GAP Condemns Federal Circuit Decision
on August 20, 2012
Ruling 'Nullifies' Civil Service Rights

(Washington, D.C.) – Today, the Government Accountability Project (GAP) harshly criticized a ruling last Friday from the U.S. Court of Appeals for the Federal Circuit that, according to the decision's dissent, “nullifies” the Civil Service Reform Act of 1978, and the merit system. The ruling potentially affects all federal employees.

In Berry v. Conyers & Northover, the court overruled a previous decision by the U.S. Merit Systems Protection Board (MSPB). The Federal Circuit, on Friday, held that national security procedures will replace civil service appeals and merit system rights –such as the Whistleblower Protection Act – for employees removed from “noncritical sensitive” positions. Previously, such national security procedures were limited to removal of security clearances for access to classified information.

As dissenting Judge Timothy B. Dyk pointed out:

The majority… holds that hundreds of thousands of federal employees—designated as holding national security positions—do not have the right to appeal the merits of adverse actions to the Board simply because the Department of Defense has decided that such appeals should not be allowed.

GAP Legal Director Tom Devine warned the longer term consequences may be worse. “The Federal Circuit has given agencies a blank check to categorize almost any federal job as 'sensitive’ – demoted from the civil service merit system to a national security world of secret law.”

Sensitive positions, according to the court majority, are any that could “implicate national security,” whether or not they involve access to classified information. Technically, that means that an employee holds a sensitive position if they are officially eligible to apply for a security clearance anytime in the future.

The employees in this appeal – an accounting technician and commissary worker at an Air Force base – illustrate that broad scope. The category already applies to nearly all employees at Inspector General offices, and even Justice Department paralegals. It can be applied casually (by an office memorandum). In some agencies the appeal rights for ineligibility to occupy a sensitive position are nonexistent. In other agencies, appeal rights are even weaker than those inadequate rights to challenge loss of a security clearance (which Congress already is trying to strengthen in the pending Whistleblower Protection Enhancement Act, or WPEA). Some agencies use the category as a synonym for 'public trust.' It even covers financial regulatory employees with access to 'market information.' With no boundaries or controls, this label can be applied to virtually any federal job.

Once that label is placed on an employee's position, civil service law no longer applies to them, according to this ruling. As the majority opinion explained, “…eligibility to occupy a sensitive position is a discretionary agency determination … the merits of which are unreviewable by the [Merit Systems Protection] Board.” As Judge Dyk amplified, “Under the majority’s expansive holding, where an employee’s position is designated as a national security position … the [Merit Systems Protection] Board lacks jurisdiction to review the underlying merits of any removal, suspension, demotion or other adverse action covered by 5 USC 7512.” (5 USC 7512 is the civil service law that provides due process appeal rights.)

The decision contradicts explicit language in the original Supreme Court decision from which it is based, Department of Navy v. Egan, 484 U.S. 518 (1988), as well as all judicial rulings on Egan in the 24 years since, and disregards the history of contrary congressional acts. He protested the audacity of the ruling and explained the impact:

The majority's holding allows agencies to take adverse actions against employees for illegitimate reasons, and have those decisions shielded from review simply by designating the basis for the adverse action as "ineligibility to occupy a sensitive position." … [The decision would also] "preclude Board and judicial review of whistleblower retaliation and a whole host of other constitutional and statutory violations for federal employees subjected to otherwise appealable removals and other adverse action …

…The majority completely fails to come to grips with the statute [Civil Service Reform Act of 1978] … and that the majority’s holding effectively nullifies the statute.

GAP’s Devine warned that the decision must be taken into account by Congress as it completes 13 years of work with the expected passage next month of the Whistleblower Protection Enhancement Act. Although the Senate-passed bill substitutes normal “all circuits” appellate review for the Federal Circuit’s current monopoly on whistleblower cases, House Republican objections threaten to derail the structural reform, which is a cornerstone of the legislation.

Devine observed, “In 1999, the Federal Circuit destroyed the Whistleblower Protection Act by holding that a “reasonable belief” requires ‘irrefragable proof.’ This year the Federal Circuit has given agencies a blank check to cancel all government accountability in civil service law by expanding limits on security clearance rights to an open-ended national security loophole. If Congress does not end the Federal Circuit’s monopoly control, there is no basis for confidence that new rights in the Whistleblower Protection Enhancement Act will survive this court.”

Contact: Tom Devine, Legal Director
Phone: 202.457.0034, ext. 124
Email: tomd@whistleblower.org

Contact: Dylan Blaylock, Communications Director
Phone: 202.457.0034, ext. 137
Email: dylanb@whistleblower.org

Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.

Berry v. Conyers & Northover: it’s worse than you think
Posted by mspbwatch on August 22, 2012 in Uncategorized
LINK

The Associated Press has the following story about last Friday’s Federal Circuit decision :

WASHINGTON (AP) – A federal appeals court ruling that has taken key civil service protection away from government employees involved in national security work will have far-reaching implications, advocates for federal workers say.

Tom Devine, legal director of the Government Accountability Project, a whistle-blower advocacy group, said Tuesday that the appeals court has given agencies “a blank check to cancel all government accountability in civil service law.”

In a 2-1 decision Friday involving two Defense Department employees, the U.S. Court of Appeals for the Federal Circuit said the Merit Systems Protection Board is prohibited from reviewing dismissals and demotions of government employees who hold “noncritical sensitive” positions, regardless of whether those jobs require access to classified information.

The dissenting judge in the case said the decision “effectively nullifies” the 1978 civil service law. Advocates for federal workers point out that federal employees in “noncritical sensitive” jobs work at many federal agencies, making the impact of the ruling government-wide.

The Defense Department welcomed the decision.

Lynne Bernabei, a Washington attorney who defends employees in personnel actions, said the decision “and the Obama administration’s support of this position is an integral part of the administration’s increasing secrecy and support of a national security system that is unaccountable.”

Bernabei called it “a very dangerous decision because it expands the class of cases that are no longer under the jurisdiction of the board.”

In dissent, Judge Timothy Dyk said the ruling means that “hundreds of thousands of federal employees _ designated as holding national security positions _ do not have the right to appeal the merits of adverse actions to the board simply because the Department of Defense has decided that such appeals should not be allowed.”

Remember the Dover morgue whistleblowers from a while back? Under this decision, they’d have no recourse. Bob MacLean? None. Franz Gayl? Even less than before. Peter Forcelli and John Dodson, the Fast & Furious whistleblowers? Who knows! Every such whistleblower would have to resort to the court of public opinion for help. How long would it be before the public tunes out?