NTEU filed a lawsuit Monday night in the U.S. District Court for the District of Columbia. The union is looking for declaratory and injunctive relief from the Schedule F executive order, and the suit names the president and Michael Rigas, the acting director of the Office of Personnel Management, as defendants in the case.
“This case is a textbook example of the president acting contrary to Congress’s express and limited delegation of authority to the president,” the NTEU lawsuit reads. “Under the law, the president may only except positions from the competitive service when ‘necessary’ and ‘as conditions of good administration warrant.’ The president’s sweeping 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.”
The Trump administration did not immediately respond to a request for comment about the lawsuit.
The announcement from NTEU came 20 minutes before three House Democrats introduced new legislation designed to nullify the Schedule F executive order.
House Majority Leader Steny Hoyer (D-Md.), Oversight and Reform Committee Chairman Carolyn Maloney (D-N.Y.) and Government Operations Subcommittee Chairman Gerry Connolly (D-Va.), have introduced the Saving the Civil Service Act.
The bill would formally rescind the executive order retroactive to Oct. 21, the date when Trump signed the EO.
It would also block agencies from using congressionally-appropriated funds to implement the Schedule F order and would prohibit agencies from converting competitive service positions or employees in those positions to the excepted service.
In addition, the legislation provides a process for converting positions — and employees — that were appointed or moved under the new Schedule F back to the competitive service.
Employees who were fired as a result of the executive order could be reinstated to their previously-held positions in the competitive service and given back pay, according to the new legislation.
Trump’s executive order gives agency heads the authority to reclassify certain confidential, policy-making, determining or advocating positions from the career competitive service to a new class in the excepted service known as Schedule F.
The EO allows agency heads to hire or fire employees to these appointments at will. And it applies to both existing career federal positions and future ones, meaning current employees in certain policy-making roles may lose their civil service protections.
“Congress must stand up to this midnight attack on civil service protections,” Connolly said in a statement. “This executive order is based on nothing — no data, no evidence of a problem and no consultation with stakeholders, including Congress. It is a last ditch attempt by the Trump administration to make it easier to remove federal employees who they deem aren’t ‘loyal enough’ to the president and return us to a patronage politics.”
In its lawsuit, NTEU provided a similar rationale for suing the administration over the Schedule F executive order.
The executive order stated agency heads need the flexibility to hire and fire employees to certain policy-making positions — and that current competitive hiring and adverse action procedures are too difficult.
“Although the order states that removing positions from adverse action protections is ‘necessary,’ it provides no details, data or justification for this change to removal procedures,” the NTEU lawsuit reads. “It asserts only generalities such as ‘[s]enior agency officials report that poor performance by career employees in policy-relevant positions has resulted in long delays and substandard-quality work for important agency projects, such as drafting and issuing regulations.'”
In guidance issued Friday afternoon, OPM said the president had the specific authority to except policymaking and confidential positions from competitive service adverse action procedures.
“Neither the U.S. Code nor judicial precedents precisely define these terms in the context of their statutory usage,” Rigas said in a memo to agencies. “Although the Supreme Court has generally addressed the concepts of policymaking and confidential positions for purposes of employee First Amendment rights, no case law binds the president’s particular delineation of specific characteristics within the scope of the ordinary meaning of these terms for purposes of adding positions to a new Schedule F.”
NTEU acknowledged the president had the authority under statute to except “necessary” positions from the competitive service as “conditions of good administration.” But the union argued the administration hasn’t made the case Schedule F exceptions are “necessary” and “good administration.”
The union goes on to assert the Schedule F executive order will cause harm, because NTEU is spending time and resources to counteract the EO through discussions and planning sessions with its members and members of Congress.
Senior NTEU staff, for example, are evaluating how many of the federal employees it represents may be impacted by the Schedule F executive order.
“Given the extraordinarily broad definitions contained with the executive order, significant time and
resources will be spent on this task,” the lawsuit reads.
Former federal executives have said the Schedule F executive order could potentially impact tens of thousands of career positions.
“The president is attempting to run roughshod over the separation of powers and rewrite the law himself in a way that threatens a critical pillar of our democracy, and someone has to stand up to him,” Tony Reardon, NTEU’s national president, said Tuesday in a statement. “NTEU is proud to do so, with this lawsuit as well as supporting those in Congress who are pursuing legislative efforts to block the order.”