November 16, 2023
Office of Personnel Management
1900 E Street, N.W.
Washington, DC 20415

Ref:  RIN 320 –AO56 Proposed Rule Upholding Civil Service Protections and Merit System Principles 

Dear Office of Personnel Management:

The Coalition to Protect America’s National Parks, the Association of National Park Rangers, and the National Parks Conservation Association submit these comments in support of the Office of Personnel Management’s (OPM) Proposed Rule Upholding Civil Service Protections and Merit System Principles,  88 Federal Register 63862 (September 18, 2023). Our respective organizations are nonpartisan advocates for the conservation of America’ National Park System in accordance with the National Park Service (NPS) Organic Act, which provides the basis for the NPS conservation mission. In furtherance of that mission, we also advocate for appropriate support of the agency and its highly dedicated workforce. This rulemaking would make important clarifications regarding the right of federal employees whose positions may be shifted from the competitive service to the excepted service or from one excepted service schedule to another. We therefore strongly encourage OPM to finalize the rule as proposed. 


The following summary is taken from Government Accountability Office (GAO) Report # GAO-22-105504:

Civil service personnel laws found under Title 5 of the U.S. Code include the rules agencies must follow to hire employees. Agencies may hire through the competitive service process, which generally requires applicants to pass a competitive examination and requires agencies to identify the most qualified applicants by (1) notifying the public that the government will accept job applications for a position, (2) screening applications against minimum qualification standards, (3) applying selection priorities such as veterans’ preference, and (4) assessing applicants’ relative competencies—knowledge, skills, and abilities— against job-related criteria. 

The President has delegated authority to OPM to make excepted service appointments for when it is neither feasible nor practical to use the competitive examination process. The excepted service includes five categories of positions, contained in Schedules A, B, C, D and E. The schedules allow agencies to hire positions outside of the usual competitive process for various purposes, including:

(1) when it is not practicable to use competitive service qualification standards or to rate applicants using traditional competitive examining procedures, (2) when recruiting students attending certain educational institutions (or others who have recently completed certain educational programs), or (3) to fill certain positions of a confidential or policy determining nature.

In October 2020, President Trump issued Executive Order (E.O.) Executive Order (E.O.) 13957 that created a new “Schedule F” category of excepted service positions. This E.O. provided an exception to the competitive hiring rules and examinations for career positions of “a confidential, policy-determining, policy-making, or policy-advocating character.” It stated that agencies should have “greater ability and discretion” to assess critical qualities in applicants to fill these positions than is provided by the competitive service process. Hiring for Schedule F positions would have been streamlined. For example, Schedule F positions would not have required a competitive examination, and agencies would not have been required to follow established processes for veterans’ preference in hiring.

E.O. 13957 also stated that the government’s performance system is inadequate, and that poor performance by employees in policy-relevant roles had resulted in delays and substandard work within agencies. Given that employees in these positions “wield significant influence over Government operations and effectiveness,” the E.O. stated that agencies needed “the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation.” Generally, an employee in the competitive service or excepted service is entitled to notice of a removal, an opportunity to reply, representation by an attorney or other representative, and a written decision. An employee may appeal the removal to the Merit Systems Protection Board (MSPB) or file a grievance under the terms of a collective bargaining agreement. However, these procedural protections generally would have been unavailable to employees classified under Schedule F.

President Biden subsequently revoked E.O. 13957 in January 2021 through E.O. 14003.4 E.O. 14003 stated “[Schedule F] not only was unnecessary to the conditions of good administration but also undermined the foundations of the civil service and its merit system principles, which were essential to the [Pendleton Act’s] repudiation of the spoils system.” 

First and foremost, we completely agree with President Biden’s rationale for revoking the Trump executive order. In essence, the goal of E.O. 13957 was to make it easier for the Trump administration to fire federal civil servants and replace them with political appointees who would be loyal to their political agenda, and not to the American people or the missions of the federal agencies that employed them. There is good cause to be concerned that a future administration that does not value nonpartisan civil servants could again pursue an effort such as was envisioned in E.O. 13957.

To bolster the government and its civil service system against partisan political attacks in the future, the Proposed Rule would help ensure that the American people and government leaders can count on the services of an experienced, professional, and mission-oriented civil service that puts the public interest first. Without these protections, irreplaceable federal employees with decades of experience and expertise, who run programs that benefit communities across the country, could be the target of a future administration seeking to purge the government of its perceived “enemies” within the civil service.

We support the Proposed Rule and its intentions because we value National Park Service (NPS) personnel and know how important unbiased, professional career employees are in implementing the agency’s mission to protect park resources. We also know that E.O. 13957 had a chilling effect on NPS personnel. Park superintendents, regional directors, Washington Office personnel, and other employees must make difficult decisions about protecting park resources, and sometimes this is under pressure from political figures or others who seek certain outcomes. It is critical that these employees feel empowered to make these hard decisions in accordance with agency management policies and legal mandates and in the best interest of our national parks and the public who values them. Fear of retribution would not only further challenge employee morale but also pressure employees to make decisions that may not be in the best interest of national parks or the NPS and instead serve the political interests of the administration in office, its partisan allies, or others. The NPS is already struggling with recruiting and retaining employees and the risk of political retribution or misguided politically-driven decisions would only create further challenges.

Qualified career staff at NPS and other Department of the Interior (DOI) agencies who are protected from the pressure of a political spoils system ensure that programs and decisions can be made in the public interest and consistent with a series of interacting laws and the intention of Congress. Changes such as those in E.O. 13957 threaten to degrade both the public trust and the efficacy of these decisions. NPS and other DOI agency personnel must be free of political interference in part to retain and build expertise. Protecting these servants from political decisions ensures the experience necessary to protect resources and navigate laws mandating protection of natural and cultural resources. 

What Will the Proposed Rule Do?

In general, the Proposed Rule would implement a number of protections, including (but not limited to):

  • Affirming that the status and civil service protections a federal employee has obtained cannot be taken away, unless that employee gives up their rights voluntarily.
  • Clarifying that an exception to civil service protections for “confidential, policy determining, policymaking, or policy-advocating” positions applies only to political appointees, not to career civil servants who may be the target of future attacks from partisan political operatives.
  • Establishing procedural requirements for moving positions out of the competitive service (where the vast majority of federal employees are classified), or between excepted service categories, creating transparency and an appeals process if such moves would strip a federal employee of their civil service protections.

We particularly support the following provisions in the proposed rule:

  • Amending 5 CFR part 210 (Basic Concepts and Definitions (General)) to define “confidential, policy-determining, policy-making, or policy-advocating,” and “confidential or policy-determining” in 5 CFR 210.102—which would apply throughout OPM’s Civil Service Regulations in 5 CFR chapter I, subchapter B —to describe positions generally excepted from chapter 75’s protections to reinforce the longstanding interpretation that, in creating this exception to 5 U.S.C. 7511(b), Congress intended to except only noncareer, political appointees from the civil service protections.
  • Amending 5 CFR part 212 (Competitive Service and Competitive Status) to further clarify a competitive service employee’s status in the event the employee’s position is moved to the excepted service.
  • Amending 5 CFR part 302 (Employment in the Excepted Service) for the purposes of good administration and transparency, to provide specific additional procedures that apply when moving positions from the competitive service to the excepted service, or from one excepted service schedule to another, and to provide employees encumbering such positions with a right of appeal to the MSPB to the extent any such move purportedly strips employees of their civil service status and protections.
  • Amending 5 CFR part 752 (Adverse Actions) to clarify that employees who are moved from the competitive service to a position in the excepted service, or from one excepted service schedule to another, retain the status and civil service protections they had already accrued unless the employee relinquishes such rights or status by voluntarily encumbering a position that explicitly results in a loss of, or different, rights. The proposed regulation also conforms part 752 to Federal Circuit precedent regarding the employees eligible for appeal and grievance rights for removal actions and suspensions.

Closing Comment

The proposed rule will help protect the quality and independence of the United States’ civil service—including the National Park Service and other agencies within the Department of the Interior—from future partisan political attacks and the threat of retribution for science-driven or otherwise objective decisions that may not align with elected officials’ priorities. Federal agencies should serve the American people and implement their respective programs and operations in accordance with each agency’s Congressionally-approved mission. However, E.O. 13957 attempted to weaken the federal civil service by removing protections for public servants and was appropriately revoked. We know that replacing career public servants in the federal government with partisan loyalists would be bad for the American people and the country.

The American people deserve a government that serves them based on evidence and expertise and meets the needs of their communities—that’s why the civil service has been designed to ensure that the federal government serves and protects the public interest. The civil service is meant to serve the American people, not politicians; the proposed rule will help the civil service fulfill that mission.

We fully support OPM finalizing the rule as proposed and appreciate the opportunity to comment on these important civil service protections and merit system principles.


Michael Murray signature



Michael B. Murray, Chair
Coalition to Protect America’s National Parks



Rick Mossman, President
Association of National Park Rangers





John Garder, Senior Director of Budget and Appropriations
National Parks Conservation Association


Lena McDowall, Deputy Director, Management and Administration, National Park Service 

Rita Moss, Associate Director of Workforce and Inclusion, National Park Service