I 

118TH CONGRESS 

1ST SESSION H. R. 5346 

To establish Schedule F in the excepted service, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 5, 2023 

Mr. JAMES introduced the following bill; which was referred to the Committee 

on Oversight and Accountability 

A BILL 

To establish Schedule F in the excepted service, and for 

other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Creating Schedule F 

5 in the Excepted Service Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) To effectively carry out the broad array of 

9 activities assigned to the executive branch under law, 

10 the President and his appointees must rely on men 

11 and women in the Federal service employed in posiVerDate Sep 11 2014 01:04 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5346.IH H5346

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1 tions of a confidential, policy-determining, policy2 making, or policy-advocating character. Faithful exe3 cution of the law requires that the President have 

4 appropriate management oversight regarding this se5 lect cadre of professionals. 

6 (2) The Federal Government benefits from ca7 reer professionals in positions that are not normally 

8 subject to change as a result of a Presidential tran9 sition but who discharge significant duties and exer10 cise significant discretion in formulating and imple11 menting executive branch policy and programs under 

12 the laws of the United States. The heads of execu13 tive departments and agencies (agencies) and the 

14 American people also entrust these career profes15 sionals with non-public information that must be 

16 kept confidential. 

17 (3) With the exception of attorneys in the Fed18 eral service who are appointed pursuant to schedule 

19 A of the excepted service and members of the Senior 

20 Executive Service, appointments to these positions 

21 are generally made through the competitive service. 

22 Given the importance of the functions they dis23 charge, employees in such positions must display ap24 propriate temperament, acumen, impartiality, and 

25 sound judgment. 


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1 (4) Due to these requirements, agencies should 

2 have a greater degree of appointment flexibility with 

3 respect to these employees than is afforded by the 

4 existing competitive service process. 

5 (5) Further, effective performance management 

6 of employees in confidential, policy-determining, pol7 icy-making, or policy-advocating positions is of the 

8 utmost importance. Unfortunately, the Government’s 

9 current performance management is inadequate, as 

10 recognized by Federal workers themselves. For in11 stance, the 2016 Merit Principles Survey reveals 

12 that less than a quarter of Federal employees believe 

13 their agency addresses poor performers effectively. 

14 (6) Separating employees who cannot or will 

15 not meet required performance standards is impor16 tant, and it is particularly important with regard to 

17 employees in confidential, policy-determining, policy18 making, or policy-advocating positions. High per19 formance by such employees can meaningfully en20 hance agency operations, while poor performance 

21 can significantly hinder them. Senior agency officials 

22 report that poor performance by career employees in 

23 policy-relevant positions has resulted in long delays 

24 and substandard-quality work for important agency 

25 projects, such as drafting and issuing regulations. 


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1 (7) Conditions of good administration make 

2 necessary an exception to the competitive hiring 

3 rules and examinations for career positions in the 

4 Federal service of a confidential, policy-determining, 

5 policy-making, or policy-advocating character. These 

6 conditions include the need to provide agency heads 

7 with additional flexibility to assess prospective ap8 pointees without the limitations imposed by competi9 tive service selection procedures. Placing these posi10 tions in the excepted service will mitigate undue lim11 itations on their selection. This action will also give 

12 agencies greater ability and discretion to assess crit13 ical qualities in applicants to fill these positions, 

14 such as work ethic, judgment, and ability to meet 

15 the particular needs of the agency. These are all 

16 qualities individuals should have before wielding the 

17 authority inherent in their prospective positions, and 

18 agencies should be able to assess candidates without 

19 proceeding through complicated and elaborate com20 petitive service processes or rating procedures that 

21 do not necessarily reflect their particular needs. 

22 (8) Conditions of good administration similarly 

23 make necessary excepting such positions from the 

24 adverse action procedures set forth in chapter 75 of 

25 title 5, United States Code. Chapter 75 of title 5, 


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1 United States Code, requires agencies to comply 

2 with extensive procedures before taking adverse ac3 tion against an employee. These requirements can 

4 make removing poorly performing employees dif5 ficult. Only a quarter of Federal supervisors are con6 fident that they could remove a poor performer. Ca7 reer employees in confidential, policy-determining, 

8 policy-making, and policy-advocating positions wield 

9 significant influence over Government operations 

10 and effectiveness. Agencies need the flexibility to ex11 peditiously remove poorly performing employees 

12 from these positions without facing extensive delays 

13 or litigation. 

14 SEC. 3. SCHEDULE F OF THE EXCEPTED SERVICE. 

15 (a) IN GENERAL.—Appointments of individuals to 

16 positions of a confidential, policy-determining, policy-mak17 ing, or policy-advocating character that are not normally 

18 subject to change as a result of a Presidential transition 

19 shall be made under schedule F of the excepted service, 

20 as established by subsection (b). 

21 (b) REGULATIONS.—The Director of the Office of 

22 Personnel Management shall— 

23 (1) amend section 6.2 of title 5, Code of Fed24 eral Regulations, to read as follows: 


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1 ‘‘OPM shall list positions that it excepts from the 

2 competitive service in Schedules A, B, C, D, E, and F, 

3 which schedules shall constitute parts of this rule, as fol4 lows: 

5 ‘‘Schedule A. Positions other than those of a con6 fidential or policy-determining character for which it is not 

7 practicable to examine shall be listed in Schedule A. 

8 ‘‘Schedule B. Positions other than those of a con9 fidential or policy-determining character for which it is not 

10 practicable to hold a competitive examination shall be list11 ed in Schedule B. Appointments to these positions shall 

12 be subject to such noncompetitive examination as may be 

13 prescribed by OPM. 

14 ‘‘Schedule C. Positions of a confidential or policy-de15 termining character normally subject to change as a result 

16 of a Presidential transition shall be listed in Schedule C. 

17 ‘‘Schedule D. Positions other than those of a con18 fidential or policy-determining character for which the 

19 competitive service requirements make impracticable the 

20 adequate recruitment of sufficient numbers of students at21 tending qualifying educational institutions or individuals 

22 who have recently completed qualifying educational pro23 grams. These positions, which are temporarily placed in 

24 the excepted service to enable more effective recruitment 

25 from all segments of society by using means of recruiting 


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1 and assessing candidates that diverge from the rules gen2 erally applicable to the competitive service, shall be listed 

3 in Schedule D. 

4 ‘‘Schedule E. Position of administrative law judge ap5 pointed under 5 U.S.C. 3105. Conditions of good adminis6 tration warrant that the position of administrative law 

7 judge be placed in the excepted service and that appoint8 ment to this position not be subject to the requirements 

9 of 5 CFR, part 302, including examination and rating re10 quirements, though each agency shall follow the principle 

11 of veteran preference as far as administratively feasible. 

12 ‘‘Schedule F. Positions of a confidential, policy-deter13 mining, policy-making, or policy-advocating character not 

14 normally subject to change as a result of a Presidential 

15 transition shall be listed in Schedule F. In appointing an 

16 individual to a position in Schedule F, each agency shall 

17 follow the principle of veteran preference as far as admin18 istratively feasible’’; 

19 (2) amend section 6.4 of title 5, Code of Fed20 eral Regulations, to read as follows: 

21 ‘‘Except as required by statute, the Civil Service Rules 

22 and Regulations shall not apply to removals from positions 

23 listed in Schedule A, C, D, E, or F, or from positions ex24 cepted from the competitive service by statute. The Civil 

25 Service Rules and Regulations shall apply to removals 


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1 from positions listed in Schedule B of persons who have 

2 competitive status.’’; 

3 (3) adopt such regulations as the Director de4 termines may be necessary to implement this title, 

5 including, as appropriate, amendments to or rescis6 sions of regulations that are inconsistent with, or 

7 that would impede the implementation of, this title, 

8 giving particular attention to— 

9 (A) section 302.101 of title 5, Code of 

10 Federal Regulations; 

11 (B) subpart D of part 212 of such title; 

12 and 

13 (C) subparts A and C of part 213 of such 

14 title; and 

15 (4) provide guidance on conducting a swift, or16 derly transition from the existing appointment proc17 esses to the schedule F process established by this 

18 title. 

19 SEC. 4. EXECUTIVE AGENCY ACTIONS. 

20 (a) REVIEW.— 

21 (1) IN GENERAL.—Each Executive agency head 

22 shall conduct, not later than 90 days after the date 

23 of enactment of this Act, a preliminary review of the 

24 positions in the Executive agency that are covered 

25 by subchapter II of chapter 75 of title 5, United 


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1 States Code, and shall conduct a complete review of 

2 the positions in the agency not later than 210 days 

3 after the date of enactment of this Act. Thereafter, 

4 each agency head shall conduct a review of such po5 sitions that are covered by subchapter II of chapter 

6 75 of title 5, United States Code, on at least an an7 nual basis. 

8 (2) PETITIONS.— 

9 (A) IN GENERAL.—Following a review 

10 under paragraph (1), each agency head shall, 

11 for positions not excepted from the competitive 

12 service by statute, petition the Director to place 

13 in schedule F any such competitive service, 

14 schedule A, schedule B, or schedule D positions 

15 in the Executive agency that the agency head 

16 determines to be of a confidential, policy-deter17 mining, policy-making, or policy-advocating 

18 character and that are not normally subject to 

19 change as a result of a Presidential transition. 

20 (B) PETITION EXPLANATION.—Any peti21 tion submitted under subparagraph (A) shall 

22 include a written explanation documenting the 

23 basis for the agency head’s determination that 

24 such position should be placed in schedule F. 

25 (3) DETERMINATIONS.— 


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1 (A) IN GENERAL.—Following a review 

2 under paragraph (1), each agency head shall, 

3 for positions excepted from the competitive 

4 service by statute, determine which such posi5 tions are of a confidential, policy-determining, 

6 policy-making, or policy-advocating character 

7 and are not normally subject to change as a re8 sult of a Presidential transition. 

9 (B) DETERMINATION EFFECT.—A position 

10 which the agency head determines under sub11 paragraph (A) to be of a confidential, policy-de12 termining, policy-making, or policy-advocating 

13 character and not normally subject to change as 

14 a result of a Presidential transition shall be 

15 considered a schedule F position for the pur16 poses of Executive agency actions under sub17 sections (d) and (f). 

18 (C) PUBLICATION.—An agency head shall 

19 publish each determination made under sub20 paragraph (A) in the Federal Register. 

21 (b) APPLICABILITY.—The requirements set forth in 

22 subsection (a) shall apply to currently existing positions 

23 and newly created positions. 

24 (c) ADDITIONAL CONSIDERATION.—When con25 ducting the review required by subsection (a), each agency 


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1 head should give particular consideration to the appro2 priateness of either petitioning the Director to place in 

3 schedule F or including in the determination published in 

4 the Federal Register, as applicable, positions of which the 

5 duties include any of the following: 

6 (1) Substantive participation in the advocacy 

7 for or development or formulation of policy, espe8 cially— 

9 (A) substantive participation in the devel10 opment or drafting of regulations and guidance; 

11 or 

12 (B) substantive policy-related work in an 

13 Executive agency or Executive agency compo14 nent that primarily focuses on policy. 

15 (2) The supervision of attorneys. 

16 (3) Substantial discretion to determine the 

17 manner in which the Executive agency exercises 

18 functions committed to the agency by law. 

19 (4) Viewing, circulating, or otherwise working 

20 with proposed regulations, guidance, Executive or21 ders, or other non-public policy proposals or delib22 erations generally covered by deliberative process 

23 privilege and either— 

24 (A) directly reporting to or regularly work25 ing with an individual appointed by either the 


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1 President or an agency head who is paid at a 

2 rate not less than that earned by employees at 

3 Grade 13 of the General Schedule; or 

4 (B) working in the Executive agency or 

5 Executive agency component executive secre6 tariat (or equivalent). 

7 (5) Conducting, on the Executive agency’s be8 half, collective bargaining negotiations under chapter 

9 71 of title 5, United States Code. 

10 (d) PETITION DECISION.—The Director shall 

11 promptly determine whether to grant any petition under 

12 subsection (a). Not later than December 31 of each year, 

13 the Director shall report to the President, through the Di14 rector of the Office of Management and Budget and the 

15 Assistant to the President for Domestic Policy, concerning 

16 the number of petitions granted and denied for that year 

17 for each Executive agency. 

18 (e) COLLECTIVE BARGAINING EXCLUSIONS.—Each 

19 agency head shall, as necessary and appropriate, expedi20 tiously petition the Federal Labor Relations Authority to 

21 determine whether any schedule F position must be ex22 cluded from a collective bargaining unit under section 

23 7112(b) of title 5, United States Code, paying particular 

24 attention to the question of whether incumbents in such 


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1 positions are required or authorized to formulate, deter2 mine, or influence the policies of the agency. 

3 (f) PROHIBITED PERSONNEL PRACTICES.—Agency 

4 heads shall establish rules to prohibit the personnel prac5 tices prohibited by section 2302(b) of title 5, United 

6 States Code, with respect to any employee or applicant 

7 for employment in schedule F of the excepted service. 

8 SEC. 5. DEFINITIONS. 

9 In this Act: 

10 (1) AGENCY HEAD.—The term ‘‘agency head’’ 

11 means the head of an Executive agency. 

12 (2) DIRECTOR.—The term ‘‘Director’’ means 

13 the Director of the Office of Personnel Management. 

14 (3) EXECUTIVE AGENCY.—The term ‘‘Executive 

15 agency’’ has the meaning given such term in section 

16 105 of title 5, United States Code, but excluding the 

17 Government Accountability Office. 

18 (4) NORMALLY SUBJECT TO CHANGE AS A RE19 SULT OF A PRESIDENTIAL TRANSITION.—The term 

20 ‘‘normally subject to change as a result of a Presi21 dential transition’’ refers to positions whose occu22 pants are, as a matter of practice, expected to resign 

23 upon a Presidential transition, including all positions 


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1 whose appointment requires the assent of the White 

2 House Office of Presidential Personnel. 

Æ 


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