Bureaucrats Hunker Down and Protect Themselves in Anticipation of a Trump Victory

streiff reporting for RedState 

Joe Biden's Office of Personnel Management took a big step Thursday toward preventing a new Trump administration from uprooting a hostile and disloyal federal civilian workforce. In a notice published in the Federal Register, OPM effectively killed the concept of a "Schedule F" employee created by President Trump during his first term's waning hours. That classification covering policy-related positions would have involuntarily reclassified tens of thousands of civil service employees from essentially tenured positions with significant employment protections to a new category of "at will" employment.

The order would create a new Schedule F within the excepted service of the federal government, to be composed of “employees in confidential, policy-determining, policy-making, or policy-advocating positions,” and instructs agency heads to determine which current employees fit this definition and move them—whether they are members of the competitive service or other schedules within the excepted service—into this new classification. Federal regulations stating that employees hired into the competitive service retain that status even if their position is moved to the excepted service will not apply to Schedule F transfers.

Positions in the new Schedule F would effectively constitute at-will employment, without any of the protections against adverse personnel actions that most federal workers currently enjoy, although individual agencies are tasked with establishing “rules to prohibit the same personnel practices prohibited” by Title 5 of the U.S. Code. The order also instructs the Federal Labor Relations Authority to examine whether Schedule F employees should be removed from their bargaining units, a move that would bar them from being represented by federal employee unions.

“Except as required by statute, the civil service rules and regulations shall not apply to removals from positions listed in Schedules A, C, D, E, or F, or from positions excepted from the competitive service by statute,” the order states.

Joe Biden suspended implementation of this reorganization shortly after taking office. Today's OPM action reverses that Executive Order.

The new regulation — which will be published in the Federal Register for public inspection on Thursday — seeks to provide 2.2 million federal employees with defined protections that would make it difficult for a future administration to re-apply the Trump policy, known as Schedule F.

“We are confident that our final rule is the best reading of civil service statutes and is grounded in the civil service in the statutory language, congressional intent, legislative history and decades of applicable case law and practice,” said OPM Deputy Director Rob Shriver on a press call. “The rule is strong, it will help to ensure the rights employees earned as envisioned by Congress when it enacted the Civil Service Reform Act in 1978 and expanded and strengthened those protections through subsequent enactments.”

While Schedule F still exists, it is now virtually impossible to reclassify civil service employees involuntarily. In case of an attempt to reclassify an employee involuntarily, the rule creates an elaborate and time-consuming appeals process that can be used to delay the action until eternity.

Keeping in mind that this rule was one of the Biden OPM's top projects, it has taken over three years to jump through the hoops in the rule-making process to reach this point. It would take a Trump OPM at least as long to unwind it.

From this, we can draw a useful bit of information. The Deep State is alive, but it is afraid that a vengeful and (hopefully) more competent Trump Administration 2.0 will try to fix that. 

“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.”

Unfortunately, this action ensures that Trump and his administration will have to deal with a civilian workforce implacably opposed to Trump's agenda and for which there is no legal remedy.