Proposals Would Broaden Sensitive Positions and Change Appeal Rights

The Obama administration has proposed a rule to expand the definition of federal positions designated as “sensitive,” causing backlash among whistleblower advocates who say the change will deny rights to those who speak out against bad governance.

The Office of Personnel Management and Office of the Director of National Intelligence issued the rule to clarify which civil service jobs are considered national security positions. That designation would be expanded to include positions that are labeled sensitive but filled by employees who do not have access to classified information. The Government Accountability Project criticized the proposal, saying the guidelines could “rebrand virtually any federal government position” as sensitive.

The result, GAP explained, would strip many employees of the rule of law currently provided under the civil service system, which does not extend appeal rights to employees in sensitive jobs. It would eliminate recourse for federal workers who are fired or demoted -- including whistleblowers -- if they are deemed to have a national security role.

Administration officials say they are not expanding the number of sensitive positions, but merely adding clarity.

“The current regulations governing the designation of national security sensitive positions are now 20 years old and provide only general guidance,” OPM and ODNI officials said in a joint statement to Government Executive. “The new regulations will clarify the requirements and procedures agencies should follow when designating national security positions by providing more detail and concrete examples. This regulation is not intended to increase the number of positions designated as national security sensitive or to affect the rights of employees.”

Specifically, the rule calls for the sensitive designation for positions “not requiring eligibility for access to classified information, but having the potential to cause significant or serious damage to the national security."

It also places the national security label on overarching titles, such as “positions involving independent responsibility for planning or approving continuity of government operations” and “senior management positions in key programs.”

The administration is simultaneously fighting in federal court to protect a separate rule that would restrict options for workers in sensitive positions who are relieved of duty, including the right to appeal to the Merit Systems Protection Board. The U.S. Court of Appeals for the Federal Circuit heard the case Friday, and a decision is still forthcoming. GAP submitted an amicus brief, saying “only Congress has authority for this fundamental structural change.”

Tom Devine, GAP’s legal director, said in a statement that the proposed rules would reverse 130 years of federal employee protections.

“Combined with litigation, this is the latter of a one-two attack against the civil service rule of law that has kept the federal labor force professional and nonpartisan since 1883,” Devine said. “If the Obama administration succeeds, its legacy will be vulnerable to a national security spoils system controlled by the Director of National Intelligence."

Devine said often whistleblowers are the victims of adverse actions at work and would be particularly vulnerable should these rules go into effect.

The proposals also have faced bipartisan criticism in Congress.

“Providing agencies with complete discretion to strip federal workers of whistleblower and other civil service protections would undermine congressional intent and would be patently unjust,” Rep. Elijah Cummings, D-Md., ranking member of the House Oversight and Government Reform Committee, told Politico in April.

At the court proceedings Friday, a Justice Department lawyer estimated about a quarter of the nearly 800,000 Defense Department employees -- and an unknown number at other agencies -- are in “noncritical, sensitive positions.”

The Office of Special Counsel, the independent agency tasked with protecting whistleblowers, also submitted an amicus brief with the court. “A sweeping extension of this narrow exception to all sensitive positions, even those that do not require access to classified information, would endanger the rights of federal employees,” OSC wrote.

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

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

  • Forecasting Cloud's Future

    Conversations with Federal, State, and Local Technology Leaders on Cloud-Driven Digital Transformation

  • The Big Data Campaign Trail

    With everyone so focused on security following recent breaches at federal, state and local government and education institutions, there has been little emphasis on the need for better operations. This report breaks down some of the biggest operational challenges in IT management and provides insight into how agencies and leaders can successfully solve some of the biggest lingering government IT issues.

  • Communicating Innovation in Federal Government

    Federal Government spending on ‘obsolete technology’ continues to increase. Supporting the twin pillars of improved digital service delivery for citizens on the one hand, and the increasingly optimized and flexible working practices for federal employees on the other, are neither easy nor inexpensive tasks. This whitepaper explores how federal agencies can leverage the value of existing agency technology assets while offering IT leaders the ability to implement the kind of employee productivity, citizen service improvements and security demanded by federal oversight.

  • IT Transformation Trends: Flash Storage as a Strategic IT Asset

    MIT Technology Review: Flash Storage As a Strategic IT Asset For the first time in decades, IT leaders now consider all-flash storage as a strategic IT asset. IT has become a new operating model that enables self-service with high performance, density and resiliency. It also offers the self-service agility of the public cloud combined with the security, performance, and cost-effectiveness of a private cloud. Download this MIT Technology Review paper to learn more about how all-flash storage is transforming the data center.

  • Ongoing Efforts in Veterans Health Care Modernization

    This report discusses the current state of veterans health care


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