www.federaltimes.com

September 2, 2012

Court ruling limits due process for ‘sensitive’ positions, experts say

By SEAN REILLY

You’re a federal employee in a job that doesn’t require access to classified information or a security clearance. Then your agency designates your job as “sensitive,” decides you aren’t eligible to hold it and fires you without recourse.

That’s the future worst-case scenario under an appellate court ruling last month, advocates for federal employees and whistle-blowers warn.

The 2-1 decision by the U.S. Court of Appeals for the Federal Circuit denies two low-level Defense Department employees the chance to take their cases to the Merit Systems Protection Board after they were barred from holding “noncritical sensitive“ positions three years ago.

In his dissent, Judge Timothy Dyk said the decision means that hundreds of thousands of federal employees in sensitive positions now have no appeal rights to the board “simply because the Department of Defense has decided that such appeals should not be allowed.”

Agencies can now also use ineligibility for sensitive jobs as a smoke screen to punish employees for “illegitimate reasons,” he said.

One of the chief functions of MSPB, created by the 1978 Civil Service Reform Act, is to hear employee appeals of firings and other disciplinary steps. While agencies may have their own internal appeal routes, MSPB gives workers the chance to recoup back pay and attorney fees when a firing is found to be unwarranted, said Kevin Owen, a Maryland lawyer who specializes in board cases.

On the grounds that agencies know best when it comes to protecting national secrets, however, the Supreme Court in 1988 blocked challenges to most security clearance decisions through MSPB.

In last month’s ruling, the appellate court decided that agencies deserve the same latitude even when employees in such sensitive jobs don’t have clearances or handle classified records.

“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 opinion. A commissary employee, for example, might glean information about upcoming troop deployments from the volume of sunglasses in stock, Wallach wrote.

Electronic records management and other technical advances have made potential espionage targets “vastly more susceptible to harm by people without security clearances,” Wallach added.

Any doubts have to be resolved “in favor of national security.”

The decision was welcomed by the Defense Department, where spokeswoman Cynthia Smith said it acknowledged the expertise of agency heads on national security matters.

The decision also clarifies that “MSPB plays a limited role in its review of agency determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security,” Smith said.

Representing the two employees, Rhonda Conyers and Devon Northover, is the American Federation of Government Employees, which can now ask the appellate court panel to reconsider, appeal its decision to the full 15-judge court or go straight to the Supreme Court.

While the union will likely seek further review, “we are, quite obviously, disappointed with the outcome,” Andres Grajales, AFGE’s assistant general counsel, said in a statement.

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.” Agencies can then deem individual positions as special sensitive, critical sensitive or noncritical sensitive.

At DoD alone, a half-million civilian positions are considered sensitive, the Office of Personnel Management indicated in a brief last year in the Conyers-Northover case. The brief indicated DoD had 800,000 civilian jobs at the time.

Exactly how many jobs governmentwide fall in the sensitive category is unclear, but the label has spread to agencies outside the standard national security sphere, other records show.

At Customs and Border Protection, whose workforce currently totals about 60,000, “every single position” is deemed at least noncritical sensitive, although very few require security clearances, lawyers for the National Treasury Employees Union wrote in a 2010 brief on behalf of Northover and Conyers.

At most U.S. attorneys’ offices, more than half of employees held noncritical sensitive positions, the Government Accountability Project, a whistle-blower advocacy group, wrote in a similar filing the same year.

If the ruling stands, “the merit system will be history,” said Tom Devine, legal director for the Government Accountability Project, adding that almost any job could then be deemed sensitive. “What personnel department can resist the temptation of being beyond legal challenges?”

But that foreboding is an “extreme view,” said Diane Disney, who oversaw the Pentagon’s civilian personnel policy for much of the 1990s. The hurdles to such a wholesale shift to sensitive positions would be daunting, said Disney, now chancellor at Pennsylvania State University. Not only would there have to be justification, but “it couldn’t pass any optics or smell test. It is an understandable fear, but I think it’s unlikely that it would ever happen,” she said.

The case in question originated in 2009. Conyers was a GS-5 accounting technician with the Defense Finance and Accounting Service, or DFAS, in Columbus, Ohio. Northover worked as a GS-7 management specialist for the Defense Commissary Agency in Montgomery, Ala.

In the years following the 2001 terrorist attacks, DFAS converted thousands of positions from nonsensitive to sensitive, a step that brought heightened scrutiny for employees in those jobs. After a background check turned up credit problems, Conyers was barred from holding a noncritical sensitive position, indefinitely suspended without pay and eventually fired.

Northover, also deemed ineligible for reasons not explained in court records, was demoted to a part-time GS-4.

Both appealed to MSPB, where their cases were combined. Underscoring the cases’ significance, the board in September 2010 took the occasion to hold its first oral argument in 27 years.

Among those weighing in was Carlton Hadden, head of the Equal Employment Opportunity Commission’s Office of Federal Operations.

In a brief filed on behalf of Conyers and Northover, Hadden warned that a ruling in favor of the Defense Department would undercut anti-discrimination enforcement.

Equal employee opportunity directors from intelligence and law enforcement agencies had already raised concerns about limits on their ability to review discrimination complaints by employees serving in sensitive posts, Hadden said. Restricting MSPB appeals would only “further truncate” those protections, he wrote.

Although the government contested the board’s role on national security grounds, MSPB ruled in 2010 that it could review the cases because the jobs did not require access to classified information. The government then took the case to federal court.

In the meantime, defense officials reversed their initial eligibility decision for Northover, according to testimony before MPSB. He is now a GS-9 grocery manager, an agency spokesman said. Neither Northover or Conyers could be reached for comment.

At DFAS’ Columbus office, the ripple effect from the appeals court ruling could come soon, said Patty Viers, president of the AFGE local representing many defense civilians in that area.

In the last few years, at least several dozen DFAS workers have found themselves in straits similar to Conyers, mainly because of credit issues, Viers said. After the union turned to Congress, DFAS officials froze further steps, but now “will probably act quickly to terminate,” she said.

Some workers have also appealed to Washington Headquarters Services, the Pentagon bureau that makes the eligibility decisions.

A few got a year’s reprieve to clean up their problems, she said. Others were fired.