August 22, 2013
By FREDERIC J. FROMMER
A divided federal appeals court has ruled that government employees involved in sensitive but noncritical national security work aren’t entitled to a key civil service protection available to other government workers.
The 7-3 ruling Tuesday by the U.S. Court of Appeals in Washington said the Merit Systems Protection Board can’t review dismissals and demotions of government employees who hold sensitive national security positions that aren’t deemed critical — even if their jobs don’t require access to classified information.
Critics said the decision would significantly erode civil service protections for federal workers.
In a case involving Defense Department employees, the merit systems board said a 1988 Supreme Court ruling limiting board review of national security cases applied only if classified information was involved. But the appeals court ruled that the Supreme Court decision was broader.
“Its principles instead require that courts refrain from second-guessing DOD national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information,” wrote Judge Evan Wallach.
“Courts have long recognized that sensitive but unclassified material can be vital to national security,” he wrote.
Wallach added that it was “naive” to say that employees without direct access to classified information can’t affect national security.
In a dissent, Judge Timothy Dyk said the majority opinion will deny merit systems board review for “hundreds of thousands of federal employees — a number that is likely to increase as more positions are designated as noncritical sensitive.”
Tom Devine, legal director of the Government Accountability Project, a whistle-blower advocacy group, said that the court had “created a loophole to remove the civil service rule of law from virtually the entire federal workforce.”
The American Federation of Government Employees said it would likely seek review by the Supreme Court.
“Due process rights are the very foundation of our civil service system,” said the group’s president, David Cox Sr. “That system itself has been undermined by the court today, if this ruling is allowed to stand.”
Carolyn Lerner, head of the federal Office of Special Counsel, which investigates retaliation against government whistle-blowers, said the ruling poses a significant threat to whistle-blower protections for hundreds of thousands of federal employees in sensitive positions.
Lt. Col. Cathy Wilkinson, a Defense Department spokeswoman for personnel and readiness, said the agency was reviewing the decision.