WASHINGTON – Hundreds of thousands of federal employees could lose their right to a third-party review of agency actions that could cost them their jobs if a recent court ruling and proposed regulations are allowed to stand, the American Federation of Government Employees said today.
At issue is the designation of positions as national security sensitive. Employees in these positions are not required to hold security clearances and do not have access to classified information. However, the recent decision by the U.S. Court of Appeals for the Federal Circuit in Kaplan v. Conyers expands a narrow exemption that limits Merit Systems Protection Board review of security clearance determinations to cover agency determinations for sensitive positions.
“In other words, an agency may now designate any position, no matter how absurd, as a national security position,” AFGE General Counsel David Borer testified today before the Senate Homeland Security and Governmental Affairs Subcommittee on the Efficiency and Effectiveness of Federal Programs and the Federal Workforce.
“An agency may then go on to find an employee ineligible to occupy that position for any reason, including an invidious or illegal reason, and at the same time shield its action entirely from third-party review by the MSPB.”
Compounding the court’s decision, a proposed rule issued jointly by the Office of Personnel Management and the Office of the Director of National Intelligence would enable agencies to vastly expand the positions designated as national security sensitive. The proposed regulations are so broad that the Department of Defense could designate every civilian employee as sensitive, Borer said.
“If both Conyers and the proposed regulations are allowed to stand, the likely result will be that Executive branch agencies will have the unchecked power to deprive hundreds of thousands of employees of the protections and rights that Congress gave them in the CSRA (Civil Service Reform Act of 1978),” Borer said.
To counter this loss of due process rights, Delegate Eleanor Holmes Norton introduced HR 3278 to clarify that workers or applicants are entitled to be heard by the MSPB, even if it implicates a sensitive position determination. AFGE strongly urges introduction of a companion bill in the Senate with the bipartisan support shown in the House.