Last week, we reported that the Office of Personnel Management (“OPM”) won review and reversal of the decision by the Merit Systems Protection Board (“Board”) holding that the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), limits Board review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. The court found that “Egan, prohibits Board review of agency determinations concerning eligibility of an employee to occupy a “sensitive” position, regardless of whether the position requires access to classified information.”
This means that the only basis to challenge an Agency position sensitivity determination to MSPB is that the employee was not provided “due process” in the making of the Agency decision.
What’s the Big Deal?
If a Federal employee holds a position rated non-critical sensitive, critical or special sensitive and loses the ability to maintain that rating, he or she has no right to the adverse action procedures under law and regulation nor any right to appeal a removal or change to lower grade to MSPB.
The law and OPM Regulations establish strict procedures for suspending, removing and demoting most Federal employees other than political, temporary or probationary appointments. If you are eligible under these procedures, you have an automatic right to appeal such an action to MSPB. Not so with position sensitivity determinations.
If an Agency determines you no longer meet the requirements to hold a sensitive position, you are entitled to “due process” which means notice of the decision and an opportunity for review of the determination by the Agency office charged with making the final determination. If a final determination is made that an employee cannot hold a sensitive position, the Agency is free to terminate their employment. Some Agencies may have procedures under which they seek to place an individual in a non-sensitive position but there is no obligation to do so.
How Do You Find Out Your Position’s Sensitivity?
It’s likely stated on your position description (PD). If your Agency, like many others, uses OPM’s Optional Form (OF-8). Item 12 on the form will tell you whether your position is considered non-critical, non-critical sensitive, critical or special sensitive. If Block 2, 3 or 4 is checked, you’re covered by the court decision. If it’s not on your PD, your Human Resources Office can tell you.
What Standards Apply In Revoking a Clearance or Finding Someone Ineligible to Hold a Sensitive Position?
Each Agency has some discretion to set standards. The Department of Defense, on its website, lists the following “Personnel Security Standards” that may provoke an adverse determination:
- Involvement in activities which, or sympathetic association with persons who, unlawfully practice or advocate the overthrow or alteration of the U.S. Government by unconstitutional means.
- Foreign influence concerns or close personal association with foreign nationals or countries.
- Foreign citizenship (dual citizenship) or foreign monetary interests.
- Sexual behavior that is criminal or reflects a lack of judgment or discretion.
- Conduct involving questionable judgment, untrustworthiness, unreliability or unwillingness to comply with rules and regulations, or unwillingness to cooperate with security process.
- Unexplained affluence or excessive indebtedness.
- Alcohol or Illegal drug abuse.
- Illegal or improper drug use/involvement.
- Apparent mental, emotional or personality disorders(s).
- Criminal conduct.
- Noncompliance with security requirements.
- Engagement in outside activities which could cause a conflict of interest.
- Misuse of Information Technology Systems.
What is the Court Telling Us?
The decision we got on the issue is extremely clear in the Court’s conclusion:
“For the foregoing reasons, the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security. As OPM notes, “there is nothing talismanic about eligibility for access to classified information.” (OPM’s Br. 27). The core question is whether an agency determination concerns eligibility of an employee to occupy a sensitive position that implicates national security. When the answer to that question is in the affirmative, Egan applies and the Board plays a limited role in its review of the determination.”
The unmistakable inference here is that Agencies are bringing many actions to MSPB that need not go there. When an Agency determines that an employee is properly terminated for failure to maintain a clearance or a position sensitivity rating above non-critical, the law allows Agencies the freedom to act without regard to 5 USC Code 7501-7543.
For Agency Executives, managers, lawyers and HR staff, the case raises significant issues. Under the law and regulations currently addressing appealable adverse actions for cause, an Agency decision is subject to MSPB review which essentially is a second opinion. The Board does not know Agency operations and therefore whether an Agency prevails is often decided by how well a case is documented, presented, and understood by both an administrative judge and the Board. The Board was created to adjudicate cases under a complex and frequently changing standard of review not to make security determinations as so clearly said in Egan. As the composition of the Board changes, so do its decisions particularly with regard to the case that started all this. Assuming standards similar to those listed above, the court is obviously telling us that an Agency may unilaterally take an action if security is involved and if “due process” is afforded the person involved. That “due process” according to the courts consists of providing the individual notice of the fact of and reason for the proposed adverse security determination and an opportunity to respond.
Berry V. Conyers upsets longstanding apple carts and rice bowls. Agency adjudication staff are probably not sufficient to handle the potential increase in cases offered by this new development. HR and legal staffs are likely to be conservative in the application of the case as it shifts the locus of control from them to the adjudication function. Executives and managers should welcome this change and make needed organizational adjustments accordingly. I, for one, don’t think the new case will shorten the existing process substantially but that’s not the biggest impact. The major effect could be finality in the termination process previously unheard of in the Federal sector.
You know any case limiting employee appeal rights is a big deal because Federal employee advocates are all over it and similar cases. No appeals means no attorney fees at taxpayer expense. Of course, they could always offer pro bono services in the adjudication process to show their hearts are in the right place.
As always, any opinion you derive from the above is my responsibility. It is nice to know, however, that the Federal Circuit may really understand the serious difficulty involved in dealing with Federal employee problems and is encouraging the use of all available tools.
© 2016 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.