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Activist Court Decision Strips Civil Service Rights and Whistleblower Protections From National Security Positions

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A devastating court decision Tuesday stripped federal employees of their right to appeal a personnel action—even if it is discriminatory or in retaliation for whistleblowing. This deeply flawed, activist decision arms agencies with sweeping power not granted by the president or Congress, leaving untold numbers of federal workers with no right to challenge discrimination or retaliation for whistleblowing.

In Kaplan v. Conyers, Northover and MSPB (Conyers), the United States Court of Appeals for the Federal Circuit held that federal agencies have unlimited discretion to take adverse actions pertaining to the eligibility to occupy a national security position without any review. This greatly expands a Supreme Court decision, Egan, which for decades has only applied to security clearances. Conyers wipes out civil service due process rights and whistleblower protections for anyone in a national security “sensitive” position.

Now, if an agency fires an employee after having made a legally protected whistleblower disclosure or because of that employee’s race or religion, using the determination of ineligibility for a national security sensitive position as a pretext, the employee cannot seek justice from the Merit Systems Protection Board and has no other recourse.

This decision flouts the congressional intent of the Civil Service Reform Act of 1978, as well as the Whistleblower Protection Act of 1989, and the recently passed and strongly bipartisan Whistleblower Protection Enhancement Act of 2012—reforms  the Project On Government Oversight (POGO) fought for years to enact. Conyers guts these laws and significantly expands the boundaries and power of the national security state—throwing waste, fraud, and abuse of power deep into the shadows.

The court majority ignored the jaw-dropping lack of oversight over these arbitrary designations. The government does not even know how many employees will be immediately affected by the decision—because not even the Office of Personnel Management can say how many workers hold “sensitive” positions. We only know from a government brief in Conyers that there are at least half a million workers at the Department of Defense alone—including low-level employees such as Devon Haughton Northover who worked at a commissary.

Now, the agencies can be expected to abuse their new unbridled power to designate virtually any civil service position as “sensitive.” 

For well over a century, the federal workforce has been protected from the tyranny of politics with crucial protections. Civil service employees are professionals whose tenure does not depend on the results of the last election—these federal employees serve the public, not political bosses. These protections from unjust termination ensure that our federal workforce is insulated from political interference, and that no federal employee ever feels compelled to act in a partisan manner for fear of being fired. 

Likewise, the law protects federal workers from retaliation when they come forward to when they witness waste, fraud, abuse, and other wrongdoing. Congress recently strengthened the rights and procedures available to whistleblower which, in turn, will make the government work better for the American people. It is a well-known fact that these guardians of the public trust and safety save countless lives and billions of taxpayer dollars. However, Conyers strips protections for whistleblowers who make legal disclosures.

Circuit Judge Dyk in his dissent stated: “But the majority decision both blesses and itself engages in a violation of separation of powers principles—sustaining agency action without either Presidential or Congressional Authorization, and resting its decision on its own assessment of national security requirements.”

It’s clear it is time for Congress to act.

This disastrous decision cannot stand. The consequences for our nation are too great. Congress must act now to rein in the unchecked discretion afforded to agencies that invoke national security without scrutiny.  Congress must again act to restore protections of critical rights for whistleblowers and the civil service.

Read the full court decision here.

By: Angela Canterbury
Director of Public Policy, POGO

angela canterbury Angela Canterbury is Director of Public Policy for the Project On Government Oversight.

Topics: Whistleblower Protections

Related Content: Defense

Authors: Angela Canterbury

Submitted by Bear at: August 25, 2013
No government takeover here lol. This is how our lip service president supports whistle blowers after making a public speech supporting whistle blowers. America is gone and nothing but a third world state of fascist corruption. I am glad I was born in the depression era when America was a democratic republic and had a chance to experience real freedom unlike the jelly belly Americans of today that whine and whimper and then go back to their reality soap operas.
Submitted by Michael at: August 25, 2013
It's quite clear that our government has decided to operate without the consent of the people and has become a dictatorship where censorship is secretly done and whistle blowing is illegal. Such a government has no right to exist.
Submitted by teri at: August 24, 2013
Then all the Federal employees who disagree with this atrocious ruling need to simply unite and WALK OUT of their jobs. Refuse to play their game.
Submitted by American at: August 24, 2013
Just disgusting!
Submitted by Anonymous at: August 24, 2013
National Security Sensitive Position needs to be defined. How does this impactcontract employees and their supervisors if there is a violation of FARs and false statements on contracts made by corporations? And if these statements are made with the knowledge of Federal employees for gifts or other advantages to the employee's family members, and involves deals made with foreign nationals, is the person who learns of this and is an employee and takes action to stop it, a Whistleblower or a fool to believe that laws protect them? As far as employment goes and retaliation, there is no protection for employees of subcontractors or contractors that blow the Whistle, empty promises by the Federal employees that must make a choice between enforcing the FARs, face questions at their agency, or make a deal. The deal will probably not include the employee. It is always strange to hear about protection for Whistleblowers knowing about such ruin and suffering.
Submitted by Axel Sabersky at: August 23, 2013
From OPUS, a POGO blog comment reply, that mentions; 'Remember 6 years ago he urged whistleblowers to come out against the Bush Administration. Then this February of 2013 he signed a Presidential Executive Order limiting all agencies whistleblowers. Got to plug those leakers. What a guy'. From that and the following, the perception seemingly appears that 'the purge continues'.......... President Obama has apparently instructed, his US DOJ in 'Saleh v Bush' to file to grant Immunity to Bush, Cheney, Rumsfield, Powell, Wolofowitz, possibly Rice and others from prosecution of an illegal Iraq War and also War Crimes, both Domestically and Internationally, and from a Cheney and others 1990's 15-c non-profit Foundation Think tank in Washington, DC 'Foundation of the New American Century' a business, that as research.ca reported, advocated for the Military overthrow of Sadam Hussein.
Submitted by OPUS at: August 22, 2013
Ha-ha, just like Stalin did during his purges! This is just too funny! Remember 6 years ago he urged whistleblowers to come out against the Bush administration. Then this February of 2013 he signed a Presidential Executive Order limiting all agencies whistleblowers. Got to plug those leakers. What a guy. Remember all must share all their money equally but not information about this administration.

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