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Post by nylawyer on Oct 26, 2020 10:25:23 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. 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 I don't pretend to know the ins and outs of federal employment law. I would say that the general tone of the thread is reflective of the morale of the workplace. A change is announced, and immediately the assumption is that it is going to be bad, probably very bad, because the assumption is based on the perception that management is hostile to the workforce. Very hostile. IMHO. |
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Post by kylearan on Oct 26, 2020 13:15:38 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!  Haha and then I’ll be part of the 100-7 majority to overturn that! |
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sta
Full Member
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Post by sta on Oct 26, 2020 13:38:50 GMT -5
I submit the following discussion from the govexec.com website captures what the intent and ultimate effect of the Executive Order will be. First, the White House explains it's purpose is to remove poor performers effectively followed by outside commentary from a Professor at the University of Texas who stated the effect would be to authorize the dismissal of policymaking employees for any reason after loss of their civil service protections:
'The White House argued that the executive order is a necessary reform to ensure that federal officials can more efficiently remove “poor performers.”“Effective performance management of employees in confidential, policy-determining, policy-making or policy-advocating positions is of the utmost importance,” the order states. “Unfortunately, the government’s current performance management is inadequate, as recognized by federal workers themselves. For instance, the 2016 Merit Principles Survey reveals that less than a quarter of federal employees believe their agency addresses poor performers effectively.
”But federal employee groups and government observers described the executive order as a “stunning” attempt to politicize the civil service and undermine more than a century of laws aimed at preventing corruption and cronyism in the federal government.“The [1883] Pendleton Act is clearly in the sights of this executive order,” said Donald Kettl, the Sid Richardson professor at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs. “It wants to undo what the Pendleton Act and subsequent civil service laws tried to accomplish, which was to create a career civil service with expertise that is both accountable to elected officials but also a repository of expertise in government. The argument here is that anyone involved in policymaking can be swept into this new classification, and once they’re in they’re subject to political review and dismissal for any reason.”'
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Post by hopefalj on Oct 26, 2020 13:50:49 GMT -5
Oh ye of little faith. They'll be part of the 7-6 majority to affirm it! Haha and then I’ll be part of the 100-7 majority to overturn that! Good luck getting past our new senators from DC and Puerto Rico! |
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Post by kylearan on Oct 26, 2020 13:56:29 GMT -5
Lol that’d be the only way I would ever get on the court, if it were hundreds of members . Like the Senate from Star Wars! |
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Post by ssaogc on Oct 26, 2020 15:10:11 GMT -5
It’s pretty clear that this order is for the purpose of firing those who are not loyal to the unitary executive.
Policy: Employment & Immigration
Trump federal salary adviser quits post over executive order reclassifying workers
The executive order stripped job protections for many federal workers in a move that unions and Democrats denounced.
The head of an advisory council on federal pay resigned from his post Monday in protest over President Donald Trump's recent executive order stripping civil service protections from key federal workers.
"I have concluded that as a matter of conscience, I can no longer serve him or his Administration," Federal Salary Council Chair Ron Sanders, a Trump appointee, wrote in his resignation letter to the director of the Personnel Executive Office of the President, the text of which was obtained by POLITICO.
WHITE HOUSE
Trump executive order strips protections for key federal workers, drawing backlash
By ELEANOR MUELLER
"t is clear that its stated purpose notwithstanding, the Executive Order is nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process," he wrote.
Trump named Sanders, who also served under the Bush administration, to the position in December 2017. The advisory group is responsible for providing recommendations to the White House on how best to tailor federal pay depending on regional costs of living.
The executive order, issued Wednesday, stripped job protections for many federal workers in a move that unions and Democrats denounced as an attempt to politicize the civil service.
Agencies are required to place any worker responsible for the handling of policy — a number that one union leader said could be hundreds of thousands — under a new category, called Schedule F, by Jan. 19, the day before the presidential inauguration.
These include "positions of a confidential, policy-determining, policy-making, or policy-advocating character" that are "not normally subject to change as a result of a Presidential transition," including those who supervise attorneys or report to presidential appointees, the order reads.
Employees under the new schedule will be exempt from some hiring and firing protections, making it easier for them to be taken on and dismissed. Agencies must also "expeditiously petition" the Federal Labor Relations Authority to remove the positions in question from any bargaining unit, preventing union participation.
The White House labeled the order as a move toward efficiency, speeding the removal of what the order dubbed "poor performers."
But critics say that, if Trump wins reelection on Nov. 3, the change would make it easier to remove civil servants who do not agree with the administration's policies. If he loses, it could, in theory, make it easier for political appointees to transition into civil servant roles — allowing them to stay beyond the transition.
Sanders, who described himself as a lifelong Republican, said he cannot be part of an administration that seeks "to replace apolitical expertise with political obeisance. Career Federal employees are legally and duty-bound to be nonpartisan; they take an oath to preserve and protect our Constitution and the rule of law…not to be loyal to a particular President or Administration," he wrote.
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Post by jagvet on Oct 26, 2020 15:37:52 GMT -5
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 I don't pretend to know the ins and outs of federal employment law. I would say that the general tone of the thread is reflective of the morale of the workplace. A change is announced, and immediately the assumption is that it is going to be bad, probably very bad, because the assumption is based on the perception that management is hostile to the workforce. Very hostile. IMHO. Bingo! |
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Post by lurkerbelow on Oct 26, 2020 16:19:59 GMT -5
Seems like we may be nearing the last part of this wild trip. Watergate salad, anyone? Perhaps with a side of Archibald Cox?  |
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Post by redsox1 on Oct 26, 2020 18:19:33 GMT -5
IMO when this EO is viewed in the context of the AAJ regs that came out today, there is a serious possibility that the days of independent ALJ’ s are over.
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Post by Thomas fka Lance on Oct 26, 2020 18:20:06 GMT -5
Given the historical reasons prompting the enactment of the Pendleton Act, (see Garfield/spoils system) this seems a strange thing for him to desire.
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Post by lurkerbelow on Oct 26, 2020 18:34:51 GMT -5
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Post by neufenland on Oct 27, 2020 16:36:28 GMT -5
Given the historical reasons prompting the enactment of the Pendleton Act, (see Garfield/spoils system) this seems a strange thing for him to desire. That's a good pull. Guiteau was nuts and wanted to be named Ambassador to France. Another fairly interesting thing was that VP Arthur-who would become President Arthur, and who signed the Pendleton Act-was pure Tammany Hall all the way for his political career. He didn't really leave the cronyism behind until he was President. And now he's remembered as the father of the modern, apolitical civil service. I used to work in a building named after him. Garfield died because his doctors were, well, of the 19th Century. I mean , Guiteau's bullet certainly helped, but if they had left the bullet, there's a fairly strong opinion in the historical community that he would have lived. |
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Post by jagvet on Oct 27, 2020 16:40:24 GMT -5
Given the historical reasons prompting the enactment of the Pendleton Act, (see Garfield/spoils system) this seems a strange thing for him to desire. That's a good pull. Guiteau was nuts and wanted to be named Ambassador to France. Another fairly interesting thing was that VP Arthur, soon to be President Arthur, who signed the Pendleton Act, was pure Tammany Hall all the way for his political career. He didn't really leave the cronyism behind until he was President. And now he's remembered as the father of the modern, apolitical civil service. I used to work in a building named after him. Garfield died because his doctors were, well, of the 19th Century. I mean , Guiteau's bullet certainly helped, but if they had left the bullet, there's a fairly strong opinion in the historical community that he would have lived. I don't know. I used to watch Dr. Quinn, Medicine Woman. She could have saved Garfield. She did open heart surgery around the same time and they always lived. She would have removed the bullet, resected to bleeding artery, used stuff she found in the woods as substitutes for penicillin and polysporin, and have him back up in time to sign the Pendleton Act himself. |
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Post by privateatty on Oct 28, 2020 13:13:26 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.") Thank you, after reviewing this matter further myself, I agree. |
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Post by x on Oct 28, 2020 13:21:07 GMT -5
"Packing" the court with just two additional justices would return Chief Justice Roberts to the middle seat and be arguably a proportionate response.
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Post by maquereau on Oct 28, 2020 13:35:18 GMT -5
Or each successive administration could put more justices onto the SC until it becomes the size of Congress, and then maybe amend the Constitution to allow for direct election of all of the judiciary. We could quit pretending that legal qualifications are not very much secondary to political qualifications.
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Post by recoveringalj on Oct 28, 2020 15:16:52 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.") I’m usually not in the “sky is falling” camp. While I agree this would have little effect on OHO (and ALJs), I disagree about “most others in adjudicative agencies.” And what makes this different from the previous references to civil service rules not applying is that 5 USC 7511 actually says that “confidential, policy-determining, policy-making, or policy-advocating positions” are not subject to the Chapter—leaving them with no pre-decision due process rights or right of appeal to the MSPB. It says the the President, OPM, or the agency head make the determination as to whether to designate a position as such. To make matters worse, the EO gives vague guideposts to consider and then says that they are not determinative and that other (non-specified) factors may be considered. This all may be academic depending on the outcome of the election...but the threat of blowing a massive hole in the merit system is real. Keep in mind, a new administration could decide it likes the EO just fine. And if AJs at the MSPB or EEOC get put into this category, will anyone have confidence that they can enforce the rules for everyone else without fear or favor? |
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Post by Thomas fka Lance on Oct 28, 2020 20:37:51 GMT -5
"Packing" the court with just two additional justices would return Chief Justice Roberts to the middle seat and be arguably a proportionate response. Sure that's one way to go. Another is Congress' authority under Article III's Exceptions Clause that grants Congress the power to make “exceptions” and “regulations” to the Supreme Court's appellate jurisdiction. |
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Post by recoveringalj on Oct 28, 2020 21:19:27 GMT -5
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Post by wacokid on Oct 28, 2020 22:01:27 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.") I’m usually not in the “sky is falling” camp. While I agree this would have little effect on OHO (and ALJs), I disagree about “most others in adjudicative agencies.” And what makes this different from the previous references to civil service rules not applying is that 5 USC 7511 actually says that “confidential, policy-determining, policy-making, or policy-advocating positions” are not subject to the Chapter—leaving them with no pre-decision due process rights or right of appeal to the MSPB. It says the the President, OPM, or the agency head make the determination as to whether to designate a position as such. To make matters worse, the EO gives vague guideposts to consider and then says that they are not determinative and that other (non-specified) factors may be considered. This all may be academic depending on the outcome of the election...but the threat of blowing a massive hole in the merit system is real. Keep in mind, a new administration could decide it likes the EO just fine. And if AJs at the MSPB or EEOC get put into this category, will anyone have confidence that they can enforce the rules for everyone else without fear or favor? I don't think you are giving sufficient consideration to how Article III judges would respond to an abuse of this, including Trump-appointed Article III judges/justices. I predict that they would not afford much deference to agency determinations that amount to little more than forcing adjudicators to decide cases in the way the administration wants them decided, on pain of losing their jobs, which is, after all, what the concern is, at least insofar as it relates to this Internet forum. |
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