Presidential Executive Order 13839 (Donald Trump, 2018)
| Executive orders related to the administrative state
President Trump issued this and two other executive orders on May 25, 2018, aimed at improving efficiency and accountability within the federal civil service: Executive Order 13837 • Executive Order 13836 • Executive Order 13839 |
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Executive Order 13839: Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles was a presidential executive order issued by President Donald Trump (R) in May 2018 that aimed to streamline the discipline and dismissal processes for poor-performing federal employees. The executive action sought to advance "the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections," according to the order.[1][2]
President Joe Biden (D) revoked E.O. 13839 on January 22, 2021, via E.O. 14003.
Background
President Trump issued three executive orders on May 25, 2018, aimed at improving efficiency and accountability within the federal civil service. Executive Order 13839, titled "Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles," sought to advance agency supervisors' ability to support accountability within the federal civil service while protecting the procedural rights of federal employees. The order proposed several principles, management tactics, and reporting procedures for agency supervisors to incorporate in order to address issues of employee accountability.[3][4]
The U.S. Office of Personnel Management (OPM) provided the following statement in support of E.O 13839: "By answering repeated calls from the American public and dedicated civil servants across the country, this EO will allow more direct accountability for chronically poor performing employees. Federal Employment Viewpoint Survey (FEVS) results have consistently shown federal employees believe poor performers are not held accountable. Streamlining dismissal procedures will create greater accountability as the government serves the American taxpayer."[5]
Response
The Government Business Council conducted a flash poll on June 5-6, 2018, which found that "51 percent of federal workers support or strongly support making it easier to remove poorly performing or malfeasant employees. Another 24 percent oppose such efforts, while 24 percent said they were neutral or didn’t know about the changes."[6]
On June 11, 2018, A group of 21 Republican members of the U.S. House of Representatives sent a letter to Trump requesting that he rescind the executive orders. The letter stated, "Federal workers have taken an oath of service to our great nation, and we take very seriously their duty to provide the American public with quality services. That is why we believe that now, more than ever, it is important to uphold and strengthen the working relationships between federal workers and agency leadership."[7]
A group of 23 Democratic House members sent a similar letter to Trump on June 14, 2018. The letter stated, "Your executive orders are the most direct and systematic attack on whistleblower protections in a generation. They strip federal employees of procedures that were put in place to protect them against retaliation by their superiors—who are often political appointees—and they deny whistleblowers assistance from their union representatives when they are punished for speaking the truth."[8]
Lawsuit
- See also: Civil Service Reform Act
Three separate lawsuits aimed at blocking Trump's civil service executive orders were filed by the American Federation of Government Employees, the National Treasury Employees Union, and a coalition of 13 smaller public sector unions. The legal challenges claimed that Trump’s executive orders conflict with certain collective bargaining provisions of the Civil Service Reform Act and prevent unions from performing their statutorily-required representational duties. Click here for more information.[9]
Provisions
Purpose
E.O. 13836 put forth the following stated purpose:[3]
| “ | Merit system principles call for holding Federal employees accountable for performance and conduct. They state that employees should maintain high standards of integrity, conduct, and concern for the public interest, and that the Federal workforce should be used efficiently and effectively. They further state that employees should be retained based on the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards. Unfortunately, implementation of America’s civil service laws has fallen far short of these ideals. The Federal Employee Viewpoint Survey has consistently found that less than one-third of Federal employees believe that the Government deals with poor performers effectively. Failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies (as defined in section 105 of title 5, United States Code, but excluding the Government Accountability Office) to accomplish their missions. This order advances the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.[3][10] | ” |
Accountability principles
The order proposed the following principles for agencies to address employee accountability:[3]
- Limit the time period for an employee to demonstrate acceptable performance to a time period that is sufficient.
- Eliminate the requirement to use progressive discipline.
- Tailor disciplinary action to the specific facts and circumstances of each situation.
- Do not use suspension as a substitute for removal when removal would be appropriate.
- Use discretion and take into account an employee’s disciplinary record and past work record when deciding on a course of disciplinary action.
- Issue decisions on proposed removals within 15 business days of the end of the employee reply period following a notice of proposed removal.
- Limit the written notice of adverse action to 30 days.
- Use statutory removal procedures to address appropriate instances of unacceptable performance.
- Use a probationary period as the final step in the hiring process of a new employee.
- Prioritize performance over length of service when determining which employees will be retained following a reduction in force.
Management, grievances, and records
The order required agency heads to aim to exclude disputes over employee removals for misconduct or unacceptable performance, among other issues, from grievance procedures. The order also instructed agencies to provide no more than a 30-day period to demonstrate acceptable employee performance. Lastly, the order did not allow agencies to "erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records" as a condition of resolving a complaint or settlement.[3]
Data collection and reporting
Each agency was required to provide an annual report to the director of the OPM containing data about adverse personnel actions, proposed removals, settlements, and resolved litigation, according to the order.[3]
Implementation
The order required the director of the OPM to take necessary rulemaking actions to implement the order. It also required agency heads to "conform internal agency discipline and unacceptable performance policies to the principles and requirements of this order."[3]
Noteworthy events
OPM implements Trump’s order addressing poor-performing federal employees (2020)
The Office of Personnel Management (OPM) on October 16, 2020, issued final rules that revised federal agency methods to address poor-performing civil service employees in order to fully implement Executive Order 13839.[11]
The regulations implemented the following changes to agency management practices:
- Reduced the time for employees to improve their performance, allowing agencies to more quickly initiate disciplinary actions against poor-performing employees.
- Reiterated that agencies are not obligated to help employees improve.
- Reduced the time period for employees to respond to allegations of poor performance.
- Mandated that agencies remind supervisors of expiring employee probationary periods.
- Prohibited agencies from entering into settlement agreements that modify an employee’s personnel record.
- Established procedures for agencies to discipline supervisors who retaliate against whistleblowers.[11]
Legal challenges to President Trump's civil service executive orders (2018-2019)
- See also: Civil Service Reform Act, E.O. 13836, E.O. 13837, and E.O. 13839
The following timeline identifies key events in a 2018-2019 lawsuit, American Federation of Government Employees, AFL-CIO, et. al. v. Trump, brought by a group of federal employee unions against President Donald Trump's (R) three civil service executive orders issued in May 2018: Executive Order 13837, Executive Order 13836, and Executive Order 13839.
October 2019: Injunction expires, agencies allowed to implement executive orders
The injunction blocking provisions of President Trump's three civil service executive orders expired on October 2, 2019. The United States Court of Appeals for the District of Columbia Circuit on October 3 issued a mandate to implement its July 16 decision vacating the district court ruling and allowing federal agencies to fully implement the orders.[12][13]
September 2019: D.C. Circuit declines rehearing request
The United States Court of Appeals for the District of Columbia Circuit issued an order on September 25, 2019, declining to rehear American Federation of Government Employees, AFL-CIO, et. al. v. Trump before the full court. The order did not provide a reason for the decision.[3]
August 2019: Unions file for rehearing en banc before full D.C. Circuit
Federal employee unions challenging Trump's three civil service executive orders filed a petition on August 30, 2019, requesting a rehearing of American Federation of Government Employees, AFL-CIO, et. al. v. Trump before the full United States Court of Appeals for the District of Columbia Circuit. A three-judge panel of the D.C. Circuit held in July that the court did not have jurisdiction to rule on the case because the Federal Service Labor-Management Relations Statute requires labor practice complaints to be brought before the Federal Labor Relations Authority (FLRA).[14]
August 2019: SEIU files new lawsuit claiming civil service executive orders exceed president's constitutional authority
A chapter of the Service Employees International Union (SEIU) representing U.S. Department of Veterans Affairs employees in Buffalo, New York, filed a lawsuit in the United States District Court for the Western District of New York on August 13, 2019, arguing that President Trump's three civil service executive orders exceeded the president's constitutional authority and violated the Civil Service Reform Act. The union claimed that the district court had jurisdiction over the case in part because the FLRA had lacked a general counsel for almost two years—preventing the agency from hearing unfair labor practice complaints.[15]
Because the United States Court of Appeals for the 2nd Circuit has appellate jurisdiction over the United States District Court for the Western District of New York, the D.C. Circuit's July 2019 decision upholding the civil service executive orders was not controlling on the case.[15]
July 2019: D.C. Circuit panel reverses district court ruling, holds district court lacked jurisdiction to issue injunction
A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit on July 16, 2019, reversed and vacated the district court ruling. Judges Thomas Griffith, Srikanth Srinivasan, and Arthur Randolph held that the district court did not have jurisdiction to rule on the merits of the executive orders and that the plaintiffs should have brought the case before the FLRA as required by the Federal Service Labor-Management Relations Statute.[16][17]
Trump administration officials on July 23, 2019, asked the D.C. Circuit to immediately lift the injunction blocking enforcement of the three civil service executive orders rather than wait for the 45-day grace period for rehearing requests to expire. The court denied the administration's request on August 14, 2019.[18][19]
April 2019: D.C. Circuit hears oral arguments in appeal, DOJ claims district court lacked jurisdiction in case
The United States Court of Appeals for the District of Columbia Circuit heard oral arguments in the appeal on April 4, 2019. An attorney for the U.S. Department of Justice (DOJ) argued that the federal courts lacked jurisdiction in the case and that the plaintiffs should have filed an unfair labor practices complaint with the Federal Labor Relations Authority (FLRA) instead. An attorney representing the union groups countered that the FLRA lacked the authority to weigh in on governmentwide rules that are not subject to collective bargaining negotiations.[20][21]
November 2018: OPM instructs agencies to comply with effective executive order provisions
The Office of Personnel Management (OPM) released a memo in November 2018 instructing federal agencies to comply with the provisions of the civil service executive orders that remained in effect, including guidelines related to employee discipline and the use of official union time.[22]
September 2018: DOJ appeals district court ruling
The DOJ appealed the district court's ruling on September 25, 2018. The notice of appeal was filed with the United States Court of Appeals for the District of Columbia Circuit. Oral argument in the case was scheduled for April 4, 2019.[23][24]
August 2018: District court ruling strikes provisions of executive orders, cites conflict with federal statute
Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia struck down several provisions of President Trump's civil service executive orders in a ruling issued on August 25, 2018. The stricken provisions included components of the executive orders that Brown Jackson claimed conflicted with federal statute, such as limitations on the amount of taxpayer-funded time that full-time federal employees can dedicate to union activities, a reduction in the amount of time that poor-performing employees can demonstrate improvement, and certain restrictions on workplace issues that federal agencies can negotiate with unions.[25][26]
A DOJ representative responded to the ruling on August 25, stating that the DOJ was "reviewing the decision and considering our next steps." Then-OPM Director Jeff Pon issued a memo to all federal agencies on August 29 stating that the OPM would comply with Jackson's order and encouraging compliance by other agencies. The OPM also rescinded agency guidance related to the blocked provisions of the executive orders.[25][27]
May 2018: Unions file suit against civil service executive orders, claim orders are unconstitutional and violate federal statute
The American Federation of Government Employees (AFGE) filed a lawsuit challenging the constitutionality of Executive Order 13837 on May 30, 2018. The lawsuit claimed that the order violates freedom of association protections under the First Amendment and alters sections of the Federal Service Labor-Management Relations Statute—Title VII of the Civil Service Reform Act of 1978—without congressional action.[28][29][30]
Brown Jackson consolidated AFGE's lawsuit with two other lawsuits challenging Trump's civil service executive orders (E.O. 13837, E.O. 13836, and E.O. 13839) filed by the National Treasury Employees Union and a coalition of 13 smaller public sector unions. A hearing in the case took place on July 25, 2018.[31]
See also
- Donald Trump
- Federal civil service
- U.S. Office of Personnel Management
- Executive order
- Executive Order 13836
- Executive Order 13837
External links
- Executive Order 13839: Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles (2018)
- RegInfo.gov
- Regulations.gov
- Search Google News for this topic
Footnotes
- ↑ WhiteHouse.gov, "Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles," May 25, 2018
- ↑ Office of Personnel Management, "OPM Director Implementing President’s New Policies to Elevate Federal Government Operations and Protect American Taxpayers," May 25, 2018
- ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 3.7 Government Executive, "Appeals Court Declines to Rehear Case Against Trump's Workforce Executive Orders," September 25, 2019
- ↑ WhiteHouse.gov, "President Donald J. Trump Is Reforming the Civil Service to Work for the American People," May 25, 2018
- ↑ Office of Personnel Management, “OPM Director Implementing President’s New Policies to Elevate Federal Government Operations and Protect American Taxpayers,” May 25, 2018
- ↑ Government Executive, "Survey: Half of Feds Support White House Attempts to Ease Firing Process," June 8, 2018
- ↑ Government Executive, "Republican Lawmakers Ask Trump to Repeal Workforce Executive Orders," June 13, 2018
- ↑ Government Executive, "House Democrats Join Fight Against Workforce Executive Orders," June 14, 2018
- ↑ Government Executive, "Federal Judge Consolidates Lawsuits on Workforce Executive Orders, Schedules Hearing," June 19, 2018
- ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 11.0 11.1 Federal News Network, "OPM finalizes new policies intended to more quickly discipline poor performers," October 15, 2020
- ↑ FedSmith, "Executive Orders Allowed to Take Effect After Injunction is Lifted," October 2, 2019
- ↑ United States Court of Appeals for the District of Columbia Circuit, "Mandate," October 3, 2019
- ↑ Government Executive, "Unions Request Rehearing of Trump's Federal Workforce Orders Case," August 30, 2019
- ↑ 15.0 15.1 Government Executive, "Another Union Sues to Block Trump Workforce Orders," August 16, 2019
- ↑ The Washington Post, "In win for Trump administration, appeals court stymies union challenge to civil service restrictions," July 16, 2019
- ↑ United States Court of Appeals for the District of Columbia Circuit, "American Federation of Government Employees, AFL-CIO, et al. v. Trump," July 16, 2019
- ↑ Government Executive, "Trump Administration Asks Court to Allow Agencies to Implement Workforce Orders Immediately," July 24, 2019
- ↑ Government Executive, "Court: Injunction Blocking Workforce Executive Orders Will Remain in Place," August 14, 2019
- ↑ Government Executive, "Judges Fixate on Jurisdictional Question in Appeal of Decision Invalidating Trump Workforce Orders," April 4, 2019
- ↑ Reuters, "D.C. Circuit hears Trump administration's bid to revive civil service executive orders," April 4, 2019
- ↑ FEDweek, "Enforce Parts of Orders Not Blocked, OPM Tells Agencies," November 13, 2018
- ↑ Government Executive, "Trump Administration Appeals Court Ruling On Workforce EOs," September 25, 2018
- ↑ United States Court of Appeals for the District of Columbia Circuit, "Order No. 18-5289," February 19, 2019
- ↑ 25.0 25.1 The Wall Street Journal, "Judge Curbs Trump Orders That Made It Easier to Fire Federal Workers," August 25, 2018
- ↑ Government Executive, "Judge Strikes Down Trump Executive Orders Limiting Federal Employee Union Bargaining," August 25, 2018
- ↑ Office of Personnel Management, "Updated Guidance Relating to Enjoinment of Certain Provisions of Executive Orders 13836, 13837, and 13839," August 29, 2018
- ↑ Government Executive, "Largest Federal Employee Union Sues to Block Official Time Executive Order," May 31, 2018
- ↑ UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, "AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO vs. DONALD TRUMP," May 30, 2018
- ↑ Common Dreams, "'This Is a Democracy, Not a Dictatorship': Federal Workers Union Sues Donald Trump," May 31, 2018
- ↑ Government Executive, "Federal Judge Consolidates Lawsuits on Workforce Executive Orders, Schedules Hearing," June 19, 2018
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