Union lawsuit looks to block Schedule F

Democratic lawmakers weren't able to block the Schedule F workforce executive order in the 2021 omnibus funding bill that passed Monday night. Unions, management organizations, governance groups and other federal employee groups had looked to Congress to block the order, which established a new class of confidential and policy-related positions in the excepted service that aren't subject to most civil service protections.

The order still faces a lawsuit from the National Treasury Employees Union. The lawsuit, filed on October 26 in the D.C. district court, names President Donald Trump and Michael Rigas, the acting director for the Office of Personnel Management, as defendants, and it asks the court to declare the executive order unlawful and to prevent Rigas and OPM from implementing it.

"We sued soon after the executive order was issued because the administration never provided a justification for taking away the basic due process rights of federal employees," said NTEU National President Tony Reardon.

The government has until Jan. 15 to respond to the lawsuit. That deadline is four days before the due date given to agencies for giving the personnel office an initial list of positions to be reclassified into the new schedule. The day after that, the presidential inauguration will take place. Once in office, Joe Biden is expected to reverse the executive order.

"In the meantime, there may be some agencies starting the process of identifying which positions to switch to the new Schedule F," Reardon said. "So far, no employee has been harmed by this. But if OPM approves any such list at agencies where NTEU represents employees and agencies transfer those employees and strip them of their basic rights, NTEU will pursue additional legal action as needed."

Under the law, the president is allowed to make exceptions of positions from the competitive service when necessary and under the "conditions of good administration."

The lawsuit argues that the executive order "fails to make a meaningful showing that shifting large numbers of federal employees into a new excepted service category so that they can be fired more quickly and without cause is necessary or supported by good administration principles."

"If this order is allowed to stand, it means that any President can eviscerate the carefully constructed legislative scheme Congress enacted regarding federal service employment," the lawsuit reads.

NTEU's lawsuit also argues that the union, which represents employees who do policy-related work, suffers harm because of the order, given that it is "now needing to expend scare time and resources to evaluate how the order will affect is operations and the employees it represents."