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Post by neufenland on Oct 23, 2020 7:59:41 GMT -5
The authority to appeal to the MSPB is not statutory? I admit, I don't know much about this area of law. It is, but 5 USC 7511(b)(2) provides chapter 75 appeal rights do not apply to an employee: "whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character by-- (A) the President for a position that the President has excepted from the competitive service; (B) the Office of Personnel Management for a position that the Office has excepted from the competitive service; or (C) the President or the head of an agency for a position excepted from the competitive service by statute." Gotcha. Thanks. |
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Post by wacokid on Oct 23, 2020 8:08:59 GMT -5
The authority to appeal to the MSPB is not statutory? I admit, I don't know much about this area of law. It is, but 5 USC 7511(b)(2) provides chapter 75 appeal rights do not apply to an employee: "whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character by-- (A) the President for a position that the President has excepted from the competitive service; (B) the Office of Personnel Management for a position that the Office has excepted from the competitive service; or (C) the President or the head of an agency for a position excepted from the competitive service by statute." Okay, thank you for explaining this. I'm still not worried insofar as this relates to IJs. This seems like a different version of the (laughable) argument that the Admin has already lost twice in trying to bust the NAIJ. There, they have argued that we are "managers." Not so much. www.naij-usa.org/images/uploads/newsroom/2020.08.04.00.pdf |
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Post by neufenland on Oct 23, 2020 8:31:19 GMT -5
It is, but 5 USC 7511(b)(2) provides chapter 75 appeal rights do not apply to an employee: "whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character by-- (A) the President for a position that the President has excepted from the competitive service; (B) the Office of Personnel Management for a position that the Office has excepted from the competitive service; or (C) the President or the head of an agency for a position excepted from the competitive service by statute." Okay, thank you for explaining this. I'm still not worried insofar as this relates to IJs. This seems like a different version of the (laughable) argument that the Admin has already lost twice in trying to bust the NAIJ. There, they have argued that we are "managers." Not so much. www.naij-usa.org/images/uploads/newsroom/2020.08.04.00.pdfThe statute does seem to give broad authority to the President, OPM, or head of agency (AG, in your case) to determine who fits that "confidential, policy determining, etc., etc." definition. I don't think POTUS, OPM, or the AG would have to prove why an employee fits the definition; they just have to show that they've made that determination for an ES employee in a certain position. Could be wrong in my read of the statute, of course. Given that the courts are pretty stacked in favor of those who like the idea of a "Unitary Executive," it'd be a tough battle for an impacted employee. Then, of course, there's the issue of removal for "inferior officers" under Art. II percolating through the courts post-Lucia. |
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Post by recoveringalj on Oct 23, 2020 9:17:24 GMT -5
As far as AJs are concerned, they may want to read 5 USC 7511(b)(2). It says Chapter 75 does not apply to positions determined to be of a confidential, policy-determining, policy-making or policy-advocating character.
Edit: Looks like cboro beat me to it. I suspect this will pull in a lot of GS15s.
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Post by jimmy224 on Oct 23, 2020 17:10:37 GMT -5
Looks like new article out on this www.govexec.com/management/2020/10/agencies-have-wide-latitude-deciding-which-jobs-strip-civil-service-protections/169533/From article Despite the pushback, the Trump administration is moving swiftly to implement the president’s directive, with a Jan. 19 deadline for agencies to conduct a preliminary review of which jobs should be converted into the new job classification, one day before the next presidential inauguration. Acting OPM Director Michael Rigas offered “instructions” to agencies on how to move forward less than 48 hours after the order was published. The memo highlights what it calls “guideposts” in the text of the order that agencies can use to determine the types of jobs that should have their civil service protections stripped from them. Those include “substantive participation in the advocacy for or development or formulation of policy,” supervision of attorneys, discretion in determining how an agency exercises its functions, involvement in developing regulations and engaging in collective bargaining negotiations on behalf of management. |
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Post by cookie on Oct 23, 2020 18:07:35 GMT -5
@nappylox touched on this, but my outrage comes from the fact that problem employees at any level CAN be removed if management puts in the work and documents everything. This “we will just make everyone at will” nonsense is lazy and piss poor leadership. I didn’t know morale could get much lower, but in true 2020 fashion, the hits keep coming.
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Post by lurkerbelow on Oct 23, 2020 19:00:00 GMT -5
I am surprised that there are not mainstream news stories about this executive order.
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Post by christina on Oct 23, 2020 19:58:30 GMT -5
I am surprised that there are not mainstream news stories about this executive order. they're too busy on other topics, plenty to focus on. |
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Post by pumpkin on Oct 23, 2020 20:30:34 GMT -5
I am surprised that there are not mainstream news stories about this executive order. Government Executive IS mainstream for policy wonks like us. |
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Post by Thomas fka Lance on Oct 23, 2020 21:06:09 GMT -5
Slightly dated reference, but it sure looks like Winter is Coming
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Post by ohodiablo on Oct 24, 2020 0:54:08 GMT -5
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Post by nylawyer on Oct 24, 2020 6:56:23 GMT -5
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Post by jimmy224 on Oct 24, 2020 7:35:24 GMT -5
Here is exec order www.whitehouse.gov/presidential-actions/executive-order-creating-schedule-f-excepted-service/ (ii) 5 CFR 6.4 is amended to read: “Except as required by statute, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A, C, D, E, or F, or from positions excepted from the competitive service by statute. The Civil Service Rules and Regulations shall apply to removals from positions listed in Schedule B of persons who have competitive status.” (ii) for positions excepted from the competitive service by statute, determine which such positions are of a confidential, policy-determining, policy-making, or policy-advocating character and are not normally subject to change as a result of a Presidential transition. The agency head shall publish this determination in the Federal Register. Such positions shall be considered Schedule F positions for the purposes of agency actions under sections 5(d) and 6 of this order. |
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Post by remora on Oct 24, 2020 7:50:45 GMT -5
So, any thoughts on how this impacts others, such as attorney advisors or senior attorneys in SSA or DHHS? Group supervisors and HODs in SSA who "supervise attorneys" per the classification recommendations?
IMHO, none of these meet the policy advocating criteria.
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Post by christina on Oct 24, 2020 8:06:56 GMT -5
I am surprised that there are not mainstream news stories about this executive order. you just had to wait! |
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Post by christina on Oct 24, 2020 8:09:18 GMT -5
So, any thoughts on how this impacts others, such as attorney advisors or senior attorneys in SSA or DHHS? Group supervisors and HODs in SSA who "supervise attorneys" per the classification recommendations? IMHO, none of these meet the policy advocating criteria. i was thinking the same regarding SAAs anyway. For the first time since Central abruptly removed adjudication from most of us, I am happy about that decision. i have not read this stuff in any depth though yet. Real glad I'm not a SES person now either. |
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Post by jimmy224 on Oct 24, 2020 8:27:53 GMT -5
So, any thoughts on how this impacts others, such as attorney advisors or senior attorneys in SSA or DHHS? Group supervisors and HODs in SSA who "supervise attorneys" per the classification recommendations? IMHO, none of these meet the policy advocating criteria. i was thinking the same regarding SAAs anyway. For the first time since Central abruptly removed adjudication from most of us, I am happy about that decision. i have not read this stuff in any depth though yet. Real glad I'm not a SES person now either. It is a strange situation because you have non attorneys doing same job. The non attorneys doing the same job would get moved to schedule f whereas the attorneys remain in schedule a. Unless they change the position description again (they just changed it) and say the positions are all the same and not attorney (then everyone gets moved to schedule f |
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Post by jimmy224 on Oct 24, 2020 8:58:46 GMT -5
So, any thoughts on how this impacts others, such as attorney advisors or senior attorneys in SSA or DHHS? Group supervisors and HODs in SSA who "supervise attorneys" per the classification recommendations? IMHO, none of these meet the policy advocating criteria. From exec order www.whitehouse.gov/presidential-actions/executive-order-creating-schedule-f-excepted-service/With the exception of attorneys in the Federal service who are appointed pursuant to Schedule A of the excepted service and members of the Senior Executive Service, appointments to these positions are generally made through the competitive service. BUT (seemingly encompasses attorneys under schedule a and aljs under schedule e) (ii) for positions excepted from the competitive service by statute, determine which such positions are of a confidential, policy-determining, policy-making, or policy-advocating character and are not normally subject to change as a result of a Presidential transition. The agency head shall publish this determination in the Federal Register. Such positions shall be considered Schedule F positions for the purposes of agency actions under sections 5(d) and 6 of this order. Seems like attorneys and aljs would be in some sort of hybrid classification schedule a schedule e schedule f under eo based on my reading (correct me if I am wrong As for non attorneys doing same job as attorneys at ssa www.chcoc.gov/content/instructions-implementing-schedule-f“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: (A) 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 (B) working in the agency or agency component executive secretariat (or equivalent)” The back and forth with aljs other folks at gs13 and above on cases is arguably deliberations generally covered by deliberative process privilege so the non attorneys would get swept up under that and moved to schedule f (attorneys would remain schedule a but it would be like a hybrid schedule a schedule f same with aljs would remain schedule e but it would be like a hybrid schedule e schedule f—that was my reading anyway but again correct me if I am wrong Now they did just change the position description for attorneys at ssa—conceivably they could just say the paralegal position is same as attorney position and change position description of attorneys to paralegal non attorney (then everyone would get swept up into schedule f under that deliberative process language above |
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Post by christina on Oct 24, 2020 9:07:34 GMT -5
So, any thoughts on how this impacts others, such as attorney advisors or senior attorneys in SSA or DHHS? Group supervisors and HODs in SSA who "supervise attorneys" per the classification recommendations? IMHO, none of these meet the policy advocating criteria. From exec order www.whitehouse.gov/presidential-actions/executive-order-creating-schedule-f-excepted-service/With the exception of attorneys in the Federal service who are appointed pursuant to Schedule A of the excepted service and members of the Senior Executive Service, appointments to these positions are generally made through the competitive service. BUT (seemingly encompasses attorneys under schedule a and aljs under schedule e) (ii) for positions excepted from the competitive service by statute, determine which such positions are of a confidential, policy-determining, policy-making, or policy-advocating character and are not normally subject to change as a result of a Presidential transition. The agency head shall publish this determination in the Federal Register. Such positions shall be considered Schedule F positions for the purposes of agency actions under sections 5(d) and 6 of this order. Seems like attorneys and aljs would be in some sort of hybrid classification schedule a schedule e schedule f under eo based on my reading (correct me if I am wrong As for non attorneys doing same job as attorneys at ssa www.chcoc.gov/content/instructions-implementing-schedule-f“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: (A) 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 (B) working in the agency or agency component executive secretariat (or equivalent)” The back and forth with aljs other folks at gs13 and above on cases is arguably deliberations generally covered by deliberative process privilege so the non attorneys would get swept up under that and moved to schedule f (attorneys would remain schedule a but it would be like a hybrid schedule a schedule f same with aljs would remain schedule e but it would be like a hybrid schedule e schedule f—that was my reading anyway but again correct me if I am wrong Now they did just change the position description for attorneys at ssa—conceivably they could just say the paralegal position is same as attorney position and change position description of attorneys to paralegal non attorney (then everyone would get swept up into schedule f under that deliberative process language above There are all sorts of bad ways this could go |
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Post by bippity on Oct 24, 2020 9:20:46 GMT -5
Welp. I wonder if this is why my LinkedIn profile was viewed by an anonymous "government policy specialist" recently, plus some "private mode" views. I had better start updating my resume.
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