Supreme Court Declines Case Involving Due Process for Feds in 'Sensitive' Positions

The Supreme Court this week denied a hearing on a lower court decision that prevents federal employees in national security “sensitive” positions from appealing terminations or demotions, effectively allowing the ruling to stand.

The U.S. Court of Appeals for the Federal Circuit ruled in August that federal employees -- mostly at the Defense Department -- in sensitive positions had limited appeal rights with the Merit Systems Protection Board. The Supreme Court’s refusal to hear the case of a worker challenging the appeals court decision spells the end of the line for federal employee and whistleblower advocates, who have decried the decision as a blow to due process.

The decision opens approximately 200,000 federal employees whose jobs are deemed sensitive to unilateral terminations, according to the Office of Personnel Management, including those without security clearances or access to classified information.

The ruling has created a “one-two attack” against federal employees, according to the Government Accountability Project. OPM and the Office of the Director of National Intelligence proposed a rule in May 2013 that would expand the positions labeled as sensitive.

While OPM has denied any expansion and said the rule would simply offer clarification, GAP has said the new guidelines could “rebrand virtually any federal government position” as sensitive.

A Senate subcommittee held a hearing on the issue of sensitive positions in November, leading its chairman, Sen. Jon Tester, D-Mont., to introduce with bipartisan support a bill to ensure due process for employees in sensitive-designated jobs. The legislation has yet to move out of committee.  

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