The following statement is from Government Accountability Project (GAP) Legal Director Tom Devine regarding the introduction of S. 1809, legislation aimed at restoring due process rights for federal employees whose jobs are deemed national security "sensitive:"
Taxpayers of all parties and ideologies should rally behind bipartisan legislation introduced in both chambers of Congress to restore independent enforcement for civil service appeal rights of federal workers. Last Friday, Senator Jon Tester introduced S. 1809, with co-sponsors Charles Grassley (R-Iowa) and Claire McCaskill (D-Mo). This initiative is the culmination of bipartisan action launched in August by Rep. Eleanor Holmes Norton (D-DC). Both chambers have now counterattacked actions by the Obama administration and Federal Circuit Court of Appeals to remove independent due process enforcement for civil service appeals through a potentially all-encompassing national security loophole.
The legislation is simple: When fired or charged with misconduct, it restores the right that existed for all federal employees from 1883-2012 to a day in court before an administrative board that is independent of the agency trying to remove them. Since 1978 that independent body has been the U.S. Merit Systems Protection Board. The legislation would restore this due process cornerstone for "sensitive employees," a McCarthy-era job designation that was a prerequisite to apply for a security clearance. Through proposed rules and successful litigation at the Federal Circuit Court of Appeals, both the Bush and Obama administrations paved the way to: 1) permit agencies to designate virtually any federal job as sensitive, 2) give agencies unchecked discretion to deny or remove that status at will, 3) terminate employees for "misconduct" per se if they lose their sensitive designations, and 4) deny them any independent right to defend themselves.
The stakes could not be higher or timelier for a congressional counterattack. Unless this legislation passes, a national security "spoils system" will replace the non-partisan, professional federal labor force that has minimized politics in government since 1883. It also is necessary to preserve justice for federal employees. If an agency fires an employee, it must defend its actions under a host of laws, including the Civil Service Reform Act, the Whistleblower Protection Act, and Equal Employment Opportunity laws prohibiting discrimination on the basis of race, sex, religion, age or physical disability. If the agency says the worker is "ineligible for a sensitive job," all those rights turn into a soap bubble. The worker is defenseless. As in a Kafka novel, the individual is not even entitled to know why.
This legislation is also necessary to preserve Congress' unanimous 2012 mandate for the Whistleblower Protection Enhancement Act, enacted due to hostile Federal Circuit activism creating judicial loopholes that gutted statutory free speech rights. In fact, the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce, rendering ineffective all federal laws that prevent the two million federal employee workforce from becoming a national security spoils system.
Unless Congress enacts the newly introduced legislation, federal employees will only have two choices: be national security 'yes people,' or leave. A bureaucracy where it is only legally safe to be a national security 'yes man' is a clear and present danger to freedom for all Americans.
See GAP's friend of the court brief in litigation related to the sensitive jobs loophole.
See GAP's public comment on proposed administration rules permitting virtually any employee to be designated sensitive.
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.