GAP Supports MSPB Vacating Disastrous Loophole Created by Former Chairman
(Washington, D.C.) – In an amicus curiae brief publicly posted today, the Government Accountability Project (GAP) urged the new leadership of the U.S. Merit Systems Protection Board (MSPB) to restore due process and enforce merit system rights in the federal workforce. The outgoing Board effectively stripped that right in one of its final rulings last November.
In a disastrous legacy precedent (Crumpler v. Department of Defense), outgoing MSPB Chairman Neil McPhie created an open-ended loophole permitting agencies to cancel MSPB review of any federal job by designating it “sensitive” – a non-reviewable, vague national security category that can be attached to any case that “could enable its occupant to bring about a material adverse effect on national security.” Such employees would be limited to internal review, where agencies act as the judges of their own alleged misconduct.
This past January, newly-confirmed MSPB members vacated the decision, requesting amicus curiae, or “friend-of-the-court” briefs. You can read GAP’s brief online here.
GAP legal director Tom Devine explained, “The new Board wisely cancelled a decision to end the civilian rule of law for federal employment. Otherwise virtually the entire civil service would have been a national security exception. Government whistleblowers would have been at the mercy of an “at will” doctrine from the moment they apply for work and are subject to a background investigation. Now the Board must reconstruct a functional system to restore due process rights.”
Pending legislation to revive the Whistleblower Protection Act does not address this new development, although the decision, according to GAP’s brief, “would render the new legislation largely a voluntary guideline, to be followed or ignored at the whim of agency discretion.” As a result, GAP calls on the MSPB to unequivocally restore its mandate to enforce the merit system. In GAP’s opinion, Crumpler would replace “the national civil service with a feudal structure granting agencies, normally institutional defendants, the power to customize merit system due process rights as they see fit.”
Even without the conflict of interest when agencies judge themselves, that unreviewable power can be a fatal trade for whistleblowers. The case of Tammy Grimes, a Department of Justice (DOJ) paralegal who blew the whistle against politicizing the prosecution of an Alabama governor, is illustrative. The DOJ due process system that would replace a public trial format MSPB hearing is no mandatory due process, known as “at will” employment.
Crumpler reflected the grotesque expansion of a controversial 1988 Supreme Court decision, Department of the Navy v. Egan, which denied Board review for judgment calls in security clearance decisions for access to classified information, on grounds that only the President as Commander in Chief can make those determinations. Without any relevant legal authority, however, Chairman McPhie made Egan open-ended by explaining that “the term ‘security clearance’ should not be viewed as a term of art, but merely as a ‘semantic device’ extending to preliminary background investigations.”
In other words, merit system rights would be canceled even before an employee is hired.
This finding could affect any federal employee, even those whose jobs do not require access to classified information. In Crumpler, the employee was a checkout cashier at a base retail commissary for whom classified information was irrelevant. But the Air Force decided that all base jobs were “sensitive.” Paralegals such as Ms. Grimes have no need for classified information, but in U.S. Attorney offices, 60 percent of cases are classified as “sensitive.”
GAP concludes that Crumpler could not co-exist with the merit system. This destructive ruling permits agencies to cancel independently-enforced law for almost any personnel dispute, including nearly any disciplinary action. It also would cancel pre-existing Whistleblower Protection Act rights against retaliatory investigations.
Although the original Crumpler dispute was settled, the Board pressed ahead to resolve the issue through related cases, and has temporarily halted proceedings in all cases affected by the vacated precedent. The outcome will determine whether and when federal employees are entitled to an administrative day in court to enforce their merit system rights.
Government Accountability Project
The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.