A federal appeals court ruling last week will have serious implications for whistleblower and other civil service protections for government workers. A loophole has been created that allows agencies to designate nearly any position as “sensitive,” apparently broadly defined, and thereby render the worker defenseless against termination decisions and whistleblower retaliation. Think of how this might apply to federal employees in certain scientific research, energy technology, and disaster preparedness positions.
The Washington Post reported on August 21 (August 22 print edition):
A federal appeals court on Tuesday curbed the appeal rights of two Defense Department employees in a case that critics say will have broad implications for civil service protections.
The 7-3 decision by the U.S. Court of Appeals for the Federal Circuit prohibits the Merit Systems Protection Board (MSPB) from hearing cases involving “non-critical sensitive” workers, a ruling that alarms labor groups and whistleblower advocates who say it strips away civil due process for employees. …
In the dissent, Judge Timothy Dyk wrote that the ruling would “effectively deny MSPB review for hundreds of thousands of federal employees — a number that is likely to increase as more positions are designated as non-critical sensitive.”
Special Counsel Carolyn Lerner, head of the agency that handles federal whistleblower claims, concurred.
“This decision poses a significant threat to whistleblower protections for hundreds of thousands of federal employees in sensitive positions and may chill civil servants from blowing the whistle,” she said. …
… Generally, there are laws to protect federal workers against arbitrary dismissals and other actions. But under this ruling, if an agency “says the worker is ‘ineligible for a sensitive job,’ all those rights turn into a soap bubble,” said Tom Devine, legal director of the nonprofit Government Accountability Project. “The worker is defenseless.”
Devine said the court backed the Obama administration’s argument that the MSPB cannot review or overturn an agency’s decision to take disciplinary or adverse action against an employee in a sensitive position. Meanwhile, he added, the administration is proposing regulations that would make nearly all federal jobs eligible for a sensitive designation. …
Devon Haughton Northover was a commissary management specialist for the Defense Commissary Agency. Don’t let the fancy title fool you. With a GS-7 grade level, he was a relatively low-level employee who managed inventory in a government store.
Rhonda K. Conyers was a GS-5 accounting technician. …
“At no time were either Conyers or Northover required to have access to classified information,” AFGE said. “At no time were either Conyers or Northover required to have a confidential, secret or top secret security clearance.” …
With this ruling, if an agency punishes an employee because the employee reports misconduct or because of the employee’s race or sex and officials use “the determination of ineligibility for a national security sensitive position as a pretext, the employee cannot seek justice from the Merit Systems Protection Board and has no other recourse,” said Angela Canterbury, public policy director of the Project On Government Oversight.
Canterbury, like the Office of Special Counsel, focuses on whistleblowers. Although Conyers and Northover weren’t whistleblowers, whistleblower advocates and the OSC are worried that the decision will be used by agencies to punish employees who report waste, fraud and abuse.
“The decision would prevent OSC and the MSPB from investigating and correcting allegations of reprisal for whistleblowing for thousands of federal employees,” said an OSC brief. “These efforts by Congress to strengthen protections for whistleblowers, particularly in the national security realm, would be futile if agencies could simply evade a substantive review by punishing whistleblowers through eligibility determinations.”
The Government Accountability Project (of which Climate Science Watch is a part) issued this statement on August 20:
Today, the Government Accountability Project (GAP) criticized the Federal Circuit Court of Appeals decision to end the basic employee rights which have sustained a non-partisan, professional civil service since 1883. In Kaplan v. Conyers and MSPB, it eliminated all independent due process rights for a day in court or administrative hearing when officials remove national security “sensitive” employees from their jobs. This ruling is consistent with a proposed rule by the Office of the Director of National Intelligence (DNI) and the Office of Personnel Management (OPM) to designate virtually any job in the government as national security “sensitive.”
GAP Legal Director Tom Devine commented:
Last year Congress unanimously passed the Whistleblower Protection Enhancement Act (“WPEA”) due to hostile Federal Circuit activism creating judicial loopholes that gutted statutory free speech rights. Apparently the Federal Circuit did not get it. This time the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce. It erased all federal laws that shield the two million federal employee workforce from becoming a national security spoils system.
The court expanded the Supreme Court’s 1988 Egan v. Navy decision – which cancels civil service job rights for security clearance decisions on access to classified information – to cover all employees in sensitive jobs. But as a dissenting opinion noted, in the 25 years and literally hundreds of cases since Egan, “[n]o decision of the Supreme court or any other court supports this proposition.” The court created a “sensitive jobs loophole” without citing any direct legal authority, and openly backed a proposed administration rule to declare virtually any job as national security sensitive. As the majority opinion explained, commissary stock worker jobs are sensitive, because stocking “sunglasses … with shatterproof lenses, or rehydration backpacks” could be valuable to the enemy.
Devine illustrated the consequences for circumventing the civil service system:
If an agency fires an employee, it must defend its actions under a host of laws, including the Civil Service Reform Act; the Whistleblower Protection Act; and EEO laws banning race, sex, religious, age or handicap discrimination. If it says the worker is “ineligible for a sensitive job,” all those rights turn into a soap bubble. The worker is defenseless. As in a Kafka novel, the employee is not even entitled to know why.
The court’s ruling reflected its sweeping decree, “[A]bsent congressional action, judicial review of national security matters is generally prohibited.” But the right to independent appeal of adverse (disciplinary) actions is an explicit, statutory cornerstone of the Civil Service Reform Act of 1978.
Devine believes the ruling is a fundamental threat to our nation’s freedom:
After Conyers, federal employees will have two rights left: be national security ‘yes people,’ or leave. A bureaucracy where it is only legally safe to be a national security ‘yes man’ is a clear and present danger to freedom for all Americans.
* * *
Climate Science Watch will take up the question of how various federal agencies intend to apply the “noncritical sensitive” jobs designation to positions involving work related to climate change. Will this include, say, government research labs, Earth observing systems, energy technology R&D, and climate change impacts preparedness involving, for example, water and transportation infrastructure, public health systems, and weather extremes? If GS-7 level managing of a company store can be deemed a “sensitive” position because an enemy might be interested in information about changes in inventory — and thereby be stripped of an employee’s right to speak freely and challenge abuses of power — who else will fall under this security state encroachment?