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OPM’s Draft Schedule F Rule and the Risk to Career Civil Service Rights

civil service protections federal employment merit systems law mspb appeals schedule f Nov 19, 2025

Federal employees have heard whispers for months, but the recently leaked draft regulations go further than expected: nearly 50,000 career employees could lose core civil service protections based on a single, misread line in Title 5. If you're a GS-9 or above in a policy-adjacent role, this is not theoretical — it’s a structural shift that could reach directly into your job.

The draft rule reportedly treats long-settled merit-system protections as “unconstitutional overcorrections” and uses that claim to justify a new version of Schedule F/Policy-Career status. That framing alone should raise alarms. Congress didn’t stumble into these protections after Watergate; it deliberately required notice, response, and independent review before most federal employees can be removed. That’s the backbone of Chapter 75.

What the Law Actually Says — and Why the Draft Rule Stretches It

At the center of the controversy is one sentence in Title 5: Chapter 75 removal protections do not apply to positions that are “confidential, policy-determining, policy-making, or policy-advocating.”

For decades, that phrase has functioned as a term of art. It covers a very small set of genuinely political roles — Schedule C staff, close advisers, individuals whose jobs inherently involve advancing the president’s agenda. It has never included career analysts, scientists, HR specialists, IT professionals, or line attorneys.

OPM itself reaffirmed this narrow reading in a final rule last year, emphasizing that the language is tied to longstanding practice and not a blank check to reclassify career staff. Reversing that interpretation now would require more than a linguistic pivot — it would require rewriting the statute Congress enacted.

This is where the legal problem emerges: agencies cannot transform a mousehole into an elephant. Congress does not hide the power to politicize vast portions of the workforce in a phrase everyone understood the same way for half a century.

The Constitutional Tripwire: Due Process and Political Retaliation

Even if the statutory reading held water, the constitutional issues are unavoidable. Once Congress grants a property interest — the right to be removed only for cause — due process attaches. That right cannot be sidestepped by relabeling a position “policy-adjacent.”

And public-employee First Amendment law draws a sharp line between genuinely political jobs and the nonpartisan civil service. Outside that small political class, firing someone for their perceived “resistance to policy” courts constitutional violation. That language, reportedly used in the draft rule, is a bright red flag.

What This Means for Your Day-to-Day Career

This is not a theoretical debate about administrative law. Under a narrow, correct reading of Title 5, perhaps a few hundred positions fall within the exception. Under the broad reading hinted at in the draft rule, tens of thousands of career employees could lose due-process rights overnight.

That’s the difference between a stable, professional career and working with a permanent target on your back.

Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.

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