An appellate court ruling last week gives federal agencies free rein to demote or fire employees deemed ineligible for “sensitive” positions, experts say.
The U.S. Court of Appeals for the Federal Circuit, in an Aug. 17 ruling, determined the Merit Systems Protection Board has no say in reviewing such cases, the experts said.
“There is no check,” Virginia attorney Sheldon Cohen, a specialist in national security law, said of the 2-1 decision.
If the decision stands, “the merit system will be history,” said Tom Devine, legal director for the Government Accountability Project, a whistle-blowers advocacy group.
The case involved a Defense Finance and Accounting Service GS-5 who was suspended in 2009 and a Defense Commissary Agency GS-7 who was demoted the same year after both were found ineligible for sensitive jobs. The employees brought their complaints to MSPB, but the government contested the board’s role on national security grounds.
MSPB ruled in 2010 that it could review the cases because the employees’ positions did not require access to classified information. But the majority on the three-judge federal appeals court disagreed last week on the grounds that agencies have “broad discretion” to address security concerns.
“It is naïve to suppose that employees without direct access to already classified information cannot affect national security,” Judge Evan Wallach wrote in the prevailing decision. But in a dissent, Judge Timothy Dyk said that agencies could take “adverse actions against employees for illegitimate reasons” and then use ineligibility for sensitive information as a pretext. The court defined a sensitive position as one that “implicates national security.”
“Virtually any job can have that label,” said Devine, whose organization sided with the two employees in a brief filed with MSPB. Agencies such as the Justice Department, Securities and Exchange Commission, and most inspectors general are already using it, he said.
The American Federation of Government Employees, which represents the two employees, can now ask the full 15-member appeals court to review the panel’s decision. An AFGE attorney could not be reached for comment Thursday.