Schedule F appointment

The legal basis for the Schedule F appointment was a section of the Civil Service Reform Act of 1978 (5 U.S.C. § 7511(b)(2)), which exempts from civil service protections federal employees "whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character". The provision had been little noticed and unused before its application by the Schedule F order.^[1]

The stated purpose of the order was to increase flexibility in hiring and firing to improve performance management^[2] and accountability.^[3] The Civil Service Rules and Regulations would not have covered employees within the Schedule F classification,^[2] including due process and possibly collective bargaining rights.^[3] However, appointees could not have been dismissed based on certain protected statuses, such as whistleblower status, partisan affiliation, or for claiming discrimination or harassment.^[3][4] It would also have streamlined hiring for these positions, since a competitive examination would not be required.^[5]: 2

The executive order also provided transition procedures for transferring covered positions out of the competitive service into Schedule F, by which executive agency heads must petition the director of the Office of Personnel Management (OPM) with a list of positions to be converted with a written rationale. The OPM director had the sole power to decide whether to grant the petition.^[2][6][7]

The Schedule F classification included "positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition".^[2] They are distinguished from Schedule C appointments, which cover policy-making positions that do change with the presidential transition.^[5]: 5–6 The executive order listed several characteristics of jobs that may fall under the Schedule F classification:^[2]

• substantive participation in advocacy, development, or formulation of policy, especially of regulations and guidance
• substantive policy-related work in an agency or component that primarily focuses on policy
• the supervision of attorneys
• substantial discretion to determine how the agency exercises functions committed to it by law
• working with non-public policy proposals or deliberations generally covered by deliberative process privilege, and either:
  • directly reporting to or regularly working with an individual appointed by either the president, or by an agency head paid at the GS-13 level or higher, or
  • working in the executive secretariat of the agency or component
• conducting certain collective bargaining negotiations on the agency's behalf

According to OPM, these provisions were guidelines, as not all positions covered by them were required to be converted to Schedule F, and positions not covered by them may have been converted.^[3][8] The provisions were broad enough to include many scientists, attorneys, regulators, public health experts, and others in senior roles. The estimated number of employees they covered ranged from tens of thousands to hundreds of thousands.^[3]

According to reporting by Axios, the idea for the Schedule F appointment was devised by James Sherk, a member of the advisory Domestic Policy Council who was seeking ways to prevent career civil service employees from resisting President Trump's agenda. In January 2019, while searching through Title 5 of the United States Code, which contains provisions on civil service protections, he came across 5 U.S.C. § 7511, and brought it to the attention of the White House Counsel's Office.^[1]

The executive order was drafted secretly over the following months and was completed by late spring of 2019. However, due to large agency workloads, it was decided to delay issuing it until 2020, which was further delayed by the COVID-19 pandemic. Trump was reportedly motivated by a desire to get even with recalcitrant officials after his first impeachment trial, which concluded in February 2020.^[1]

 

Schedule F was created by Executive Order 13957 on October 21, 2020.^[2] The executive order had required heads of all federal agencies to submit a preliminary list of positions that could be reclassified as Schedule F by January 19, 2021, the day before the next presidential inauguration, to John D. McEntee, the director of the Presidential Personnel Office.^{[9][5]: 8 [5]: 8}

By the January 19 deadline, two agencies had submitted their lists. The Office of Management and Budget submitted a list of 140 position types, of which 136 were approved, which would have affected 415 of the agency's 610 employees. Most of the affected employees were in program examination, digital services, and policy analysis positions.^{[5]: 13–16} Some positions, such as administrative assistants, office managers, and IT workers, were potentially not clearly policy-making positions.^[10][11] The necessary administrative steps were not taken, and no one was actually reclassified.^{[5]: 13–16} The International Boundary and Water Commission submitted a list of five of its 234 employees.^{[5]: 13–16}

Five agencies had draft lists. The Federal Energy Regulatory Commission determined more than half of its positions met the criteria for reclassification, while the Equal Employment Opportunity Commission, Environmental Protection Agency, Federal Trade Commission, and OPM itself each had draft lists that would have reclassified around or less than 10% of their employees. Six agencies determined that they would not reclassify any positions: the Federal Maritime Commission, Federal Retirement Thrift Investment Board, National Archives and Records Administration, National Transportation Safety Board, National Labor Relations Board, and AmeriCorps.^{[5]: 17–18}

 

It was repealed by President Biden through Executive Order 14003 on January 22, 2021, the third day of his administration.^[12][13] No employees had been moved to the new classification.^[14][15]

House Democrats introduced a bill in the 116th Congress, the Saving the Civil Service Act, that would halt the executive order's implementation and restore any converted or dismissed Schedule F appointees back into competitive service positions.^[16] There was also discussion of adding the same provisions to either the National Defense Authorization Act for Fiscal Year 2021 or a continuing resolution for fiscal year 2021 appropriations.^[17] However, no provision regarding Schedule F was included in the Consolidated Appropriations Act, 2021.^[18]

The Preventing a Patronage System Act was introduced at the beginning of the 117th Congress by Democrat Gerry Connolly of Virginia.^[19][14] Although it was included in the House's version of the National Defense Authorization Act for Fiscal Year 2023,^{[20][21][22][23]} it was removed from the final bill and did not become a law.^[24][25] A similar bill, the Saving the Civil Service Act, was introduced in the 118th United States Congress^[26] but, as of November 2024, was awaiting action in committee.^[27]

In April 2024, the Biden administration put into effect a regulation that would allow employees to keep existing job protections even if their positions were reclassified, preventing most of the effects of a reinstatement of Schedule F. While the regulation could be repealed by a future administration, it would delay any implementation by several months.^[28][29][10]

In mid-2022, it was reported that Trump and his allies planned to reinstate the Schedule F provisions if he were elected to a second term,^[1] including identifying around 50,000 workers who could be reclassified.^[24] In March 2023, reinstatement of Schedule F was included at a top of a list of proposals from the Trump 2024 presidential campaign,^[30] while Ron DeSantis had written approvingly of it in his book The Courage to Be Free.^[31][32] The next month, it was reported that Project 2025, a coalition led by The Heritage Foundation, was preparing a personnel database that could be used to fill up to 20,000 potential Schedule F appointments in a future Republican administration.^[33] Much of Project 2025 or Agenda 47 relies on Donald Trump reenacting Schedule F, which he stated his intent to do.^[34][35]

After being re-elected, federal policy experts^[36] and others with knowledge of the campaign's plans said they expect the second Trump Administration to reinstate Schedule F within weeks of his taking office.^[37]

The creation of Schedule F was controversial. Critics feared a transition from a non-partisan government of subject-matter experts to one where partisan or presidential loyalty tests had a role in the hiring process.^[3] At the time, it was estimated that tens or hundreds of thousands of career employees could lose their civil service protections including union representation,^[3][38] and that it would increase the number of political appointments by a factor of ten.^[39] Conversely, there was concern that political appointees of Trump, whose appointments are supposed to expire at the end of his term, could "burrow in" by being converted to positions that are harder to dismiss.^[18][38]

Rebecca Beitsch, writing for The Hill, wrote that unions were criticizing Trump's executive order as "the biggest change to federal workforce protections in a century, converting many federal workers to 'at will' employment."^[40] The National Treasury Employees Union sued the administration in the United States District Court for the District of Columbia over the executive order, arguing that the administration did not properly justify it satisfied the legal requirement that the changes are "necessary" and as "conditions of good administration warrant."^{[16][41][needs update]}

An official statement from Infectious Diseases Society of America (IDSA) further stated that the executive order was "alarming".^[40] The six authors, all infectious disease specialists, and epidemiologists, wrote:

We rely on the judgment of civil service experts to lead responses against the pandemic, inform the public, drive research, update guidance and review data supporting the use and distribution of vaccines and treatments to address the impacts of COVID-19. Replacing our scientists and public health experts with politically motivated staff will reduce our ability to respond, and reduce public confidence in our response, to COVID-19 and other public health crises.^[42]

On October 26, 2020, Ronald Sanders, the chair of the Federal Salary Council, resigned. Writing that he was a "lifelong Republican" who prided himself on having "served three Democratic and three Republican presidents,"^[43] Sanders sent a letter to John D. McEntee, Presidential Personnel Office director, characterizing Executive Order 13957, which had purported to hold federal employees more accountable, as a transparent attempt to fill the government with those loyal to the president at the expense of experts loyal to the Constitution and the rule of law.^[44][45]

A coalition of 28 labor unions supported Congressional action to block the Schedule F executive order.^[46]

Rachel Greszler, a fellow at The Heritage Foundation, said: "I really think that the order is unlikely to affect many of those workers because the overwhelming majority of federal employees are upstanding individuals, they're providing valuable knowledge and experience that the managers in the agency heads don't want to lose. It's only those bad apples who are derelict in their duties, or they're outright trying to thwart their agency’s actions that would need to worry about their job security."^[4]

House Democrats also requested documents about the creation of the executive order.^[16]

Representative Don Beyer (D-VA) said, "it's an attempt to redefine the civil service as a political arm of the presidency rather than public servants who work for the American people", leading to "open cronyism that does not benefit the country, but the president."^[3] Former federal human resources executive Jeff Neal called the order "the most direct assault on the career civil service since the passage of the Pendleton Act in 1883," which had created the merit-based federal civil service.^[17]

Representative James Comer (R-KY) supported the change, saying that “our founding fathers never envisioned a massive unelected, unaccountable federal government with the power to create policies that impact Americans' everyday lives... President Trump has long pledged to take on this bureaucracy and restore power to the people by draining the swamp."^[39]

Some legal experts have argued that it would create chaos in the civil service, which was formed by the 1883 Pendleton Civil Service Reform Act to have a more professional workforce and end political bias and the corruption of the spoils system; and last overhauled in the Carter administration through the Civil Service Reform Act of 1978.^[34][47][48] Other critics have argued that Schedule F would threaten democracy, as it would make civil servants beholden to the party in power rather than the American people as a whole.^{[35][49][50][48]}

In the wake of Trump's victory in the 2024 presidential election, the American Federation of Government Employees, National Federation of Federal Employees, and other unions representing federal workers expressed fear and resolution against the President-Elect's policies, though many did not mention it in their congratulatory message.^[37] Two days after the election, Heritage Foundation president Kevin Roberts expressed support for Mr. Trump for, among other signature campaign-promises, his pledge to, "dismantle the deep state."^[51]

• The Fifth Risk – a book documenting political appointments at the beginning of the Trump presidency