Court Ruling Major Setback For National Security Employees

The U.S. Court of Appeals for the Federal Circuit issued a ruling today potentially stripping "hundreds of thousands" of federal employees rights under civil service law. The ruling, in Kaplan v. Conyers, held that federal workers in "sensitive" positions could be unilaterally stripped of their civil service rights, at the "discretion" of their employing agency.

The dissenting opinion by Appeals Court Judge Dyk, summarized the draconian impact of the ruling:

The majority opinion upholds sweeping claims by the Department of Defense ("DoD") that it may take adverse actions against non-critical sensitive employees without review by the Merit Systems Protection Board ("MSPB" or "Board"). The effect is to effectively deny MSPB review for hundreds of thousands of federal employees--a number that is likely to increase as more positions are designated as non-critical sensitive. In my view, the DoD has acted without authority from either the President or Congress, and contrary to the Civil Service Reform Act of 1978.

Stephen M. Kohn, Executive Director of the National Whistleblower Center, issued the following statement:

"This is 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. That law was designed to protect federal employees who report "waste fraud and abuse" through lawful channels and was also designed to ensure that the federal workforce was free from discrimination, unlawful patronage and retaliatory actions. Instead, agencies such as the Department of Defense can simply claim that an employee occupies a "sensitive" position, strip them of their civil service rights and fire them without regard to civil service protections.

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 White House and the national security agencies it defends have worked overtime to expand the power of the executive to fire workers who dare to raise concerns about misconduct or corruption."

A copy of the decision is linked here.