Upholding Civil Service Protections and Merit System Principles

Federal RegisterApr 9, 2024

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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.

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

employeeaccountability@opm.gov

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.

It created an elaborate “new framework”

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.

See Lindahl

OPM,

470 U.S. 768, 773 (1985) (explaining that the CSRA “overhauled the civil service system”).

Id.

at 774;

see United States

Fausto,

484 U.S. 439, 443 (1988).

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.

Public Law 101-376, 104 Stat. 461, H.R. 3086 (Aug. 17, 1990);

see also

H.R. Rep. 101-328 (Nov. 3, 1989).

Congress has generally charged the OPM Director with executing, administering, and enforcing the laws governing the civil service.

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.

Moreover, OPM regulations govern the movement of positions from the competitive service to the excepted service.

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:

See

5 U.S.C. 1103(a)(5)(A).

See

5 U.S.C. 7504, 7514.

See, e.g.,

5 CFR part 212.

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)

—will retain the rights previously accrued upon an involuntary move

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.

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.

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.

The final rule further discusses the differences between voluntary and involuntary moves in Section IV(A).

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

MSPB,

892 F.3d 1156 (Fed. Cir. 2018).

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”

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

—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

from civil service protections.

See

5 CFR 213.3301, 302.101, 432.102, 451.302, 752.202, 752.401.

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.

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.

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.

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.

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.

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.

E.O. 14003, sec. 2.

OPM may set forth policies, procedures, standards, and supplementary guidance for the implementation of this final rule.

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.

Of the approximately 33 percent of comments that were opposed, more than 95 percent of those comments consisted of one of four form letters.

Approximately five of the 4,097 comments could be considered neutral—neither supportive nor opposed.

The form letters are described below where relevant.

In the proposed rule, OPM requested comments on a variety of topics regarding the implementation and impacts of this rulemaking.

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.

See

88 FR 63862, 63881.

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.

“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.

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.

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.”

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.”

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.”

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.”

See, e.g.,

Nat'l Archives, Milestone Documents, “Pendleton Act (1883),”

https://www.archives.gov/milestone-documents/pendleton-act.

U.S. Merit Sys. Prots. Bd., “What is Due Process in Federal Civil Service,” p. 4. (May 2015),

https://www.mspb.gov/studies/studies/What_is_Due_Process_in_Federal_Civil_Service_Employment_1166935.pdf.

U.S. Off. of Pers. Mgmt., “Biography of an Ideal,” p. 83 (2003),

https://dml.armywarcollege.edu/wp-content/uploads/2023/01/OPM-Biography-of-an-Ideal-History-of-Civil-Service-2003.pdf.

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),

https://digitalcomons.law.mercer.edu/cgi/viewcontent.cgi?article=1313&context=jour_mlr.

U.S. Off. of Pers. Mgmt.,

supra

note 20 at pp. 182-83.

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.

Id.

at pp. 183-84.

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.

Such a workforce, though initially limited in scope, would reinvigorate government, making it more efficient and competent.

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.

See

Gaughan,

supra

note 21 at p. 787; U.S. Merit Sys. Prots. Bd.,

supra

note 19 at pp. 3-5.

See

Gaughan,

supra

note 21 at p. 787.

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.

The Pendleton Act of 1883

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.

The Pendleton Act required agencies to appoint Federal employees covered by the Act based on competency and merit.

It also established the Civil Service Commission (CSC) to help implement and enforce the government's adherence to merit-based principles.

Public Law 16; Civil Service Act of 1883, (Jan. 16, 1883) (22 Stat. 403).

Nat'l Archives,

supra

note 18.

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.”).

Id.

at 403.

Commenters generally agreed

with this background,

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.

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,

honesty [and] fidelity.” Comment 2816;

see also

Comments 2822, 3029.

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.

See

88 FR 63862, 63863-67 (detailing background in proposed rule).

Comments filed in response to this rulemaking are available at

http://www.regulations.gov/comment/OPM-2023-0013-nnnn,

where “nnnn” is the comment number. Note that the number must be four digits, so insert preceding zeroes as appropriate.

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.

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.”

Congress, far from objecting to this Order, later essentially codified these requirements in the Lloyd-La Follette Act of 1912

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”

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.

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.

U.S. Merit Sys. Prots. Bd.,

supra

note 19 at p. 5.

37 Stat. 555 (1912).

The “classified civil service” refers to the competitive service.

See

5 U.S.C. 2102.

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.”

Id.

Citing 48 Cong. Rec. 2653-54 (1912).

Thereafter, Congress enacted further requirements and reforms. In 1944, Congress passed the Veterans' Preference Act,

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.

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.

58 Stat. 387 (1944).

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.

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).

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

—the most comprehensive Federal civil service reform since the Pendleton Act.

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.

Those abuses led to passage of the CSRA “to shield the merit system with enforceable rights against similar future abuses.”

Id.

Citing Dobrovir, Gebhardt and Devine, “Blueprint for Civil Service Reform,” Fund for Constitutional Government (1976).

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.

The CSRA made significant organizational changes to civil service management, adjudications, and oversight. It replaced the CSC, dividing its duties among OPM

and the MSPB, which initially encompassed the Office of Special Counsel (OSC).

OSC later became a separate agency to which specific duties were assigned.

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.

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.

The MSPB adjudicates challenges to personnel actions taken under the civil service laws,

among other things, and OSC investigates and prosecutes prohibited personnel practices.

Other, more specific enactments confer upon these entities the obligations or authorities to promulgate regulations on specific topics.

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).

U.S. Gov't Accountability Off., “Civil Service Reform—Where it Stands Today,” at p. 2 (May 13, 1980),

https://www.gao.gov/assets/fpcd-80-38.pdf.

The Equal Employment Opportunity Commission and Office of Government Ethics also handle duties previously covered by the CSC.

See

Cong. Rsch. Serv., “Merit Systems Protection Board (MSPB): A Legal Overview,” p. 4 (March 25, 2019),

https://crsreports.congress.gov/product/pdf/R/R45630.

See

5 U.S.C. 1103(a)(5), (a)(7).

Id.; see

5 U.S.C. 8461.

See

5 U.S.C. 1204, 7513(d).

See

5 U.S.C. 1212.

The CSRA codified fundamental merit system principles, which had developed since 1883.

These principles are summarized here:

See

47 Cong. Ch. 27 (Jan. 16, 1883), 22 Stat. 403.

Merit System Principles

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.

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.

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).

Suspensions of 14 days or less are not directly appealable to the MSPB.

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.

5 U.S.C. 7503;

Fausto,

484 U.S. at 446.

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.

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.

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

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

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.

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.

5 U.S.C. 7513(d), 7701(a).

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),

https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_276106.pdf.

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).

5 U.S.C. 7511(a)(1).

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.

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).

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.”

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

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.”

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.

5 U.S.C. 7511(b)(2)(A), (B), and (C).

5 U.S.C. 7511(b)(2).

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).

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.

Agencies may terminate political appointees at any time. This also means that, absent any unique circumstance provided in law

or a request to stay by an incoming administration, these positions are vacated following a presidential transition.

See

5 CFR 213.3301.

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.

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.

U.S. Merit Sys. Prots. Bd., “Addressing Poor Performers and the Law,” p. 4. (Sept. 2009),

https://www.mspb.gov/studies/studies/Addressing_Poor_Performers_and_the_Law_445841.pdf.

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.”

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

Roth,

recognized that restrictions on loss of employment, such as tenure, can create a property right.

Cleveland Board of Education

Loudermill,

the Court also held:

See

5 U.S.C. 7503(a), 7513(a); 5 CFR 752.102(a), 752.202(a).

408 U.S. 564, 576-77 (1972). The Court described three earlier decisions—

Slochower

Bd. of Educ.,

350 U.S. 551 (1956),

Wieman

Updegraff,

344 U.S. 183 (1952), and

Connell

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

Wickersham

210 U.S. 390, 398-399 (1906);

Keim

United States,

177 U.S. 290, 296 (1900);

see also

U.S. Off. of Pers. Mgmt., “Competitive Hiring,”

https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/.

Although most government employees are in the competitive service, about one-third are in the excepted service.

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.

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.”

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.”

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

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.

See

Cong. Rsch. Serv., “Categories of Federal Civil Service Employment; A Snapshot,” at p. 4 (May 26, 2019),

https://sgp.fas.org/crs/misc/R45635.pdf.

See

5 U.S.C. 2103; 5 CFR parts 213, 302.

5 U.S.C. 2301(b)(1).

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.

See infra

notes 357-361.

5 CFR 302.101(c).

The President is authorized by statute to provide for “necessary exceptions of positions from the competitive service” when warranted by “conditions of good administration.”

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.

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.”

5 U.S.C. 3302.

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.”).

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:

• 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.

• 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.

• 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.

• 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.

• Schedule E—Includes positions of administrative law judges.

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.

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

—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.

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.

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.

See

5 U.S.C. 2108(3);

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

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

Public Company Accounting Oversight Board,

2010).”

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

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

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”

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

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

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

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

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

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),

https://babel.hathitrust.org/cgi/pt?id=uc1.aa0005815857&seq=20&q1=%22competitive+status%22

; 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),

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/

; 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),

https://presidentialtransition.org/appointee-resources/ready-to-serve-prospective-appointees/frequently-asked-questions-about-the-political-appointment-process/

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

See, e.g., James

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

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,

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),

https://doi.org/10.1111/psq.12792

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

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

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

See, e.g., Nat'l Treasury Employees Union

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

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

On December 13, 2023, OPM issued guidance to agencies on Maximizing Effective Use of Probationary Periods, available at

https://www.chcoc.gov/content/maximizing-effective-use-probationary-periods

. 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),

https://www.law.nyu.edu/sites/default/files/DavisNoll-TiredofWinning_0.pdf

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

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,”

https://chcoc.gov/sites/default/files/2020%20Appointments%20and%20Awards%20Guidance%20Attachments_508.pdf

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

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.”

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.

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,

https://digital.lib.niu.edu/islandora/object/niu-gildedage%3A24020

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

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,”

https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/historical-tables/executive-branch-civilian-employment-since-1940/

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

E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021),

https://www.federalregister.gov/documents/2021/01/27/2021-01924/protecting-the-federal-workforce

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

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

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

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

Chertoff,

452 F.3d 839 (D.C. Cir. 2006) and

Am. Fed. of Gov. Employees

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

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

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),

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory.

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

question.”

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