As of today, three separate lawsuits have been filed to challenge President Trump’s plan to reclassify federal workers into “Schedule Policy/Career” (formerly Schedule F). Two of these suits were filed by unions representing federal employees. A third was filed by an organization that represents federal employee whistleblowers.
The suits differ on four significant dimensions: (1) The venues in which they were filed, (2) The type of injury they assert, which may determine whether a court can hear the case, (3) The specific acts they challenge, and (4) The sources of law invoked to support those challenges.
Before describing the suits, we provide some background.
Background
These lawsuits challenge two related actions the President is trying to take. The first is the creation of “Schedule Policy/Career.” The second is an effort to disregard or eliminate regulations that OPM promulgated during the Biden administration. which made it considerably more difficult to implement something like “Schedule Policy/Career.” The administration needs to take both of these steps in order to fully realize the president’s plan to strip civil service protections from thousands of federal employees.
The suits raise arguments under three sources of law: the Civil Service Reform Act, the Administrative Procedure Act, and the U.S. Constitution. We elaborate on each below.
The Civil Service Reform Act (CSRA) was enacted in 1978 and strengthened via amendments in 1990. Through this statute, Congress provided federal employees with robust job protections, such as protection against termination without cause (for most non-probationary employees). Congress also required that agencies hire most federal employees through competitive processes to ensure that employees are selected based on merit, not political loyalty to a particular party or candidate.
The statute allows the President and OPM to except employees from these requirements, only when “necessary” and as warranted by “conditions of good administration.” 5 U.S.C. § 3302.
The CSRA also provides that civil service protections may not apply to positions “determined to be of a conditional, policy-determining, policy-making or policy-advocating character.” 5 U.S.C. § 7511(b)(2). That term has long been understood to refer solely to political, non-career appointees. For example, the Merit Systems Protection Board, the entity that adjudicates many federal employee claims of wrongful termination, has held that these terms are “only a shorthand way of describing positions to be filled by so-called ‘political appointees.’” Currently, those non-career, political positions are housed in Schedule C of the excepted service.
The Administrative Procedure Act (APA) provides broad rules governing actions taken by most federal agencies. As a general matter, the APA requires agencies to engage in reasoned decision-making. When an agency wants to take an action in the form of a final rule, the APA requires the agency to use certain procedures, known as notice and comment rulemaking. The agency has to provide the public with notice of the rule it is proposing and an opportunity to comment on the rule. Then the agency must review those comments and explain why it is or is not changing its proposed rules in line with those comments.
For example, the Biden administration used notice and comment rulemaking under the APA to issue its regulations protecting civil servants. OPM issued a 24-page notice explaining the reasons for the rule and how it would operate in September 2023, received and reviewed over 4,000 comments, and then issued a 68-page notice of final rulemaking in April 2024.
When an agency wants to rescind a rule that it has promulgated using notice-and-comment rulemaking, it has to use the same process used to issue the rule—providing notice to the public, accepting comments, and analyzing those comments.
The Fifth Amendment to the U.S. Constitution provides that the government cannot deprive an individual of their property without due process of law. The Supreme Court has held that restrictions on loss of employment, like those provided to federal employees in the CSRA, can create a property right in continued employment. Constitutional due process protections then attach to that property interest.
The three lawsuits
Below we briefly describe the three lawsuits that have been filed so far:
- NTEU v Trump (complaint here)
On the night of President Trump’s inauguration, shortly after he issued an executive order reinstating and amending the Schedule F, the National Treasury Employees Union (NTEU) filed a lawsuit challenging the order. The suit was filed in the District Court for the District of Columbia and has been assigned to Judge Cobb, a Biden appointee. This court is subject to review by the D.C. Circuit Court of Appeals, a court with seven active judges appointed by Democratic presidents and four active judges appointed by Republican president.
NTEU is a union that represents thousands of federal employees across 37 departments and agencies, including Agriculture, Commerce, Defense, Energy, and Health and Human Services, Justice, Treasury, the Interior, and Homeland Security.
NTEU filed the lawsuit on behalf of itself as an organization, not its members. NTEU asserts that it is injured as an organization because the executive order has required it to divert a significant amount of resources away from its ordinary activities.
NTEU’s complaint includes four counts. In the first count, NTEU argues that the President is violating 5 U.S.C. § 3302, which states that employees can only be place din the excepted where “necessary” or warranted by “conditions of good administration.” NTEU claims that the executive order does not meet those criteria.
In the second count, NTEU argues that the President exceeded statutory authority by attempting to strip adverse action protections from employees other than non-career, political appointees, violating the longstanding understanding that only such employees are excluded from these protections.
The third count argues that the Executive Order violates the Constitution by seeking to deprive federal employees of their constitutional due process rights in their employment.
The fourth count argues that the Executive Order violates the Administrative Procedure Act because it seeks to rescind regulations without going through the required procedures.
NTEU is requesting, as remedies, that the court declare the executive order unlawful, and enjoin the President, the OPM director, and the named agency heads from implementing, enforcing, or complying with the order.
When NTEU filed a similar suit under the first Trump administration, the Government asserted two major defenses: (1) NTEU’s claims were premature because no one had been placed into the new schedule yet, and (2) Any challenge would need to be raised through internal administrative channels rather than in court. NTEU did not have an opportunity to respond to those arguments before the Schedule F executive order was rescinded. We can expect similar defenses to be raised again now.
- PEER v Trump (complaint here)
On January 28, 2025, Public Employees for Environmental Responsibility (PEER) filed a lawsuit in the District of Maryland. It has been assigned to Judge Xinis, an Obama appointee. This court is subject to review by the Fourth Circuit Court of Appeals, a court with eight active judges appointed by Democratic presidents, six active judges appointed by Republican presidents, and one active judge originally nominated by President Clinton and then re-nominated by President George W. Bush .
PEER is a non-profit that provides pro bono legal services to public employee whistleblowers in cases related to environmental laws and scientific integrity. PEER is asserting an injury on the basis that the executive order has significantly increased fear and concerns about retaliation by federal employees, which impedes PEER’s ability to learn about, expose, and remedy the wrongdoing that the organization exists to address.
PEER’s complaint includes four counts. The first count largely mirrors the first count of NTEU’s complaint, arguing that that the executive order violates 5 U.S.C. § 3302, because the proposed exceptions from the competitive service are neither “necessary” nor warranted by “conditions of good administration.”
PEER’s second count is similar to the third count in NTEU’s complaint, invoking the constitutional due process rights of federal employees.
The third and fourth count, like NTEU’s fourth count, challenge President Trump’s declaration that the Biden civil service regulations are now “inoperative.”
PEER is requesting that the court declare the executive order null and void and enjoin the OPM director from implementing it, and require OPM to enforce the Biden civil service regulations unless and until they are rescinded via notice and comment rulemaking.
- AFGE v Trump (complaint here)
On January 29, 2025, AFGE and ASCME filed a lawsuit against the President, the head of OPM, and OPM. It has been assigned to Judge Cobb on the basis that it is related to the NTEU action.
AFGE is the largest federal employee union, representing approximately 800,000 federal employees in every state, including nurses, border patrol agents, scientists, civilian employees of the military, and employees who administer Social Security benefits.
AFSCME represents around 1.4 million government employees, including many federal employees—among them, employees of the FAA and DOJ.
This lawsuit differs from the other suits in several ways.
First, the suit is brought on behalf of the unions and their members; by contrast, the NTEU suit is brought only on behalf of the union itself. This choice does not affect the substance of the claims in the case, but it does affect technical procedural defenses that the Government may raise.
Further, unlike the other lawsuits, this suit does not challenge the creation of Schedule Policy/Career or the directive to place employees into that category. Instead, it targets the administration’s attack on the Biden civil service regulations. And the lawsuit only raises claims under the Administrative Procedure Act, not the CSRA or Constitution.
The lawsuit includes two counts.
The first count argues that the OPM Director and OPM have violated the APA by holding the Biden civil service regulations “inoperative” without going through notice and comment rulemaking.
The second count argues that all defendants are acting without statutory authority by attempting to rescind the Biden civil service regulations while circumventing the requirements of the APA.
Where the suits will go from here
Notably, as of today, the plaintiffs in these lawsuits have not sought an immediate stop to the administration’s actions via a preliminary injunction or temporary restraining order. This distinguishes the lawsuits from several others filed against the Trump administration, like the challenge to the administration’s attack on birthright citizenship. The organizations may have held off on seeking immediate relief due to the perception that federal employees have not yet been directly affected by the administration’s actions (e.g., because employees have not yet been placed into Schedule Policy/Career).
Ordinarily, the United States has 60 days to respond to a complaint filed against it. Under that schedule, a response will be due in March.
Updates on the lawsuits may be posted on our Bluesky feed.
-Charlotte Schwartz and Danny Rosenthal, attorneys at James & Hoffman