Today, the Government Accountability Project (GAP) criticized the Federal Circuit Court of Appeals decision to end the basic employee rights which have sustained a non-partisan, professional civil service since 1883. In Kaplan v. Conyers and MSPB, it eliminated all independent due process rights for a day in court or administrative hearing when officials remove national security "sensitive" employees from their jobs. This ruling is consistent with a proposed rule by the Office of the Director of National Intelligence (DNI) and the Office of Personnel Management (OPM) to designate virtually any job in the government as national security "sensitive."
GAP Legal Director Tom Devine commented:
Last year Congress unanimously passed the Whistleblower Protection Enhancement Act ("WPEA") due to hostile Federal Circuit activism creating judicial loopholes that gutted statutory free speech rights. Apparently the Federal Circuit did not get it. This time the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce. It erased all federal laws that shield the two million federal employee workforce from becoming a national security spoils system.
The court expanded the Supreme Court's 1988 Egan v. Navy decision – which cancels civil service job rights for security clearance decisions on access to classified information – to cover all employees in sensitive jobs. But as a dissenting opinion noted, in the 25 years and literally hundreds of cases since Egan, "[n]o decision of the Supreme court or any other court supports this proposition." The court created a "sensitive jobs loophole" without citing any direct legal authority, and openly backed a proposed administration rule to declare virtually any job as national security sensitive. As the majority opinion explained, commissary stock worker jobs are sensitive, because stocking "sunglasses ... with shatterproof lenses, or rehydration backpacks" could be valuable to the enemy.
Devine illustrated the consequences for circumventing the civil service system:
If an agency fires an employee, it must defend its actions under a host of laws, including the Civil Service Reform Act; the Whistleblower Protection Act; and EEO laws banning race, sex, religious, age or handicap discrimination. If it says the worker is "ineligible for a sensitive job," all those rights turn into a soap bubble. The worker is defenseless. As in a Kafka novel, the employee is not even entitled to know why.
The court's ruling reflected its sweeping decree, "[A]bsent congressional action, judicial review of national security matters is generally prohibited." But the right to independent appeal of adverse (disciplinary) actions is an explicit, statutory cornerstone of the Civil Service Reform Act of 1978.
Devine believes the ruling is a fundamental threat to our nation's freedom:
After Conyers, federal employees will have two rights left: be national security 'yes people,' or leave. A bureaucracy where it is only legally safe to be a national security 'yes man' is a clear and present danger to freedom for all Americans.