Supreme Court Backs Federal Circuit Over MSPB on Position Sensitivity Cases

By on April 1, 2014 in Court Cases, Current Events with 4 Comments

On March 31, 2014, the Supreme Court denied review of the holding of the Federal Circuit reversing the Merit Systems Protection Board (the Board) on the issue of its jurisdiction in cases involving security clearances and position sensitivity.  In a simple denial of certiorari, the Court let stand the Federal Circuit’s landmark decisions in cases in which OPM challenged the Board’s holding. The Court decision embraced the idea that not only was a security clearance not appealable to the Board but neither was employee’s loss of the ability to hold a sensitive position rating.

What Does This Mean?

Let’s say an employee who, as part of their job, accesses a confidential financial or human resources database.  Because of that access, the employee’s job description and position requirements have position sensitivity of “sensitive” or even “non-critical sensitive”. Going further, the Agency, based on misconduct on the part of that employee, determines that the individual may no longer occupy that position due to the misconduct and removes or demotes the individual. Usually the demotion or removal would be appealable both on the merits and on the following of statutory and regulatory procedures. Under this decision, the only matter appealable to the Board is whether the Agency process used to determine the revocation of the “sensitive” rating on the job met due process standards.  In other words, the Agency rational for denying the rating and removing or demoting the employee is solely an Agency determination.

Why This Is A Big Deal

When the Civil Service Reform Act passed in 1978 creating the Board, OPM, and other Agencies, a stated purpose was the simplification of the disciplinary and performance process for managers while endorsing a fair system for employees.  Anyone, who would suggest the MSPB’s process is either fair or simple, would subject themselves to abject ridicule or perhaps a straightjacket. MSPB considers itself a high tribunal calling its hearing officers administrative judges perhaps purposely confusing them with Administrative Law Judges, a much higher bar to meet. Over the years its rulings and procedures have become more and more difficult to understand.  So difficult that the adjective Byzantine would be a clear understatement.

Much Greater Agency Authority

The ruling in this case puts a great deal of authority in the hands of Agency management to cut through all of the Board’s second guessing and deal effectively with those whose misconduct should jeopardize their jobs.  In essence, while the procedural aspects of an adverse action are still appealable, the merits of whether an individual may be removed from a position or demoted for an inability to hold a sensitive position is the sole determination of the Agency.  This decision applies across government, not merely in the Departments of Defense or Homeland Security.  Any employee who holds a sensitive position in any Agency is subject to this decision.

More to Come

I suspect that much will be written about this decision and Agencies capable of rising above bureaucratic impediments will take advantage of this new flexibility.  It would be nice if OPM would address the matter with guidance (hopefully accurate this time) to help Agencies ensure their processes are up to the challenges involved.

As always, if you discern an opinion above, it’s my responsibility alone.

OPM vs. MSPB

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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