Why 200,000+ federal employees have limited due process rights

| Jan 13, 2020 | Employee Rights

Normally, when federal employees are disciplined, they can take their case to the Merit Systems Protection Board (MSPB). The MSPB listens to an employee’s claim, weighs it against the agency’s argument and then offers a decision. It’s a step to make sure federal employees are treated fairly. But many employees have long been denied the chance to take their cases to the MSPB.

Over 200,000 employees in the Department of Defense may currently be denied this right in the interests of “national security.” This is the case even for employees whose positions are designated noncritical sensitive.

Seven years later, is it time for a change?

The discrepancy between the DoD and other federal agencies owes to a 2013 federal court ruling. Kaplan v. Conyers, the United States Court of Appeals, Federal Circuit said the MSPB:

cannot review the merits of DoD national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.

This opinion owed largely to a Supreme Court ruling that limited the MSPB’s role in cases with national security concerns. However, the federal court’s 2013 decision surprised many with its interpretation of what was “sensitive.”

The Supreme Court’s limits for the MSPB had focused largely on the issue of security clearance. Still, the federal court held there was “nothing talismanic” about security clearances. In doing so, the federal court said the MSPB had no grounds to hear the cases for anyone whom the DoD claims has a national security interest. Or as one of the dissenting Circuit Judges noted:

The effect is to effectively deny MSPB reviews for hundreds of thousands of federal employeesa number that is likely to increase as more positions are designated as non-critical sensitive.

Now, nearly seven years later, this decision still serves as precedent. But members of the House have introduced a bill aimed at granting MSPB reviews and due process rights to DoD employees whose jobs don’t involve classified information.

If the bill becomes law, the Congresswoman who introduced it says it would add greater transparency. More employees would be able to challenge unfair punishments and retaliatory actions. However, as FedSmith noted, similar legislation has been introduced three other times. It’s not clear that anything has changed to give this bill a better chance.

A hearing is just the first step

Of course, even if the bill becomes law, DoD employees will still need to present their cases. It’s a safe bet that the DoD’s lawyers will be ready to support the disciplinary actions. Employees will need to offer compelling arguments. But if they get the chance, it’s more than they have now.

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