A federal appeals court decision could leave many federal employees with nowhere to turn.
A ruling Tuesday by the U.S. Court of Appeals for the Federal Circuit strips workers whose jobs are deemed “noncritical sensitive” — even those without access to classified information — of some due process rights.
Once designated, the employees are in a much weaker position to appeal personnel actions such as a suspension or firing. The danger is that agencies could use the classification maneuver as a way to punish employees without worrying about an appeal to the Merit Systems Protection Board.
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.
The MSPB is the agency that hears appeals by employees of adverse personnel actions against them. The MSPB, the Office of Personnel Management and the Justice Department had no comment on the decision.
“The consequences of the majority’s decision will be profound,” Judge Timothy B. Dyk said in a dissenting opinion. “In the [Department of Defense] alone, it will affect at least 200,000 non-critical sensitive civilian employees whose positions do not require access to security clearances. . . . Numerous employees in other agencies will be affected as well, as agencies other than DoD designate positions as non-critical sensitive.”
The court ruling involves two Defense Department employees not involved in “sensitive” work, as reasonable folks would use the term. Two employees “were indefinitely suspended and demoted, respectively, from their positions with the Agency after they were found ineligible to occupy ‘noncritical sensitive’ positions,” the court ruling explained.
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. She “was denied eligibility to occupy her non-critical sensitive position based on financial considerations involving overdue debt in an amount totaling, approximately, $10,000.00,” according to a legal brief filed by the American Federation of Government Employees. Her bills, some of which had been canceled, included overdue utility payments, and she fell behind after her marital separation and divorce.
“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.”
That seems like an important point, but it didn’t sway Judge Evan J. Wallach, who wrote the court’s decision. It said “categorizing a sensitive position is undertaken without regard to access to classified information, but rather with regard to the effect the position may have on national security.”
What effect the commissary inventory stockman position has on national security is not clear. But the “noncritical sensitive” designation allowed Defense to demote Northover and suspend Conyers. The designation also means that the MSPB cannot review the Pentagon’s action, leaving the employees with no recourse.
AFGE President J. David Cox Sr. said the ruling dismisses “the due process rights of tens of thousands of current and future federal workers. . . . Due process rights are the very foundation of our civil service system. That system itself has been undermined by the Court.”
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.”
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.