News from the Federal Circuit: on March 14, 2013, the U.S. Office of Special Counsel (OSC) filed an amicus curiae (‘friend of the court’) brief in Berry, Director, Office of Personnel Management v. Conyers, Northover and Merit Systems Protection Board, Case No. 2011-3207, a case pending before the U.S. Court of Appeals for the Federal Circuit. & previously analyzed Conyers/Northover, which currently awaits rehearing before the entire Federal Circuit, in this blog and in its Federal Legal Corner.
As OSC notes in its brief, Conyers/Northover carries the potential of gutting federal civil service protections. Statistically at least 25% of the current federal civilian workforce occupies ‘sensitive positions’ affected by the Conyers/Northover decision–and that the category of ‘sensitive positions’ is sufficiently undefined that it could be hypothetically extended to 50% or more of the federal workforce just by reclassifying all positions at the Departments of Defense, Homeland Security and Energy as ‘sensitive’.
In its brief, OSC agreed with the Merit Systems Protection Board (MSPB) that Dept. of the Navy v. Egan should be limited to the special context of security clearance determinations, as an exception to the comprehensive federal personnel system created by the Civil Service Reform Act of 1978 and to the presumption in favor of allowing appellate review for federal agency actions. OSC pointed to recent expansions of whistleblower protections to TSA screeners in the Whistleblower Protection Enhancement Act (WPEA) and the creation of administrative remedies for whistleblowers in security clearance cases under Presidential Policy Directive 19 (PPD-19) as demonstrating the existence of a policy favoring allowing meaningful remedies for whistleblowers facing retaliation and against excluding whistleblowers from remedial avenues. OSC highlighted legislative history showing Congress’ intent to prohibit federal agencies from being able to employees’ whistleblower reprisal protection by rule or regulation–an intent which would be baffled if agencies could defeat such protections by declaring positions ‘sensitive.’ OSC cited special concerns with making sensitive position eligibility decisions unreviewable, noting that while security clearance decisions are subject to review outside the given agency under PPD-19 and other mechanisms, no such mechanism exists for sensitive position eligibility decisions. OSC also flagged its institutional readiness to process cases involving sensitive position eligibility decisions, noting that it is currently equipped to handle classified information, and that 50% of the cases where OSC sought stays in the last three years were from agencies in the national security realm (specifically, the Departments of Defense, Homeland Security and Energy).