Federal Court Limits Appeal Rights for Feds in 'Sensitive' Positions

“Due process rights are the very foundation of our civil service system,” AFGE President J. David Cox said in a statement. “Due process rights are the very foundation of our civil service system,” AFGE President J. David Cox said in a statement. AFGE

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.”

Stay up-to-date with federal news alerts and analysis — Sign up for GovExec's email newsletters.
FROM OUR SPONSORS
JOIN THE DISCUSSION
Close [ x ] More from GovExec
 
 

Thank you for subscribing to newsletters from GovExec.com.
We think these reports might interest you:

  • Sponsored by G Suite

    Cross-Agency Teamwork, Anytime and Anywhere

    Dan McCrae, director of IT service delivery division, National Oceanic and Atmospheric Administration (NOAA)

    Download
  • Data-Centric Security vs. Database-Level Security

    Database-level encryption had its origins in the 1990s and early 2000s in response to very basic risks which largely revolved around the theft of servers, backup tapes and other physical-layer assets. As noted in Verizon’s 2014, Data Breach Investigations Report (DBIR)1, threats today are far more advanced and dangerous.

    Download
  • Federal IT Applications: Assessing Government's Core Drivers

    In order to better understand the current state of external and internal-facing agency workplace applications, Government Business Council (GBC) and Riverbed undertook an in-depth research study of federal employees. Overall, survey findings indicate that federal IT applications still face a gamut of challenges with regard to quality, reliability, and performance management.

    Download
  • PIV- I And Multifactor Authentication: The Best Defense for Federal Government Contractors

    This white paper explores NIST SP 800-171 and why compliance is critical to federal government contractors, especially those that work with the Department of Defense, as well as how leveraging PIV-I credentialing with multifactor authentication can be used as a defense against cyberattacks

    Download
  • Toward A More Innovative Government

    This research study aims to understand how state and local leaders regard their agency’s innovation efforts and what they are doing to overcome the challenges they face in successfully implementing these efforts.

    Download
  • From Volume to Value: UK’s NHS Digital Provides U.S. Healthcare Agencies A Roadmap For Value-Based Payment Models

    The U.S. healthcare industry is rapidly moving away from traditional fee-for-service models and towards value-based purchasing that reimburses physicians for quality of care in place of frequency of care.

    Download
  • GBC Flash Poll: Is Your Agency Safe?

    Federal leaders weigh in on the state of information security

    Download

When you download a report, your information may be shared with the underwriters of that document.