Decision in Kaplan v. Conyers will have “profound” impact on federal government

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The U.S. Court of Appeals for the Federal Circuit released today its decision in the case of Kaplan v. Conyers (Case 11-3207).* As many feared, the court broadened executive power and discretion at the expense of civil service protections and due process for federal employees. [Also see Berry v. Conyers, 692 F.3d 1223 (2012).]

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. (Federal Times)

The decision provides this background on the case.

The Ms. Conyers and Mr. Northover4 were indefinitely suspended and demoted, respectively, from their positions with the Agency after they were found ineligible to occupy “noncritical sensitive” positions.5 Ms. Conyers and Mr. Northover independently appealed the Agency’s actions to the Board. In both appeals, the Agency argued that, because these positions were designated “noncritical sensitive,” the Board could not review the merits of the Agency’s eligibility determinations under Egan’s precedent.

In a dissent, Circuit Judge Dyk (joined by Circuit Judges Newman and Reyna, writes:

The consequences of the majority’s decision will be profound. In the DoD alone, it will affect at least 200,000 non-critical sensitive civilian employees whose positions do not require access to security clearances, as OPM conceded at oral argument. Numerous employees in other agencies will be affected as well, as agencies other than DoD designate positions as non-critical sensitive. For example, agencies under the umbrellas of the Department of Homeland Security (such as the Transportation Security Administration), the Department of Energy, the Department of State, and the Justice Department designate positions as non-critical sensitive.There are dozens of pending appeals before the MSPB involving individuals who suffered an adverse action based on their purported ineligibility to hold a sensitive position that await our court’s disposition in this case.and many more such appeals will inevitably be foreclosed by the majority’s holding, even though the majority purports to limit its holding to the DoD. . . .If positions of grocery store clerk and accounting secretary are deemed to be sensitive, it is difficult to see which positions in the DoD or other executive agencies would not be deemed sensitive.

As to implications for whistleblowers, Dyk writes:

Finally, while the majority purports to reserve the issue, the rights of these employees under Title VII and the Whistleblower Protection Act will be affected as well, as the Board has made clear that extending Egan would “preclude Board and judicial review of alleged unlawful discrimination, whistleblower retaliation, and a whole host of other constitutional and statutory violations.”

Stephen Kohn, of the National Whistleblowers Center called the decision “an unprecedented setback for government accountability and oversight.”

The Appeals Court has permitted executive agencies to blacklist or fire employees who, by law, are covered under the Civil Service Reform Act. . . .This decision reinforces the fact that President Obama’s claims that federal employees or contractors like Mr. Snowden have effective channels to raise concerns and protect their jobs are simply not true.

* The court notes:Elaine D. Kaplan took office as the Director of the Office of Personnel Management during the pendency of this case, replacing John Berry. Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Director Kaplan is automatically substituted as Petitioner in this case. ”

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