate would be realized
in these circumstances was not addressed.
\116\ 85 FR 67632.
---------------------------------------------------------------------------
The Executive Order did not address that the competitive hiring
process permits agencies to assess all competencies that are related to
successful performance of the job, including appropriate temperament,
acumen, impartiality, and sound judgment. They also permit agencies to
fulfill the congressional policy to confer a preference on eligible
veterans or their family members entitled to derived preference. The
qualifications requirements, specialized experience, interview process,
and other assessment methodologies available to hiring managers
facilitate an agency's ability to identify the best candidate. The
Order also did not address the existence of longstanding rules,
grounded in the need to establish lack of unlawful bias in proceedings
under Federal anti-discrimination statutes, that require assessment of
any such competencies.\117\ The summary
[[Page 24991]]
imposition of new competencies would be contrary to existing statutory
requirements and could potentially be discriminatory in application,
even if that were not the agency's intent. Finally, the Order recited
that the normal statutory veterans' preference requirements that would
have applied to identified positions \118\ would not apply, and that
agencies would be required to apply veterans' preference requirements
only ``as far as administratively feasible.'' \119\
---------------------------------------------------------------------------
\117\ See 5 CFR part 300. Validation generally requires that the
criteria and methods by which job applicants are evaluated have a
rational relationship to performance in the position to be filled.
\118\ See 5 U.S.C. 3320.
\119\ 85 FR 67631, 67632-33 (sec. 4(i) (Schedule F)); see also 5
CFR part 302.
---------------------------------------------------------------------------
As noted above, OPM received many comments about the prior Schedule
F and its potential impacts on adverse action rights, performance-based
action rights, appeals, and hiring.
Comments Regarding Departure of Schedule F From Precedents
Many individuals and organizations commented that Schedule F
represented an unprecedented departure from Congressional intent,
longstanding legal interpretations, and past practices. A joint comment
by a nonprofit organization and former federal official agreed that
Schedule F was ``an aberration, divorced from established legal
interpretation and historical precedent'' and ``there can be no
doubting that it would have disrupted the functions of government, even
if ultimately overturned by the courts.'' Comment 2134. The comment
continued that ``even a small movement of positions into Schedule F
would have amounted to presidential usurpation of the role of Congress,
which has firmly enshrined the merit system in law to protect Americans
and preserve democracy against authoritarian overreach.'' Id. Other
commenters argued that the process in which Schedule F was created was
deficient because it intended to significantly alter longstanding
statutory protections. Comment 1316 argued that ``[i]f the executive,
or one of its appointees, wishes to change the operation of an agency,
they must do so by lobbying for a change in the law that authorizes it
or implement[ ] changes in accordance with those laws and the
constraints of the Administrative Procedure Act.'' A comment from
Members of Congress stated that Schedule F not only would have
``jeopardize[d] the livelihoods of tens of thousands of hard-working,
career civil servants,'' but also would ``upend civil service
precedent.'' Comment 48. As explained in the proposed rule \120\ and
here, OPM agrees that Schedule F risked altering the carefully crafted
legislative balance that Congress struck in the CSRA and the history of
protections leading up to it.
---------------------------------------------------------------------------
\120\ 88 FR 63862, 63867-69.
---------------------------------------------------------------------------
To be clear though, this rulemaking takes no position on whether
Executive Order 13957 was based on legal error, nor is this rulemaking
premised on such a conclusion. Instead, as OPM explained in the
proposed rule,\121\ there were a number of existing mechanisms that
would address the policy concerns identified in the Executive Order
without establishing a new schedule, and the creation of Schedule F
risked undermining other objectives of the civil service laws.\122\ The
basis for this rulemaking, as explained herein, is to clarify and
reinforce the retention of accrued rights and status following an
involuntary move to or within the excepted service and promulgate a
definition of what it means to be a ``confidential, policy-determining,
policy-making, or policy-advocating'' position consistent with decades
of practice and how the Executive Branch, Congress, and the courts have
understood that phrase to encompass political appointees.
---------------------------------------------------------------------------
\121\ Id.
\122\ See also E.O. 14003 at 2 (providing a similar assessment).
---------------------------------------------------------------------------
A few commenters opposed to this rule argued that the President has
the authority to issue civil service reform in a manner like Schedule
F. An advocacy nonprofit organization stated that the order was
``grounded on firm legal authority'' because title 5 specifically
authorizes the President to exempt policy-influencing positions from
civil service appeals. Comment 4097. Commenter argued that ``statutory
context makes clear'' this authority extends to both political
appointees and career officials. Commenter continued that the ``fact
that prior presidents have restrained themselves in their dealings with
subordinates does not imply they lacked this authority.'' Id. Commenter
asserted that the ``Supreme Court has already concluded that
`policymaking positions in government may be excepted from the
competitive service to ensure presidential control, see 5 U.S.C.
2302(a)(2)(B), 3302' (Free Enterprise Fund v. Public Company Accounting
Oversight Board, 2010).'' \123\
---------------------------------------------------------------------------
\123\ The full cite to this opinion is 561 U.S. 477 (2010).
---------------------------------------------------------------------------
The ``confidential, policy-determining, policy-making or policy-
advocating'' provision was intended to permit agency heads to directly
appoint a cadre of political appointees who have a close and
confidential working relationship with the President's appointees to
further and support the priorities of the President and the President's
appointees. As discussed extensively throughout this final rule, the
term of art, ``confidential, policy-determining, policy-making or
policy-advocating,'' has a longstanding meaning that equates to
political appointments, typically made under Schedule C. OPM, in this
rulemaking, is defining that phrase as it is used in the statutory
exception in 5 U.S.C. 7511(b)(2) for the reasons explained in the
proposed rule \124\ and in Section IV(B).\125\
---------------------------------------------------------------------------
\124\ 88 FR 63862, 63871-73.
\125\ See also Comment 2134 (``The preamble and the regulation
accurately reflect the executive branch's historical understanding
that Congress intended for the competitive service exception for
`confidential, policy-determining, policy-making, or policy-
advocating' positions to apply only to a small class of political
appointee positions.'').
---------------------------------------------------------------------------
Comment 4097 also argued that a separate provision, 5 U.S.C
2302(a)(2)(B), defining a ``covered position'' for the purposes of
protections from prohibited personnel practices, similarly excludes
from protections positions excepted from the competitive service
because of their ``confidential, policy-determining, policy-making, or
policy-advocating character.'' Commenter claimed this demonstrates that
``policymaking positions in government may be excepted from the
competitive service to ensure presidential control.'' Although this
final rule does not directly amend regulations dealing with prohibited
personnel practices, OPM construes this statutory language in 5 U.S.C
2302(a)(2)(B) as aligning with the reasoning in OPM's final rule with
respect to chapter 75. It simply means that positions of a
``confidential, policy-determining, policy-making, or policy-
advocating'' character have long been understood to be political
appointees and, in addition to not having adverse action rights, are
not covered by protections against prohibited personnel practices.\126\
That is perfectly consistent with the nature of Schedule C employees.
Congress has chosen to extend these protections only to the career
civil service as described further in Section IV(B).
---------------------------------------------------------------------------
\126\ OPM notes, though, that the rule does not amend
regulations related to prohibited personnel practices.
---------------------------------------------------------------------------
This commenter also cited 5 U.S.C. 3302, which says a President may
make necessary exceptions of positions from the competitive service if
``conditions of good administration warrant,'' to support the assertion
that career policymaking positions in government
[[Page 24992]]
may be excepted from the competitive service to ensure presidential
control. Again, OPM's rule does not change this Presidential authority
to except positions from the competitive service where necessary and
where conditions of good administration warrant such action. But, as
explained above, OPM disagrees that the authority to make exceptions in
section 3302 also allows for the removal of incumbents' accrued adverse
action rights under chapter 75.\127\ Section 3302 and the
``warrant[ed]'' by ``conditions of good administration'' standard
relates to whether positions should be excepted from the competitive
service. Congress did not suggest--in chapter 33 or chapter 75--that
the same standard also be used in determining whether to remove civil
service protections for the incumbents of such positions. Further, as
explained in Sections IV.(A)-(B), OPM does not believe the exception in
5 U.S.C. 7511(b)(2) can remove the previously accrued adverse action
rights of the incumbents of such positions.
---------------------------------------------------------------------------
\127\ See supra note 107.
---------------------------------------------------------------------------
As noted above, commenter also cited Free Enterprise Fund to
support its assertion that the President can issue an action like
Schedule F. The application of Free Enterprise Fund and other
Appointments Clause and removal cases to this rulemaking are addressed
further at Section III(F), but in short, commenter's reliance on this
case is beside the point and inapt. Whether a president can lawfully
enact Schedule F by executive order does not affect the ability of OPM
to promulgate this rule pursuant to its authority. In any event, in
Free Enterprise Fund, the Supreme Court examined the constitutionality
of multiple layers of removal restrictions for select positions at an
independent agency (one layer of removal protections for the
commissioners of the SEC and the next layer of protections for members
of the Public Company Accounting Oversight Board (PCAOB or Board)). As
an initial matter, most of the agencies that hire and fire subject to
title 5 are not independent agencies, so they would not have multiple
for-cause limitations on removal (i.e., most Secretaries, Directors,
and other agency heads can be removed at will by the President). But
even in most independent agencies, the removal restrictions at issue in
Free Enterprise Fund are of limited relevance. There, the Supreme Court
focused specifically on the removal protections of Board members, whom
the Court held were executive officers ``as the term is used in the
Constitution'' and who exercise ``significant authority.'' It clarified
that ``many civil servants within independent agencies would not
qualify'' as executive officers and none of the civil servants or
corresponding protections addressed by the dissenting opinion introduce
the same constitutional problems as those of the Board. One group the
dissent specifically mentions are employees in the Senior Executive
Service.\128\ Even though SES employees work on policy and have
significant leadership responsibilities, they also have civil service
protections. The majority states that ``none of the positions [the
dissent] identifies,'' which would include SES positions, ``are
similarly situated to the Board.'' \129\ ``Nor do the employees
referenced by the dissent enjoy the same significant and unusual
protections from Presidential oversight as members of the Board,'' the
majority added. In other words, Free Enterprise Fund explicitly
declined to hold that career SES positions, which have adverse action
protections under 5 U.S.C. 7541-7543, pose constitutional concerns in
and of themselves. Commenter invokes Free Enterprise Fund to argue that
a lower-level strata of career civil servants (with fewer
responsibilities and authority) cannot have civil service protections
if they keep confidences or work on policy. But the Court stressed that
``[n]othing in our opinion, therefore, should be read to cast doubt on
the use of what is colloquially known as the civil service system
within independent agencies.'' If nothing in Free Enterprise Fund casts
doubt on the civil service system within independent agencies, it does
not cast any doubt on the civil service system within the Executive
Branch generally.\130\
---------------------------------------------------------------------------
\128\ See 561 U.S. at 541.
\129\ Id. at 506.
\130\ Free Enterprise Fund notes that civil service statutes in
section 7511 contain an exception from adverse action rights for
positions of a confidential, policy-determining, policy-making, or
policy-advocating character, but it did not define what those
phrases mean. See 561 U.S. at 506.
---------------------------------------------------------------------------
Further, in Free Enterprise Fund, the Supreme Court crafted a
narrow remedy to address the unique problem the statute presented,
holding that members of the Board would have to be removable at will by
the Commission to render the statutory scheme consistent with the
Constitution. More recently, in United States v. Arthrex,\131\ the
Supreme Court crafted a different remedial solution for another
statutory scheme presenting employees with significant responsibilities
who enjoyed statutory removal protections. Arthrex concerned
Administrative Patent Judges (APJs), whose duties included sitting on
the Patent Trial and Appeal Board and issuing binding decisions. The
Federal Circuit, sitting en banc, had held that APJs were principal
officers whose appointments were unconstitutional because neither the
Secretary nor Director could review their decisions or remove them at
will. To remedy this constitutional violation, the Federal Circuit
invalidated the APJs' tenure protections, making them removable at will
by the Secretary. The Supreme Court, however, vacated and remanded,
concluding that it was preferable to reform the statute to require the
Director, a Presidential appointee who already oversaw APJs for other
functions, to serve as a final reviewing and issuing official for
decisions rendered by the Patent Trial and Appeal Board. The Court left
the APJs' tenure provisions intact. The limited solutions adopted by
the Supreme Court in Free Enterprise Fund and Arthrex are far removed
from a proposal to remove previously accrued adverse action rights from
thousands of traditional civil servants simply because, for example,
some of their work might touch on policymaking. Nothing in this
rulemaking is contrary to Free Enterprise Fund or any other binding
precedent. On the other hand, an overwhelming number of precedents are
contrary to commenter's positions, as described in this final rule.
---------------------------------------------------------------------------
\131\ 141 S. Ct. 1970 (2021).
---------------------------------------------------------------------------
Comment 4097 argued that ``[t]he CSRA also allows the President to
except positions from the competitive service for the purpose of
nullifying removal restrictions.'' The Supreme Court has cautioned
against using vague statutory provisions to alter ``fundamental details
of a regulatory scheme,'' stating that Congress ``does not hide
elephants in mouseholes.'' \132\ Commenter seems to suggest that
Congress did just that when it enacted the CSRA, even though that
authority went undiscovered and unexercised for these purposes in over
40 years. Under this assertion, all a President would have to do is
proclaim by unilateral order that ``good administration warrants'' a
change and the carefully balanced and longstanding civil service
protections provided by Congress would fall away if the positions could
be characterized as having a ``confidential'' \133\ or ``policy''
[[Page 24993]]
character--terms commenter argued require no further elaboration. That
would be contrary to the very purpose of the CSRA, a result that
Congress could not have possibly intended.
---------------------------------------------------------------------------
\132\ See Whitman v. Am. Trucking Assocs., Inc., 531 U.S. 457,
468 (2001).
\133\ In describing positions with confidential or policy
characteristics, E.O. 13957 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.'' If that were the sole standard for a
``confidential'' position, it would be hard to think of a career
position that would not have been ``confidential,'' since the
incumbents of virtually all positions have this obligation regarding
non-public information. Such a novel reading of the adverse action
exclusion could have led to untenable results. Of course, Congress,
the courts, and the Federal Government have historically not read
these and similar terms so broadly and have instead long given them,
as used in 5 U.S.C. 7511(b)(2), a much narrower meaning.
---------------------------------------------------------------------------
As explained in Comment 2134, a joint comment by a nonprofit
organization and a former federal official, and further in Section
IV(B), Congress, courts, and the Federal Government have parsed the
meaning of the term of art ``confidential, policy-determining, policy-
making or policy-advocating'' over at least the past 90 years and
consistently viewed it as applying to noncareer political
appointees.\134\ Further, competitive service employees have in the
past been moved involuntarily to excepted service schedules that do not
contain adverse action rights, but those incumbents have kept rights
they have accrued (as detailed in Section IV(A)). Executive Order 13957
and Schedule F's attempt to strip accrued rights by moving positions
into the excepted service would run contrary to longstanding precedent,
including Roth v. Brownell,\135\ as explained in Section IV(A). See
Comment 2134. OPM therefore disagrees with commenter's broad assertion
that the CSRA allows the President to except positions from the
competitive service ``for the purpose of nullifying removal
restrictions.''
---------------------------------------------------------------------------
\134\ Comment 2134, as detailed in Section IV(B), explained that
the phrase ``confidential, policy determining, policy-making or
policy-advocating'' was first used in the CSRA in 1978. Before then,
though, phrases such as ``confidential or policy-determining'' and
``policy-making and confidential'' were used. Those phrases were
interchangeable and had the same meaning.
\135\ 215 F.2d 500 (D.C. Cir. 1954), cert. denied sub nom,
Brownell v. Roth, 348 U.S. 863 (1954) (confirming that employees
with competitive status retained their appeal rights upon
involuntary movement to the excepted service).
---------------------------------------------------------------------------
Comments Regarding Schedule F's Use of an Exception To Broadly
Eliminate Adverse Action Rights
Commenters supportive of the rule agreed with OPM and argued that,
because the terms ``confidential'' and ``policy-making, policy-
determining, or policy-advocating'' are so broad, Schedule F had no
limiting principle and used the exception in 7511(b)(2) to broadly
swallow adverse action rights. A professor commented that the ``lack of
clear definition and breadth of Schedule F allows it to serve as a
promise for wide scale partisan retribution for any federal employee
who might raise concerns about the legality of [a] policy agenda.''
Comment 50. A labor union argued that ``the plain purpose of Schedule F
was to create an exception so broad, it swallowed the rule of
apolitical, merit based Federal employment and rendered meaningless the
protections afforded to career Federal employees by the CSRA.'' Comment
2640. As described in the proposed rule \136\ and in this final rule,
OPM shares some of these concerns.
---------------------------------------------------------------------------
\136\ 88 FR 63862, 63871-73.
---------------------------------------------------------------------------
One commenter opposed to this rule argued that the statutory
exceptions in 7511(b)(2) are broad enough to include career positions.
Comment 4097 argued that ``[n]othing in the words `confidential,
policy-determining, policy-making, or policy-advocating' hints at
covering only political appointments or references the duration of an
employee's tenure. Instead, the CSRA makes clear these terms cover both
career and noncareer positions.'' OPM disagrees that these words can be
read in isolation or separated from their historical context and
development. As explained in Section IV(B) and shown in Comment 2134,
which extensively details the context, history, and meaning of these
terms of art, they have, except in Executive Order 13957, always meant
noncareer political appointees. Section 7511 was amended as part of the
Civil Service Due Process Amendments of 1990, in which Congress, for
the first time, extended the ability to accrue adverse action rights
(and for certain adverse actions, appeal rights) to individuals in the
excepted service other than preference eligibles, who already had the
ability to accrue such rights. Congress did not intend to undercut this
extension of rights by permitting broad exclusions. In discussing what
positions would be excluded from such rights, Congress stated that the
bill ``explicitly denies procedural protections'' to these types of
political appointees--``presidential appointees, individuals in
Schedule C positions [which are positions of a confidential or policy-
making character] and individuals appointed by the President and
confirmed by the Senate,'' and that ``[e]mployees in each of these
categories have little expectation of continuing employment beyond the
administration during which they were appointed'' because they
``explicitly serve at the pleasure of the President or the presidential
appointee who appointed them.'' \137\
---------------------------------------------------------------------------
\137\ H.R. Rep. No. 101-328, at 4-5, as reprinted in 1990
U.S.C.C.A.N. at 698-99.
---------------------------------------------------------------------------
We also discuss below the argument that Congress did not
distinguish between career and noncareer positions in the SES in
discussing the possibility that SES positions could involve policy-
influencing duties. In brief, the SES was a new service, created in the
CSRA and has its own distinct rules, rather than building on the
existing structure of the competitive and excepted services. In the SES
scheme, Congress did not need to address exclusions because the only
SES appointees covered by the sections addressing procedural and appeal
rights were career appointees. There was no attempt to distinguish
between those whose duties could be regarded as policy-influencing and
those whose duties could not be so characterized. Congress included
separate provisions limiting the number of noncareer appointees.
Comment 4097 also suggested that concerns about Schedule F are
misguided because the schedule would have been limited to a small group
of senior policy-influencing positions. There are approximately 4,000
political positions in the civil service (though some commenters noted
between 20-25 percent of those usually remain unfilled). See Comment
2134.\138\ Of these, between 1,000 to 1,500 positions are Schedule C
political appointees--a number that has stayed relatively steady since
the 1950s. See id. Comment 4097 estimates Schedule F would have covered
between two and three percent of the federal workforce, which would
have grown the positions vulnerable to political favor (even if not
explicitly ``subject'' to such favor) by over an order of magnitude,
from 4,000 to 50,000 positions. Comment 4097 attempts to
[[Page 24994]]
rationalize the scope of Schedule F by contending it would have been
limited to ``senior policy-influencing officials''--a term that does
not appear in Executive Order 13957. But as explained above and in the
proposed rule,\139\ the GAO found that Schedule F was interpreted by
agencies to have a broad reach, with one agency, for example,
petitioning to place 68 percent of its workforce within Schedule F,
including positions at the GS-9 level.\140\
---------------------------------------------------------------------------
\138\ See also U.S. Civil Serv. Comm'n, ``Maintaining the
Integrity of the Career Civil Service,'' p. 10 (1960), <a href="https://babel.hathitrust.org/cgi/pt?id=uc1.aa0005815857&seq=20&q1=%22competitive+status%22">https://babel.hathitrust.org/cgi/pt?id=uc1.aa0005815857&seq=20&q1=%22competitive+status%22</a>; U.S. Off.
Of Pers. Mgmt., ``General, Questions and Answers'' (detailing the
different types of political appointments, including presidential
appointments requiring senate confirmation (PAS), presidential
appointments not requiring senate confirmation (PA), noncareer
Senior Executive Service positions, Schedule C positions, and
others), <a href="https://www.opm.gov/frequently-asked-questions/political-appointees-and-career-civil-service-positions-faq/general/which-types-of-political-appointments-are-subject-to-opmrsquos-pre-hiring-approval/">https://www.opm.gov/frequently-asked-questions/political-appointees-and-career-civil-service-positions-faq/general/which-types-of-political-appointments-are-subject-to-opmrsquos-pre-hiring-approval/</a>; P'ship for Pub. Serv., Center for Presidential
Transition, ``Frequently Asked Questions About the Political
Appointment Process,'' (estimating there are 1,200 PAS positions,
750 noncareer SES positions, 450 PA positions, and 1,550 Schedule C
positions), <a href="https://presidentialtransition.org/appointee-resources/ready-to-serve-prospective-appointees/frequently-asked-questions-about-the-political-appointment-process/">https://presidentialtransition.org/appointee-resources/ready-to-serve-prospective-appointees/frequently-asked-questions-about-the-political-appointment-process/</a>.
\139\ 88 FR 63862, 63868.
\140\ See supra note 110. A former OPM official involved in the
Schedule F approval process told GAO that ``positions above GS-11
were generally included'' but OMB's approved petition ``also
included positions at the GS-9 and GS-10 levels.'' Id. at p. 19 &
n.14.
---------------------------------------------------------------------------
Confirming that the number of employees that would have been
subject to Schedule F extends beyond senior positions responsible for
agency policy, Comment 4097 included a spreadsheet labelling a career
line attorney at an agency's general counsel's office as a ``policy''
employee. OPM notes that government attorneys are generally Schedule A
employees, and therefore, by definition, are specifically ``not of a
confidential or policy-determining character,'' \141\ but in any event,
whatever limiting principles commenter may have in mind for justifying
Schedule F, they remain unclear. While commenter states that two to
three percent of the federal workforce would have been impacted by
Schedule F, commenter then suggests that up to 10 percent of jobs \142\
could fit its interpretation of confidential and policy positions,
which would equate to approximately 250,000 employees. The number of
positions that could be covered by a Schedule F-type action is thus
indeterminate and without meaningful boundary.
---------------------------------------------------------------------------
\141\ 5 CFR 213.3101 (describing Schedule A positions).
\142\ See Comment 4097, p. 24 (surmising that 90% of jobs are
not policy-influencing). Because there are millions of civil
servants, each percentage point in this estimate equates to a
significant number of potentially impacted employees.
---------------------------------------------------------------------------
Commenter added that, because of Schedule F's allegedly limited
scope, OPM's recruitment concerns are ``meritless.'' It claimed that
``Schedule F would have virtually no applicability to technical
positions such as IT and cybersecurity that OPM cites as ongoing
recruitment challenges.'' This statement certainly does not capture the
nature of cybersecurity and other technical positions which require the
maintenance of confidences while fending off cyberattacks from foreign
countries or domestic bad actors with respect to data breaches, for
example. It is difficult to imagine situations where the requirement to
maintain confidences would be more important. Commenter concluded that
OPM does not ``offer any evidence that making confidential and policy-
influencing career positions at-will--as opposed to converting them to
political appointments--would create recruitment challenges.'' As
detailed further in Section V.(B), regarding the impact of
politicization on recruitment, hiring, and retention, OPM received a
significant number of comments concerned about the negative impacts of
Schedule F, or a similar effort, on federal civil service recruitment.
Because of Schedule F's unprecedented treatment of the confidential and
policy exception in 5 U.S.C. 7511(b), the concerns about such a
schedule were broad and not isolated to discrete parts of the
workforce. For instance, concerned commenters included academic
researchers showing the negative impact of politicization on
recruitment to individuals, including those in IT and technical
positions who expressed that the existence of an action like Schedule F
would dissuade them from seeking federal employment.
Comments Regarding Schedule F and Politicization in Hiring and Firing
Comment 4097 also argued that, contrary to widespread opinion,
Schedule F rejected the spoils system and was sufficiently protective
from the dangers of politicization. Commenter contended that ``if E.O.
13957 was intended to fill the bureaucracy with political loyalists,
President Trump chose an extremely odd way of doing it. He could have
directly converted career positions to political positions, dismissed
career incumbents through a reduction in force, and filled the roles
with political appointees.'' None of these alternatives is simple or
free of costs. For instance, additional Schedule C positions would
require an agency to budget for and create new slots, obtain OPM's
approval of such slots, and pursue a variety of other procedural steps
designed to sustain civil service protections and merit system
principles. Reductions in force are complex and the outcomes are
unpredictable. They have often been the subject of extended
litigation.\143\
---------------------------------------------------------------------------
\143\ See, e.g., James v. Von Zemensky, 284 F.3d 1310 (Fed. Cir.
2002) (construing whether a ``staff adjustment'' resulting in the
separation of a physician in the Veterans Health Administration of
the Department of Veterans Affairs, could be appealed under the
reduction-in-force statute and regulations, notwithstanding
Congress' placement of VHA positions under title 38, U.S. Code, for
at least some purposes); Harants v. U.S. Postal Serv., 130 F.3d 1466
(Fed. Cir. 1997) (construing a reassignment during a Postal Service
reorganization that the employee had accepted as an appealable
reduction-in-force action in the context of complex developments,
including intervening MPSB opinions, cancellations, and
restorations, a stay of enforcement, and a subsequent reduction-in-
force notice).
---------------------------------------------------------------------------
Commenter argued that the White House Office of Presidential
Personnel would not have been involved in Schedule F appointments, but
commenter does not address why that would promote efficiency or lead to
less agency politicization. The prior administration was slow to fill
even the political slots at its disposal and many remained unfilled.
See, e.g., Comment 2124 (``Increasing [politically-based appointments]
by a factor of 5 or more will certainly mean that more jobs will go
unfilled and more tasks will go uncompleted.''). Under Schedule F,
agency political and career leadership could target, interview, and/or
select politically-aligned applicants just as well as PPO.
Regarding Schedule F's purported protections from the dangers of
politicization, an advocacy nonprofit organization argued that
``Schedule F made sure to protect these policymaking employees from
discriminatory firing based on political beliefs or party allegiance.''
See Comment 3892; see also Comment 2346. Once hirings and firings are
at-will, however, the employee might not have an entitlement to written
notice of the reasons for the adverse action, an opportunity to
respond, or a written decision.\144\ Nor would the decision generally
be appealable.\145\ It would thus be, at a minimum, difficult for
employees to protect themselves from actions based on political beliefs
or party allegiance because no cause (or evidence) would be required
prior to such an action. Under Schedule F, because such an employee
would be at-will, the employer would need to give little or no reason
prior to a termination. In short, Schedule F leaves innumerable ways
for politics to factor into these traditionally merit-based decisions
in a manner that would be difficult to detect or remedy.
---------------------------------------------------------------------------
\144\ 5 U.S.C. 7513(b).
\145\ 5 U.S.C. 7513(d).
---------------------------------------------------------------------------
Comment 4097 contended that ``OPM's concerns about a return to the
patronage system also ignore the evidence that the Federal Government
ended patronage because it had become obsolete'' and passed the
Pendleton Act because ``patronage no longer served their interests.''
Although the influence of politics in the civil service was greatly
diminished following the Pendleton Act, it has taken consistent
legislative, executive, and regulatory action to stem the tide of
patronage over the past 140 years. For instance,
[[Page 24995]]
Comment 2134 gave an overview of the election of 1936, which featured
concerns about the return of the spoils system, and executive action in
the 1950s to create Schedule C due to concerns that political actors
were burrowing in as career civil servants. As previously mentioned,
the CSRA was enacted in the aftermath of the Nixon Administration's
plan to implement the Malek Manual, a blueprint to replace the civil
service merit system with a political hiring scheme that would begin by
purging all Democrats from federal employment.
Comment 4097 also contended that today's rank-and-file government
jobs are not enticing enough to invite patronage and that ``the really
big bucks aren't in the political appointments game.'' At the same
time, commenter argued that confidential and policy positions are so
important to the functioning of government that the President should
have unfettered control over these positions. Executive Order 13957
likewise justified removing protections from these positions because
the ``importance of the functions they discharge.'' Commenter seems to
recognize the threat of unqualified individuals discharging important
functions. OPM agrees that qualified individuals should discharge
important functions, and this rule is based on OPM's determination that
injecting politicization into the nonpartisan career civil service (or
creating the conditions where it can be injected by individual actors)
runs counter to merit system principles and would not only harm
government employees, agencies, and services, but also the American
people that rely on them, as discussed in the proposed rule \146\ and
further below.
---------------------------------------------------------------------------
\146\ 88 FR 63862, 63881.
---------------------------------------------------------------------------
Comments Regarding Schedule F as a Performance Management Tool
One of the justifications for Schedule F was that it allegedly
allowed agencies to address poor performance, but many commenters
asserted that this rationale was flawed and a pretext for removing
protections and culling the civil service of dissenting opinions.
Comment 13, a former OMB official, commented that ``[t]he proponents of
Schedule F claim that it is needed for accountability and to be able to
fire poor performers. Yet they offer little or no support for their
claims. Thousands of poor performers are dismissed annually, and even
more are transferred to other positions.'' This commenter argued that
the last Administration's ``own presidential appointees [were the ones]
who most visibly resisted his directives, not career civil servants.''
\147\ Comment 2816, a former federal official, argued that Schedule F
``relied on vague and conclusory assertions that competitive selection
procedures inhibit the hiring of candidates with appropriate `work
ethic, judgment, and ability to meet the particular needs of the
agency,' and that more `flexibility to expeditiously remove poorly
performing employees' was needed without any consideration of the
countervailing considerations that favor strong employee protections.''
See also Comment 3803. A professor argued that it was not civil service
incompetence that spurred Schedule F, but competence. Comment 42.
``This competence insisted on following scientific consensus on climate
change. It insisted that cures such as ivermectin and hydroxyquinoline
would not treat Covid-19. The legal expertise in the federal
bureaucracy insisted that impounding funds that Congress had explicitly
delegated for Ukraine was illegal. These are some of the most prominent
examples of bureaucratic competence coming into conflict with the
preferences'' of the previous Administration. Id. Finally, commenters
noted that, while some want to ``eliminate incompetent people or
redundant roles--[ ] allowing elected officials to hand-pick civil
service members prevents neither.'' Comment 2828.
---------------------------------------------------------------------------
\147\ Citing James P. Pfiffner, ``President Trump and the
Shallow State: Disloyalty at the Highest Levels,'' Presidential
Studies Quarterly, Vol. 53, Issue 3 (Sept. 2022), <a href="https://doi.org/10.1111/psq.12792">https://doi.org/10.1111/psq.12792</a>.
---------------------------------------------------------------------------
OPM agrees that Schedule F was poorly designed as an effort to
meaningfully improve performance management or allow managers to more
effectively address performance issues. Agencies were directed to move
employees occupying ``confidential, policy-determining, policy-making,
or policy-advocating'' positions into Schedule F, thereby purportedly
making them at-will employees who could be terminated without any
adverse action procedures. But the characteristics of an employee's
job--including whether the employee works on policy--has nothing to do
with an employee's performance. Schedule F sought to streamline
terminations based on the type of work that an employee performs, not
based on how well the employee performs. It is therefore difficult to
understand how Schedule F can be reconciled with its purported aim of
addressing poor performance.
If the concern is that managers face some difficulties in
attempting to take actions under chapter 75 or chapter 43, the solution
is not for the Executive Branch to issue an executive order seeking to
undermine those statutory provisions. Nor would such an executive order
effectively address the complexity of the various remedial schemes
Congress has created. For example, creating Schedule F will do nothing
to prevent a particular employee from lodging a complaint of unlawful
discrimination under the various civil rights statutes; will do nothing
to stop administrative judges of the Equal Employment Opportunity
Commission from presiding over discovery in relation to such claims and
adjudicating them; and may result in decisions adverse to managers that
will then be non-reviewable in a Federal court. Similarly, excepting
individuals from adverse action rights would likely lead to attempts to
file constitutional claims in the Federal district courts, thereby
defeating the benefits of the claim-channeling provisions of the
CSRA.\148\
---------------------------------------------------------------------------
\148\ OPM discusses performance management further in Section
V.(B).
---------------------------------------------------------------------------
Still, some commenters argued that Schedule F was a valid tool to
remove poor performers and increase accountability. For instance,
Comment 7 contended that ``Schedule F and similar tools `aim[ ] to
increase accountability and efficiency in the Federal government by
removing `poor-performing employees.' '' See also Comments 45, 1811,
3130; 4097. Comment 4097, an advocacy nonprofit organization, argued
that civil service protections and merit-based hiring procedures ``make
it difficult to hire the best candidates and prohibitively difficult to
dismiss employees for all but the worst offenses.'' With respect to
merit-based hiring procedures, we observe that even if we accepted this
premise as true, which OPM does not, commenter ignores the fact that
merit-based hiring procedures contained in title 5 are the law of the
land. If a commenter believes they ``make it difficult to hire the best
candidates'' the solution is to make this argument to Congress, not
attempt to evade the requirements established in title 5. We also note
that many of the ``difficulties'' commenter observes arise from the
Veterans' Preference Act, as amended, which is codified throughout
title 5's provisions on hiring. An observer might argue that there
should be no veterans' preference, but that would seem a grave
disservice to the sacrifice and commitment of veterans across the
Nation. And even if a persuasive policy argument in favor of veterans'
preference reform could be made, it
[[Page 24996]]
would have to be made to Congress. Finally, the merit-based hiring
procedures are one of the ways agencies can defend themselves from
unsupported assertions of illegal discrimination. Attempts to create
unwarranted exceptions to avoid legal requirements have been
counterproductive and resulted in substantial litigation.\149\
---------------------------------------------------------------------------
\149\ See, e.g., Nat'l Treasury Employees Union v. Horner, 854
F.2d 490 (D.C. Cir. 1988), which overturned OPM's decision to place
all Professional and Administrative Career positions in Schedule B
of the excepted service after entering into a consent decree that
required OPM to develop a new examination for such positions. The
Federal court of appeals, on review from a district court
determination that OPM had violated the Administrative Procedure Act
in excepting this broad category from the competitive service, noted
that filling positions through the competitive process was the norm
and OPM could depart from that norm only when ``necessary'' for
``conditions of good administration,'' quoting 5 U.S.C. 3302. The
court also noted that OPM, while asserting that the cost of
developing a new examination was prohibitive, did not present
evidence that would meet the standard of review. Cf. Gingery v.
Dept. of Defense, 550 F.3d 1547 (Fed. Cir. 2008) (holding that
President Clinton's creation of the Federal Career Intern Program, a
Schedule B appointing authority, did not permit the agency to use
OPM's modified process for agency pass-overs of preference eligibles
in an excepted service hiring process, in light of Congress'
command, at 5 U.S.C. 3320, to apply the same procedures used for the
competitive service, i.e., the procedures specified in 5 U.S.C.
3318).
---------------------------------------------------------------------------
As to difficulties dealing with ``poor performers,'' there already
exist a variety of tools to address inappropriate conduct and
unacceptable performance and civil servants are removed using these
tools, as described above and explored further below in the Section
V.(B). Commenter also does not address civil servants who are
terminated during their probationary/trial periods or before they have
met their durational requirements when their civil service protections
would attach. The purpose of probation is to permit observation of new
appointees on the job before their appointments became permanent. It is
sometimes described as the final stage of the examining process. Such
filtering, when done properly, addresses many performance issues early
and grants the agency wide latitude to remove that worker.\150\
---------------------------------------------------------------------------
\150\ On December 13, 2023, OPM issued guidance to agencies on
Maximizing Effective Use of Probationary Periods, available at
<a href="https://www.chcoc.gov/content/maximizing-effective-use-probationary-periods">https://www.chcoc.gov/content/maximizing-effective-use-probationary-periods</a>. This guidance advises agencies to periodically remind
supervisors and managers about the value of the probationary period
and to make an affirmative decision regarding the probationer's
fitness for continued employment. The guidance also provides
practical tips for supervisors and recommends good management
practices for supervisors and managers to follow during this
critical assessment opportunity.
---------------------------------------------------------------------------
Commenter attributes any misalignment with a President's political
agenda (or ``policy resistance'') as ``misconduct'' which justifies
termination, even if such conflict cannot be proved. But a mere
difference of opinion with leadership does not qualify as misconduct or
unacceptable performance or otherwise implicate the efficiency of the
service in a manner that would warrant an adverse action. To the
contrary, identifying objections to government action early in internal
discussions ultimately strengthens government policy by addressing
meritorious considerations and explaining why other objections are
unwarranted. Moreover, Executive branch employees have an affirmative
obligation to report waste, fraud, and abuse to appropriate
authorities, which could fall under commenter's broad notion of
``policy resistance'' \151\ and is another reason this notion is
unworkable
---------------------------------------------------------------------------
\151\ See 5 CFR 2635.101(b)(11).
---------------------------------------------------------------------------
Comment 4097 cited some examples of what commenter considers to be
poor performance, misconduct, or other justifications for Schedule F.
Comment 2822, a legal nonprofit organization, examined many of those
examples and those in Tales from the Swamp, written by the same author
as Comments 3156 and 4097 and cited throughout those two comments. It
concluded that Tales from the Swamp ``regularly engages in cherry-
picking, slanted interpretation, and outright inaccuracy to justify its
conclusions in support of Schedule F.'' Regarding Tales from the
Swamp's complaints about agency losses in court, Comment 2822 stated it
``makes a substantial and baseless leap'' from the previous
Administration's ``loss rate in court (true) to career staff sabotage
being the culprit (unsupported).'' Comment 2822 explained that ``the
most thorough report prepared on the'' previous Administration's
``record in court found that the Administration regularly `ignored
clear-cut statutory and regulatory duties,' with losses on statutory
interpretation grounds making up the bulk (117) of the administration's
losses in court.'' \152\ In many of these cases, ``the Administration
lost `because the agency had acted outside of the bounds of its
authority or had adopted an interpretation that blatantly contradicted
the statute at issue.' These losses were the result of unlawful policy
efforts by political decisionmakers, not the product of agency staff
doing a poor job of building a rulemaking record.'' Comment 2822
criticized Tales from the Swamp's other examples of alleged poor
performance \153\ and finds ``many of the anecdotes relied on by TFTS
lack crucial context, or mischaracterize important facts about
agencies' work'' and the ``only thing these anecdotes consistently show
is that some political appointees'' during the last Administration
``occasionally found it challenging to implement their regulatory
goals. But that experience is not unique to Trump-era political
appointees, and it does not justify reorienting the civil service
towards political fealty.''
---------------------------------------------------------------------------
\152\ Citing Bethan A. Davis Noll, `` `Tired of Winning':
Judicial Review of Regulatory Policy in the Trump Era,'' 73 Admin.
L. Rev. 353, 397-98, 397 fig.5 (2021), <a href="https://www.law.nyu.edu/sites/default/files/DavisNoll-TiredofWinning_0.pdf">https://www.law.nyu.edu/sites/default/files/DavisNoll-TiredofWinning_0.pdf</a>.
\153\ These include Department of Education enforcement against
for-profit colleges, FDA laboratory test oversight, USDA attempts to
narrow food stamp eligibility, the rollback of offshore drilling
safety requirements, re-issuance of the school nutrition rule, and
the classical architecture mandate.
---------------------------------------------------------------------------
Many commenters argued that, instead of poor performance or
accountability, Schedule F was motivated by a desire to increase
political loyalty in nonpartisan career civil servants. A professor
argued that the previous administration has touted the prior Schedule F
as a way ``to impose personal loyalty tests, and to use government as
an instrument of his power. This is at odds with the purpose and
traditions of the American state.'' Comment 50; see also Comments 448,
1779. Other commenters pointed to numerous public statements which,
they argue, demonstrate the intent behind Schedule F, including calls
from the previous Administration to ``root out'' political opponents,
referring to civil servants as the ``deep state'' that needs to be
``destroyed'' or ``brought to heel,'' and statements that they would
``pass critical reforms making every executive branch employee fireable
by the president of the United States.'' See Comments 50, 668, 2512
(citing news articles documenting the previous Administration and its
supporters' desire to purge the civil service), 3398. Such firings
would likely be at odds with statutory, regulatory, or constitutional
protections and rights as explained in this final rule.
3. Political Appointees in Career Civil Service Positions
Executive Order 13957 could have facilitated burrowing in.
``Burrowing in'' occurs when a current (or recently departed) political
appointee is hired into a permanent competitive service, nonpolitical
excepted service, or career SES position without having to compete for
that position or having been appropriately selected in accordance with
merit system principles and the normal procedures applicable to the
[[Page 24997]]
position under civil service law. OPM has long required that ``politics
play no role when agencies hire political appointees for career Federal
jobs.'' \154\ OPM adopted procedures to review appointments of such
individuals for compliance and Congress has now essentially codified
that procedure by requiring OPM to submit periodic reports of its
findings.\155\ Executive Order 13957, interpreted broadly, could have
opened the door for agency heads to move current political appointees
into new Schedule F positions, or transferred vacancies in existing
positions to Schedule F, without competition and in a manner not based
on merit system principles. In effect, this would have allowed
political appointees on Schedule C appointments, who would normally
expect to depart upon a presidential transition, to ``burrow'' into
permanent civil service appointments.
---------------------------------------------------------------------------
\154\ U.S. Off. of Pers. Mgmt., ``Guidelines on Processing
Certain Appointments and Awards During the 2020 Election Period,''
<a href="https://chcoc.gov/sites/default/files/2020%20Appointments%20and%20Awards%20Guidance%20Attachments_508.pdf">https://chcoc.gov/sites/default/files/2020%20Appointments%20and%20Awards%20Guidance%20Attachments_508.pdf</a>.
\155\ See The Edward ``Ted'' Kaufman and Michael Leavitt
Presidential Transitions Improvement Act of 2015, Public Law 114-136
(Mar. 18, 2016), which requires OPM to submit these reports to
Congress.
---------------------------------------------------------------------------
Comments Regarding Schedule F and Burrowing In
One commenter argued that Schedule F would have reduced burrowing
in because the burrowed employee would be removable at will anyway. See
Comment 4097. That view overlooks the ability of burrowed employees to
obtain a job in the first place because these employees could be hired
into Schedule F without the usual filters for qualifications currently
in place in the competitive civil service. Schedule F would have
allowed unqualified employees to be hired, albeit at will, who may
never have been able to enter the competitive service. Regardless of
whether employees moved would be ultimately removable, the opening of
the door to the conversion of Schedule C political appointees to
Schedule F positions--or, indeed, the hiring of any number of new
candidates because they were politically aligned with the existing
administration--increased the risk of burrowing in. We discuss
burrowing further in Section IV(A).
4. Additional Comments Regarding the Potential Impacts of Schedule F
Comments Regarding Potential Negative Outcomes of Schedule F
Several former and current civil servants, individuals,
organizations, and Members of Congress commented on what they perceived
as the negative aspects of Schedule F. A former OMB official contended
that Schedule F would inhibit, if not prevent, successful presidential
transitions and would degrade the performance of government employees
by replacing career civil servants with political appointees. Comment
13. A professor contended that ``[t]aking qualified and even expert
civil servants and making them weigh the tradeoff between voicing the
views based on their expertise and keeping their jobs would utterly
undermine their expertise.'' Comment 42. Also ``it would mean that
presidents would not be getting advice based on expertise but on what
employees thought they wanted to hear'' and ``Congressional will as
expressed in the statutes that enable the executive branch to make
policy would be discounted.'' Not only would career civil servants and
institutional expertise be harmed (see Comment 2267), but commenters,
including Members of Congress, detailed the potential impact of
Schedule F to communities, small businesses, and families across
America (Comment 48); the environment (Comment 33); National Park
Service personnel, national parks, and the public who values them
(Comment 1094); critical infrastructure (Comment 2501); federal
investigations and prosecutions (Comment 2616); and the SNAP program
and other hunger safety nets (Comment 3149); to name a few.
Several commenters expressed concerns about the potential impact of
Schedule F on whistleblowers. Comment 3340, a whistleblower protection
nonprofit organization, argued that ``Schedule F would have given the
President blank check discretion to cancel the Whistleblower Protection
Act by removing employees from the competitive service,'' removing
their civil service protections, and then firing them. See also
Comments 3466, 3894. If Schedule F allowed removals at will, commenters
claimed that it would be difficult to prove an employee was removed
because of protected and important whistleblowing activities. Also, if
an incumbent was in a ``confidential, policy-making, policy-
determining, or policy-advocating'' position for the purposes of
adverse action protections and excluded from such protections under
section 7511(b)(2), as Schedule F attempted, then such a position would
also presumably be excluded from the definition of ``covered position''
for the purposes of the prohibited personnel practices under section
2302(a)(2)(B)(i).
A professor commented that Schedule F would also have weakened
legislative power. Comment 50 expressed that ``[t]he Founders were
deeply concerned with the amassing of centralized power, and Schedule F
frustrates the institutional design of checks and balances. In
particular, it weakens legislative power. The creation of the civil
service system was a response to a spoils system that led to abuses of
state resources and power.''
Another commenter identified possible costs of Schedule F.
Commenter argued that ``a likely consequence of Schedule F would be a
greater reliance on private contractors to carry out the work of
federal government agencies'' and a ``[g]reater reliance on contractors
would, almost certainly, be more expensive than our current system.''
Comment 2109. Commenter further noted that ``the federal government is
the source of a considerable amount of scientific and economic data
that both businesses and researchers around the world trust and rely
upon'' and argued that this ``data is trusted precisely because it is
curated by career civil servants who are free from political influence.
If concerns about political influence in the generation of this data
begin to seep into the public consciousness, enormous amounts of social
value will be lost.'' Id.
Comments Regarding Schedule F and the Pendleton Act
One commenter who opposed the rule argued that the 19th-century
reformers who created America's civil service believed that tenure and
job protections were ``inimical to merit'' and that ``[t]he Pendleton
Act consequently deliberately made minimal changes to the dismissal
process'' besides prohibiting removal for making or failing to make
``political contributions.'' Comment 4097. Commenter, an advocacy
nonprofit organization, argued that Schedule F would have ``returned
the federal civil service to its foundations.'' While the Pendleton Act
focused on merit-based hirings, Congress did address removals even at
this early stage in the development of the career civil service--it
forbade removals on political or religious grounds.\156\
---------------------------------------------------------------------------
\156\ See Ari Hoogenboom, ``The Pendleton Act and the Civil
Service,'' The Am. Historical Rev., Vol. 64, No. 2c, p. 307 (Jan.
1959) (``The Pendleton Act forbade removals on political or
religious grounds.''); see also Nat'l Archives, supra note 18,
quoting Pendleton Civil Service Reform Act of 1883, sec. 2 (``[I]t
shall be the duty of [the commissioners of the Civil Service
Commission]: First. To aid the President, as he may request, in
preparing suitable rules for carrying this act into effect, . . .
Second. And, among other things, said rules shall provide and
declare, as nearly as the conditions of good administration will
warrant, as follows: . . . [T]hat no person in the public service is
for that reason under any obligations to contribute to any political
fund, or to render any political service, and that he will not be
removed or otherwise prejudiced for refusing to do so.''
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[[Page 24998]]
Commenter adds that the reformers who created the civil service
feared that requiring ``a virtual trial at law'' to dismiss an employee
would ``entrench incompetence and intransigence in the federal
workforce'' and that ``[n]ot until the 1960s did the general federal
workforce gain the ability to appeal dismissals. The experience of the
past six decades has demonstrated the folly of that decision.'' This
may be commenter's conclusion, but Congress has concluded otherwise and
repeatedly strengthened employee rights during the period in question--
through the CSRA, the Civil Service Due Process Amendments Act of 1990,
and the Whistleblower Protection Act and its amendments.\157\ Moreover,
at the time of the Pendleton Act's enactment, there was a rigorous
debate about the extent of merit-based hirings and removals protections
and the compromise position on the latter was that further removal
protections were unnecessary at the time because hiring based on merit
would ``remov[e] the temptation to an improper removal.'' \158\
Commenter quotes from George William Curtis, one of the drafters of the
Pendleton Act, regarding the ``fear'' of ``virtual trial[s] at law,''
but further context is important here too. Curtis' longer quote starts
``[h]aving annulled all reason from the improper exercise of the power
of dismissal, we hold that it is better to take the risk of occasional
injustice from passion and prejudice, which no law or regulation can
control, than to seal up incompetency, negligence, insubordination,
insolence, and every other mischief in the service, by requiring a
virtual trial at law before an unfit or incapable clerk can be
removed.'' \159\ Removing improper bases for removals was a key
antecedent to the statement regarding virtual trials at law. Curtis
added, ``If the front door [is] properly tended, the back door [will]
take care of itself.'' \160\ At the time, this meant that, if civil
service restrictions prevented the President from appointing a hand-
picked replacement for a person he removed, his incentive to remove for
political reasons would be diminished.\161\
---------------------------------------------------------------------------
\157\ Public employees have been challenging their removals in
court since at least the 1800s. See, e.g., Ex Parte Hennen, 38 U.S.
(13 Pet.) 230 (1839); United States. v. Wickersham, 201 U.S. 390,
398-399 (1906).
\158\ See, e.g., Debate in the Senate on the Civil Service
Reform Act of 1883, December 14th, 1882, <a href="https://digital.lib.niu.edu/islandora/object/niu-gildedage%3A24020">https://digital.lib.niu.edu/islandora/object/niu-gildedage%3A24020</a>.
\159\ George William Curtis, President, Address at the Annual
Meeting of the National Civil-Service Reform League, Nat'l Civil-
Serv. Reform League (Aug. 1, 1883), in Proceedings at the Annual
Meeting of the National Civil Service Reform League, pp. 3, 24-25.
\160\ Paul P. Van Riper, ``History of the United States Civil
Service,'' at p. 102 (1958).
\161\ David Rosenbloom, ``Federal Service and the
Constitution,'' at pp. 87-88; Van Riper, supra note 160, at p. 102.
---------------------------------------------------------------------------
Regardless of how the Pendleton Act should be best interpreted,
Congress has since established procedures set out in the CSRA and other
laws, which channels employee appeals to an administrative agency, the
MSPB, and reviewing courts.
Comments Regarding Comparison of Schedule F to State-Level Civil
Service Reforms
Comment 4097 also argued that several states have adopted policies
like Schedule F and that such efforts have proven successful. Commenter
asserted that Arizona, Florida, Georgia, Indiana, Mississippi,
Missouri, Texas, and Utah have instituted Schedule F-type reforms and
concluded that ``[e]valuations generally show positive results, while
fears of a return to patronage failed to materialize.''
As explained in the following sections, OPM received comments from
civil servants in these states that described the various ways in which
they believe that their jobs have worsened because of these reforms.
Also, a former federal official counters Comment 4097's assertion about
the benefits of these state reforms. See Comment 2816. The former
federal official cited a ``lengthy survey of state-level civil service
changes that reduced civil service protections in the 2000s'' which
found that ``in many cases, reforms were politically driven efforts to
establish and defend political actors' capacities . . . to carry out
the agendas of elected executives, legislators, and other policy
makers.'' The study notes that some State governors ``aggressively
pushed reforms designed to remove merit system barriers to direct and
tighten policy control over state agencies and their employees.'' These
types of initiatives, as with Schedule F, ``are often `sold' in terms
of a need to enhance executive leadership and accountability for
results and, inevitably, to allow the removal of the legions of
`unresponsive, incompetent, insulated, bureaucrats' who the public is
easily convinced lurk in the shadows of state agencies.'' The report
continues that ``there has been `[g]rowing awareness among policy
makers, public employees and their organizations, and human resource
professionals that' state-level reforms to weaken civil service
protections `have not delivered the benefits they promised and may well
dampen enthusiasm for [similar] initiatives by the states that
contemplate sudden, wholesale, changes in existing arrangements.' ''
Comment 2816 continued that, in their study of civil service employee
responses to Georgia's reforms, ``these authors found measurable
decline in the number of employees saying they liked their jobs and an
increase in those intending to leave employment within the coming year.
Employees did not believe the reforms would result in high-performing
employees being rewarded, did not trust that performance would take
precedence over office politics, and did not believe as much as before
the changes that performance appraisals were conducted fairly and
believing they understood their job expectations.'' The study concludes
that ``[o]ver 75 percent of state employees disagreed that the reforms
`had resulted in a state workforce that is now more productive and
responsive to the public.' '' OPM finds this comment and study
persuasive as a more rigorous examination than Comment 4097's
conclusions that some HR professionals believe at-will status is useful
and an ``essential piece of modern government management.'' It also
undercuts Comment 4097's argument that OPM ``ignore[s] the evidence
from the states that at-will employment is both consistent with a merit
system and can improve government performance.'' Comment 4097 does not
show that these changes are consistent with merit system principles nor
that they improve performance. It also did not identify the metrics by
which performance could improve; it just stated that they make
employees more responsive and give management more flexibility.
Comments Regarding Potential Effect of Schedule F on the Number of
Political Appointees
Commenters opposed to the rule argued that the civil service does
not have enough political appointees and Schedule F would have given
administrations greater control over the federal workforce and
priorities. Comment 3190, a law school clinic, contended that
``Schedule F proposed to expand the class of political appointees from
roughly 4,000 positions to 20,000-50,000 positions'' and that ``[u]nder
such a modest change, political appointees would still constitute only
2.5 percent of the federal workforce.'' As explained further below and
in Comment 2134, a joint comment by a nonprofit organization and former
[[Page 24999]]
federal official, the number of political appointees has stayed
relatively stable for 70 years, so such a change would be anything but
``modest.'' \162\ Also, this comment appears to concede that a
possible, and perhaps desired, effect of Schedule F was to create a new
category of ``political appointees.'' This runs counter to Comment
3156, written by the same author as Comment 4097. Comment 3156 takes
issue with Comment 50, saying Comment 50's characterization of Schedule
F positions as ``political appointees is simply wrong.'' Comment 4097
then argued that Schedule F was designed to ``keep these policy-
influencing positions in the career civil service,'' such that they
would not be political appointees. Even amongst proponents of Schedule
F and opponents of this rulemaking, there are disagreements regarding
what Schedule F meant and the breadth of its potential effects on the
civil service. And one aspect of a ``career'' appointment, as that term
has long been understood, is the opportunity to serve the United States
across administrations with the concomitant accrual of career status
and adverse action rights--an opportunity Schedule F would have
jeopardized.
---------------------------------------------------------------------------
\162\ The overall number of federal employees has also remained
relatively stable. In fact, there were more federal employees during
the last years of the Reagan Administration than there are today.
See, e.g., U.S. Off. of Pers. Mgmt., ``Executive Branch Employment
Since 1940,'' <a href="https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/historical-tables/executive-branch-civilian-employment-since-1940/">https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/historical-tables/executive-branch-civilian-employment-since-1940/</a>.
---------------------------------------------------------------------------
Ultimately, President Biden rescinded Executive Order 13957 before
any positions could be placed into Schedule F. As noted above, on
January 22, 2021, President Biden issued Executive Order 14003,
``Protecting the Federal Workforce,'' rescinding Executive Order 13957,
stating that ``it is the policy of the United States to protect,
empower, and rebuild the career Federal workforce,'' and that the
Schedule F policy ``undermined the foundations of the civil service and
its merit system principles.'' \163\
---------------------------------------------------------------------------
\163\ E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021), <a href="https://www.federalregister.gov/documents/2021/01/27/2021-01924/protecting-the-federal-workforce">https://www.federalregister.gov/documents/2021/01/27/2021-01924/protecting-the-federal-workforce</a>.
---------------------------------------------------------------------------
If a future Administration concludes that a policy that implements
the principles of Schedule F is preferable to this rule and seeks to
rescind this rule and replace it with such a policy, a future
Administration would need to comply with the Administrative Procedure
Act and principles of reasoned decision-making.\164\ For example, to
rescind this rule and replace it with a new Schedule F-type policy, a
future Administration would need to, among other things: explain how
the new policy is consistent with the carefully crafted legislative
balance that Congress struck in the CSRA; set forth reasons for why it
is departing from OPM's prior determination, reconfirmed here, that
creating a new schedule for at-will employees who are not political
appointees--similar to Schedule F--is inconsistent with that balance;
justify the departure from the fundamental principle that career
Federal employees' tenure should be linked to their performance rather
than to the nature of their position; address whether that departure is
consistent with the accrued property interests of employees, the
settled expectations of career Federal employees' tenure, and the
decisions individuals have made in response to those expectations;
explain why any novel definition of ``confidential, policy-determining,
policy-making, or policy-advocating character'' is consistent with the
CSRA; discuss why that novel definition is being adopted even though it
departs from long-established understandings--reconfirmed in this
preamble--of what that phrase means; and explain how a new policy would
(1) ensure that new hires formerly required to go through the
competitive hiring process have the knowledge, ability, expertise, and
skills necessary to work effectively; (2) adequately protect career
Federal employees against potential political retaliation or coercion;
and (3) make certain that critical positions in the federal workforce
currently and ably held by career Federal employees will continue to
function even if they may be replaced by individuals regardless of
qualification or suitability.
---------------------------------------------------------------------------
\164\ See, e.g., Perez v. Mortgage Bankers Ass'n, 575 U.S. 92,
101 (2015) (agencies under the Administrative Procedure Act must
``use the same procedures when they amend or repeal a rule as they
used to issue the rule in the first instance'').
---------------------------------------------------------------------------
E. General Comments
As explained in Section II, OPM received more than 4,000 comments
regarding this rulemaking whereby commenters provided useful insights
into various aspects of these regulatory amendments. The comments below
relate to general concepts regarding the civil service, civil service
protections, and merit system principles that inform this rulemaking.
In the following sections, OPM considers comments related to specific
provisions of this final rule, the need for this rule, regulatory
alternatives, and the costs and benefits of this rule.
Comments Regarding Why Civil Servants Should Be Nonpartisan
As a baseline concept, many commenters agreed with OPM that career
civil servants should be nonpartisan. An association of administrative
law judges cited Alexander Hamilton in Federalist No. 79, as saying
``[i]n the general course of human nature, a power over a man's
subsistence amounts to a power over his will.'' Comment 1042. The
association argued that ``[t]he principles of merit service require the
federal government to base hiring decisions upon experience and
expertise, and serve to ensure a nonpartisan, expert federal
workforce.'' An individual commenter cited research that politicization
of the civil service ``has significant consequences for the proper
functioning of government.'' Comment 1427. This research included that
of David Lewis (2008) on increased politicization of OPM during the
1980s and the resulting ill effects. Commenter argued that this report
shows that politicization had ``severe consequences for agency
competence.'' Experienced career professionals left the agency and it
was hard to replace them. These developments, in turn, discouraged
promising entry-level candidates from applying to work in the agency,
which resulted in decreased morale and difficulty conducting long-term
planning. By the 1990s, commenter argued, the agency had suffered
reputational damage. See also Comments 46 (supporting nonpartisan
career civil service with studies showing politicization undercuts
Federal Government performance and economic growth); 2822 (noting that
civil service laws ``emphasize responsibilities to the government, U.S.
citizens, the Constitution, laws, and ethical principles'' and not
``political agendas''). One commenter suggested a reason for the
differences in performance between neutral and politicized staff was
that that ``career civil servants who perceive their agencies to be
politicized are less likely to invest in training and more likely to
leave the agency'' thereby reducing long-term government expertise.
Comment 2446. OPM appreciates these views and agrees that the career
civil service should remain nonpartisan.
Commenters further argued that the United States civil service is
already more politicized than those of peer countries. A professor
argued that, among those countries, the United States ``is an outlier
in terms of its existing level of politicization.'' Comment 50. This is
because ``[w]e use about 4,000 political appointees to run the
executive branch. Up to the top five layers of leadership in a
department or agency can be appointees, a sharp
[[Page 25000]]
contrast with most peer countries where only the top layer is part of
the political class.'' Id. Commenter noted that this presents a problem
when Presidents invariably struggle to fill these slots, leading to
delays in appointments and vacancies in leadership. See also Comments
2186 (``[T]he United States' executive branch is more politicized than
our peers.'' (citing 2007 OECD survey)), 3359 (``Compared to other
major democracies, the United States already maintains a higher number
of political appointees.'').
Conversely, some commenters argued that career civil servants need
more political alignment with an administration's policies to be more
``accountable'' to the President. A former political appointee argued
that a merit system ``is important only as far as it helps the
government better serve the American people,'' and that ``the American
people are best served when the government is in the control of the
President they chose to entrust with control over the Executive
Branch.'' Comment 50; see also Comment 3892 (``The federal bureaucracy
is not currently adequately or constitutionally accountable to the
elected president.''). As explained in later sections, executive branch
employees are already tasked with executing the administration's
policies and there is little evidence that further politicization
improves government performance for the American people. Politicization
is associated with poorer performance outcomes, as described below.
Some commenters opposed to the rule asserted that the Constitution
allows a president to closely control executive branch civil servants.
A law school clinic argued that, ``as a general matter, the
Constitution gives the president the authority to remove those who
assist him in carrying out his duties,'' because ``[w]ithout such
power, the President could not be held fully accountable for
discharging his own responsibilities.'' Comment 3190. For this
proposition, commenter cited Seila Law LLC v. Consumer Financial
Protection Bureau \165\ (quoting Free Enterprise Fund).\166\ Commenter
cited general concepts in these cases regarding independent agencies--
the CFPB in Seila Law and the SEC in Free Enterprise Fund--which
explore the specific removal protections of principal officers therein,
and the constitutionality of multiple layers of removal protections, as
supportive of commenter's propositions. But as explained above
regarding Free Enterprise Fund and further in Section III(F), nothing
in those holdings or their progeny conflict with this final rule
regarding title 5 protections to the career civil service. Career
employees, the vast majority of whom would not be considered inferior
officers, are accountable through a supervisory chain that typically
runs upwards through layers of political appointees. As the official
ultimately responsible for the agency can generally be removed at the
President's will, and as those officials are ultimately responsible for
the performance management of their subordinates, accountability is
maintained. The fact that accountability in the form of removal may
involve certain processes for those employees covered by adverse action
procedures and, in some cases, appeal rights, does not make those
protections unconstitutional.
---------------------------------------------------------------------------
\165\ 140 S. Ct. 2183, 2191 (2020).
\166\ 561 U.S. at 513-14.
---------------------------------------------------------------------------
Some commenters argued that a subset of civil servants actively
work against the policies of conservative administrations. A legal
organization opposed to the rule asserted that ``[i]nsulating federal
employees from removal and answerability emboldens political activists
with the federal government to disrupt or delay Presidential
initiatives.'' Comment 2866; see also Comment 2652. Comment 3156, an
advocacy nonprofit organization, further contended that ``[a]ny
authority civil servants purport to exercise derives its legitimacy
from the election of the President, and any attempt by civil servants
in the executive branch to undermine the lawful actions of a President
are an attack on the Constitution and on democracy itself.'' OPM does
not agree that employing civil servants--without consideration of their
political views--thwarts the agenda of any President, and commenter's
objections lack any well-founded support. Republican and Democratic
administrations have achieved important policy goals with a nonpartisan
career civil service whose members undoubtedly encompass a wide variety
of personal political perspectives. One former civil servant explained
that ``[t]he Reagan and later administrations successfully implemented
new policy directions with the professional Civil Service.'' Comment
3038. A legal nonprofit organization concurred and added that civil
servants ``did not stop [the last Administration's] deregulatory
efforts'' and to the extent that regulatory agenda was significantly
delayed, ``the best explanation is not left-wing civil servants'
resistance to a conservative agenda.'' Comment 2822.
For example, in the first term of the George W. Bush
Administration, agencies helped to establish new and reimagined
personnel systems for both the Department of Homeland Security and the
Department of Defense in response to the terrorist attacks on America
on September 11, 2001.\167\ Implementing these systems required two
sets of complex regulations promulgated jointly by OPM and each agency.
Government attorneys then vigorously defended these programs against
legal challenges in the Federal courts.\168\ As noted in the 2003
edition of Biography of an Ideal, with respect to DHS:
---------------------------------------------------------------------------
\167\ See Homeland Security Act of 2002, Public Law 107-296
(2002); National Defense Authorization Act for Fiscal Year 2004,
108-36 (2003).
\168\ See, e.g., Nat'l Treasury Employees Union v. Chertoff, 452
F.3d 839 (D.C. Cir. 2006) and Am. Fed. of Gov. Employees v. Gates,
rehearing denied, 486 F.3d 1316 (D.C. Cir. 2007).
OPM successfully advocated the paramount importance of equipping
the new Department with a modern human resources system that would
make possible the flexible use of all aspects of the system as tools
to help management accomplish strategic objectives and results. The
legislation establishing DHS granted authority for the Secretary of
Homeland Security and the Director of OPM to create, by jointly
issued regulation after extensive employee involvement and
consultation with stakeholders (such as unions, employee
associations, academic experts, and executives in the corporate and
nonprofit sectors), modern pay and job evaluation systems. . .
.\169\
---------------------------------------------------------------------------
\169\ U.S. Off. of Pers. Mgmt, supra note 20, at pp. 307-08.
The career civil service fulfilled the tasks they were asked to
perform to stand up these systems rapidly regardless of their personal
politics or views.
Comments Regarding Nonpartisan Career Civil Servants and Neutral
Competence
Several commenters supportive of this rule touted that a
significant benefit of a nonpartisan career civil service is their
``neutral competence.'' A former OMB official who joined the agency in
1980 commented that, ``[l]ike other OMB career staff, I was not
primarily a Democrat or a Republican, but instead I strongly endorsed
and practiced the ethos of `neutral competence' that served the
president, without regard to the party of the president.'' Comment 13.
An employee with the Bureau of Land Management commented that ``[c]ivil
service positions provide a continuous level of expertise and
neutrality to the functioning of the
[[Page 25001]]
federal government. Making these positions political appointees would
destroy institutional knowledge and result in crippling
inefficiencies.'' Comment 3758; see also Comments 659, 678, 1818
(touting ``value of the experience of those who have worked in [a
policy] area and the need to insulate them from political pressures of
a specific administration''). A federal policy analyst commented ``I
have worked closely and successfully with political appointees under
the Obama, Trump, and Biden administrations to issue regulations and
policy guidance consistent with the policy priorities of those
administrations.'' Comment 3195. Commenter continued that
``[n]aturally, I have personal opinions about the policy work I do, and
I sometimes disagree with my politically appointed leaders about
specific policies or projects. In fact, robust civil service
protections have empowered me--and, collectively, my coworkers and
other career employees--to occasionally share policy recommendations or
serious concerns with agency leadership, which sometimes results in
leadership changing course.'' Commenter concluded that this is a
``perfectly normal and healthy process, as career civil servants are
supposed to provide candid deliberative advice to the politically
appointed leaders which ultimately make the decisions. . . . At the
same time, I and other career federal employees certainly understand
that we are not decisionmakers. Elections in a democracy have
consequences, and it is entirely appropriate for agencies to pursue the
policy preferences of the elected President that appoints its
leaders.'' A former civil servant added ``[h]istory makes the case that
stable societies with healthy economies rely on steady, capable
administration. For security, for uninterrupted routine transactions
and for predictable decisions and communication. When things work,
unfortunately, few people notice.'' Comment 3038. A 32-year civil
servant described serving under six presidents--three Republicans and
three Democrats--and working ``every day devoted to serving the
Constitution, the laws and regulations, [ ] agency missions and the
American people.'' Commenter asserted that ``our system thereby strikes
an appropriate balance between presidential control and professional
independence.'' Comment 2371; see also Comments 2208 (33-year federal
attorney who served under several administrations), 2258 (former HHS
attorney who also served under several administrations).
A few commenters opposed to the rule argued that career civil
servants are not politically neutral--they instead seek to influence
policy through politicized competence. Comment 3156 argued that
contrary to the premise of OPM's rulemaking, career federal employees
``have strong views on policy and actively desire to shape it.''
Commenter asserted that they offer ``politicized competence'' instead
of ``neutral competence.'' An advocacy nonprofit organization commented
that the federal civil service is not politically neutral because in
the 2016 presidential election, for example, ``federal employee
donations--as recorded by the FEC--went 95 percent to the Democratic
nominee for president.'' Comment 3892. OPM recognizes that many federal
civil servants have their own constitutionally protected political and
policy preferences, which they are free to express subject to the
requirements of the Hatch Act and other statutes and regulations. But
even assuming commenter's beliefs about the policy and political
preferences of civil servants are accurate, these comments do not
convincingly tie a civil servant's personal beliefs to concrete and
actionable unacceptable performance or misconduct.
Comment 4097, an advocacy nonprofit organization, tried to equate
political misalignment with poor performance. Commenter argued that
``scholars virtually universally accept the fact that federal employees
have their own policy views and often seek to advance them.'' Commenter
cites one article, Nou (2019),\170\ for this proposition, but Nou's
analysis is much more nuanced and measured. Nou's article is about
hierarchical dynamics in government and she qualifies the findings as
``an initial exploration of the implication'' of overt (not covert)
civil servant disobedience. ``The aim is to . . . examine principles
for normatively evaluating the practice.'' The article's ``hope is to
start, not end, more nuanced conversations--to move past simplistic
references to the `deep state' or `the resistance' towards a greater
appreciation of the complexity of intra-executive branch dynamics.''
Nou's preliminary conclusions are that ``[b]ureaucratic resistance,
broadly defined, is neither exceptional nor unprecedented.'' Nou
contends that ``[e]ven the most ardent proponents of executive power
may have to acknowledge that some forms of it are inevitable in
hierarchies with imperfect information.'' Nou also explains that it
would be ``difficult, if not impossible, to verify empirically''
whether bureaucratic resistance changed qualitatively under the
previous Administration.\171\ Nou's article--focused on macro group
dynamics--does not support commenter's proffer that it is universally
understood that civil servants advance their own policy views instead
of those of the administration or their agencies.
---------------------------------------------------------------------------
\170\ See Jennifer Nou, ``Civil Servant Disobedience,'' Univ. of
Chicago Law Sch., Public Law and Legal Theory Working Papers (2019),
<a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory">https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory</a>.
\171\ See id. at p. 351.
---------------------------------------------------------------------------
Comment 4097 continued, arguing that ``[s]cholars find it very
clear that bureaucrats are not neutral parties in the policymaking
process. Rather, they have their own set of interests that they
actively work to protect.'' For this, commenter also cited one article,
Potter (2017b).\172\ But commenter's proposition does not align with
Potter (2017b) nor with a related citation in the comment to Potter
(2017a).\173\ Potter does not examine the relationship between
individual bureaucrats' political ideologies and the speed with which
they act. Instead, she explains that ``[r]ules take a long time to
complete'' and ``[b]ecause agencies make important--and binding--policy
through rulemaking, political overseers keep a watchful eye over the
process. Each branch of government--the president, Congress, and the
courts--plays a role in overseeing agency rulemaking.'' Potter
continues that, ``[w]hile each branch of government's authority over
rulemaking is exercised in a different manner, the key insight here is
that each branch has the power to overturn an agency rule or, at a
minimum, raise the agency's cost of doing business.'' Rule reversals
and rebukes are significant setbacks with ``long-term consequences for
agency reputations, autonomy, and bureaucrats' career trajectories.''
Potter's thesis is that agencies can anticipate, and possibly stave
off, some types of oversight by pacing their rules to line up with a
favorable president, Congress, and/or courts. Potter finds that ``the
pace of rules slows significantly when [any of these three] are more
inclined to disagree with--and potentially punish--the agency issuing
the rule in
[[Page 25002]]
question.'' \174\ Instead of employees' personal politics or policy
preferences, Potter finds that agencies time regulation strategically
``[b]ecause bureaucrats seek to avoid negative political repercussions
such as rule overturns or reprimands.'' \175\
---------------------------------------------------------------------------
\172\ Rachel Augustine Potter, ``The strategic calculus of
bureaucratic delay,'' Midwest Pol. Sci. Assoc., (2017b), <a href="https://www.mpsanet.org/strategic-calculus-of-bureaucratic-delay/">https://www.mpsanet.org/strategic-calculus-of-bureaucratic-delay/</a>.
\173\ Rachel Augustine Potter, ``Slow-Rolling, Fast-Tracking,
and the Pace of Bureaucratic Decisions in Rulemaking. Journal of
Politics,'' (2017a), <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2759117">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2759117</a>.
\174\ Potter (2017b), supra note 172.
\175\ Potter (2017a), supra note 173, at p. 28.
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Comment 4097 expressed frustration with career civil servants in
the last Administration, in which the author of the comment was a
political appointee, but does not consider the roles and impacts of the
court system or a divided Congress on the policy priorities of that
Administration--two key factors that Potter highlights as impacting
regulatory timing. Instead, Comment 4097 included a list of instances
that allegedly show career employees withholding information from
political appointees in the last Administration, refusing ideologically
distasteful work, delaying and ``slow-walking'' work, providing
unacceptable work product, leaking information, and being
insubordinate. For these points, the comment largely cited a separate
publication by the author of the comment, Tales from the Swamp. As
described above, another commenter, Comment 2822, addressed and many of
these examples.
In sum, Comment 4097 pointed to select articles and makes
conclusions that the articles do not fully support and with which OPM
does not agree. Still, commenter claimed OPM's rulemaking ignores
whether ``federal employees may have their own goals and motivations or
how they behave when their goals differ from the President's'' but, as
shown in the proposed rule and here, OPM has thoroughly examined this
dynamic, as has Congress when it enacted civil service protections and
merit system principles that include disciplinary mechanisms for when
employees do engage in improper behavior. Indeed, it is Congress' views
that are paramount, and this rule is in furtherance of the statutory
scheme and protections that Congress enacted through the CSRA.
Comments Regarding the Benefits of a Nonpartisan Civil Service
Many commenters agreed with OPM that career civil servants provide
experience and expertise that benefit the country. For instance,
Comments 148 and 686 described the work civil servants do to protect
``our legal system, our transportation networks, the safety of our food
and drugs, our borders, our air and water, our farmlands, and so much
more.'' Several other commenters asserted that a professional and
nonpartisan civil service bolsters legitimacy and public trust in
government. As a result, the American public holds civil servants in
higher esteem than elected officials and political officers. A former
federal official argued that, while as of May 2022, ``trust in career
employees at government agencies had declined from previous years, a
majority of Americans still reported having a great deal or fair amount
of confidence in career employees to act in the best interest of the
public; substantially more Americans believe this about career
employees than about political appointees.'' Comment 2186; see also
Comment 2814 (a research and advocacy nonprofit organization, arguing
``Americans tend to hold these public servants in relatively high
esteem, recognizing their professionalism and independence'' which
``contrasts particularly with Americans' views of elected officials and
political officers.''). The former federal official cited a study which
found that ``emphasizing the technocratic expertise of agency
officials, including that they could not be hired for their political
views or fired for disagreements with political leaders,'' resulted in
a ``statistically significant . . . [increase] in legitimacy scores.''
The study found smaller increases in perceived legitimacy from
emphasizing public participation and found no increase in perceived
legitimacy from emphasizing the responsiveness of the agency action to
the President's priorities and White House staff. The study also
cautioned that ``the conclusion that expertise and political insulation
boost legitimacy has a converse: those desiring to erode public support
for agencies ought to weaken the civil service.'' This risks a negative
feedback loop concerning agencies' legitimacy and civil-service
protections (i.e., fewer protections lead to worse perceptions, which
lead to fewer protections, and so on).
Relatedly, commenters noted that political appointees are
associated with lower program performance. A professor cited studies to
this effect.\176\ Comment 50. The research found a ``negative
relationship between political appointment status and program
performance, while showing that appointees selected because of their
campaign or party experience were especially likely to undermine
performance.'' \177\ The professor also cited findings that ``[m]ore
politicized environments undermine incentives for career bureaucrats to
invest in their skills, and instead encourages them to look for work
elsewhere.'' \178\ This proposition is supported by other comments that
discuss the potential effects of politicization on recruitment, hiring,
and retention (see Section V.(B)). Another professor noted that the
``consensus,'' as ``evidenced by a large volume of peer reviewed
research,'' is that ``highly politicized bureaucracies are less
transparent, less responsive and less accountable to the public, less
conducive to stable governance, less capable of operating effectively,
and more prone to corruption and clientelism than those with more
neutral bureaucratic structures.'' Comment 1927.
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\176\ Citing David E. Lewis, ``Testing Pendleton's Premise: Do
Political Appointees Make Worse Bureaucrats?'' The Journal of Pol.
69, no. 4, pp. 1073-88 (2007), <a href="https://www.jstor.org/stable/10.1111/j.1468-2508.2007.00608.x">https://www.jstor.org/stable/10.1111/j.1468-2508.2007.00608.x</a>.
\177\ Citing Nick Gallo and David E. Lewis, ``The Consequences
of Presidential Patronage for Federal Agency Performance,'' Journal
of Pub. Admin. Rsch. and Theory, Vol. 22, Issue 2, pp. 219-43 (Apr.
2012), <a href="https://doi.org/10.1093/jopart/mur010">https://doi.org/10.1093/jopart/mur010</a>.
\178\ Citing Mark Richardson, ``Politicization and expertise:
Exit, effort, and investment.'' The Journal of Pol. 81, no. 3, pp.
878-91 (2019), <a href="https://doi.org/10.1086/703072">https://doi.org/10.1086/703072</a>.
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This view regarding the performance benefits of career civil
servants as compared to political appointees is not new. A few
commenters pointed to a 1989 commission led by former Federal Reserve
Chair Paul Volcker proposing that the U.S. ``reduce the number of
political appointees, pointing to the delays and performance problems
associated with America's reliance on often inexperienced appointees.''
See Comment 3973 (an anti-poverty nonprofit organization). A similar
recommendation ``was made again in a 2003 report.'' Id.
Data submitted by other commenters also highlight the benefits of
civil service protections and merit system principles on performance
outcomes and reducing government corruption. A professor asserted that
a recent ``systemic review of empirical research'' on the use of merit-
based processes across countries concluded that ``factors such as
meritocratic appointments/recruitment, tenure protection, impartiality,
and professionalism are strongly associated with higher government
performance and lower corruption.'' Comment 50. A former federal
official presented that ``a professional and independent civil service
that is insulated from the whims of political appointees also has been
shown to meaningfully reduce opportunities for corruption.'' Comment
2816. This commenter cited a study of
[[Page 25003]]
520 experts across 52 countries that found, ``even when controlling for
a very broad range of political and institutional factors, bureaucratic
professionalism is a statistically significant deterrent of
corruption.''
This difference in performance is due in large part to civil
service job stability and the opportunity to accumulate expertise. A
former federal official cited one study that found that ``previous
experience within an agency's bureau, and prior length of tenure, had
significant positive impacts on program performance.'' Comment 2186.
While removing ``low performers who are hampering an agency's mission''
is important, proposals that would ``facilitate rapid mass firings of
experienced employees to suit a presidential administration's political
agenda would likely impact the ability of agencies to preserve
institutional knowledge and use it to improve agency operations over
time.'' Comment 1181, an individual, contended that research by
political scientists Sean Gailmard and John Patty shows that the
protections of the United States civil service system ``generate better
outcomes because they allow public officials a time horizon and
security to invest in task-specific expertise in public sector skills.
Politicizing the workplace does the opposite.'' \179\ Id.; see also
Comments 50, 1759 (professors citing the same research). This commenter
wrote that recent research confirms this point, ``showing that more
politicized environments undermine incentives for career bureaucrats to
invest in their skills, and instead encourages them to look for work
elsewhere.'' Commenter concluded that, ``[s]ince much of federal
employment work is technical in nature, and requires deep knowledge of
programs, this makes both task-specific knowledge and institutional
experience important, and impossible to easily replace.''
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\179\ Citing Sean Gailmard and John W. Patty, ``Learning while
governing: Expertise and accountability in the executive branch,''
Univ. of Chicago Press (2012).
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Comment 1427, an individual, cited James Rauch (1995), who
researched city governments during the Progressive Era and argued that
lessons learned there can apply to the Federal Government. Rauch
demonstrates that the ``institution of civil service protections was
responsible for a greater focus on larger and longer-term
infrastructure, which led to significantly increased economic
development for cities with civil service protections over those
without.'' Commenter concluded that the same can be extrapolated to the
Federal Government--``that civil servants with career protections will
be able to focus on long-term projects with beneficial economic impact,
rather than seeing their efforts driven only by their political
patron.''
Comment 4097, an advocacy nonprofit organization, took issue with
OPM's assertion, in the proposed rule, that there is little evidence
showing that firing of career civil servants without appropriate
process will improve the government's performance. In a footnote,
commenter argued that performance between political appointees and
career civil servants is not the relevant metric--it should be ``how
at-will career officials perform relative to tenured career
officials.'' Commenter then pointed again to ``state HR directors'' who
report that at-will employment ``is an essential modern management
tool,'' and that this rulemaking would deny federal agencies that
``tool.''
It is the Federal statutory scheme, as demonstrated by Section
7511(b)(2), not OPM rulemaking, that is ``denying'' Federal agencies
this purported ``tool.'' Through the CSRA, Congress chose to make
removal protections the default for career employees, allowing only for
limited exceptions.
In addition, commenter cited no data or studies demonstrating that
at-will employees outperform ``tenured career officials'' in state, let
alone federal, agencies. Also, unless a civil servant, whose
protections are governed by title 5, is in their probation/trial period
or has not met the durational requirements under 5 U.S.C. 7511, they
will generally \180\ have adverse action protections, as noted above.
So the pool of at-will federal employees is difficult to gauge for a
comparison. There is little doubt that at-will employment without
initial procedures or back-end review makes firing easier, but that
does not demonstrate that at-will employment produces better results.
And although there is a legitimate purpose for a small cadre of
Schedule C employees to act as confidantes and handle particularly
sensitive tasks for presidential appointees, turning a large segment of
the career staff--who do not ordinarily function in that fashion--into
at-will employees would be an altogether different proposition and
inconsistent with the historic trend of congressional enactments
extending protections to larger segments of the workforce.
---------------------------------------------------------------------------
\180\ For instance, they would not have adverse action
protections if excluded from the definition of ``employee'' under 5
U.S.C. 7511(b)(2).
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Moreover, at-will civil servants would suffer from the same
deficiencies as political appointees under the studies cited above, in
that they would lack the job stability that incentivizes ``invest[ing]
in task-specific expertise in public sector skills.'' See Comment 1181.
Also, as shown by Comment 2186, a former federal official, studies
looking at state reforms leading to at-will employment found ``[o]ver
75 percent of state employees disagreed that the reforms `had resulted
in a state workforce that is now more productive and responsive to the
public.' '' For these reasons, Comment 4097 has not shown that
hypothetical at-will federal employees would outperform career civil
servants.
Commenters supportive of the rule also noted that career civil
servants tend to be more moderate than political appointees. Comments
50, a professor, and 1227, an individual, cited research by Brian
Feinstein and Abby K. Wood which looked at donation records and
concluded that political appointees tend to be at ideological extremes
on both the right and left, ``while career officials tend to be more
moderate.'' \181\ See also Comment 2822 (legal nonprofit organization).
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\181\ See Brian Feinstein and Abby K. Wood, ``Divided
Agencies.'' S. Cal. L. Rev. 95, 731 (2021), <a href="https://southerncalifornialawreview.com/wp-content/uploads/2022/12/WoodFeinstein_Final.pdf">https://southerncalifornialawreview.com/wp-content/uploads/2022/12/WoodFeinstein_Final.pdf</a>.
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A few commenters opposed to the rule argued that career civil
servants are too partisan and skew left compared to the public. See
Comment 1958 (an advocacy nonprofit organization). Comment 3156, an
advocacy nonprofit organization, examined donor information, and
attempts to refute Comment 50's conclusions, above, by arguing that the
federal workforce has ``self-politicized'' and that the premise ``that
civil servants are more moderate than political appointees--no longer
holds.'' Whether or not there is probative value in examining donation
differences between career civil servants and political appointees, no
commenter established a connection between donation records or trends
in donations to unacceptable performance by career civil servants.
Federal workers are entitled to their political opinions and to support
candidates on their free time (subject to the Hatch Act and other
applicable laws). But they also must fulfill the duties of their
positions appropriately or face an adverse action.
Comments Regarding the Nonpartisan Career Civil Service's Support of
Presidential Transitions
Various commenters supportive of the rule argued that career civil
servants are important because they provide stability
[[Page 25004]]
and continuity between administrations. A former OMB official commented
that his ability to provide nonpartisan, objective, informed analyses--
``using the work of OMB's 400+ career staff--greatly assisted
[administration] transitions.'' Comment 13.
A group of former OMB employees expressed a similar commitment to
providing expertise through presidential transitions. Comment 2511
contended that having in place an effective and knowledgeable career
staff ``has proven to be a vital capability for new leaders after
Inauguration Day--especially as new Administrations seek solid footing
and/or confront unexpected challenges.'' Another former OMB employee
added that ``the virtues of institutional memory, dedication to
democratic governance principles, and professionalism evident at OMB
are comparably shared at every federal department and agency.'' Comment
2538. Career employees at OPM similarly play a significant role in
advising incoming administrations as to options for filling critical
positions during the first few days of the administration. OPM staff
produce a Presidential Transition Guide to Federal Human Resources
Management Matters that assists incoming leaders on this point.\182\
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\182\ For example, the Guide published for the 2020 election
year is available at <a href="https://www.opm.gov/about-us/reports-publications/presidential-transition-guide-2020.pdf">https://www.opm.gov/about-us/reports-publications/presidential-transition-guide-2020.pdf</a>. The importance
of an effective transition was also the subject of ``The Fifth
Risk'' (2018), a book by author Michael Lewis.
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A public service nonprofit organization concurred, writing
``[c]areer employees allow a president to begin their administration by
tapping into valuable institutional expertise that can help drive their
agenda from day one, rather than starting from scratch.'' Comment 44;
see also Comment 46 (an individual). OPM agrees that civil servants are
a valuable bridge across administrations, especially during the
critical transition period. Our government, our democracy, and the
American public rely on this smooth transition of power so that
everything from the critical matters of the day to routine services are
not stalled.
Beyond the transition period, political appointees rely on career
civil servants to carry out their policies and missions, commenters
argued. Comment 1493, a former political appointee, stated, ``I relied
heavily on the experience, expertise, and advice of senior career civil
service employees in evaluating and managing programs, developing
policy and regulatory proposals, investigating and resolving cases, and
otherwise administering the laws Congress has authorized those agencies
to implement and enforce. I depended on those employees to provide
advice and guidance based not on their allegiance to a particular
politician or political party, but rather on their thorough
understanding of the applicable statutes and regulations, their
institutional knowledge of the history of the agencies, and their
substantial technical expertise.'' Even friction between political
appointees and career civil servants has benefits. OPM received a
comment from a former Schedule C political appointee who expressed
``[t]here was no problem accomplishing the agenda of the
administration. In fact, the expertise and experience of the civil
servants made it possible.'' Comment 3522. Comment 2816, a former
federal official, cited studies that found benefits to some ``friction
between political agency heads and career staff'' which ``have served
to protect the public interest in a variety of ways.'' For instance,
these agencies ``tend to move more cautiously through rulemakings,
utilizing less hurried rulemakings with particularly thorough records,
with these rulemakings just as likely to produce final rules as in
agencies with less internal conflict.''
Comments Regarding the American Public and Government's Reliance
Interests
Many commenters agreed with OPM that the American public relies on
the nonpartisan civil service in all aspects of their lives. Comments
148 and 686 explained that these civil servants are ``hired via fair
processes, are often paid less than their private sector counterparts,
and are retained via the benefit of steady work and pride of service.''
A private sector scientist described benefiting from the ``tremendous
value provided by fellow scientists and engineers employed by our
national agencies,'' and from ``the countless more who contribute to a
functioning society.'' Comment 451. An individual described relying
``on multiple agencies'' every day, from experts who protect consumers
from fraudulent business practices to those who manage the
infrastructure and transportation needs of the country. Comment 1201.
Commenter concluded that ``[a]llowing these workers to be fired for
political reasons would be disastrous.'' Comment 3641 (an individual)
adds that politicization ``would be bad for individuals and
businesses'' because many companies rely on civil servants and their
``public data to make decisions.''
Several others commented about the many ways they and other
Americans benefit from a nonpartisan career civil service. See Comments
136 (former air traffic controller who served for 25 years), 817 (an
economic researcher whose work ``relies heavily on the efforts of
career civil servants across the Federal Government''), 842 (adding
that other nations also rely on the work of our federal agencies), 1155
(plant scientist and assistant professor who works closely with career
employees at USDA), 1157 (former DOE, FWS, NPS, Forest Service, Army
Corps of Engineers, Bureau of Reclamation, EPA, and NOAA civil servant
who was ``consistently impressed with the dedication, expertise, and
professionalism of staff''), 1299 (small business owner who works
closely with federal agencies on climate change issues), 1518 (cancer
researcher who relies on HHS science and NIH grants), 2082 (small
business owner who relies on the ``stability of our government and its
rules to conduct business''). An individual argued that even high-level
political officials, such as members of Congress and the President,
``rely on the advice, expertise, and execution capabilities of a
professional civil service.'' Comment 1047. By ensuring that the civil
service is staffed by individuals c
[…truncated; see source link]Indexed from Federal Register on April 9, 2024.
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