Whistleblower Groups Blast Appeals Court Ruling on Civil Service Protection

By Barbara Hollingsworth | August 22, 2013 | 4:04 PM EDT

(AP photo)

(CNSNews.com) – Federal whistleblowing groups are blasting a controversial ruling Tuesday by the U.S. Court of Appeals for the Federal Circuit that removes the right of career Civil Service employees at the Defense Department to appeal personnel decisions to the Merit Systems Protection Board if their jobs are even peripherally related to national security.

(See Kaplan v. Conyers.pdf)

Rhonda Conyers was suspended from her job as accounting technician at the Defense Finance and Accounting Service, and Devon Northrop was demoted from his job at the Defense Commissary Agency after the DoD found them ineligible to occupy  “noncritical sensitive” jobs.

In Kaplan v. Conyers, the appeals court ruled that even such low-level workers with no access to classified material could pose a security threat to the nation.

Noting “our constitutional principle of separation of powers among the branches of government,” the majority in the 7-3 decision ruled that “it is essential for the President and the DoD to have broad discretion in making determinations concerning national security.”

But Circuit Judge Timothy Dyk disagreed, noting in his dissent that “if positions of grocery store clerk and accounting secretary are deemed to be sensitive, it is difficult to see which positions in the DoD or other executive agencies would not be deemed sensitive.”

He also criticized the majority for claiming to uphold the separation of powers, but in reality doing quite the opposite.

“The majority decision both blesses and itself engages in a violation of separation of powers principles—sustaining agency action without either Presidential or Congressional Authorization, and resting its decision on its own assessment of national security requirements.” Dyk argued.

Whistleblowing groups were also quick to condemn the ruling.

The U.S. Office of Special Counsel, an independent investigative and prosecutorial agency that filed an amicus brief in the case, said it was “disappointed” in the ruling.

In a statement, Special Counsel Carolyn Lerner said that “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.” (See OSP statement.pdf)

Tom Devine, legal director of the Government Accountability Project (GAP), joined the chorus of dissent.

“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 Equal Employment Opportunity 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,” Devine said.

Stephen Kohn, executive director of the National Whistleblowers Center, said that the ruling proves that federal whistleblowers like Edward Snowden have nowhere to go to report waste, fraud and abuse because they are not protected from retaliation.

“This decisions reinforces the fact that President Obama’s claims that federal employees or contractors like Mr. Snowden have effective channels to raise concerns and protect their jobs are simply not true," Kohn said. "The White House and the national security agencies it defends have worked overtime to expand the power of the executive to fire workers who dare to raise concerns about misconduct or corruption.”

Angela Canterbury, director of public policy at the Project On Government Oversight (POGO) agrees. In a statement following what she called a “devastating” ruling, she said, “Federal agencies have unlimited discretion to take adverse actions pertaining to the eligibility to occupy a national security position without any review...Now the agencies can be expected to abuse their new unbridled power to designate virtually any civil service position as ‘sensitive’

“For well over a century, the federal workforce has been protected from the tyranny of politics with crucial protections. Civil service employees are professionals whose tenure does not depend on the results of the last election—these federal employees serve the public, not political   bosses,” Canterbury added.