DoD civilian employees work at Letterkenny Army Depot. The U.S. Court of Appeals for the Federal Circuit ruled Tuesday that only DoD has the expertise to decide who is a potential security risk. (Don Binter)
A federal appellate court has sharply limited appeal rights for Defense Department workers disqualified from holding “sensitive” posts, even when those jobs don’t require a security clearance or access to classified information.
In the 7-3 decision released Tuesday, the U.S. Court of Appeals for the Federal Circuit ruled that only DoD has the expertise to decide who is a potential security risk. ‘It is naïve to suppose that employees without direct access to already classified information cannot affect national security,” the majority wrote in rejecting attempts by two Defense employees to take their cases to the Merit Systems Protection Board.
In a dissent, the three judges in the minority said the decision’s impact will be “profound.” Not only will the ruling restrict appeal rights for some 200,000 DoD employees in sensitive jobs, but it will affect civil service protections for workers in similar posts at other agencies seeking to challenge dismissals, suspensions and other types of discipline, they wrote.
The ruling effectively extends the reach of a 1988 Supreme Court decision that blocked MSPB review of most security clearance decisions. The case involves two low-level Defense employees who sought to appeal to the MSPB after they were barred from holding “noncritical sensitive” positions four years ago.
The American Federation of Government Employees, which represents the two workers, will likely appeal to the Supreme Court, according to the union’s national president, J. David Cox.
“Due process rights are the very foundation of our civil service system,” Cox said in a statement. “That system itself has been undermined by the court today.”
Also critical of the ruling was the Office of Special Counsel, the agency charged with protecting whistleblowers from reprisal. “This decision poses a significant threat to whistleblower protections for hundreds of thousands of federal employees in sensitive positions and may chill civil sevants from blowing the whistle,” OSC Director Carolyn Lerner said in a Wednesday statement.
. The decision will “remove the civil service rule of law from virtually the entire federal workforce,” Tom Devine, legal director of the Government Accountability Project, a nonprofit whistleblower advocacy group, said in a news release.
Defense officials are reviewing the decision, a spokeswoman, Army Lt. Col. Cathy Wilkinson, said in an email. A three-judge panel on the appeals court had previously ruled 2-1 in the department’s favor last August. The full court agreed to rehear the case this January; oral arguments were held in May.