A federal appellate court heard oral arguments Friday in a case that tests the balance between national security safeguards and civil service protections. The outcome could affect disciplinary appeal rights for hundreds of thousands of federal employees.
At issue in this case is whether agencies deserve full discretion in deciding whether employees are eligible to hold “sensitive” jobs, even when those jobs don’t require a security clearance.
The Office of Personnel Management and the Defense Department are arguing that agencies should have latitutde on such matters. The Merit Systems Protection Board and other groups argue such decisions should be subject to review.
A 1988 Supreme Court ruling found that agency decisions on the granting or removal of security clearances are generally off-limits to review by the MSPB.
In this instance, two Defense Department employees were found ineligible for sensitive posts, but have been challenged in their efforts to appeal those decisions to the MSPB, which would normally hear such cases.
The broad category of sensitive information dates back to a 1953 executive order that defined it as anything that could bring about “a material adverse effect on the national security.”
In previously filed court papers, OPM lawyers argued that MPSB “is not qualified to evaluate questions of susceptibility to coercion, loyalty and trustworthiness” and that there are plenty of federal jobs that can damage national security even though they don’t require a clearance.
Customs and Border Protections officers, for example, “have the ability to allow things to come into our country that shouldn’t,” Abby Wright, a Justice Department lawyer representing OPM, said Friday.
Judge Evan Wallach of the U.S. Court of Appeals for the Federal Circuit, appeared to agree. “There can be unclassified information that can harm the national interest,” Wallach said during hour-long oral arguments in the lawsuit.
But another judge, Kimberly Moore, noted that even DoD contracting and financial management jobs can be designated sensitive.
“You seem to have overdesignated . . . well beyond national security” posts, Moore told Wright.
MSPB and federal employee unions counter that OPM’s position could gut civil service protections by allowing agencies to designate virtually any job as sensitive, potentially cutting off appeal rights.
That position “has no limits,” said Andres Grajales, a lawyer for the American Federation of Government Employees, which is representing the two DoD employees at the center of the case. “If there is a balancing here, then Congress sits in a better position to make that call,” Grajales said.
In a 2-1 ruling last August authored by Wallach, a three-judge panel on the appeals court sided with OPM. This January, however, the court agreed to a rehearing. Ten of the appeals court’s 16 judges participated in the arguments, which concluded Friday. Chief Judge Randall Rader did not say when a ruling might come. The losing side is expected to appeal to the Supreme Court.
Precisely how many jobs governmentwide fall in the sensitive category is unclear, but just at the Defense Department, a half-million positions are considered sensitive, OPM said in an earlier filing. And the label has spread to agencies outside the standard national security sphere. At CBP, with a workforce of about 60,000, “every single position” is deemed at least noncritical sensitive, although very few require security clearances, National Treasury Employees Union lawyers said in a 2010 brief.