The Department of Defense has free rein to fire 200,000 employees for any or no reason. And these employees can get no relief – even if they are whistleblowers being terminated for exposing waste, fraud, and abuse. If this sounds horrible, it is. That’s why AFGE is urging Congress to pass a bill that has just been introduced in the House to protect federal employees’ rights.
House Del. Eleanor Holmes Norton, D-D.C., has reintroduced a bill, H.R. 5560, that would restore an independent review of agency decisions to remove workers who are designated in ‘noncritical sensitive positions’ but do not work on classified matters. These due process rights were stripped away in 2013 by the U.S. Court of Appeals for the Federal Circuit in Kaplan v. Conyers and MSPB.
“Stripping employees whose work does not involve classified matters of the right of review of an agency decision that removes them from their jobs opens entirely new avenues for unreviewable, arbitrary action or retaliation by an agency head and, in addition, makes a mockery of whistleblower protections enacted in the 112th Congress,” Norton said in a statement. “Our bill would stop the use of ‘national security’ to repeal a vital component of civil service protection and of due process.”
Rhonda Conyers was an accounting technician for the Defense Finance and Accounting Service (DFAS). Devon Northover was a commissary worker whose job was to stock shelves and check inventory. Even though their jobs were designated “noncritical sensitive,” they were never required to hold security clearances and their jobs did not require them to access classified information.
In 2009, DoD indefinitely suspended and later fired Conyers and demoted Northover after it determined that they were not eligible to occupy a sensitive position because of financial considerations, i.e., debt. They each appealed to the MSPB, where AFGE represented them. Unsurprisingly, AFGE won. The MSPB held not only that it had jurisdiction to hear the appeals, but also that it had the power, as it does in every other case, to review the merits of DoD's eligibility determinations for these two long-term employees. The MSPB overturned DoD's action in each case.
DoD, however, wasn't done. Along with OPM, DoD appealed the MSPB’s decision to the United States Court of Appeals for the Federal Circuit. In Kaplan v. Conyers, the court reversed the MSPB and ruled that neither the MSPB nor an arbitrator may review the merits of an agency’s eligibility determination. This was a big change, and an expansion of an earlier Supreme Court ruling, Egan, that created a narrow exception which limited the scope of review only in security clearance cases.
The Federal Circuit's ruling means that those hundreds of thousands of employees who occupy sensitive positions, many of them at DoD, may be subject to removal at the whim of their agencies, while they are also completely deprived of any real way to challenge their removals.
The court’s action will almost certainly discourage whistleblowers who occupy sensitive positions from stepping forward for fear of retaliation, knowing that they have no chance of a genuine and objective review of an agency's adverse action.
“This 2013 court decision, in Kaplan v. Conyers, must be overturned to ensure all federal employees have the right to third-party review of agency actions that could cost them their jobs,” said AFGE National Secretary-Treasurer Everett Kelley. “Thankfully, Rep. Norton has the right solution. I urge lawmakers to move swiftly to enact this important legislation and stop this egregious violation of law and basic employee protections.”