5 USC § 7532 Actions Based on National Security

The Trump Administration, through Executive Order 14251, expanded the application of "national security concerns" to various federal agencies and employees not previously classified, and not currently provable, as engaging in such "national security" activities. This expansion was intended to unlawfully exclude these agencies from federal labor-management relations programs at 5 USC § Chapter 71. In other words, to ban federal labor unions when he otherwise had no legitimate basis. The Executive Order is currently facing significant legal challenges, and the General Counsel in affected agencies anticipates, and openly admits, they expect these challenges to be successful. In fact, many agency labor relations personnel have begun preparing for this eventuality. There are a number of reasons for this expectation, the least of which is that no one actually believes food service workers or nurses at the Department of Veterans Affairs have a "primary function" of intelligence, investigative, or national security work. The assertion that they do have such a function is absurd both on its face and in substance and a subject of frequent joking within agencies amongst career subject matter experts who believe the Trump Administration has proven incompetent. The same argument can be made concerning other affected agencies and employees such as, but not limited to, the Bureau of Land Management, Bureau of Ocean Energy Management, the General Services Administration, and so on.

Recent Uses of 5 USC § 7532 (Charlie Kirk)

Important Background

Before we proceed further, we must acknowledge that agencies, whether engaged in legitimate national security functions or not, have proposed and, in some cases, already decided on 7532 actions affecting employees clearly not involved in national security work. If you are one of these employees, you should immediately seek legal counsel or request a free consultation from our team. You are not without recourse and the agency strategy is to literally just hope you do not appeal. The typical recent scenario involves unfavorable social media comments made about Charlie Kirk by federal employees while these employees were off duty and not using agency equipment. In each case, the agency failed to establish a connection (nexus) between the comments and employment. The Trump administration specifically sought to silence these employees for such comments. These personnel actions originated at the very top of the relevant agencies (reportedly often at the instruction of staff from the White House itself), while disciplinary actions, including terminations, typically originate at the lowest levels of the organization.

In essence, the Trump Administration was intentionally misapplying 5 § USC 7532 to infringe upon, and chill, the First Amendment rights of federal employees in an effort to control the narrative surrounding Charlie Kirk's tragic death and his provable reputation as a politically polarizing figure who advocated for racism and political violence. They do not want their false narrative challenged. They want to monetize him and make him a martyr.

What are Title 5 USC § 7532 Actions?

In the context of federal employment law, Title 5 USC 7532 actions are euphemistically referred to as the "nuclear option." While most federal employees are familiar with standard disciplinary procedures under Chapter 75 (for misconduct) or Chapter 43 (for performance), USC 7532 provides agency heads with a powerful, summary authority (think summary execution): the right to suspend and remove an employee indefinitely if it is deemed (even unilaterally, arbitrarily, and erroneously) "necessary in the interests of national security." By law, it can only be applied in the "interests of national security". However, we are seeing an expansion of this claim in what can only be characterized as "significant misuse" for political reasons by a criminally corrupt and ethically bankrupt administration. Anything that can negatively affect Trump is now classified as "national security"; even a GS-5 federal employee who is a coder "liking" a post on facebook commenting negatively about the the current administration. Specifically, under the orders of the White House, federal agencies are using 7532 claims as pretext to infringe upon, and chill, the free speech rights of federal employees.

Unlike standard terminations, which require the agency to prove that the removal promotes the "efficiency of the service," a 7532 action focuses entirely on whether, in the sole opinion of the employer, the employee’s retention poses a risk to national security. Historically reserved for intelligence agencies or security clearance holders (think CIA, NSA, etc. for good reason), recent shifts in administrative personnel policy indicate this statute will see broader application across the federal workforce as the Trump Administration seeks to infringe upon, and chill, the right to free speech of federal federal employees. For additional context, remember the illegal Executive Order signed by Trump that made burning the U.S. flag punishable by one year in prison. That did not work out so well and ended up just another embarrassing failure of the Administration.

The Impact of Executive Order 14251

Executive Order 14251, titled "Exclusions from Federal Labor-Management Relations Programs," has fundamentally altered the landscape for federal employees. By designating a wide array of agencies and subdivisions as having a "primary function" of intelligence, investigative, or national security work, this Order effectively strips affected employees of collective bargaining rights in federal agencies that once had an obligation to bargain under the Federal Services Labor Management Relations Statute at 5 USC § Ch. 71.

However, the implications extend far beyond union representation:

• Expansion of "National Security" Definitions: By legally reclassifying administrative or regulatory agencies as "national security" entities to satisfy EO 14251, the administration creates a legal foothold to apply 5 USC 7532 to employees who were previously considered low-risk civil servants.

• Bypassing Traditional Protections: Once an agency is categorized under the national security umbrella, the justification for using the summary dismissal powers of 7532 strengthens. This allows agencies to bypass the Merit Systems Protection Board (MSPB) for the merits of a removal, leaving employees with fewer avenues for defense.

Limitations Imposed by 5 USC 7531

While USC 7532 grants broad power, it is technically limited by 5 USC 7531, which defines exactly which agencies can use this authority.

1. Statutory Agencies: The Department of Defense, Department of State, Department of Justice, and specific intelligence bodies are explicitly listed.

2. Presidential Designation: Crucially, 5 USC 7531(9) allows the President to designate "such other agency of the Government... in the best interests of national security." Arguably, Trump did this through EO 14251.

The Limitation: An agency head cannot unilaterally decide to use 7532; the agency must be listed in 7531 or designated by the President. The Implication: Executive Order 14251 serves as a de facto signaling mechanism. If the President has already deemed an agency "security-focused" for the purpose of removing union rights, a follow-up designation adding them to the 7531 list is a logical, and legally legally plausible, next step.

Case Study: The "Unbecoming" Social Media Post (Free Speech)

To understand the real-world risk, consider the hypothetical case of "Alex," a GS-12 Program Analyst at a mid-level federal agency recently impacted by EO 14251.

• The Scenario: While off-duty and using a personal smartphone, Alex posts a comment on "X" (formerly Twitter) criticizing a new federal policy. The post uses harsh rhetoric but does not reveal classified information, threaten violence, or identify Alex as a federal employee.

• The Agency's Reaction: Instead of pursuing a standard "conduct unbecoming" charge (which Alex could appeal to the MSPB), the agency head determines that Alex’s rhetoric demonstrates "poor judgment" and "lack of trustworthiness."

• The Action: Citing the expanded national security mandate, the agency invokes 5 USC 7532. They argue that Alex’s ideological opposition to the agency's mission renders them a "security risk." Alex is placed on indefinite suspension without pay immediately.

Because the agency used 7532 rather than 7513, Alex’s defense is severely handicapped. The agency does not need to prove the post disrupted the workplace—only that Alex is no longer trusted. And in the Trump Administration "trust" is a maleable concept hinged on your political ideaology. A significant departure from the past.

Appeal Rights Under 5 USC 7532

If suspended under this statute, Alex’s appeal rights are significantly different from the standard civil service process:

1. Written Statement of Charges: Alex must receive a statement of charges within 30 days of the suspension.

2. Response Window: Alex has 30 days to answer the charges and submit affidavits.

3. Agency Hearing: At Alex's request, a hearing is granted—but it is conducted by an authority appointed by the agency head, not an independent judge.

4. Final Review: The case is reviewed by the head of the agency. The decision of the agency head is final.

Crucial Note: There is generally no right to appeal the merits of a security determination to the MSPB. The Board can review whether the agency followed the procedures of 7532, but it cannot second-guess the agency head's judgment that Alex, in this example, is a security risk (see Department of the Navy v. Egan). This is not to say that this action has no actionable appeal route. Depending on the facts and circumstances, this action could still be appealed to the Merit Systems Protection Board (MSPB), the Equal Employment Opportunity Commission (EEOC), or the Office of Special Counsel (OSC). Each forum would have a different basis of appeal and such an appeal must be surgical.

Legal Precedent and Analysis (Charlie Kirk Scenario)

Pickering v. Board of Education (1968)

In standard conduct cases, the Pickering Balancing Test applies. The court weighs the employee's right to speak on matters of "public concern" against the government's interest in "promoting the efficiency of the public service."

• Application: Normally, Alex’s post would be protected if it didn't disrupt operations. However, when the government invokes National Security (7532), the courts often defer to the Executive Branch, bypassing the Pickering analysis entirely in favor of security clearance discretion. However, case law has not developed on this point yet.

Department of the Navy v. Egan (1988)

This Supreme Court ruling is the shield agencies use against appeals. The Court held that the MSPB does not have the authority to review the substance of a security clearance denial. If the agency frames Alex's removal as a revocation of "eligibility to occupy a sensitive position," the MSPB typically lacks jurisdiction to intervene. The employee would need to challenge the legitimacy of the designation.

Cole v. Young (1956)

This is the employee's best legal hope. In Cole, the Supreme Court ruled that 7532 could only be applied to employees in "sensitive" positions".

• Modern Conflict: If the administration uses EO 14251 to classify all roles in an agency as "sensitive," they attempt to override the protection Cole provided. This may be critical argument concerning, for example, food service worlers, nurses, and janitorial staff in the Department of Veterans Affairs.

Applicable Legal Citations

• 5 USC § 7532: Suspension and removal (National Security).

• 5 USC § 7531: Definitions (Agencies covered).

• Executive Order 14251: Exclusions from Federal Labor-Management Relations Programs.

• Pickering v. Board of Education, 391 U.S. 563 (1968): Free speech rights of public employees.

• Department of the Navy v. Egan, 484 U.S. 518 (1988): Limitation of MSPB review on security determinations.

• Cole v. Young, 351 U.S. 536 (1956): Limitation of 7532 to sensitive positions.

5 USC § 7532 Internal Appeal Procedures

As previously indicated, Title 5 USC 7532 is a summary dismissal statute distinct from standard civil service laws. Unlike standard terminations ("adverse actions" under 5 USC 7513), which require the agency to prove that discipline "promotes the efficiency of the service," Section 7532 allows for suspension and removal solely because it is allegedly "necessary in the interests of national security."

If an employee is suspended under this statute, their procedural rights are limited to the following steps:

1. Written Statement of Charges: The employee must receive a written statement of charges within 30 days of the suspension.

   
   

2. Opportunity to Answer: The employee has 30 days to submit a written answer and affidavits to show why they should be restored to duty.

   
   

3. Agency Hearing: At the employee's request, they are entitled to a hearing by an authority appointed by the agency head.

   
   

4. Final Review: The case is reviewed by the agency head, whose decision is final.

   
   

Crucial Limitation: Section 7532 actions are (generally) not appealable to the Merit Systems Protection Board (MSPB) for a review of the actual merits of the security determination. The Supreme Court ruling in Department of the Navy v. Egan establishes that outside bodies (like the MSPB) generally cannot second-guess the Executive Branch's judgment on who is trusted with national security.

However, employees can see a Procedural Review Exception: The only argument an employee can make to the MSPB is that the agency failed to follow the specific procedures required by § 7532 (e.g., they didn't give you the 30-day notice or the agency hearing). However, if the agency followed the procedural checklist in the statute, the MSPB cannot review the reason for the suspension.

The Office of Special Counsel (OSC) Angle

The OSC generally cannot intervene to stay or overturn a Section 7532 action because the statute operates "notwithstanding other statutes".

• Whistleblower Retaliation: If you believe the Section 7532 designation is a pretext to retaliate against you for whistleblowing, you can file a complaint with the OSC. However, OSC's ability to investigate is hampered in national security cases. They typically cannot re-adjudicate the security concern itself.

  
  

• PPD-19: If the suspension is retaliatory and involves your security clearance, your remedy is possibly an internal review within the agency or the Intelligence Community Inspector General (ICIG) under Presidential Policy Directive 19 (PPD-19), rather than a standard OSC/MSPB whistleblower appeal.

Applicable Case Law & Precedents

Because standard MSPB appeals are generally blocked, the employee's defense relies on specific judicial precedents such as:

• Cole v. Young (1956): The Supreme Court held that 5 USC 7532 applies only to employees in "sensitive" positions.

  • Relevance: If the employee is a policy analyst, scientist, or HR specialist not dealing with classified info, this is the primary shield. However, Executive Order 14251 likely attempts to bypass this by legally redefining these roles as "sensitive" or "national security" positions.

• Webster v. Doe (1988): While courts cannot review the merits of a security clearance revocation, this case established that federal district courts retain jurisdiction over constitutional claims. You will require specialized legal counsel to bring such a claim.

  • Relevance: An employee cannot sue because the agency "made a mistake" about their trustworthiness. They can sue if the revocation was a pretext to violate the First Amendment.

    
    

• Pickering v. Board of Education (1968): This establishes the balancing test for public employee speech. The court weighs the employee’s right to speak on "matters of public concern" against the government's interest in efficiency.

  • Relevance: In a 7532 context, the government will argue that "national security" outweighs almost all free speech interests. The employee must prove the speech (social media post for example) had no nexus to their ability to keep secrets or perform their duties.

Potential Arguments for the Appeal

In the written answer and agency hearing, the employee should focus on these three arguments:

1. The "Cole v. Young" Defense (Statutory Argument)

• Argument: Despite the Executive Order, the position is not actually sensitive in a way that implicates national security. The employee should argue that their daily duties do not involve classified information or sensitive intelligence.

• Legal Hook: "National security" in 5 USC 7532 was intended by Congress to refer to the safety of the nation (from foreign aggression, espionage), not general "government efficiency" or political loyalty.

2. Lack of Nexus (Factual Argument)

• Argument: There is no rational connection ("nexus") between the off-duty social media post and the ability to protect classified information.

• Detail: If the post criticized a policy (e.g., "This new trade deal is a disaster"), that is a difference of opinion, not a security risk. The employee should argue that they have a long record of protecting sensitive data and that political disagreement does not equal untrustworthiness.

3. The "Webster" Warning (Constitutional Argument)

• Argument: The suspension constitutes retaliation for protected First Amendment speech.

• Strategy: By explicitly raising the First Amendment in the internal agency appeal, the employee creates a record that grounds a future federal lawsuit under Webster v. Doe. If they fail to raise it now, a court might later say they didn't exhaust their administrative remedies.

Strategic Suggestions for Presenting Evidence

Step 1: The "Whole Person" Affidavits Do not just argue the law; prove your character. Submit affidavits from supervisors and colleagues attesting to your:

• Reliability in handling sensitive data (if even applicable).

• Ability to separate personal political views from professional duties.

• History of compliance with security protocols.

Step 2: Characterize the Speech Carefully In the written answer, frame the social media post as "Citizen Speech" on a matter of "Public Concern" (using Pickering language).

• Bad phrasing: "I was just venting."

• Good phrasing: "I was engaging in core political speech regarding a matter of significant public interest, acting in my capacity as a private citizen."

Step 3: Force the Agency to Commit In the hearing request, ask for the specific "security considerations" that forbid the speech. If the agency offers vague answers, it strengthens the argument that the "security" label is a pretext for political retaliation, which is key for a Webster claim.

Potential Outcomes and Implications

Scenario A: Agency Internal Victory (Unlikely but Possible)

• The Agency Head (or designee) realizes the litigation risk of a Webster claim and downgrades the action from a 7532 removal to a standard Chapter 75 conduct suspension.

• Result: The employee gets their job back or gains full MSPB appeal rights.

Scenario B: Final Removal & Federal Lawsuit

• The Agency Head upholds the removal. The employee is barred from federal service.

• Next Step: The employee files a suit in U.S. District Court citing Webster v. Doe.

• Argument: "The agency used 5 USC 7532 as a pretext to bypass civil service protections and retaliate against protected speech."

• Outcome: If the court accepts jurisdiction, it may order reinstatement. However, courts are historically very deferential to the Executive Branch on security matters.

Scenario C: The "Blacklist"

• A 7532 removal carries a unique stigma. By statute, an employee removed under this section cannot be employed by any other federal agency without consultation with OPM.

• Implication: This is a career-ending designation for federal service, making the appeal strategy (and the threat of a Webster lawsuit) the employee's only leverage.

Conclusion

The convergence of Title 5 USC 7532 and Executive Order 14251 represents a paradigm shift in federal employment with the express objective of misuse. By expanding the definition of "national security" to cover broader swaths of the civil service clearly not legitimately covered under such a designation, the executive branch gains a mechanism to remove employees with minimal due process and limited judicial review. HOWEVER, this does not mean employees cannot appeal. But, the message to federal employees is clear: the distinction between "misconduct" and "security risk" is thinning. When a political post is treated as a security failure rather than a conduct issue, the robust protections of the civil service may evaporate, leaving the employee with more limited options.

Federal employees who are affected should not simply resign or accept whatever fate your agency decides for them and their families, especially in cases involving protected speech. Instead, they should seek appropriate guidance and counter-attack.