This article explores whether federal employees terminated after being designated “Schedule PC” can challenge termination decisions. While the Executive Order that implements Schedule PC is an attempt to remove a large group of federal employees by eliminating long-held rights, like civil service standards and adverse-action protections, there are options for federal employees to challenge termination decisions after they have been designated as Schedule PC.
Prohibited personnel actions or improper reductions in force may be appealed to the Merit Systems Protection Board (MSPB) and terminations based on protected status under Title VII may be challenged as Equal Employment Opportunity Commission (EEOC) Complaints.
If you are federal employee and are terminated after being designated as a Schedule PC employee, reach out to McGillivary Steele Elkin LLP as soon as possible for a free consultation about your rights.
What is Schedule PC?
Schedule PC is an Executive Order that serves to remove thousands of positions in the federal civil service from competitive hiring requirements and adverse-action protections, making it easier for the President to hire his favored loyalists and fire civil servants.
The categories of potentially impacted federal employees are broad, and will sweep in thousands who are now shielded from no-cause terminations by civil service laws. Schedule PC will curtail the ability of nearly 2.2 million civil servants across 50 states to do the important work of serving the American public.
Schedule PC requires each federal Agency to identify “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,” and recommend to the President that he place them on PC, where these positions will lack the civil service standards and protections currently guaranteed by law.
When Will Schedule PC Designations Be Made?
Pursuant to recent OPM guidance, Agencies have 90 days to conduct a preliminary review and submit petitions to OPM identifying any Schedule PC qualifying positions, with an additional 120 days to finalize their review and submit petitions that may include additional positions. Under OPM’s guidance, Agencies are encouraged to submit such petitions on a rolling basis during this time period and must conduct a Schedule PC position review annually.
What Makes a Position “Confidential, Policy-Determining, Policy-Making, or Policy-Advocating” Under Schedule PC?
The EO defines positions that are “normally subject to change as the result of a Presidential transition” as “positions whose occupants are, as a matter of practice, expected to resign upon a Presidential transition and includes all positions whose appointment requires the assent of the White House Office of Presidential Personnel.” Notably, it does not define positions of a “confidential, policy-determining, policy-making, or policy-advocating character,” but provides a list of duties that weigh in favor of such a determination:
- Substantive participation in the advocacy for or development or formulation of policy, especially substantive participation in the development or drafting of regulations and guidance or substantive policy-related work in an agency or agency component that primarily focuses on policy;
- The supervision of attorneys;
- Substantial direction to determine the manner in which the agency exercises functions committed to the agency by law;
- 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: (1) 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 (2) working in an agency or agency component executive secretariat (or equivalent);
- Conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5;
- Directly or indirectly supervising employees in Schedule F positions; and
- Duties that the Director indicates are otherwise appropriate for inclusion in Schedule F.
What Options Are Available to Challenge a Termination Decision After An Employee’s Position Has Been Designated As Schedule PC?
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MSPB Appeals
Any challenge will first need to proceed through the U.S. Merit Systems Protection Board.
Unless and until regulations implemented under President Biden are rescinded, an employee moved to Schedule PC may only be removed, suspended for more than 14 days, reduced in grade, reduced in pay, or furloughed for less than 30 days “for such cause as will promote the efficiency of the service.” Even if the Biden regulations are rescinded, the Government cannot terminate someone in violation of EEO laws, as explained below or on the basis of, marital status or political affiliation, which would be considered a prohibited personnel practice under 5 U.S.C. § 2302.
Contact us immediately if you believe you have been terminated on the basis of a prohibited personnel practice.
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EEOC Complaint if Termination is Based on Protected Status
The law protects federal employees — even those designated as policy-making under Schedule PC — from discrimination because of race, color, religion, sex, national origin, age (40 or older), disability or genetic information. The law also protects Schedule PC esignees from retaliation for opposing employment discrimination, filing a complaint of discrimination, or participating in the EEO complaint process (even if the complaint is not yours.)
Importantly, the time for brining a claim for discrimination based on protected status is short – only 45 days. Contact us immediately if you believe you have experienced discrimination based on protected status.
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Violations of the Reduction in Force (RIF) Regulations
Moving an employee to Schedule PC does not appear to exempt those employees from the RIF regulations. The RIF rules apply to “each civilian employee in . . . [t]he executive branch of the Federal Government,” with no carveout that seems responsive to a Schedule F classification.
These regulations only apply in particular circumstances, when an agency: (1) releases an employee by furlough of more than 30 days, separation, demotion, or reassignment requiring displacement; and (2) the release is required because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee’s position due to erosion of duties.
To the extent that any reclassification and subsequent removal via Schedule F could be characterized as a RIF, there may be an avenue to challenge it if it fails to follow the RIF procedures through an MSPB appeal.
Contact us immediately if your position is eliminated after an impermissible RIF.
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Union Challenges to Schedule PC Designations
Federal employee unions may bring actions to seek to enjoin Schedule PC designation. For example, the National Treasury Employees Union (NTEU), a union representing federal employees at 37 different Agencies has already filed a lawsuit seeking to enjoin the enforcement of Schedule PC.
Reach out to McGillivary Steele Elkin If You Need Assistance and To Learn More About Your Rights.
We understand that these sweeping, lightning-fast decisions are causing immense stress to federal employees nationwide.
If you experience unwanted changes to your employment status as a result of a Schedule PC designation, please do not hesitate to contact us immediately. MSE’s team of attorneys have decades of experience protecting the rights of dedicated federal servants, and we will continue to do so in this changing landscape.
