Federal judge blocks loyalty question for civil-service applicants

A federal judge has temporarily halted the Office of Personnel Management from implementing and using a politically focused essay question in many competitive-service job applications while a lawsuit brought by three federal employee unions proceeds.

U.S. District Judge George A. O’Toole Jr. of the District of Massachusetts issued the order on September 11, granting the unions a stay under Section 705 of the Administrative Procedure Act. The order provides temporary relief; it is not a final ruling that the question is unconstitutional or that the broader Merit Hiring Plan is invalid.

What the question asked

The challenged prompt asked applicants: “How would you help advance the President’s Executive Orders and policy priorities in this role?” It also asked them to identify one or two executive orders or policy initiatives that were significant to them and explain how they would help implement them if hired.

OPM guidance said the four short essay questions generally had to appear in competitive-service announcements open to the public for jobs graded GS-05 or above. Listed exceptions included teacher, Wage Grade and seasonal positions, and agencies could exempt other positions at their discretion. The guidance also said responses were not scored or rated, applicants would not be disqualified for failing to answer, and the questions could not be used as an ideological litmus test.

The court’s opinion said the question had appeared in thousands of federal civil-service applications. Examples cited in the litigation included air traffic control specialist, nuclear materials courier and crane operator positions.

Why the unions challenged it

The American Federation of Government Employees, the American Federation of State, County and Municipal Employees, and the National Association of Government Employees sued OPM Director Scott Kupor, OPM and the United States.

The unions argued that the question violated the Administrative Procedure Act and raised First Amendment concerns because applicants could reasonably understand it as asking for their personal political views. They said the wording could discourage applicants from applying or make them feel pressure to present views favorable to the administration.

At this preliminary stage, O’Toole found that the unions were likely to succeed on their APA claim. The judge said the wording could reasonably be read as seeking an applicant’s political views and could create a chilling effect. The opinion also said the government had not shown why political allegiance would be an appropriate requirement for the effective performance of ordinary civil-service positions.

What the order does — and does not do

The immediate remedy is a stay under Section 705 of the APA that suspends implementation and use of the challenged question while the case continues. Federal applicants covered by the policy should monitor current vacancy announcements and agency instructions as the stay is put into effect.

The judge did not grant the unions’ separate request for a preliminary injunction barring the government from relying on, or retaining, answers to the question that applicants had already submitted. The order therefore does not prohibit the government from considering previously submitted answers or nonanswers.

The ruling also does not bar agencies from evaluating applicants’ qualifications or policy knowledge through lawful hiring procedures. It addresses the specific question and the way OPM incorporated it into the application process.

What happens next

The underlying case remains unresolved. The September 11 order rests on a preliminary assessment of the unions’ claims and does not finally vacate the policy or establish that the question was unconstitutional.

Applicants should follow the current wording and instructions in each vacancy announcement and watch for updates from OPM or the hiring agency. The next major developments will be the court’s eventual ruling on the merits and any change in the application process as the litigation proceeds.

Sources

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