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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 17-014

General Memorandum 17-014
President Trump Orders Federal Hiring Freeze; Some Categories of Personnel Exempted

On January 23, 2017, President Trump issued a Memorandum to the Heads of Executive Departments and Agencies (Memorandum), ordering a hiring freeze, with some exemptions, effective January 22, 2017. The Memorandum directs the Office of Management and Budget (OMB), in consultation with the Office of Personnel Management (OPM), to provide within 90 days a long-term plan to reduce the size of the federal government's workforce through attrition. The hiring freeze would end upon implementation of such a plan. The freeze does not apply to military personnel. Since the issuance of the Memorandum, two sets of guidance have been issued which expands the exempted categories.

January 25 Initial Guidance. On January 25, OMB issued guidance which explains that agencies can make limited exceptions to the freeze for positions necessary for public safety and national security. Agencies are instructed to direct questions about the guidance to their OMB Resource Management Office.

January 31 Further Guidance. On January 31, OMB and OPM jointly issued more detailed guidance regarding civilian personnel which may be exempted by agencies. Among the categories of personnel for possible exemption are: Commissioned Corps of the Public Health Service, Postal Service employees, seasonal personnel (e.g., fire fighters); and reassignment of current employees within an agency or between agencies. In addition, the Director of OPM may grant additional exemptions from the hiring freeze for "critical situations". The agency head will need to make the case in writing for such "critical situation" exceptions to OPM and also notify their OMB Resources Management Office of such request.

The January 31 guidance also references the November 17, 1981 OMB Memorandum regarding categories of employees which may be retained in the case of a government shutdown due to lack of appropriations and notes that examples in 3(a) through (k) may be used as examples of categories that can be exempted from the hiring freeze. Among them are medical care of inpatients and emergency outpatient care; activities to ensure continued public health and safety; positions related to the power distribution system; emergency and disaster assistance; and air traffic control and other transportation safety functions. We attach both the January 31, 2017, OMB/OPM guidance and the November 17, 1981, OMB Memorandum.

When the January 23 Memorandum was issued there was immediate concern by tribes and tribal organizations about the status of the Indian Health Service as it did not reference the provision of health care as an exempted category. On January 31 the National Indian Health Board, National Congress of American Indians, Direct Service Tribes Advisory Committee and the Self-Governance Communication and Education Tribal Consortium jointly wrote the President making the case for an exemption for the Indian Health Service to be exempted. Six Democratic Senators (Udall-NM; Tester-MT; Schatz D-HI: Cortez Masto-NV; Cantwell-WA; Franken-MN; and Heitkamp-ND) wrote the President requesting that the freeze not apply to core programs for the IHS, Bureau of Indian Affairs, and the Bureau of Indian Education.

While the Veterans Administration and the Defense Department have provided information regarding specific categories of personnel they intend to exempt from the hiring freeze, there is not yet any detailed information from the Department of Health and Human Services, the Department of Interior, or other agencies.

We will continue to follow developments on the federal hiring freeze.

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Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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