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A huge swath of federal employees would regain the right to appeal a dismissal or demotion to a third party under a new bill introduced in the House this week.
The legislation would overturn a court case that stripped employees in positions designated as “sensitive” to national security of the ability to appeal negative personnel actions to the Merit Systems Protection Board. Federal worker advocates have deplored the 2013 U.S. Court of Appeals for the Federal Circuit ruling as giving agencies a free pass to punish or fire low-level workers without due process.
“If we want to continue to get the best candidates serving in the federal government, we must ensure that their most basic constitutional rights are protected — at least to have an independent body review the decision of an agency official,” said Del. Eleanor Holmes Norton, D-D.C., who co-authored the bill. “Otherwise, a single official can terminate or demote an employee for any or no reason.”
The case arose as the Obama administration fought in court to deny any employee in a position deemed sensitive from making appeals to MSPB. The ruling was coupled with 2013 guidance from the Office of Personnel Management and the Office of the Director of National Intelligence that would expand the number of employees considered sensitive. The Justice Department has said about 200,000 Defense Department employees — about one-quarter of the Pentagon’s workforce — are in “non-critical sensitive” positions.
A Senate committee held a hearing on the OPM/ODNI guidance in 2013, during which lawmakers complained employees without access to classified information — such as those staffing commissaries — were unnecessarily being deemed sensitive.
“It escapes me how a grocery store clerk could be put at the same level as someone at the Defense Department who has access to really important classified information,” Sen. Jon Tester, D-Mont., said at the hearing.
Administration officials countered they were not seeking to expand the number of employees in sensitive positions, but simply to provide more clarity as to what defines such a job. They also said because commissary workers have access to food, they could impact national security.
Rep. Rob Wittman, R-Va., the other author of the legislation to reverse the court’s ruling, said these employees were being denied fundamental rights.
“Due process is one of the most essential protections of our constitutional government,” Wittman said. “It means that no citizen can be deprived of his or her life, liberty or property rights without sufficient notice and adequate process. But right now, many of the men and women in our federal workforce don’t have that guarantee.”
The bill would clarify the rights available to employees in sensitive positions, Norton said, thereby making the court ruling no longer accurate. Because of the court ruling, she explained, it “is necessary to clarify existing law that non-critical sensitive employees are entitled to an independent review.”
The positions currently being denied appeal rights do not necessarily overlap with positions that require security clearances, federal employee and whistleblower groups have said. Supervisors in national security roles have unilateral power to both designate a position as sensitive and dismiss the employee in that position without offering an explanation, the groups have warned, as the employee would not be able to appeal the decision to MSPB.
The authors of the bill said it would immediately impact at least 200,000 employees, adding the new definition for sensitive positions could be expanded to many more. The Government Accountability Project has said “virtually the entire federal workforce” could be deemed sensitive under the 2013 guidance.
Carolyn Lerner, head of the Office of Special Counsel, the independent federal agency tasked with protecting whistleblowers, condemned the court ruling when it was issued more than two years ago.
“We are disappointed in the outcome,” Lerner said. “This decision poses a significant threat to whistleblower protections for hundreds of thousands of federal employees in sensitive positions and may chill civil servants from blowing the whistle.” She added OSC would work with Congress to restore appeal rights.
J. David Cox, president of the American Federation of Government Employees, praised the new legislative effort, saying it would restore “basic due process rights.”
The 2013 court decision “must be overturned to ensure all federal employees have the right to third-party review of agency actions that could cost them their jobs,” Cox said.
MSPB originally held it did have jurisdiction in cases involving employees in sensitive positions, and issued a brief defending its position when the Obama administration appealed the board’s ruling in federal court. That court rejected the vast majority of MSPB’s argument and the Supreme Court later declined to hear a further appeal.