Pushing Back on the Critics

OPM’s final regulation—which NTEU supports—to protect federal employees in the event of a new Schedule F executive order has caused quite a stir among conservative groups who want to take away employees’ rights and then fire them. 

The OPM final regulation ensures that employees transferred to a new Schedule F would maintain their rights to challenge an adverse action like being fired. So now the groups are lashing out at it with a mix of weak legal arguments and misleading claims in their public comments. Check out this summary of opposing groups' comments, followed by NTEU’s responses: 

THEM: OPM lacks the authority to issue this proposed rule without congressional action. 

US: Congress specifically gave OPM this power through the Civil Service Reform Act of 1978, which authorizes OPM to issue regulations to administer the law. This wouldn’t even be the first time OPM issues a regulation on this very topic. Decades ago, OPM issued a regulation saying that employees hired into the competitive service can retain their rights even if they are moved into schedules A, B, or C. There is also a long list of court cases that have reaffirmed OPM’s authority on this subject. 

THEM: OPM’s final regulation interferes with the president’s authority over the executive branch of government as outlined in Article II of the U.S. Constitution. 

US: Congress has enacted laws governing federal employees for the last 141 years, dating back to the Pendleton Act of 1883. In another example, early in the 20th century, Congress passed a law to override presidential executive orders that restricted federal employee speech. Presidents of both parties have recognized the role of Congress in overseeing the federal workforce. Even the Civil Service Reform Act itself grew out of then-President Carter’s project on personnel management. 

THEM: OPM’s regulation doesn’t just reinforce and clarify existing laws, it creates new laws. 

US: Federal employees in the competitive service already have due process rights in their employment. OPM’s proposed regulation does not, therefore, create new law; it just clarifies that employees get to keep those constitutionally based rights if they are moved into a new Schedule F.  

THEM: OPM’s regulation is invalid because the stated intent—to “reinforce and clarify” existing law—does not match the actual intent, which is to stop a future Schedule F, and is therefore a violation of the Administrative Procedures Act.  

US: OPM’s purposes are not hidden or contrived. In fact, OPM links its goal of reinforcing and clarifying existing law to its concern over a future Schedule F, which it discusses explicitly and at length. 

THEM: Schedule F was never fully implemented, so OPM’s proposed rule is addressing a problem that doesn’t exist. 

US: There is no legal reason why an agency cannot clarify the law with an eye toward a potential, future problem. And proponents of Schedule F have been explicit and public about their intent to reinstate the policy and make it easier to fire frontline federal employees. 

THEM: OPM’s definition of “policy-determining, policy-making, or policy-advocating” employees as applying to only political appointees is inconsistent with Supreme Court precedent. 

US: Restricting a future Schedule F to only political appointees in policy positions would protect the career federal workforce, which is why Schedule F proponents want the definition to be broadened to include employees hired in the competitive process. But the Supreme Court has held that the category of employees who can be removed for political patronage reasons must be narrow and cannot include career employees. The other Supreme Court decisions that Schedule F proponents cite aren’t relevant because they dealt with extremely limited circumstances at independent agencies.  

Read the full NTEU responses here.