The National Treasury Employees Union will take the Trump administration to court over a recent executive order that instructs agencies to convert certain policy-focused positions from the competitive service to the excepted service, according to a lawsuit filed late Oct. 26.
The lawsuit claims that President Donald Trump exceeded his authority in ordering the conversion of certain employees to a new Schedule F and has subverted the will of Congress in existing civil service legislation.
In particular, the lawsuit says that the president only has the authority to except positions from the competitive service “when ‘necessary’ and ‘as conditions of good administration warrant,’” which, according to NTEU, the president has failed to sufficiently establish.
“The president is attempting to run roughshod over the separation of powers and rewrite the law himself in a way that threatens a critical pillar of our democracy, and someone has to stand up to him. NTEU is proud to do so, with this lawsuit as well as supporting those in Congress who are pursuing legislative efforts to block the order,” said NTEU National President Tony Reardon.
This is not the first time that NTEU has taken the Trump administration to court over an executive order, as it and the American Federation of Government Employees also sought a court-ordered injunction against three May 2018 executive orders that dictated changes to collective bargaining processes.
That lawsuit was ultimately unsuccessful, as an appeals court determined that Congress had already established a remedy path through the Federal Labor Relations Authority, rather than the courts.
This lawsuit, however, does not deal with agency labor practices, though the order would convert some employees covered by collective bargaining to non-covered positions.
“It is shocking that after four years, the Trump administration still doesn’t understand that the United States expressly rejected a spoils system 137 years ago because it was ripe for corruption,” Reardon said.
“As with previous Trump executive orders and our legal challenges to them, we intend to remind this administration that the taxpayers are better served by federal employees who swear an oath to the Constitution, not a president.”
Three democratic members of the House — Reps. Gerry Connolly, D-Va., Steny Hoyer, D-Md., and Carolyn Maloney, D-N.Y. — introduced legislation Oct. 27 that would not only legally prohibit the conversion of employees impacted by the executive order but also move any employees already converted by the order back to the competitive service.
Employees that were hired noncompetitively to Schedule F positions would not be eligible for that transition, however, and employees that were fired after being moved to Schedule F would be reinstated with back pay.
“Congress must stand up to this midnight attack on civil service protections,” said Connolly in a news release. “This executive order is based on nothing — no data, no evidence of a problem, and no consultation with stakeholders, including Congress. It is a last ditch attempt by the Trump administration to make it easier to remove federal employees who they deem aren’t ‘loyal enough’ to the president and return us to a patronage politics. The Saving the Civil Service Act would reverse this ill-advised, unstudied, and detrimental proposal.”
Jessie Bur covers federal IT and management.
