Unions Challenge OPM Sovereign Immunity Defense on 2014 Data Breach

Two of the largest federal labor unions have renewed their arguments that the U.S. Office of Personnel Management (OPM) was negligent in allowing a 2014 data breach that impacted sensitive files of almost 22 million federal employees. The breach wasn’t discovered until nearly a year after it occurred, with the initial estimated number of impacted employees rapidly ballooning. Investigations into the leak have indicated that a state actor, namely China, was likely behind the effort.

Former FBI Director James Comey addressed the extent of the leak at the time, saying, “My SF-86 lists every place I’ve ever lived since I was 18, every foreign travel I’ve ever taken, all of my family, their addresses. So it’s not just my identity that’s affected. I’ve got siblings. I’ve got five kids. All of that is in there.”

On November 2nd, according to Federal Times’ Jessie Bur, the American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU) “argued a lower court got it wrong in a 2017 ruling that dismissed a suit against the Office of Personnel Management related to the agency’s massive 2014 data breach.”

The unions want OPM to be held further accountable for the breach, which it attributes to “gross negligence,” while OPM has argued “that the case should be dismissed because the union lacked standing to bring the case and OPM was protected under sovereign immunity.”

Both unions brought separate cases relating to the data breach, which were ultimately consolidated. The federal district court sided with OPM, throwing out the unions’ argument and citing a lack of standing. The unions subsequently appealed the decision to the D.C. Circuit Court of Appeals.

Bur notes that the unions’ odds appear somewhat slim, and that “should one or both cases be ruled in favor of the unions, it would only allow the lawsuits to proceed to a full trial, and not guarantee that the unions would win the lawsuit overall.”

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