Meet the 'Firing Squad’

The Department of Defense has been given free rein to fire hundreds of thousands of 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. 

This ‘fire-as-you-go’ practice is set to be a government-wide problem. 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.   

Okay, what happened again?     

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.   

The court’s decision makes a mockery of whistleblower protections enacted by Congress a few years ago.   

Is there a way to stop this?   

Yes. Congresswoman Eleanor Holmes Norton of D.C. and Congressman Rob Wittman of Virginia have introduced a bill that would overturn the court’s decision and restore the employees’ rights.   

AFGE fully supports this important piece of legislation.  

“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 President J. David Cox Sr. “Thankfully, bipartisan legislation to restore these basic due process rights has been introduced in the House. I urge lawmakers to move swiftly to enact this important legislation and stop this egregious violation of law and basic employee protections.”

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