On the first day of his second term, President Trump issued an executive order reinstating the job classification formerly known as “Schedule F.” For those who have been following the Schedule F story since 2020, we thought it would be helpful to lay out what exactly has changed from the original Schedule F executive order to the new order. Please note that the executive order has already been challenged in court, and it remains to be seen whether the courts will permit the administration to move forward with anything described below.
First, the new executive order announces that the prior Schedule F executive order will be amended. We have created a document showing the amendments as a redline of the prior executive order. The new executive order does not explain the rationale for these changes, but we can make some guesses:
- First, the new job category will be called “Schedule Policy/Career” rather than “Schedule F.” This clunky new title may be intended to make clear the Trump administration’s disagreement with OPM’s prior understanding that the excepted service is only for political appointees, not career employees.
- Second, a paragraph regarding hiring has been removed, presumably because Trump issued a separate executive order on hiring.
- Third, the executive order now asserts that the President will make final decisions regarding placement of employees in “Schedule Policy/Career.” In the original executive order, this task was assigned to the director of OPM. This change probably makes little difference in practice, but instead relates to technical legal arguments about the President’s authority in this area.
- Fourth, the new executive order broadens the discretion of agencies to place employees in “Schedule Policy/Career” by including employees performing “duties that the Director otherwise indicates may be appropriate for inclusion” within the set of eligible employees. Also, employees who supervise “Schedule Policy/Career” employees may be placed into that category.
- Fifth, the new executive order contains a paragraph announcing that “[e]mployees in or applicants for Schedule Policy/Career positions are not required to personally or politically support the current President or the policies of the current administration,” but must “faithfully implement administration policies to the best of their ability”
The original Schedule F executive order instructed agencies to conduct a preliminary review of positions within 90 days and a complete review within 210 days. Presumably, those deadlines will now run from January 20, 2025, since the new executive order indicates that January 20, 2025 will be “treated as the date of Executive Order 13957” (the original order).
Separate from reinstating and amending the original executive order, the new executive order contains a handful of other provisions. Most importantly, it instructs the OPM director to revoke regulations issued in 2024 that, among other things, prevented employees from losing job protections if involuntarily transferred to the excepted service. Recognizing that these regulations cannot be revoked immediately, the executive order asserts that the regulations will be “inoperative” in the meantime.
In addition, the executive order instructs the OPM director to “issue guidance about additional categories of positions that executive departments and agencies should consider recommending for Schedule Policy/Career.”
-Danny Rosenthal, partner at James & Hoffman, P.C.