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.