Developments at OPM: On June 5, 2015, the U.S. Office of Personnel Management (OPM) and the Office of the Director of National Intelligence (ODNI) jointly published a Final Rule in the Federal Register (80 Fed.Reg. 32,244-32,265). The Final Rule implemented updated regulations for agencies to designate positions as “national security positions”–and potentially excluding affected positions from Merit Systems Protection Board (MSPB) appeal rights. The Final Rule is effective July 6, 2015.
At issue in the Final Rule was new regulations to standardize rules for agencies to designate civil service posts as “national security positions” requiring the employee to maintain their personal eligibility to hold the position. As previously analyzed in this blog, the courts in the Egan/Conyers line of cases have declared the merits of these sorts of eligibility determinations unreviewable on appeal at the MSPB. Egan/Conyers allows agency to effectuate a two-step removal with no opportunity for outside judicial review of the underlying rationale. The agency strips the employee’s eligibility status in an unreviewable agency decision, and then removes the employee for loss of eligibility status, leaving the employee with a near-useless appeal as the MSPB cannot review the underlying merits of that eligibility decision.
This Final Rule is the result of a rulemaking proceeding stretching back to 2010, with several rounds of proposed rules leading up to this Final Rule. The Final Rule does not modify the Egan/Conyers framework, but instead sets the rules for how agencies can designate positions as “national security positions” covered by Egan/Conyers even if the position doesn’t require a formal security clearance.
In response to comments, OPM and ODNI repeatedly emphasized that the Final Rule does not directly change existing adverse action procedures. OPM and ODNI rebuffed several comments who warned about the risks of Egan/Conyers circumvention of federal employees’ MSPB appeal rights–and in particular of the negative impact for whistleblower retaliation protections–either by characterizing the commenters’ circumvention arguments as “speculative” or by arguing the whistleblowers’ prohibited personnel practice claims could still be aired at the MSPB (without explaining how an employee could argue that the eligibility status decision was whistleblower reprisal under Egan/Conyers). OPM and ODNI further noted that agencies already have extremely broad discretion to designate “national security positions,” and that the Final Rule allegedly does not further expand that discretion.
OPM and ODNI also repeatedly claimed that abusive over-designation of “national security positions” would be limited by the Final Rule’s requirement for a position-by-position designation as a “national security position” (as opposed to an agency issuing a single blanket declaration that all of its positions were “national security positions”) and by providing an allegedly more detailed definition of what qualifies as a “national security position.”
The Final Rule further requires all “national security positions” to be subject to 5 year reinvestigation, but attempts to streamline the process through focusing the reinvestigation process on just new information that arose after the last investigation. OPM and ODNI gave agencies 24 months to fully assess which positions ought to be designated as “national security positions”–despite comment agencies’ pleas for additional time and warnings about lack of resources for additional investigations. Given the recent cyber intrusion into OPM background investigation records as well as press reports of other continuing problems with OPM’s background investigation system, the effects of adding extra investigations of “national security positions” into the system are unclear.