Biden administration locks in plans aiming to block Schedule F for good

After winding up its punch last fall, the Biden administration has delivered a final blow aiming to prevent the resurrection of a controversial Trump-era federal workforce policy, familiarly called Schedule F.

Efforts from the Office of Personnel Management to “reinforce and clarify protections for the nonpartisan career civil service” will tighten up the job security of tens of thousands, if not hundreds of thousands, of non-political, career federal employees. OPM published its final rule reinforcing those protections to the Federal Register Thursday morning.

“Strong personnel has been at the core of our focus — we’ve been building on this agenda,” Jason Miller, deputy director for management at the Office of Management and Budget, told reporters during a press conference about the final rule. “The rule that the Biden-Harris administration is finalizing today is one part of that broader effort to ensure we have a strong, nonpartisan civil service that results in delivering results for the American people.”

OPM’s final rule is a direct response to a Trump administration executive order signed in late 2020. The order sought to reclassify career federal employees working in policy-related roles into Schedule F — a new, excepted service classification for government workers.

In practice, any employees reclassified as “Schedule F” would have seen fewer worker protections, making them at-will and easier for agencies to fire. But since the order came near the end of former President Donald Trump’s term, and President Joe Biden quickly revoked it once stepping into office, Schedule F didn’t see much light of day.

For at least a couple years, however, former Trump administration officials have been revisiting plans to revive Schedule F, should the presidential election go in their favor — a key motivation behind the new final rule from OPM.

After reviewing more than 4,000 public comments OPM received on its proposed regulations last fall, the now final rule outlines clearer worker protections for the federal employees the Trump administration had aimed to place into the Schedule F category — in particular, those in “confidential, policy-determining, policy-making or policy-advocating” positions.

“This rule is about making sure the American public can continue to count on federal workers to apply their skills and expertise in carrying out their jobs — no matter their personal political beliefs,” OPM Deputy Director Rob Shriver said during the press conference.

The new final rule aims to ensure career civil servants are hired and fired based on their merit, not political loyalty, OPM said. In particular, the final rule states that employees cannot have their civil service protections removed involuntarily. And in the case that there is a reclassification, the rule also establishes a procedure and appeals process for feds to push back against it.

The regulations specifically state that “confidential, policy-determining, policy-making or policy-advocating” positions — the sector of employees that Schedule F originally targeted — are non-career, political positions and are not applicable to career federal employees.

In essence, the final rule aims to ensure worker protections for thousands of civil servants whose careers transcend presidential administrations.

“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,” the OPM final rule states. “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 … and expanded and strengthened.”

The final rule will become official 30 days after its publication to the Federal Register, in early May.

The origins and scope of Schedule F

For years, experts estimated Schedule F would have affected around 50,000 career feds across government. But the estimate largely depends on each agency’s plans. A 2022 report from the Government Accountability Office showed that although OMB never actually reclassified any positions, approximately 68% of OMB’s workforce would have become at-will.

More recently, the National Treasury Employee Union, digging up Trump-era OMB documents, said the estimates are, in reality, much higher. While initially expected to impact only senior-level roles, the documents showed that OMB was also targeting federal employees in less senior positions, including those in GS-9 and GS-10 roles.

“We now know that the architects of Schedule F wanted to get rid of large numbers of federal employees for reasons that had nothing to do with their job duties or performance, upending 141 years of federal employment based on skills and merit,” NTEU National President Doreen Greenwald said in a statement. “We are pleased that President Biden’s administration has taken proactive steps to protect our civil servants and the honorable tradition of public service.”

At the time of the 2020 order, Trump administration officials said Schedule F was a way to ensure accountability of federal employees, and to allow more flexibility over whom a president can have working in policymaking roles. Former President Donald Trump — as well as several other former Republican presidential candidates for 2024 — have pointed to what they view as a “deep state” in the government’s workforce, saying that many federal employees intentionally slow-rolled Trump policies they personally disagreed with.

Though the order has been revoked since early 2021, that sentiment remains alive. In one striking example, during Florida Governor Ron DeSantis’ campaign run, he said on the topic of federal bureaucracy that he would “start slitting throats” of federal employees on his first day as president.

But on paper, the Schedule F order was an effort to ensure accountability of federal employees, according to James Sherk, former special assistant to the President on the White House domestic policy council, and the policy lead on the original Schedule F executive order.

“Civil service protections make it very difficult to hold employees in senior policymaking positions accountable for implementing the elected President’s agenda,” Sherk, currently a director at non-profit America First Policy Institute, said in an interview. “Schedule F was designed to allow the president to hold that relatively small subset of the federal workforce accountable, allowing him to replace senior employees who are not getting the job done for the American people. It was similar to reforms adopted by many state governments.”

The executive order quickly gained strong pushback from many federal unions, organizations and other employee advocates who said Schedule F was in reality a politically motivated attempt to return the government’s workforce to a “spoils” or “patronage” system — harkening back to the 1800s when a majority of the federal workforce overturned with each new incoming president.

Many organizations lauded OPM’s final rule this week for its efforts to strengthen merit system principles and other protections for the career civil service.

“Frontline federal employees are not political appointees, and for good reason,” NTEU’s Greenwald said. “By having basic rights such as notice of any adverse action and an opportunity to respond, they are shielded from unlawful and politically motivated firings.”

“The public benefits tremendously from having a career federal workforce hired for their skills and free from political interference to equitably serve all Americans,” President and CEO of the Partnership for Public Service Max Stier said in a statement. “OPM’s final rule maintains a commitment to a bedrock principle of our democracy: that civil servants serve their country based on merit, not their political beliefs.”

A “10:30-in-the-evening” regulation

Of course, OPM’s final rule comes during an election year, as time may be running short to implement policy changes before a possible presidential transition. The next several months will likely bring more efforts to implement policies that have been top of mind for the Biden administration over the last couple years.

“The people who originally proposed Schedule F have been in fear of what often is called a ‘midnight regulation’ — some kind of rule that would come by, that would wipe out their ability to be able to do what they want to do if, in fact, Trump wins,” Don Kettl, professor emeritus and former dean of the School of Public Policy at the University of Maryland, said in an interview. “This isn’t so much a midnight regulation as much as maybe a 10:30-in-the-evening kind of regulation. But it’s very clear that the Biden team wants to do all it possibly can to lock down the current system.”

A Biden administration official, speaking on background, said they believe the final rule from OPM will stand the test of time — and protect career federal employees even in the case of a presidential transition.

“This regulation is the strongest action that the Biden-Harris administration can take to promote these important policies. It has gone through the full rulemaking process,” the official said. “If another administration were to disagree with the policies that are reflected in this regulation, first, they would have to follow that full rulemaking process themselves. And then in that rulemaking, among other things, they would have to explain how a different rule would be better than the carefully crafted balance that OPM has struck here, and how their differing interpretation would be consistent with over 140 years of statutory language and congressional intent.”

Some experts, however, said they remain concerned that even a final rule from OPM won’t be enough to prevent Schedule F from returning in a future administration. In fact, in a 2023 outline of his policy plans, Trump said he would, on day one in office, restore the Schedule F executive order and the ability for a president to “fire rogue bureaucrats.”

Ron Sanders, who formerly served as chairman of the Federal Salary Council as an appointee for former President Donald Trump, resigned from his position in 2020 in response to the Schedule F executive order. While expressing appreciation for OPM’s final rule, Sanders — also previously a career federal employee for more than two decades — said he was concerned it wouldn’t completely prevent Schedule F, or something similar, returning in the future.

“It will serve as a speed bump, as opposed to a barrier,” Sanders, currently president and CEO of Publica Virtu, LLC, said in an interview. “It will slow down changes, but it won’t stop them.”

Similarly, former Trump administration official Sherk said OPM’s final rule would not stop an administration’s efforts in the future.

“What can be done through executive action can be undone through executive action. A future administration would have to go through the rulemaking process to roll back this rule, just as the Biden administration went through it to issue the rule,” Sherk said. “But the legal authority for Schedule F is clear. Rolling back this new rule would probably take about as long as OPM took to issue it. It creates some delay, but the rule is not something that’s going to stop a future administration from implementing the policy.”

Kettl said, however, that the Biden administration now establishing more precedent and evidence through the regulatory process will at the very least make the rule more difficult to unwind.

“If not impossible, it just means it might take a little bit longer, require a few more steps, might require navigating and jumping through a few more hoops,” Kettl said. “But there’s no doubt that this is a battle that’s going to be looming.”

Schedule F’s odds on Capitol Hill

Efforts from the Biden administration to prevent Schedule F’s return aren’t an anomaly. For years, many Democrats, and a few Republicans, in Congress have simultaneously been pushing for the passage of legislation to block the Schedule F order’s revival through law.

The Saving the Civil Service Act, reintroduced in early 2023, aims to block presidential administrations from ordering agencies to reclassify federal positions outside merit system principles, unless given congressional approval.

Despite several years of lawmakers’ efforts to enact the legislation, the bill has not yet received much action.

Still, Sen. Tim Kaine (D-Va.), who introduced the Senate’s version of the bill, said the final rule from OPM would serve as a solid step in the same direction.

“It’s in every American’s best interest that civil servants are hired through a merit-based system, and I welcome the Biden administration’s step today to affirm that principle and protect these workers from politically motivated firings,” Kaine said in a statement. “I will continue to push for my Saving the Civil Service Act so we can etch this progress into federal statute.”

A senior Biden administration official said they would fully support a goal of Congress to strengthen protections further through legislation.

“But we are also confident in the strength of this regulation, and that it is grounded in decades of congressional intent and administration practice,” the official said. “It is the best reading of the law that exists today.”

Other calls for civil service reform

Although the debate over Schedule F is highly contentious, some “good government” organizations have called for more of a middle-ground approach to ensuring better accountability and productivity in the career federal workforce.

“Agencies and the administration should continue to explore ways to make our federal government more responsive, transparent and accountable to the American people,” the Partnership’s Stier said. “Streamlining processes for hiring, performance management and accountability and preparing managers to support the workforce through the talent lifecycle are just some of the ways the federal government can better serve while adhering to merit principles.”

Implementing long-term, meaningful civil service reforms, including addressing challenges in human capital and performance management, may ultimately help restore the public’s declining trust in government, and the vast array of services it provides.

“Making sure that your drinking water is safe, how best to try to manage the cost structure of pills and pharmaceuticals that are being paid for by Medicare and Medicaid, how to try to create a new IT system for Social Security — I mean, these are very, very complex issues on which the performance of government depends,” Kettl said. “Not only are we talking about the big battles between the Schedule F proponents and those who want to try to maintain some version of the status quo, but we’re really talking about what government ought to look like and how accountability ought to work. It would be hard to underestimate how big those stakes are.”

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