OPM ‘loyalty question’ pushes potential agency applicants away, court documents show

The Trump administration’s move to add a “loyalty question” to federal job listings has stopped potential applicants from pursuing open positions — including IT roles — at agencies, recent court filings reveal.

Pseudonymous declarations were filed last month by four federal workers and union members as part of American Federation of Government Employees, AFL-CIO v. Kupor, a lawsuit challenging the Office of Personnel Management’s so-called Merit Hiring Plan.

That plan detailed steps to reform the federal hiring process, including the insertion of an essay question in listings that asks applicants how they would “help advance the President’s Executive Orders and policy priorities in this role.” Candidates are also asked to identify “one or two relevant Executive Orders or policy initiatives that are” significant to them.

The lawsuit argues that those questions, posed in applications for non-political job positions, violate the First Amendment in “several” unconstitutional ways: imposing a condition on employment, compelling speech, chilling speech and facilitating viewpoint discrimination. There’s also no standard for assessing responses, the lawsuit states, providing administration officials with “unfettered discretion” in determining how to use political responses in hiring.

“Federal hiring for career jobs is supposed to be based on merit, not politics,” Ori Lev, who represents the plaintiffs as co-counsel at the nonprofit Protect Democracy, said in an interview with FedScoop. “You want the best people in the jobs, regardless of whether they’re Democrats or Republicans or independents, and that’s true regardless who’s in office. That’s the system that Congress set up, because that’s the system that produces results for the American people.”

Lev said the essay questions are a “blatant attempt” by the Trump administration to politicize civil service. Leaving the loyalty question as is, Lev added, will allow the administration to “hire people who are or pretend to be supporters of the president” while spurning “perfectly competent” candidates who are on a different page politically. 

Inserting politics into historically nonpartisan, career civil service fields should be “irrelevant,” he added. The positions highlighted in the plaintiffs’ complaint demonstrate this: “a firefighter, a nurse, an air traffic controller — what does it matter what their politics are? What should matter is their qualifications,” Lev said.

One of the declarations released last month as part of the lawsuit was from a Department of Veterans Affairs employee with experience in IT support, records management, equipment inventory and software development. That VA staffer has been “actively looking for other federal jobs,” seeking better pay and a position that is “more likely to be exempt from” reductions-in-force that have become the norm in the Trump era.

In recent weeks, the VA employee found postings on USAJobs.gov that they were “qualified for and interested in,” including multiple IT specialist openings with the Department of Justice, another IT role at the Air Force, and a mission support specialist position at the VA.

But because of the question, the individual decided against applying to any of those roles, writing in their declaration that answering that question “violates my free speech rights, and I do not want to share my political views with the government.”

The VA employee did decide, however, to submit an application recently for a Department of Homeland Security position. In response to the essay prompt on identifying a presidential executive order, the individual said they wrote that “according to the instructions, the question was optional and that I was not going to respond.”

“Even that answer has left me feeling uneasy,” the VA employee continued. “By not identifying one of the President’s Executive Orders or policies, I think the government will identify me as someone who does not support President Trump’s policies and that they will hold it against me. I think they are looking for candidates who will express loyalty to President Trump.”

A different VA staffer said in a declaration filed last month that they have applied to 10 federal jobs but were reluctant to answer the loyalty question “because I don’t want to talk about politics at work, I don’t agree with most of what President Trump is doing, and I think the question is illegal to ask.” 

“But I decided to answer the question anyway,” they continued, “because I was afraid not answering — or answering in a way that is not favorable to President Trump — would hurt my applications. To answer, I had to look through President Trump’s executive orders, the vast majority of which I disagreed with, to find one that I could discuss at least somewhat positively. I would not have done so if not for the question on job applications.”

The two additional declarations came from current and former Department of Education staffers. The former said they couldn’t “in good conscience pretend to agree with President Trump’s policies” and believed a nonanswer “would be used against” them. The latter, a researcher and statistician who was RIF’d earlier this year, went through 198 Trump executive orders before settling on one related to charter schools and school choice. 

To apply for an Education Department job similar to the one they previously held, they “had to selectively frame” their response since they didn’t agree “with the premise” of the charter school policy. 

“I do not think this question is appropriate for civil service jobs like mine,” they wrote in the declaration. “The question is not relevant to the role of a statistician; it politicizes a nonpartisan job. I even went back to the website of my former sub-agency — its mission statement is nonpartisan.”

To Lev, the four declarations demonstrate that the loyalty question is “having its intended impact” — giving non-Trump supporters pause when considering applying for federal work. The long-term implications, he said, could be a spoils system where government jobs are doled out as a reward for political support, competence be damned. A “degradation of services” is a natural conclusion.

“If you politicize hiring and you politicize firing, you end up with a system where, any time there’s a new administration in power, a whole bunch of federal employees are going to lose their job, and a whole bunch of new people are going to come in,” Lev said. “And so you lose the expertise that comes with experience and continuity, you lose that institutional knowledge that comes with continuity.”

Lev and his colleagues have asked the court to order the government to stop using the loyalty question in federal civil service job postings while the case is pending. There are currently more than 8,100 openings with that question included. 

In response to a request for comment on the lawsuit and the Trump administration’s federal hiring policies, OPM referred FedScoop to the Department of Justice. The DOJ declined to comment.