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Post by jimmy224 on Oct 24, 2020 10:48:12 GMT -5
Also this is the very troubling language in the eo (attorneys are in schedule a and aljs in schedule e 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. And then you also have this very troubling language (attorneys would get swept up under deliberative process portion of cited language 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)” For reference, here is a link to 5 cfr 6.4, which the eo amends www.law.cornell.edu/cfr/text/5/6.4Except as required by statute, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A, C, D, or E, 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. Also for reference (deals with removals www.law.cornell.edu/uscode/text/5/7511(a) For the purpose of this subchapter— (1) “employee” means— (C) an individual in the excepted service (other than a preference eligible)— (i) who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or (ii) who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less; (b) This subchapter does not apply to an employee— (2) 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; |
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Post by jimmy224 on Oct 24, 2020 12:19:56 GMT -5
OK fellow legal eagles, sorry to keep hijacking this thread, but let’s brainstorm and think of ways to challenge this eo in court From my reading of the eo, it looks like they are reclassifying jobs tenured folks already have and stripping them of their job security protections ( as opposed to only classifying new employees from date of eo onward and leaving employees hired prior to eo in status quo This is problematic, as the tenured folks hired prior to eo have property interest in their jobs and job protections under the law and are being deprived of that property interest without due process (see below from opm) I guess that is one argument you can present in court (need to brainstorm some more From opm The “root requirement” of the Due Process Clause is that “an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971). Tenure gives a property right in employment. www.opm.gov/policy-data-oversight/employee-relations/training/adverse-actions-under-5-usc-chapter-75-an-overview.pdf |
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Post by privateatty on Oct 24, 2020 12:28:42 GMT -5
The plan is to make the ALJ Corps into a mouthpiece. This is a frontal attack on the APA. If you were really cynical you could say that this is a good way to conserve the Trust Fund and ensure WH policy in everything from our water and air to our dollars and common sense.
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Post by shoocat on Oct 24, 2020 12:35:09 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. I agree and it's not even that much of a burden for agencies. I am an MSPB AJ and the Board affirms removals, suspensions, and demotions at a very high rate. For misconduct cases, rarely are penalties mitigated or reversed. If an employee commits misconduct and the agency proves it, the Board will defer to the agency's penalty choice if they consider the appropriate factors that have been articulated for 40 years. If the agency establishes by substantial evidence a poor performer is provided an opportunity to improve but doesn't, the Board will affirm the action. They don't need to document everything, just follow the rules that permit such deference. If an agency can't meet that low standard, should they be taking the action? EDIT: I know...preaching to the choir. I did federal labor and employment law for years and you are right. Every removal I ever did was upheld. Managers in general just won't make the time to do the needed work. Because it made the cases more defensible, I always wrote the removal proposals. I also noticed the PIPs were never, or seldom, followed by the agency as to its obligations . Additionally, management never seemed to understand that minimally successful passed a PIP; fully successfully was not the standard. Before I left the Army as a civilian JAG, I had written a number of removals that just got pissed away as nobody got the management process done before the employees at issue got moved to DoD under BRAC. |
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Post by neufenland on Oct 24, 2020 14:48:58 GMT -5
OK fellow legal eagles, sorry to keep hijacking this thread, but let’s brainstorm and think of ways to challenge this eo in court From my reading of the eo, it looks like they are reclassifying jobs tenured folks already have and stripping them of their job security protections ( as opposed to only classifying new employees from date of eo onward and leaving employees hired prior to eo in status quo This is problematic, as the tenured folks hired prior to eo have property interest in their jobs and job protections under the law and are being deprived of that property interest without due process (see below from opm) I guess that is one argument you can present in court (need to brainstorm some more From opm The “root requirement” of the Due Process Clause is that “an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971). Tenure gives a property right in employment. www.opm.gov/policy-data-oversight/employee-relations/training/adverse-actions-under-5-usc-chapter-75-an-overview.pdf"Boddie stated that tenure in government employment confers a property right to the employee within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. For the following reasons, we reverse that holding..." 6-3, with Breyer J., Kagan J., and Sotomayor J., dissenting. |
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Post by generalsherman on Oct 24, 2020 15:36:30 GMT -5
OK fellow legal eagles, sorry to keep hijacking this thread, but let’s brainstorm and think of ways to challenge this eo in court From my reading of the eo, it looks like they are reclassifying jobs tenured folks already have and stripping them of their job security protections ( as opposed to only classifying new employees from date of eo onward and leaving employees hired prior to eo in status quo This is problematic, as the tenured folks hired prior to eo have property interest in their jobs and job protections under the law and are being deprived of that property interest without due process (see below from opm) I guess that is one argument you can present in court (need to brainstorm some more From opm The “root requirement” of the Due Process Clause is that “an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971). Tenure gives a property right in employment. www.opm.gov/policy-data-oversight/employee-relations/training/adverse-actions-under-5-usc-chapter-75-an-overview.pdf"Boddie stated that tenure in government employment confers a property right to the employee within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. For the following reasons, we reverse that holding..." 6-3, with Breyer J., Kagan J., and Sotomayor J., dissenting. I mean, that’s the thing, right? Even if this EO flies in the face of established precedent, the courts now are much more amenable to disregarding precedent and accepting most any executive branch reasoning for a particular action. Combined with the Court’s embrace of the unitary executive, I fear that if this winds up there feds are cooked. |
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Post by jimmy224 on Oct 24, 2020 17:09:42 GMT -5
OK fellow legal eagles, sorry to keep hijacking this thread, but let’s brainstorm and think of ways to challenge this eo in court From my reading of the eo, it looks like they are reclassifying jobs tenured folks already have and stripping them of their job security protections ( as opposed to only classifying new employees from date of eo onward and leaving employees hired prior to eo in status quo This is problematic, as the tenured folks hired prior to eo have property interest in their jobs and job protections under the law and are being deprived of that property interest without due process (see below from opm) I guess that is one argument you can present in court (need to brainstorm some more From opm The “root requirement” of the Due Process Clause is that “an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971). Tenure gives a property right in employment. www.opm.gov/policy-data-oversight/employee-relations/training/adverse-actions-under-5-usc-chapter-75-an-overview.pdf"Boddie stated that tenure in government employment confers a property right to the employee within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. For the following reasons, we reverse that holding..." 6-3, with Breyer J., Kagan J., and Sotomayor J., dissenting. Sorry did the Supreme Court recently rule on tenured govt employees property rights in their jobs (did they reverse earlier precedent) (or is that just speculation on how current court would rule? If so did you have a link (thanks)? Basic argument is we as tenured govt employees have property interests in our jobs and it is unconstitutional to waive due process rights (property interests in our jobs and job protections outlined in statutes and those can’t be taken away sans due process unconstitutional Found this but have not had chance to read it through www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1166935&version=1171499&application=ACROBAT |
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Post by neufenland on Oct 24, 2020 17:11:33 GMT -5
"Boddie stated that tenure in government employment confers a property right to the employee within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. For the following reasons, we reverse that holding..." 6-3, with Breyer J., Kagan J., and Sotomayor J., dissenting. Sorry did the Supreme Court recently rule on tenured govt employees property rights in their jobs (did they reverse earlier precedent)? If so did you have a link (thanks)? Basic argument is we as tenured govt employees have property interests in our jobs and it is unconstitutional to waive due process rights (property interests in our jobs and job protections outlined in statutes and those can’t be taken away sans due process unconstitutional Found this but have not had chance to read it through www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1166935&version=1171499&application=ACROBATThey did not. It is my prediction for the future based on how much the majority likes the "unitary Executive." Attempt at humor, but also, not really kidding... |
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Post by jimmy224 on Oct 24, 2020 17:12:25 GMT -5
Sorry did the Supreme Court recently rule on tenured govt employees property rights in their jobs (did they reverse earlier precedent)? If so did you have a link (thanks)? Basic argument is we as tenured govt employees have property interests in our jobs and it is unconstitutional to waive due process rights (property interests in our jobs and job protections outlined in statutes and those can’t be taken away sans due process unconstitutional Found this but have not had chance to read it through www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1166935&version=1171499&application=ACROBATThey did not. It is my prediction for the future based on how much the majority likes the "unitary Executive." Attempt at humor, but also, not really kidding... Got it thanks |
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Post by neufenland on Oct 24, 2020 17:20:56 GMT -5
"Boddie stated that tenure in government employment confers a property right to the employee within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. For the following reasons, we reverse that holding..." 6-3, with Breyer J., Kagan J., and Sotomayor J., dissenting. I mean, that’s the thing, right? Even if this EO flies in the face of established precedent, the courts now are much more amenable to disregarding precedent and accepting most any executive branch reasoning for a particular action. Combined with the Court’s embrace of the unitary executive, I fear that if this winds up there feds are cooked. Yup. The Courts aren't going to save the Feds. Bringing it back to 1787. |
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Post by kylearan on Oct 24, 2020 22:38:11 GMT -5
It’s good. Federal employees should be accountable; and if they’re not doing a good job, out they go!
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Post by jimmyjiggles on Oct 24, 2020 23:45:18 GMT -5
It’s good. Federal employees should be accountable; and if they’re not doing a good job, out they go! Repealing the Pendleton Act would be the solution then. |
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Post by jimmyjiggles on Oct 25, 2020 0:20:18 GMT -5
After much deliberative beard stroking and eyebrow furrowing, I have adduced that this EO will have little effect on most folks here, ie OHOers, and probably most others in adjudicative agencies/subcomponents.
The Order applies to those "viewing, circulating,... " proposed regulations/policy. Writers, ALJs, and GS/HODs usually have zero interaction with proposed regulations. While GSs and some ALJs supervise attys, those attys are dws, not in any way involved in formulating policy. I don't think anyone below the regional level can be said to have substantial discretion to implement agency policy (except ALJs, and they are protected by the APA). There is a policy component of SSA (OPPS or it used to be); those folks are probably affected by the EO, but not many others.
Also the language saying civil service protections do not apply to a, c, d, e,f employees was in the previous EO making ALJs excepted service. So nothing is really new there.
Basically this EO is aimed at getting rid of wonks who are perceived as dragging their feet or being too much of a problem in proposing/drafting/implementing policy and regulations (a.k.a "the deep state.")
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Post by remora on Oct 25, 2020 10:37:55 GMT -5
I think for most attorneys throughout the government, this actually has no effect. Most of us were Schedule A excepted service anyway. The EO, after many readings, seems to be directed at competitive service folk. Schedule A excepted service never had any of the rights to start with because of the excepted classification. Except for ALJ's before the last EO, who were competitive. In other words, no loss for most attorneys unless they somehow magically got a competitive service appointment.
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Post by christina on Oct 25, 2020 10:40:49 GMT -5
I think for most attorneys throughout the government, this actually has no effect. Most of us were Schedule A excepted service anyway. The EO, after many readings, seems to be directed at competitive service folk. Schedule A excepted service never had any of the rights to start with because of the excepted classification. Except for ALJ's before the last EO, who were competitive. In other words, no loss for most attorneys unless they somehow magically got a competitive service appointment. It seems as though section F may be worse than section a? |
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Post by hopefalj on Oct 25, 2020 11:15:11 GMT -5
OK fellow legal eagles, sorry to keep hijacking this thread, but let’s brainstorm and think of ways to challenge this eo in court From my reading of the eo, it looks like they are reclassifying jobs tenured folks already have and stripping them of their job security protections ( as opposed to only classifying new employees from date of eo onward and leaving employees hired prior to eo in status quo This is problematic, as the tenured folks hired prior to eo have property interest in their jobs and job protections under the law and are being deprived of that property interest without due process (see below from opm) I guess that is one argument you can present in court (need to brainstorm some more From opm The “root requirement” of the Due Process Clause is that “an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971). Tenure gives a property right in employment. www.opm.gov/policy-data-oversight/employee-relations/training/adverse-actions-under-5-usc-chapter-75-an-overview.pdf"Boddie stated that tenure in government employment confers a property right to the employee within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. For the following reasons, we reverse that holding..." 6-3, with Breyer J., Kagan J., and Sotomayor J., dissenting. Oh ye of little faith. They'll be part of the 7-6 majority to affirm it!  |
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Post by neufenland on Oct 25, 2020 13:59:03 GMT -5
"Boddie stated that tenure in government employment confers a property right to the employee within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. For the following reasons, we reverse that holding..." 6-3, with Breyer J., Kagan J., and Sotomayor J., dissenting. Oh ye of little faith. They'll be part of the 7-6 majority to affirm it! Your lips to God's ears. |
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Post by jagvet on Oct 25, 2020 14:18:23 GMT -5
Am I the only person who is unable to figure out what the big issues are on this thread? Very confusing, and I don't have the energy to figure it out. I hope it happens for people who want it and doesn't happen for people who don't.
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Post by wacokid on Oct 26, 2020 8:33:57 GMT -5
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. Eh, still not worried. It's my impression that Chevron deference is fading. I know that Justice Gorsuch is not a fan. |
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Post by Pixie on Oct 26, 2020 10:15:50 GMT -5
Am I the only person who is unable to figure out what the big issues are on this thread? Very confusing, and I don't have the energy to figure it out. I hope it happens for people who want it and doesn't happen for people who don't. Thank goodness I'm not the only one who can't figure it out, although, like you, I haven't given it much thought. Pixie |
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