Examining the Administration's Treatment of Whistleblowers

9/09/2014

U.S. House Oversight and Government Reform Committee - Federal Workforce Subcommittee

Chairman Farenthold and Ranking Member Lynch: Thank you for giving the National Treasury Employees Union the opportunity to weigh in on one of the most important issues facing not just whistleblowers in the government, but a much larger segment of the federal workforce as well. As National President of NTEU, I represent over 150,000 employees in 31 agencies across government. Many of my members are in positions deemed “sensitive” by their agencies, and we are greatly concerned about the process used to make that designation and by the recent court ruling that threatens any review of agency decisions concerning the eligibility of employees to occupy “sensitive” positions. I am writing to ask this subcommittee’s help in passing HR 3278, introduced by Rep. Norton, which will amend chapter 77 of title 5 to clarify certain due process rights of federal employees serving in “sensitive” positions.

HR. 3278 is necessary because in August 2013, the U. S. Court of Appeals for the Federal Circuit released its decision in Kaplan v. Conyers. In March 2014, the Supreme Court denied a request to review the Federal Circuit decision. The Federal Circuit Court ruled that the Merit Systems Protection Board (MSPB) could not engage in substantive review of Department of Defense (DoD) decisions concerning the eligibility of employees to occupy “sensitive” positions, even though the MSPB had been capably doing so for decades. While the decision was technically limited to DoD, its broad reasoning will almost certainly be extended to all agencies.

The ruling greatly expanded an earlier case (Egan) that held that the MSPB could not review agency security clearance determinations. We are not objecting to the Egan ruling. The positions at issue in Conyers and in HR 3278, do not involve security clearances or access to classified information.

The executive branch currently has unlimited discretion to designate positions as “sensitive”. There is no monitoring or reporting of how agencies arrive at this decision and each agency can create its own guidelines. Indeed, there appears to be a great deal of inconsistency in how the determinations are made. In recent years, many agencies have designated huge numbers of employees as “sensitive”.

At Customs and Border Protection, for example, almost all of the roughly 24,000 bargaining unit positions represented by NTEU have been designated as “noncritical-sensitive”, but only a small fraction require security clearances.

By allowing agencies to take unreviewable adverse actions against occupants of “sensitive” positions on the basis of eligibility, the Conyers decision provides incentives for agencies to continue to expand the number of positions designated as “sensitive” and to use eligibility as the basis for adverse actions since neither is subject to review. Once an agency has designated an employee as “sensitive”, it can then deem that employee ineligible for his or her job.

Under Conyers, the MSPB cannot review the agency’s reason for deeming an employee ineligible for a sensitive position. Without any review or oversight of its basis, an agency is free to deem an employee ineligible for any reason that it chooses. Some bases might be tangentially related to security (financial debt, for example, which, in an agency’s eyes, might make an employee susceptible to coercion), but, without neutral review, there is nothing to stop an agency from deeming an employee ineligible for any reason—even a reason based on incorrect or incomplete information. Ms. Conyers, the named defendant in the case, was deemed ineligible based on inaccurate information about financial debt (debt that was her husband’s). Importantly, without any neutral review, there is nothing to stop an agency from representing that an employee is ineligible for security reasons, even though the actual reason for the determination of ineligible is something more nefarious—for example, a discriminatory motive or a personal dislike of an employee who is capably performing her duties. Whistleblowers are particularly at risk since those that would retaliate would also likely afford themselves of a process that is not reviewable.

The Civil Service Reform Act sets out narrow national security exemptions to the adverse action appeals processes included in the law. The court’s decision in an earlier case (Egan) held that the MSPB could not review agency security clearance determinations. However, the positions at issue in Conyers do not involve security clearances or access to classified information. The Conyers decision creates an exemption that swallows the rule, leaving hundreds of thousands of employees with little practical ability to ensure that adverse actions taken against them are legally appropriate. In essence, the Conyers decision allows the executive branch to ignore the Civil Service Reform Act. If the MSPB is not able to review eligibility determinations, agencies can remove, suspend, or demote any employee they deem “ineligible” without ever having to justify the basis for their determination.

We believe that Congress must take the lead on this important issue, and Rep. Norton’s legislation will correct the loss of MSPB review for thousands of federal employees. We believe the bill is a sensible solution that balances national security and due process interests. We urge you to schedule a mark-up of the bill at your earliest convenience. Thank you for the opportunity to provide these comments on this important topic.