Labor & Employment Law Daily Treasury employees’ union, House Oversight and Reform Committee challenge civil service executive order
Tuesday, November 3, 2020

Treasury employees’ union, House Oversight and Reform Committee challenge civil service executive order

By Pamela Wolf, J.D.

Both want to halt implementation of the order, which purportedly “would make it easier to fire qualified civil servants and hire Trump loyalists in their place.”

The National Treasury Employees Union (NTEU) has filed a lawsuit against President Trump and his Acting Director of the Office of Personnel Management seeking to declare unlawful his October 21 Executive Order 13957, excepting from the usual civil service protections federal employees working in “positions of a confidential, policy-determining, policy-making, or policy-advocating character.” According to Trump, “[f]aithful execution of the law requires that the President have appropriate management oversight regarding this select cadre of professionals.”

Notably, House Oversight and Reform Committee Democrats and the National Capitol Region Delegation are also calling on the White House to immediately cease the implementation of the order, which they contend “would make it easier to fire qualified civil servants and hire Trump loyalists in their place.”

Union’s court action. The NTEU’s complaint for declaratory and injunctive relief, filed in federal court in Washington D.C., asserts that the executive order is unlawful and an extreme effort to politicize the federal government. According to the union, the order would create a new category of federal employees in the excepted service by making political loyalty, not merit or skill, a prerequisite of the job. The president has ordered agency leaders to identify which employees should be forced to lose the civil service protections they are entitled to under the law, allowing them to be hired or fired at will for purely partisan reasons, the union said.

New excepted service category. The executive order “will strip civil service and due process protections from a large swath of federal employees,” the complaint states. “The Executive Order accomplishes this by directing that a broad class of employees be moved into a new excepted service category with no protections against adverse personnel actions.”

Ultra vires action. “The Founders of this Nation entrusted the lawmaking power to the Congress alone … . This case is a textbook example of the President acting contrary to Congress’s express and limited delegation of authority to the President,” the complaint alleges. “Under the law, the President may only except positions from the competitive service when ‘necessary’ and ‘as conditions of good administration warrant.’”

According to the union, the “sweeping” 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 the executive order stands, “any President can eviscerate the carefully constructed legislative scheme Congress enacted regarding federal service employment,” the union warned.

The NTEU is asking the court to declare the executive order ultra vires and enjoined.

Congressional oversight. In an October 28 letter to Michael Rigas, Acting Director of the Office of Personnel Management, and Acting Deputy Director for Management, Office of Management and Budget, Democratic lawmakers wrote: “The executive order is a harmful attack on the integrity of our government because it will permit the replacement of non-partisan civil servants with partisan Trump loyalists. Tellingly, it was developed in secret with no consultation whatsoever with our Committee, which has direct jurisdiction over the federal civil service.”

“The President issued this executive order two weeks before the election without consulting in any way with our Committee or the federal Chief Human Capital Officers Council, instead developing the proposal in secret without the benefit of any congressional or public scrutiny and apparently keeping many agencies and stakeholders in the dark,” according to the lawmakers.

Was there any impact analysis? It’s unclear to what extent the White House or federal agencies have analyzed the potential impacts of the executive order on federal workers and the agency missions they carry out,” the lawmakers observed. “Implementing this new policy without conducting such analyses could have disastrous effects on the services on which the American people rely.”

The lawmakers are asking that activities related to the implementation of the executive order be immediately ceased while the House Oversight and Reform Committee obtains documents and information about its development and any analyses conducted to estimate or assess the potential effects of the order on federal employees, agency missions, and services on which the Americans rely.

The NTEU filed its lawsuit in the District of Columbia; the case is No. 20-3078.

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