A federal court has ruled that federal employees in national security “sensitive” positions have no right to challenge their terminations or demotions with the Merit Systems Protection Board, a move federal employee and whistleblower advocates have decried as a blow to due process.
The U.S. Court of Appeals for the Federal Circuit heard arguments in May, and issued a 7-3 ruling Tuesday limiting the appeal rights of federal workers -- mostly at the Defense Department -- in sensitive positions. The decision opens approximately 200,000 federal employees whose jobs are deemed sensitive to unilateral terminations, according to the Office of Personnel Management, including those without security clearances or access to classified information.
The American Federation of Government Employees, which had joined the appeal, vowed to continue to fight the decision.
“Due process rights are the very foundation of our civil service system,” AFGE President J. David Cox said in a statement. “That system itself has been undermined by the court today, if this ruling is allowed to stand. AFGE's attorneys are evaluating the lengthy opinion and we expect to seek Supreme Court review. AFGE will leave no stone unturned in this litigation as long as the appeal rights of our members are at stake.”
The ruling has created a “one-two attack” against federal employees, according to the Government Accountability Project. OPM and the Director of National Intelligence’s Office proposed a rule in May that would expand the positions labeled as sensitive.
While OPM has denied any expansion and said the rule would simply offer clarification, GAP has said the new guidelines could “rebrand virtually any federal government position” as sensitive.
“The court created a loophole to remove the civil service rule of law from virtually the entire federal workforce,” GAP Legal Director Tom Devine said in a statement on the court ruling. “It erased all federal laws that shield the 2 million federal employee workforce from becoming a national security spoils system.”
In its majority opinion, the court said employees without access to classified information, but in sensitive positions, can still have a significant impact on national security. A commissary employee, the court said as an example, can give away deployment information based on where they are stocking sunglasses.
The three dissenting judges said the court had no authority to issue the ruling.
“In essence, the majority’s decision rests on the flawed premise that the DoD, acting on its own --without either congressional or presidential authority -- has ‘inherent authority’ to discharge employees on national security grounds. No decision of the Supreme Court or any other court supports this proposition.”
The dissenting opinion added: “The consequences of the majority’s decision will be profound.”