Appeals court removes key civil service protection

By PETE YOST | August 22, 2012 | 3:44 AM EDT

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.

"The court acknowledged the agency heads' expertise related to national security matters," the Defense Department said. "This decision clarifies that the MSPB plays a limited role in its review of agency determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security."

Created by the Civil Service Reform Act of 1978, the Merit Systems Protection Board is an independent, quasi-judicial agency in the executive branch that serves as the guardian of fair employment rules.

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."

According to the dissenting judge and the advocates, whistle-blower protection for workers who are targets of retaliation after reporting waste, fraud and abuse in government operations would be affected by the ruling. The Office of Special Counsel, which handles whistle-blower cases, declined to comment Tuesday.

Noncritical sensitive posts are positions that federal agencies deem as having the potential to cause serious damage to national security. However, the designation covers a wide swath of job types across the federal workforce. The current case involves an accounting technician and a commissary management specialist. Neither of the two employees occupied a position that required access to classified information.

In its decision, the appeals court invoked a 1988 Supreme Court ruling that limits the board's role in cases involving national security concerns. However, that decision 24 years ago involved a man who lost his laborer's job at a naval facility when he was denied a security clearance, a requirement for access to classified information.

In the current case, the Merit Systems Protection Board ruled that it could conduct a review since accounting technician Rhonda Conyers, who was suspended indefinitely, and commissary management specialist Devon Northover, who was demoted, did not occupy positions that required access to classified information.

The Office of Personnel Management, which manages the federal workforce, took the case to the appeals court.

Writing for the majority, Judge Evan Wallach said eligibility to occupy a sensitive position is principally within "the purview of the executive branch, the merits of which are unreviewable by the board."

National security concerns make the positions of the board, Conyers and Northover "untenable," Wallach wrote. "It is naive to suppose that employees without direct access to already classified information cannot affect national security."

"The advent of electronic records management, computer analysis and cyber-warfare have made potential espionage targets containing means to access national security information vastly more susceptible to harm by people without security clearances," added Wallach, who was appointed by President Barack Obama last year. Joining Wallach's opinion was Judge Alan Lourie, an appointee of President George H.W. Bush.

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."

Dyk agreed with the board's argument, writing that the appeals court's position also would bar review by the board and the courts of "whistle-blower retaliation and a whole host of other constitutional and statutory violations" against federal employees.

Dyk added that with the exception of agencies such as the CIA, FBI and intelligence components of the Defense Department, Congress has said that employees may challenge disciplinary action before the Merit Systems Protection Board.

"It is not the business of the Department of Defense, the Office of Personnel Management or this court to second-guess the congressional decision to provide board review," wrote Dyk, an appointee of President Bill Clinton.

The purpose of the Civil Service Reform Act is to protect against arbitrary action, personal favoritism and partisan political coercion and the court ruling "effectively nullifies the statute," Dyk wrote.