Presidential Executive Order 13957 (Donald Trump, 2020)

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Executive Order 13957: Creating Schedule F in the Excepted Service was a presidential executive order issued by President Donald Trump (R) on October 21, 2020, that directed agencies to reclassify federal civil service employees in the competitive service who serve in policy-related roles as members of the excepted service.[1][2]

President Joe Biden (D) revoked E.O. 13957 on January 22, 2021, via E.O. 14003.

Background

The order instructed agencies to reclassify competitive service employees who serve in "confidential, policy-determining, policy-making, or policy-advocating positions and that are not normally subject to change as a result of a Presidential transition” as members of the newly created Schedule F within the excepted service.[1][3]

The classification change, according to the order, aimed to give agency heads greater flexibility in the appointment of staff members who serve in policy-related positions. The order also claimed that the change would make it easier for agency management to remove poor-performing employees. Though the change made the qualifying employees ineligible for the adverse action protections of the competitive service, the order directed agencies to develop rules that create similar protections for Schedule F employees. The order also instructed the Federal Labor Relations Authority to determine whether Schedule F positions should be eligible for union membership.[1][4]

U.S. Government Accountability Office report on implementation of Schedule F

The U.S. Government Accountability Office (GAO) reviewed the implementation of E.O. 13957 and shared its findings in a report on September 28, 2022. The report noted that no federal agencies had implemented Schedule F by the time the executive order was revoked by President Joe Biden (D) on January 22, 2021.

Written requests to implement Schedule F had been submitted to the Office of Personnel Management (OPM) by two agencies (the Office of Management and Budget and the U.S. International Boundary and Water Commission). The Office of Management and Budget (OMB) had their request to move 136 positions into Schedule F approved, however, officials stopped the implementation on January 20, 2021. OPM’s review of the U.S. International Boundary and Water Commission’s request to move five positions into Schedule F had not been completed at the time the executive order was revoked.

Seven additional agencies (Equal Employment Opportunity Commission, Environmental Protection Agency, Department of the Treasury, Federal Energy Regulatory Commission, Federal Trade Commission, National Endowment for the Humanities, and Office of Personnel Management) had been in the process of analyzing their implementation status when the executive order was revoked. Six agencies (Corporation for National and Community Service, Federal Maritime Commission, Federal Retirement Thrift Investment Board, National Archives and Records Administration, National Transportation Safety Board, and National Labor Relations Board) had informed OPM that they would not be submitting requests to move positions into Schedule F.[5]

Competitive vs. excepted service

See also: Civil service

Members of the competitive service are hired according to a neutral, merit-based selection process and have protections against at-will removal by their supervisors. Members of the excepted service, on the other hand, are hired by agencies to fill certain positions for which candidates cannot be appropriately assessed through the merit-based selection process, and do not share in the competitive service's at-will removal protections.

For more information about the scope and structure of the civil service, click here.

Response

Office of Management and Budget Director Russ Vought issued a statement to Federal News Network in a support of the order, stating, “President Trump is delivering on his promise to make Washington accountable again to the citizens it’s meant to serve. This much-needed reform will increase accountability in essential policy-making positions within the government.”[3]

Opponents of the order, including American Federation of Government Employees National President Everett Kelley, argued that the order would politicize a large portion of the civil service. “This executive order strips due process rights and protections from perhaps hundreds of thousands of federal employees and will enable political appointees and other officials to hire and fire these workers at will,” said Kelley in a statement.[4]

Noteworthy events

U.S. House passes Preventing a Patronage System Act (2022)

The Preventing a Patronage System Act of 2021 (PPSA Act) was passed by the U.S. House of Representatives on September 15, 2022, by a 225-204 vote. The bill aimed to prohibit federal agencies from placing competitive service positions into the excepted service and from placing excepted service positions into a schedule outside of Schedules A through E.[6]

The sponsor of the bill, Rep. Gerald Connolly (D-Va.), released a statement following the House passage of the bill, stating, "The former President’s attempt to remove qualified experts and replace them with political loyalists threatened our national security and our government’s ability to function the way the American people expect it to. Expertise, not fealty must define our civil service."[7]

The bill did not pass the 117th Congress.[6]

U.S. House members seek to reverse E.O. 13957 through omnibus spending bill (2020)

Thirteen Democratic members of the U.S. House of Representatives on November 24, 2020, sent a letter to the leaders of the appropriations committees in the U.S. House and U.S. Senate requesting that the committees include language in the next appropriations bills to reverse E.O. 13957.[8]

The letter claims that the “executive order contradicts 137 years of tradition and practice based on merit systems principles” and “could precipitate an exodus from the federal government, leaving federal agencies without deep institutional knowledge, expertise, experience, and the ability to develop and implement long-term policy strategies.”[8]

Legislation aims to nullify Trump civil service executive order (2020)

U.S. House of Representatives

U.S. Representative Gerry Connolly (D-Va.) on October 27, 2020, introduced the Saving the Civil Service Act (H.R. 8687) aimed at nullifying President Donald Trump’s Executive Order 13957.[9] The legislation would prevent agencies from converting competitive service members to Schedule F employees, prohibit any new Schedule F hires from being converted to competitive service members, and reinstate any competitive service members who were fired after being converted to Schedule F employees.[10]

Connolly said in a press release that he believes the executive order “would make it easier to fire qualified civil servants and hire Trump loyalists in their place.” He added, “The President issued this executive order two weeks before the election” and developed “the proposal in secret without the benefit of any congressional or public scrutiny.”[9]

U.S. Senate

U.S. Senator Gary Peters (D-Mich.) on November 18, 2020, introduced legislation aimed at rescinding President Donald Trump’s Executive Order 13957, retroactive to the day the president signed the order on October 21, 2020.[11]

“This recent executive order will not only strip protections away from hard-working, dedicated civil servants, but it also recklessly creates chaos and dysfunction during the ongoing pandemic and presidential transition,” said Peters in a statement.[11]

Union sues to block implementation of Trump civil service executive order (2020)

The National Treasury Employee’s Union (NTEU) on October 26, 2020, filed a lawsuit in the U.S. District Court for the District of Columbia that aims to block the implementation of President Donald Trump’s (R) Executive Order 13957.[12]

“This case is a textbook example of the president acting contrary to Congress’s express and limited delegation of authority to the president,” argued the NTEU in the lawsuit. “Under the law, the president may only except positions from the competitive service when ‘necessary’ and ‘as conditions of good administration warrant.’ The president’s sweeping order fails to make a meaningful showing that shifting large numbers of federal employees into a new excepted service category so that they can be fired more quickly and without cause is necessary or supported by good administration principles.”[12]

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 White House, "Executive Order on Creating Schedule F In The Excepted Service," October 21, 2020
  2. ↑ Federal Register, "Creating Schedule F in the Excepted Service," October 26, 2020
  3. ↑ 3.0 3.1 Federal News Network, "New executive order could strip civil service protections from ‘wide swaths’ federal workforce," October 22, 2020
  4. ↑ 4.0 4.1 Government Executive, "‘Stunning’ Executive Order Would Politicize Civil Service," October 22, 2020
  5. ↑ United States Government Accountability Office, "CIVIL SERVICE: Agency Responses and Perspectives on Former Executive Order to Create a New Schedule F Category of Federal Positions," September 28, 2022
  6. ↑ 6.0 6.1 Congress.gov, "H.R.302 - PPSA Act of 2021," accessed November 17, 2022
  7. ↑ House Committee on Oversight and Reform, "Chairman Connolly Celebrates House Passage of Bill to Protect the Civil Service," September 15, 2022
  8. ↑ 8.0 8.1 U.S. House of Representatives, "Joint Letter to Senate and House Appropriations Committees," November 24, 2020
  9. ↑ 9.0 9.1 MeriTalk, "Rep. Connolly Working on Bill to Overturn White House Civil Service EO," October 26, 2020
  10. ↑ Government Executive, "Union Sues and Democrats Introduce Bill to Block Trump Order Politicizing Civil Service," October 27, 2020
  11. ↑ 11.0 11.1 Government Executive, "Dozens of Senators Introduce Bill Blocking Trump’s Order to Politicize the Civil Service," November 18, 2020
  12. ↑ 12.0 12.1 Federal News Network, "Union, lawmakers attempt to block Schedule F executive order through new lawsuit, legislation," October 27, 2020
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