Author: Danny Rosenthal

Deferred resignation: what we know so far (updated)

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UPDATE February 6, 2025: Today’s deadline for accepting deferred resignation has been suspended by a federal judge in Massachusetts. OPM has been directed to notify employees of this development. A further hearing will occur next week.

UPDATE February 5, 2025: We’ve published a new post discussing the latest developments on deferred resignation, including the lawsuit challenging it and OPM’s new memo and agreement.

UPDATE Jan 30, 2025: We have published a separate post on OPM’s new FAQ page about the “deferred resignation” program.

Last night, OPM sent an email to federal employees offering “deferred resignation.” Like many of the administration’s pronouncements, the email was sloppily drafted, making it hard to pin down the specifics of the policy. Indeed, OPM has published an FAQ page and memo that substantially clarify (if not change) the details of the program. Here’s what we know so far.

First, the email itself: After making threats about plans to downsize and reshape the federal workforce, the email sets forth a “deferred resignation letter” that may be submitted by federal employees. The letter states that the employee will resign effective September 30, 2025. In the meantime, the employee will be “exempt from any ‘Return to Office’ requirements.” Further, the employee “will maintain … current compensation and … benefits,” which suggests that employee will not be subject to termination during this period. The employee acknowledges that agencies will “likely make adjustments” prior to the resignation date, which might include “reducing” duties or placing employees on leave. The employee commits to assist the agency with “reasonable and customary tasks and processes to facilitate my departure.”

To summarize, employees agree to resign in exchange for a promise that they may continue working remotely prior to the date of resignation. The deal seems to include some protection from termination prior to resignation, but the letter does not say so explicitly. The employee is not relieved of the obligation to work for the agency until the date of resignation, although agencies may remove duties at their discretion.

Second, OPM published an FAQ page regarding the program. According to the FAQ, employees will not be required to work prior to their resignation date, except in “rare cases.” In fact, the page refers to this period as a “nice vacation.” These points are notably absent from the OPM email and letter, which instead make the somewhat contradictory promise that employees won’t be required to work in person (implying that work may continue remotely). The FAQ page indicates that the resignation letter does not bar an employee from getting another job while on the federal government payroll, but that other policies may prohibit this. (For example, agencies may require prior authorization for outside work.) The page provides some other details as well.

Third, OPM sent a memo to agencies that describes yet a third version of the program. Under this memo, employees who accept deferred resignation should “promptly” be placed on “paid administrative leave.” The only exception is for situations in which the “agency head determines that it is necessary for the employee to be actively engaged in transitioning job duties.”

Fourth, big questions remain regarding the program. To start, who exactly is eligible? While OPM apparently sent the email to all or most of the federal workforce, the program has exclusions. It does not apply to “positions related to immigration enforcement and national security,” a potentially broad category. It also does not apply to “any other positions specifically excluded by your employing agency.” But it’s unclear how employees would know if they have been excluded. Thus, recipients cannot be sure whether they are eligible. USPS employees and military personnel are also excluded.

Another open question is whether the promises in the letter and FAQ are enforceable. What if an employee opts in to the program, but the Government lays them off or stops paying them prior to the resignation date, contrary to the promise that compensation will continue at current levels? Or what if an agency makes all of its resigned employees continue working full time, despite OPM’s statement that work should only occur in “rare cases”?

The email and FAQ page arguably constitute an implied contract that employees could enforce in the Court of Federal Claims under the Tucker Act. But I am not aware of any precedent addressing this issue on similar facts. And it’s not clear that a violation of the policy would give rise to any administrative remedy such as an appeal to the Merit Systems Protection Board.

Further complicating enforcement, the letter and FAQ include vague language with poorly defined exceptions, such as the statement that agencies can exclude “other positions” and that employees will only have to work in “rare cases.” Further, there are multiple documents describing the program with different information about how it works.

Thus, in deciding whether to accept “deferred resignation,” employees need to ask themselves this question: do I trust this administration to follow through on the stated parameters of the program?

This is a preliminary analysis based on information available on the morning of January 29. We will update this page as things develop. Updates will also be posted on our Bluesky feed.

-Danny Rosenthal, partner at James & Hoffman, P.C.

What’s new in Trump’s rebranded Schedule F?

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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.

Schedule F: What Federal Employees Need to Know

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This page provides information on “Schedule F,” now known as “Schedule Policy/Career,” a new category of federal employees established near the end of the first Trump administration, rescinded by President Biden before it was implemented, and then reinstituted on the first day of President Trump’s second term.

UPDATE April 18, 2025: The administration has posted its proposed regulation implementing Schedule Policy/Career. The regulation seems to closely follow the executive order issued by President Trump on inauguration day, discussed below. We will continue reviewing the document and may post a further analysis in the coming days.

UPDATE January 29, 2025: As of today, there are three lawsuits challenging the “Schedule Policy/Career” initiative. We have published a separate post about these lawsuits. To briefly summarize, the first suit was brought by the National Treasury Employees Union in DC, where it was assigned to Judge Jia Cobb, a former civil rights lawyer appointed to the bench by President Biden. This week, two more suits were filed, one by two labor unions (AFGE and AFSCME) and another by a nonprofit. As of today, the plaintiffs in these cases have not sought an immediate injunction against the policy, perhaps because it has not yet been implemented at the agency level. The government will be required to respond to the suits in the coming months.

UPDATE January 27, 2025: OPM has issued a new memo regarding implementation of “Schedule Policy/Career.”

UPDATE January 22, 2025: On the night of his inauguration, President Trump issued an executive order reinstating Schedule F–now labeled as “Schedule Policy/Career.” It makes some amendments to the original Schedule F executive order; we discuss those changes in another post. The new executive order also directs OPM to rescind regulations issued by the Biden administration to protect civil servants from losing job protections as a result of transfer to Schedule F. Recognizing that the process of rescinding the regulations will take some time, the executive order declares that the regulations will be “inoperative” until they are formally revoked. This order creates a number of legal issues, and it remains to be seen whether the courts will permit the administration to implement its plans. A lawsuit has already been filed by the National Treasury Employees Union. More analysis will be forthcoming here and on our Bluesky account. In the meantime, scroll down for more detail on Schedule F and the OPM regulations.

This page answers the following questions:

  1. What is Schedule F?
  2. Am I in Schedule F?
  3. What is the process for transferring employes to Schedule F?
  4. If Schedule F is reinstituted, could I be placed in it?
  5. If I am placed in Schedule F, can I object?
  6. What are my rights if I am placed in Schedule F?

The information on this page is current as of January 20, 2025.

1. What is Schedule F?

To understand Schedule F, you must first understand that most federal government employees fall into two categories: competitive service and excepted service. (On your SF-50, box 34 states whether you are in one of these categories.)

Competitive service is the default category for federal government employees. See 5 U.S.C. § 2102. Employees in the competitive service have various job protections and rights, particularly after they complete their probationary period. For example, if they are terminated or suspended, these employees can appeal to the Merit Systems Protection Board (MSPB). See 5 U.S.C. §§ 7511, 7513.

The excepted service is a separate category in which hiring is not governed by competitive hiring requirements. See 5 U.S.C. § 2103. Prior to Trump’s executive order, the excepted service was divided into five categories: schedules A, B, C, D, and E. See 5 C.F.R. § 6.2.

Employees in Schedule C of the excepted service are essentially at-will employees, lacking the ability to appeal to the MSPB if they are terminated without cause. Historically, this category has been reserved for political, noncareer positions. (Unlike employees in Schedule C, employees in Schedules A, B, D, and E of the excepted service are generally protected from termination without cause.)

Schedule F, which has been renamed Schedule Policy/Career, is a new category of excepted service employees. It appears designed to strip job protections from career positions, treating them similarly to employees in Schedule C.

In an executive order in October 2020, President Trump established Schedule F. See Executive Order 13957. The order defines Schedule F to encompass: “Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition.” On January 22, 2025, President Trump issued a new executive order, reinstating Executive Order 13957, with some amendments.

Prior to President Trump’s executive order, the excepted service already included positions with these characteristics in Schedule C. See, e.g., 5 C.F.R. § 6.2. However, up until now, the phrase “confidential, policy-determining, policy-making, or policy-advocating” has been understood to refer solely to non-career, political positions that would be subject to change as a result of a Presidential transition. The executive order seeks to expand that category to include career, non-political positions. Further, the order establishes a new process requiring agencies to recategorize employees into Schedule Policy/Career. Thus, the executive order appears designed to move a significant number of employees into a new category in which they lose essential job protections. We discuss this process below.

The program is currently under challenge in three different lawsuits.

2. Am I in Schedule F?

Likely not. Schedule F was reinstated on January 20, 2025 via executive order and relabeled as “Schedule Policy/Career.” However, it remains to be seen how and when agencies will actually implement the order.

3. What is the process for transferring employes to Schedule F?

Under the executive order, federal agencies are supposed to take various steps to transfer employees to Schedule Policy/Career.

First, each agency was required to conduct a “preliminary review” within 90 days and a “complete review” within 210 days, in order to identify positions that should be placed in Schedule Policy/Career.

Second, each agency was required to submit a petition to the Office of Personnel Management (OPM) identifying the positions that should be transferred to Schedule F, with a written explanation.

Third, the OPM Director will recommend to the President which positions should be placed in Schedule Policy/Career. The President intends to then effectuate the transfer of the recommended positions into Schedule Policy/Career via executive order.

In addition, OPM has directed each agency to designate a Schedule Policy/Career point of contact, and to provide that person’s contact information to OPM, by January 29, 2025.

4. If Schedule F is reinstituted, could I be placed in it?

If your position is of a “confidential, policy-determining, policy-making, or policy-advocating character,” you might fall under Schedule Policy/Career according to the executive order.

The executive order appears to give a large degree of discretion to agencies to decide which employees to place in Schedule Policy/Career. It lists various job functions that could support placing an employee in this new schedule, but it does not mandate that everyone performing these activities be placed in it.

The following job functions are listed in the executive order:

  • “substantive participation in the advocacy for or development or formulation of policy”
  • “substantive participation in the development or drafting of regulations and guidance”
  • “substantive policy-related work in an agency or agency component that primarily focuses on policy”
  • “the supervision of attorneys”
  • “substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law”
  • “viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations generally covered by deliberative process privilege and either directly reporting to or regularly working with an individual appointed by either the President or an agency head who is paid at a rate not less than that earned by employees at Grade 13 of the General Schedule; or working in the agency or agency component executive secretariat (or equivalent)”
  • “conducting, on the agency’s behalf, collective bargaining negotiations”
  • “directly or indirectly supervising employees in Schedule Policy/Career positions”
  • “duties that the Director otherwise indicates may be appropriate for inclusion in Schedule Policy/Career”

In a memo published on January 27, 2025, OPM listed the following as duties that would support placement in Schedule Policy/Career:

  • functions statutorily described as important policy-making or policy-determining functions, principally (1) directing the work of an organizational unit; (2) being held accountable for the success of one or more specific programs or projects; or (3) monitoring progress toward organizational goals and periodically evaluating and making appropriate adjustments to such goals
  • authority to bind the agency to a position, policy, or course of action either without higher-level review or with only limited higher-level review
  • delegated or subdelegated authority to make decisions committed by law to the discretion of the agency head
  • substantive participation and discretionary authority in agency grantmaking, such as the substantive exercise of discretion in the drafting of funding opportunity announcements, evaluation of grant applications, or recommending or selecting grant recipients
  • advocating for the policies (including future appropriations) of the agency or the administration before different governmental entities, such as by performing functions typically undertaken by an agency office of legislative affairs or intergovernmental affairs, or by presenting program resource requirements to examiners from the Office of Management and Budget in preparation of the annual President’s Budget Request
  • publicly advocating for the policies of the agency or the administration, including before the news media or on social media
  • positions described by their position descriptions as entailing policy-making, policy-determining, or policy-advocating duties.

5. If I am placed in Schedule F, can I object?

Maybe. Under regulations issued by the Biden administration in 2024, employees may have the right to file an appeal if they are involuntarily placed in the excepted service, including in Schedule F. See 5 C.F.R. § 302.603. The appeal may be filed with the Merit Systems Protection Board, or MSPB.

On January 20, 2025, the Trump Administration issued an executive order declaring that the regulations issued by the Biden administration are “inoperative.” However, it is not clear that the Trump administration has the power to render regulations “inoperative” via executive order. Several lawsuits are already pending on the issue.

For advice specific to your situation, consider consulting an attorney. If you are represented by a union, consider discussing the issue with someone from the union.

6. What are my rights if I am placed in Schedule F?

It is unclear. Under regulations issued by the Biden administration in 2024, an employee who is transferred to the excepted service, including in Schedule Policy/Career, retains many of their most important rights as a competitive service employee. These include the ability to challenge the employee’s termination and other adverse employment actions. See 5 C.F.R. § 212.401; 5 C.F.R. § 302.602(c).

On January 20, 2025, the Trump Administration issued an executive order declaring that the regulations issued by the Biden administration are “inoperative.” However, it is not clear that the Trump administration has the power to render regulations “inoperative” via executive order. Several lawsuits are already pending on the issue.

Further, there is case law suggesting that federal employees have this protection even in the absence of the recent regulation.

Notably, OPM’s January 27 memo suggests that the Trump administration considers 5 C.F.R. § 212.401 to still be operative, thus protecting employees from loss of civil service protections if transferred to Schedule Policy/Career. This regulation has existed since 1968. In 2024, OPM amended it to clarify that it would apply to involuntary movement to any newly created schedule in the excepted service.

Thus a federal employee who is transferred to Schedule Policy/Career may still have protections from unwarranted termination and other adverse employment actions. By contrast, if you are hired directly into a Schedule Policy/Career position or choose to take one voluntarily, then you likely will have limited rights to challenge termination or other adverse action. However, if you are coerced into accepting a Schedule F position, then you may be able to appeal the agency’s action. See 5 C.F.R. § 302.602.

For advice specific to your situation, consider consulting an attorney. If you are represented by a union, consider discussing the issue with someone from the union.

-Danny Rosenthal and Charlotte Schwartz, attorneys at James & Hoffman, P.C.,