Proposed Rule Could Void Civil Service System for Most Federal Employees

by Dylan Blaylock on May 28, 2013

Today, the Government Accountability Project (GAP) criticized rules proposed by the Director of National Intelligence (DNI) and the Office of Personnel Management (OPM) that could rebrand virtually any federal government position as national security “sensitive,” and therefore outside the civil service system rule of law. Employees in positions that are deemed “sensitive” and relieved of their duties, as federal whistleblowers often are, would therefore have little recourse.

The proposed rules, released today, follow a Friday showdown at the U.S. Court of Appeals for the Federal Circuit, where the government pressed for a ruling that workers in “sensitive” jobs will not enjoy independent appeal rights to the Merit Systems Protection Board (MSPB) if they are deemed by their agency to be insufficiently trustworthy for a federal position.

GAP Legal Director Tom Devine, who prepared GAP’s amicus curiae brief to the Federal Circuit on the matter, commented:

“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 non-partisan since 1883. If the Obama administration succeeds, its legacy will be vulnerable to a national security spoils system controlled by the Director of National Intelligence.”

The roots of the dispute are a McCarthy-era Executive Order that established “sensitive” status as a prerequisite to apply for security clearances needed to review classified information as part of job duties. The rules were largely dormant until the George W. Bush administration, when a sustained campaign to apply them began that has intensified under President Obama. The DNI/OPM rules would give agencies absolute authority to designate jobs as “sensitive.” Once an agency designates a position as such, it could then remove the employee sans outside appeal or any review of the reasons for its action.

To illustrate the scope of the proposal, independent civil service rights would be removed from any position that:

  • involves public safety or law enforcement duties, including all positions at Offices of Inspectors General, and Department of Justice offices ranging from U.S. Attorneys to headquarters;
  • relates to the nation’s borders, immigration or customs system;
  • directly involves diplomatic relations and negotiations, such as those employed by the Foreign Service or working in embassies such as Benghazi;
  • involves Critical Infrastructure Information (CII) responsibilities (although in the Whistleblower Protection Enhancement Act passed late last year, Congress gave employees the right to publicly disclose unclassified CII information about government breakdowns);
  • or all “positions involving independent responsibility for planning or approving continuity of Government operations,” or potentially any government job with significant duties.

The proposed rule even goes further than the McCarthy-era boundary for sensitive positions, which only applied to employees eligible to request security clearances. The proposed rule encompasses nearly all federal positions, stating: “Positions not requiring eligibility for access to classified information, but having the potential to cause significant or serious damage to the national security.”

Devine put the proposal in perspective:

“President Obama’s actions in response to these proposed rules will be a litmus test of his promises about restoring a balance between national security and the values of a free society. This proposal to remove the civil service rule of law dates from the McCarthy-era of the 1950s, not merely post 9/11 fears.”

 

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