Improving Performance, Accountability and Responsiveness in the Civil Service

In response to the proposed rule, OPM received 40,500 comments during the 45-day public comment period from a variety of individuals (including current and former civil servants, scientists, Nobel laureates, and members of Congress) and organizations such as those representing science and technology, national and local unions, and Federal agencies. Of the 40,500 comments received, 35,551 were posted, 2 were withdrawn, and 7 were not posted because they contained threats to the President and members of the Administration or contained sensitive personally identifiable information from commenters. The remaining 4,940 comments are attributed to individual commenters who indicated on their

comment submission that their comment represented a specific number of submissions. For example, one commenter stated that he and 7 other people were part of a group of former Environmental Protection Agency employees submitting a comment on behalf of all 8 people. In another example, a commenter indicated that they are part of 2 organizations, the Union League Club of Chicago and the League of Women Voters of Chicago, and their comment represents 3,200 submissions. At the conclusion of the public comment period, OPM reviewed and analyzed the comments. In general, the comments ranged from ardent support of the proposed regulation to categorical rejection of it. Approximately 5 percent of the overall comments were supportive, 1 percent neutral or mixed, and 94 percent opposed the proposed regulation.

In the proposed rule, OPM invited comments on whether it is appropriate to retain certain amendments to parts 302 and 752, as well as input on the costs and benefits of this rule. OPM received a wide variety of comments in response to the proposed rule and incorporated them into the relevant sections that follow. OPM found the comments helpful when explaining the purpose, scope, and impact on the Federal workforce in drafting this final rule.

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 provide the amended regulatory text. Note that OPM received several comments that are not addressed below because they were beyond the scope of the proposed regulatory changes or else were vague or incomplete.

Critical to the success of any presidency is the ability to implement an agenda endorsed by the American people free from antidemocratic, unaccountable bureaucratic resistance. “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” \2\ In order to execute his Article II duty to ensure that the laws are faithfully executed, the vast expansion in the scope and complexity of Federal law has required the President to delegate such authority to thousands of career civil servants involved in policy formulation. Because in practice such delegation involves hundreds of thousands of distinct statutory provisions, it is extraordinarily difficult for the President--or agency heads appointed by the President and confirmed by the Senate--to ensure that all such delegations are being executed consistent with the priorities of the President. It is therefore critical to create an incentive architecture that will encourage and reward accurate translation of such priorities.\3\

\2\ Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010).

\3\ See id. at 498 (“the Framers sought to ensure that `those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.' ”) (quoting 1 Annals of Cong., at 499 (J. Madison)).

As explained in greater detail in the proposed rule, however, the Federal service has matured to a point where the status quo removal restrictions for policy-influencing positions have become harmful overcorrections to fears of a return to the spoils system of the past. Instead of protecting merit, these removal restrictions too often undermine democratic accountability, entrench bureaucratic policy- resistance, and frustrate the President's constitutional ability to faithfully execute the law. As James Madison observed during the First Congress, “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” \4\

\4\ Id. at 492 (quoting 1 Annals of Cong. 463 (1789)).

From the beginning of the earliest days of the American republic, the appointment and removal of Federal officers flowed from the authority vested in the President under Article II of the Constitution. However, over the course of the Nineteenth Century, presidents began to lose control of the appointment and removal process due to the rise of the patronage system. By the 1880s, appointments to positions in the executive branch were predominantly made based on political connections, typically as a reward for loyal supporters of the party in power. Members of Congress and local party machines would use their influence with the President to get their preferred candidates Federal appointments. The patronage system began showing strain as the Federal Government expanded rapidly after the Civil War. The Federal civilian workforce nearly doubled in size between 1871 and 1881, from 51,000 to 100,000 employees.\5\

\5\ Ronald N. Johnson & Gary D. Libecap, The Federal Civil Service and the Problem of Bureaucracy: The Economics and Politics of Institutional Change, 17 (University of Chicago Press, 1994), https://www.nber.org/system/files/chapters/c8633/c8633.pdf (Johnson & Libecap).

Congress responded when it passed the Pendleton Civil Service Act of 1883 (Pendleton Act) to begin the shift to a merit system by requiring competitive examinations for covered positions and insulating those jobs from purely political patronage. The Pendleton Act also established the Civil Service Commission (CSC) to help implement and enforce its requirements. While the Pendleton Act professionalized hiring, early statutes and practice still left wide managerial latitude over removals. The Pendleton Act also prohibited executive branch officials from dismissing classified employees because they declined to render political services, but otherwise such officials served at the pleasure of the President. Classified employees' status under the Pendleton Act was similar to most private sector workers today. Businesses today cannot fire workers for certain discriminatory reasons, such as race or religion, but employees otherwise serve at the pleasure of their employer. Civil service employees also had no right to appeal or otherwise contest removals. Instead, the Pendleton Act was enforced through penalties on officials who violated its requirements. The reformers who created the Pendleton Act made a conscious decision to keep the civil service at-will. They saw little risk of patronage- based dismissals as long as civil service hiring forbade rewarding campaign supporters with new appointments.\6\

\6\ See P.P. Van Riper, History of the United States Civil Service, 101-03 (Row, Peterson & Co. 1958) (Van Riper).

In 1912, Congress passed the Lloyd-La Follette Act of 1912.\7\ Among its provisions, the Lloyd-La Follette Act provided that employees in the classified service (now known as the competitive service) could only be removed “for such cause as will promote the efficiency of [the] service”, and must be given written notice of the reasons for their proposed dismissal and an opportunity to respond.\8\ Among its provisions, the Lloyd-La Follette Act further mandated that “no examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer making the removal.” \9\ The next year the CSC explained its policy governing civil service dismissals, delimiting the ability of agencies to remove employees as freely as possible with only the limits

necessary to ensure the proper exercise of this authority.\10\ The Lloyd-La Follette Act's policy, according to the CSC, was intended to “prevent removals upon secret charges and to stop political pressure for removals.” \11\ The Lloyd-La Follette Act and its predecessor executive orders did not give classified civil service employees tenure or the ability to appeal removals. They instead imposed procedural requirements to ensure dismissals were not pretextual and to prevent political or religiously motivated removals. Agencies remained the sole judge of employee conduct and performance.

\7\ 37 Stat. 555 (1912).

\8\ Id.

\9\ Id.

\10\ U.S. Civil Service Commission, Twenty-Ninth Annual Report, 21-22 (1913).

\11\ Id. at 22.

For the first six decades of the merit service, employees could not appeal removals. That only began to change during the Second World War. The Veterans Preference Act (VPA) of 1944 gave veterans significant hiring preferences for Federal jobs.\12\ It also provided that veterans--including those in the excepted service--could be dismissed only to promote the efficiency of the service, and it allowed veterans to appeal adverse actions to the CSC.\13\ In 1948, Congress amended the law to make the outcomes of CSC appeals binding on agencies.\14\ These amendments gave preference-eligible veterans the ability to appeal removals outside their agency.

\12\ Public Law 78-359, 58 Stat. 387 (1944).

\13\ Id. at 390.

\14\ Public Law 80-741, 62 Stat. 575 (1948).

Until the 1950s, courts would entertain procedural challenges to civil service removals, overturning them where agencies did not follow Lloyd-La Follette procedures. But courts generally avoided examining the substance of removal actions.\15\ A significant precedent was established in 1954 when the D.C. Circuit Court of Appeals decided Roth v. Brownell.\16\ As noted in the decision, the Lloyd-La Follette Act provided that “[n]o person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing.” \17\ The D.C. Circuit construed this language to require agencies to follow Lloyd-La Follette procedures to take employees out of the competitive service--whether through a discharge or through moving the position into the excepted service.\18\ The D.C. Circuit subsequently clarified that agencies could dismiss employees from confidential or policy-making positions based purely on loss of confidence. In Leonard v. Douglas, the D.C. Circuit concluded that removing an employee from a policy-making position because his superiors did not find him suitable to advance their policies promoted “the efficiency of the service” and was therefore lawful.\19\ Consequently, while the Lloyd-La Follette Act and VPA imposed procedural requirements on removals, agencies generally retained broad authority to dismiss employees for non-discriminatory reasons. Those reasons included removing employees from policy- influencing positions based purely on the belief they would not effectively advance the President's policies.

\15\ See Gerald E. Frug, “Does the Constitution Prevent the Discharge of Civil Service Employees,” 124 U. Pa. L. Rev. 942, 970, n.134, (1976) (Frug). https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4997&context=penn_law_review.

\16\ 215 F.2d 500 (D.C. Cir. 1954) (Roth), cert. denied, 348 U.S. 863 (1954).

\17\ Id. at 501 (quoting 37 Stat. 555 (1912), as amended, 62 Stat. 354 (1948)).

\18\ Id. at 502.

\19\ 321 F.2d 749, 751-53 (D.C. Cir. 1963).

In the years leading up to the establishment of the current civil service system, the Supreme Court ruled in Arnett v. Kennedy that a Federal employee has a constitutional due process interest in continued Federal employment. Arnett made constitutional due process challenges generally applicable to civil service removals, not just when employees were fired for exercising constitutional rights.\20\

\20\ 416 U.S. 134, 163 (1974).

Congress legislated against this backdrop when it passed the Civil Service Reform Act of 1978 (CSRA).\21\ The CSRA replaced the Lloyd-La Follette Act, VPA, executive orders, and private rights of action in Federal court with a new unified framework governing adverse actions and subsequent appeals.\22\ The CSRA maintained prohibitions on patronage and restricted agencies' ability to take adverse actions in some respects. For example, the CSRA gave non-preference eligible employees in the competitive service the same right to appeal long-term suspensions and demotions that preference eligible employees possessed.\23\ The CSRA also expanded preference-eligible employees' ability to appeal suspensions by authorizing appeals of suspensions of more than 14 days, rather than those exceeding 30 days.\24\

\21\ Public Law 95-454, 92 Stat. 1111 (1978).

\22\ Id.

\23\ Compare 5 U.S.C. 7511 (1978) with 80 Stat. 528, Public Law 89-554 (1966).

\24\ Compare 5 U.S.C. 7512 with 80 Stat. 528, Public Law 89-544 (1966).

In other ways, the CSRA made taking adverse actions easier. It prevented Federal employees from directly challenging removals in Federal district court. The CSRA instead channeled adverse action appeals to the MSPB \25\ and subsequent legislation vested judicial review in the Federal Circuit Court of Appeals.\26\ The CSRA also repealed Lloyd-La Follette provisions governing removal from the competitive service, replacing it with a new unified framework of adverse action appeals for both competitive service employees and excepted service preference-eligibles. Notably, the CSRA thus removed from Federal law the language the D.C. Circuit interpreted in Roth. The CSRA also categorically excluded excepted service employees in policy- influencing positions from adverse action procedures.\27\

\25\ See 5 U.S.C. 7701; Public Law 95-454, 92 Stat. 1111 (1978).

\26\ See 5 U.S.C. 7703(b)(1)(A); Public Law 97-164, 96 Stat. 25 (1982).

\27\ 5 U.S.C. 7511(b)(2).

In an important decision after the enactment of the CSRA, the Supreme Court held in United States v. Fausto that employees statutorily excluded from chapter 75 could not contest removals in Federal district court.\28\ The Court explained that the CSRA created a comprehensive review system for adverse actions; exclusion from CSRA coverage meant employees could not appeal adverse actions elsewhere.\29\ Shortly thereafter, Congress passed the Civil Service Due Process Amendments Act of 1990 (DPAA).\30\ This law, which remains in effect, amended the CSRA by extending chapter 75 to generally cover excepted service employees--preference eligible or not--after an initial trial period.\31\ At the same time, Congress retained the exclusion from chapter 75 procedures for excepted service employees in policy-influencing positions.\32\

\28\ 484 U.S. 439, 454-55 (1988) (Fausto). Commenter 34947 asserts the proposed rule misreads Fausto as applying to constitutional claims when it only addresses statutory claims. However, the proposed rule did no such thing. See 90 FR 17186 & 17217 (citing to Fausto for the proposition that Federal employees cannot contest removals in district court because the CSRA is the exclusive remedial statutory framework for adverse action appeals and judicial review).

\29\ Fausto, 484 U.S. at 455.

\30\ Public Law 101-376, 104 Stat. 461 (1990).

\31\ Id.

\32\ 5 U.S.C. 7511(b)(2).

A large number of commenters argued that classifying career positions as policy-influencing and exempt from adverse action procedures violates the Pendleton Act, the Lloyd-La Follette Act and/or the CSRA. These arguments misunderstand the law.

The Pendleton Act did not provide tenure protection for Federal employees. The proponents of the Act were primarily concerned with establishing merit as the basis for civil service appointments. The most significant aspect of the Pendleton Act was to provide for examinations (i.e., tests) for Federal employment. The idea was that people who did very well on these tests would likely make the most competent employees.

Tenure protection for Federal employees, especially for non- veterans, is a relatively recent phenomenon that had no place under the Pendleton Act. As discussed above, the Lloyd-La Follette Act did not require external review of adverse actions, and it expressly provided that trial-like proceedings were not required to effectuate dismissals.

It was not until 1944 that the VPA provided any type of third-party review of adverse actions, and only for veterans. Although the Congressional record on this provision is sparse, it appears to have been motivated by concerns that agencies would formally honor veteran preference in hiring only to pretextually dismiss veterans after the fact.\33\ It was not until the 1970s that full third-party review by the CSC was afforded to non-veteran employees facing adverse actions. Until then employees without veteran preference had no right to appeal their removal outside their agency. A number of commenters have mischaracterized the Pendleton Act as standing for something it never addressed--due process. The Pendleton Act, as innovative as it was, was concerned only with merit-based hiring, i.e., examining potential candidates for Federal employment on the basis of objective examinations instead of patronage appointments. Attempts to characterize the Pendleton Act as encompassing notions of procedural rights introduced only in the late 20th century thus are historically inaccurate. Instead, the current system with multiple avenues of appeal for employees seeking to challenge adverse actions involving substandard or lackluster performance as well as overt misconduct only arose in the 1970s.

\33\ See Frug, 124 U. Pa. L. Rev. at 959-60; see also S. Rep. No. 78-907, at 2 (1944). “The committee recognizes the necessity of assuring that those who have left civil employment to serve in the armed forces during this war shall not, upon their return, be penalized by displacement or loss of opportunity due to the presence of wartime emergency employees.”

Furthermore, nothing in this final rule interferes with merit as a basis for appointment into the competitive service nor as a basis for appointment into Schedule Policy/Career. Appointments to Schedule Policy/Career positions that were previously in the competitive service will continue to be made using merit-based competitive hiring procedures. In addition, the CSRA, which subsequently replaced some provisions of the Pendleton Act, includes specific language exempting from the procedural protections associated with the competitive civil service those positions that are of a policy-influencing character.\34\ This rule will principally affect removal procedures for employees in policy-influencing positions whose performance or conduct is judged to be deficient. The vast majority of those appointed under Schedule Policy/Career will thus experience no change in their employment characteristics or conditions and retain protections against prohibited personnel practices including retaliation against whistleblowing (PPPs).

\34\ 5 U.S.C. 7511(b)(2).

Many commenters also asserted that Schedule Policy/Career dismissal procedures violate the Lloyd-La Follette Act, requiring certain procedural notice before removal of an employee can be effected. Although the Lloyd-La Follette Act was superseded by the CSRA, the CSRA contains procedural requirements applying to adverse actions and generally provides for appeals of adverse actions, including dismissals, to the MSPB. In a similar fashion, the DPAA extended the rights of non-preference eligibles to receive pre-termination notice and also to appeal adverse decisions to the MSPB. As highlighted in the preamble to the proposed rule, both the CSRA and the DPAA authorize OPM and the President to exempt employees in policy-influencing positions from access to chapter 75 adverse action procedures and appeals. Thus, this rule maintains harmony with both the CSRA and the DPAA, as it utilizes a longstanding express statutory exemption.

President Donald Trump issued Executive Order (E.O.) 13957 creating “Schedule F” in October 2020. As previously discussed, chapter 75 adverse action procedures do not cover employees in excepted service positions that the President, OPM, or an agency head, as applicable, have determined are policy-influencing.\35\ Prior administrations had applied this exemption only to political appointments, principally positions in Schedule C of the excepted service.\36\ E.O. 13957 created a new Schedule F (following the pre-existing schedules A through E) for career employees in policy-influencing positions.\37\

\35\ 5 U.S.C. 7511(b)(2).

\36\ 5 CFR 6.2 (2024).

\37\ E.O. 13957, 85 FR 67631, 67633 (Oct. 26, 2020).

Schedule F applied to policy-influencing positions “not normally subject to change as a result of a Presidential transition.” \38\ E.O. 13957 established a process for agencies to review their workforce, identify such policy-influencing career positions, and ask OPM to move them into Schedule F.\39\ The order provided guideposts for that analysis, identifying positions such as regulation writers or officials in agency policy offices as likely belonging in Schedule F.\40\ Under 5 U.S.C. 7511(b)(2), any career positions moved into Schedule F would be excluded from chapter 75 adverse action procedures and, consequently, MSPB appeal rights.

\38\ Id.

\39\ Id.

\40\ Id. at 67633-67634.

At the same time, Schedule F positions remained career jobs filled based on merit, not political connections. Any position filled with the involvement of the White House Office of Presidential Personnel could not be placed into Schedule F.\41\ E.O. 13957 also prohibited hiring or firing Schedule F employees based on their political affiliation or for other discriminatory reasons or retaliation against whistleblowers. It further required agencies to establish internal procedures to ensure compliance with this non-discrimination directive.\42\ E.O. 13957 put policy-influencing career Federal employees in the same position as most private sector workers, generally serving at-will but protected from discriminatory removals.

\41\ Id. at 67632.

\42\ Id. at 67634.

The Order explained that these changes were necessary to enable agencies to more effectively address poor performance. It cited findings from the MSPB's Merit Principles Survey that less than a quarter of Federal employees believe their agency addresses poor performers effectively. E.O. 13957 explained that poor performance in policy-influencing positions is especially problematic, as it can affect the performance of the entire agency.\43\ E.O. 13957 also explained that competitive hiring procedures do not provide enough flexibility to select applicants with the necessary intangible qualities for these important positions,

such as sound judgment, acumen, or impartiality.\44\

\43\ Id. at 67631-32.

\44\ Id.

Schedule F also came in the context of widespread reports of career staff resistance to Trump Administration policies.\45\ While Schedule F employees would not be dismissed based on their personal beliefs, agencies could swiftly dismiss any who did not perform their duties in a nonpartisan manner. However, no agencies moved positions into Schedule F before President Trump left office.\46\

\45\ See, e.g., Juliet Eilperin et al., Resistance from Within: Federal Workers Push Back Against Trump, Wash. Post, Jan. 31, 2017, https://www.washingtonpost.com/politics/resistance-from-within-federal-workers-push-back-against-trump/2017/01/31/c65b110e-e7cb-11e6-b82f-687d6e6a3e7c_story.html.

\46\ U.S. Gov't Accountability Off., GAO-22-105504, Civil Service: Agency Responses and Perspectives on Former Executive Order to Create a New Schedule F Category for Federal Positions, at 10 (Sept. 2022) (2022 GAO Report), https://www.gao.gov/assets/gao-22-105504.pdf.

Shortly after taking office, President Biden issued E.O. 14003 revoking E.O. 13957 and abolishing Schedule F.\47\ E.O. 14003 described Schedule F as “undermin[ing] the foundations of the civil service and its merit system principles, which were essential to the [Pendleton Act's] repudiation of the spoils system,” and asserted that the repeal of E.O. 13957, among other executive orders, was necessary to “rebuild the career Federal workforce.” \48\

\47\ E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021).

\48\ Id. at 7231-32.

E.O. 14003's reasoning ignored the fact that Schedule F gave employees stronger removal protections than the Pendleton Act did. The Pendleton Act merely prohibited hiring or dismissing classified employees based on their politics or failure to make political contributions. Section 6 of E.O. 13957 forbids taking any personnel actions prohibited by 5 U.S.C. 2302(b),\49\ which includes actions based on protected characteristics (such as race, sex, or religion), political affiliation, or retaliation against whistleblowers.\50\ Section 6 further directs agencies to incorporate these prohibitions into their internal policies.\51\ E.O. 14003 also ignored the fact that the Federal Employee Viewpoint Survey (FEVS) showed career Federal employee job satisfaction rising throughout the first Trump Administration, reaching a record high of 72 percent in 2020.\52\

\49\ E.O. 13957, 85 FR at 67634.

\50\ See 5 U.S.C. 2302(b).

\51\ Supra n. 49.

\52\ U.S. Off. of Pers. Mgmt., FEVS: Empowering Employees. Inspiring Change 11 (2020), https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf.

Commenter 11329 noted that the FEVS showed that employee job satisfaction was higher with their direct supervisor than senior leadership.\53\ However, this does not rebut the fact that the FEVS demonstrated that overall job satisfaction reached 72 percent in 2020, the highest level FEVS ever recorded. Based on their survey responses, Federal employees did not feel their workforces needed rebuilding.\54\

\53\ See id. at 10-11.

\54\ In addition, the notion that the career civil service needed to be “rebuilt” because of E.O. 13957 was clear hyperbole, as no positions were ever moved into Schedule F. See 2022 GAO Report at 10.

During the Biden Administration, OPM proposed, and in April 2024 finalized, new regulations related to E.O. 14003.\55\ The April 2024 final regulations had three principal components. First, OPM used Presidential authority delegated under 5 U.S.C. 3301 and 3302 and E.O. 10577 to regulatorily define the phrases “confidential, policy- determining, policy-making or policy-advocating” and “confidential or policy-determining” to refer exclusively to political appointments, with no application to career employees.

\55\ Upholding Civil Service Protections and Merit System Principles, 89 FR 24982 (April 9, 2024) (Upholding Civil Service Protections).

Second, OPM used those same delegated Presidential authorities to add a new subpart F to 5 CFR part 302. Subpart F prescribed mandatory procedures for transferring positions into the excepted service, or into a new excepted service schedule. Subpart F also required agencies to notify employees that involuntary movements or transfers into a policy-influencing position would not affect their competitive status or civil service appeals and would allow employees to appeal to the MSPB to the extent that an agency committed procedural error or indicated that the transfer would terminate adverse action appeals.

Third, OPM used its own statutory authority under 5 U.S.C. 7514 to provide that, notwithstanding 5 U.S.C. 7511(b)(2), any tenured civil service employees whose positions were moved, or who were otherwise moved into policy-influencing excepted service positions, would remain covered by chapter 75 procedures.

Under the April 2024 final rule, a re-issued Schedule F could not cover career positions, MSPB adjudicators could overturn transfers into Schedule F, and incumbent employees could keep MSPB appeal rights even if their positions were transferred into Schedule F.

The rulemaking responded to a National Treasury Employees Union petition for regulations to prevent the reinstatement of Schedule F.\56\ The final rule candidly acknowledged disagreement with E.O. 13957 but explained that “OPM does not and cannot prevent a President from creating excepted service schedules or from moving employees.” \57\

\56\ See Nat'l Treasury Employees Union, Petition for Regulations to Ensure Compliance with Civil Service Protections and Merit System Principles for Excepted Service Positions (Dec. 12, 2022), https://www.nteu.org/~/media/Files/nteu/docs/public/opm/nteu- petition.pdf?la=en.

\57\ See Upholding Civil Service Protections, 89 FR at 25009.

During the 2024 election cycle President Trump announced plans to reissue E.O. 13957 if re-elected.\58\ Donald Trump won the 2024 Presidential election and promptly fulfilled this commitment, issuing E.O. 14171 on January 20, 2025.\59\ The new order reinstated E.O. 13957, while amending it in several ways.\60\ The order redesignates “Schedule F” as “Schedule Policy/Career.” \61\ This change in nomenclature emphasizes that covered positions remain career positions and are not being converted into political appointments--a common misperception of the original order. The E.O. emphasizes that patronage remains prohibited by defining Schedule Policy/Career to only cover “career positions.” \62\ The E.O. also expressly describes what is and is not required of Schedule Policy/Career employees: “Schedule Policy/Career [employees] are not required to personally or politically support the current President or the policies of the current administration. However, Schedule Policy/Career employees are required to faithfully implement administration policies to the best of their ability, consistent with their constitutional oath and the vesting of executive authority solely in the President. Failure to do so is grounds for dismissal.” \63\

\58\ See, e.g., Donald J. Trump, President Trump's Plan to Dismantle the Deep State and Return Power to the American People (Mar. 21, 2023), https://www.donaldjtrump.com/agenda47/agenda47-president-trumps-plan-to-dismantle-the-deep-state-and-return-power-to-the-american-people.

\59\ See E.O. 14171, 90 FR 8625 (Jan. 31, 2025).

\60\ See id. at 8625-26.

\61\ Id. at 8625.

\62\ See id. at 8625-26.

\63\ Id. at 8626.

E.O. 14171 also requires OPM to apply Civil Service Rule 6.3(a) to Schedule Policy/Career positions.\64\ This rule authorizes OPM to prescribe

by regulation conditions under which excepted positions may be filled in the same manner as competitive service positions are filled and conditions under which persons so appointed may acquire competitive status in accordance with the Civil Service Rules and Regulations.\65\ E.O. 14171 thus requires OPM to establish merit-based hiring procedures for Schedule Policy/Career positions.

\64\ See id. at 8625.

\65\ 5 CFR 6.3(a).

E.O. 14171 also overrode significant parts of the April 2024 final rule. That rule used delegated Presidential authority under 5 U.S.C. 3301 and 3302 to amend parts 210 and 302 of the Civil Service Regulations. President Trump used his executive authority to directly render those amendments inoperative. E.O. 14171 now requires that OPM rescind the amendments made by the April 2024 final rule.\66\ E.O. 14171 further provides that “[u]ntil such rescissions are effectuated (including the resolution of any judicial review) 5 CFR part 302, subpart F, 5 CFR 210.102(b)(3), and 5 CFR 210.102(b)(4) shall be held inoperative and without effect.” \67\ Consequently, both the April 2024 final rule's definition of “confidential, policy-determining, policy-making, or policy-advocating” as a term of art that refers exclusively to political appointees \68\ and its procedural requirements for moving employees into such policy-influencing positions \69\ are no longer in effect.

\66\ See E.O. 14171, 90 FR at 8626.

\67\ Id.

\68\ See Upholding Civil Service Protections, 89 FR at 25045.

\69\ See id. at 25046-47.

In a structural difference with the original E.O. 13957, the President--not OPM--will now move positions into Schedule Policy/ Career. Pursuant to E.O. 14171, agencies will assess their workforces and petition OPM to recommend that the President move specific positions into Schedule Policy/Career.\70\ OPM will review these petitions and make the recommendations it deems appropriate.\71\ However, the President will make the final decision about which positions go into Schedule Policy/Career.\72\ That decision will be effectuated by a new executive order issued under Presidential--not OPM--authority.

\70\ See E.O. 13957, 85 FR at 67633-34; E.O. 14171, 90 FR at 8625-26.

\71\ See id.

\72\ See id.

E.O. 14171 provided additional guideposts for agencies when assessing which positions may belong in Schedule Policy/Career. These guideposts include considering both immediate and higher-level supervisors of employees in Schedule Policy/Career for inclusion in Schedule Policy/Career.\73\ If a subordinate employee is in a policy- influencing role, superior officials with authority to tell that employee what to do are also likely policy-influencing. E.O. 14171 further requires agencies to consider positions with duties that the OPM Director indicates may be appropriate for inclusion in Schedule Policy/Career.\74\ OPM later issued guidance about types of positions agencies should consider in their Schedule Policy/Career reviews.\75\

\73\ See id.

\74\ See id.

\75\ U.S. Off. of Pers. Mgmt., Guidance on Implementing President Trump's Executive Order titled, “Restoring Accountability To Policy-Influencing Positions Within the Federal Workforce, (Jan. 27, 2025), https://www.opm.gov/chcoc/latest-memos/guidance-on-implementing-president-trump-s-executive-order-titled-restoring-accountability-to-policy-influencing-positions-within-the-federal-workforce.pdf (January 2025 Memorandum).

President Trump also explained why he issued this order. E.O. 14171 cited MSPB research showing only 41 percent of supervisors are confident they could remove a subordinate for serious misconduct, and just 26 percent are confident they could remove one for poor performance.\76\ The order explained that: “[a]ccountability is essential for all federal employees, but it is especially important for those who are in policy-influencing positions. These personnel are entrusted to shape and implement actions that have a significant impact on all Americans.” \77\ As discussed below, however, there have been recent, numerous, and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership.

\76\ See E.O. 14171, 90 FR at 8625; see also Merit Sys. Prot. Bd., Remedying Unacceptable Employee Performance in the Federal Civil Service at 15 (June 18, 2019) (Remedying Unacceptable Employee Performance), https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf.

\77\ E.O. 14171, 90 FR at 8625.