Court ruling gives agencies 'weapon' against employees, union says

Tuesday - 8/27/2013, 2:32pm EDT

Andres Grajales, deputy general counsel for the American Federation of Government Employees, on "The Federal Drive" with Tom Temin and Emily Kopp

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Hundreds of thousands of federal employees are not entitled to a key civil-service protection under a recent ruling by the Federal Circuit Court of Appeals in Washington, D.C.

In an Aug. 20 ruling, the court found that employees working in "sensitive" positions cannot appeal adverse personnel actions — such as suspensions and demotions — to the Merit Systems Protection Board.

The court ruling gives agencies "a weapon that they never had before," said Andres Grajales, deputy general counsel for the American Federation of Government Employees, who represented two Defense Department employees in the lawsuit.

"On the one hand agencies, historically, have complete discretion to designate a position as 'sensitive,'" Grajales said in an interview on the Federal Drive with Tom Temin and Emily Kopp. "Now the court has said ... they also have the power when they do that, to unilaterally restrict an employee's scope of review in an adverse-action appeal."

In other words: "Their appeal rights have been contracted by this decision," Grajales said.

Case revolves around employees in 'sensitive' positions

The case, Conyers v. Kaplan, dealt with two lower-level Defense Department employees: Devon Northover, who worked stocking shelves at a DoD commissary, and Rhonda Conyers, a technician for the Defense Finance and Accounting Service.

Both employees, who worked in positions that didn't require security clearances or access to national security information, were later found ineligible to hold their positions.

Typically, adverse personnel actions can be appealed to the Merit Systems Protection Board. However, DoD and the Office of Personnel Management argued that because the employees were employed in sensitive positions, they shouldn't be allowed to appeal their cases outside the agency.

In its 7-3 ruling, the appeals court agreed with the agencies' reasoning. In the majority opinion, Judge Evan Wallach wrote that the court shouldn't second-guess the Pentagon's decisionmaking regarding the eligibility of employees to occupy sensitive positions — regardless of whether those positions require a security clearance.

But Grajales said the decision will further weaken civil-service protections for employees across the federal government.

Already, under a previous ruling by the same court, employees are barred from challenging an agency's designation of their position as "sensitive," he said.

"So those employees, if they disagree with an agency's designation of their position, are very much out of luck," Grajales said. "And then, if for any reason, the agency goes forward and deprives that employee of eligibility to hold that position for any variety of reasons, they now, for the first time, also lack the full scope of appeal rights that they would have had."

The entire 15-judge Federal Circuit Court of Appeals reheard the case this spring after a smaller panel of judges came to the same conclusion last summer, and the plaintiffs appealed.

Chilling effect on whistleblowers?

Government watchdog groups are also concerned the court's ruling could have a chilling effect on whistleblowers.

The Office of Special Counsel, which filed an amicus brief in the case, said the ruling means employees working in positions deemed "sensitive" will have little recourse if their agency retaliates against them for exposing wrongdoing. The Office of Special Counsel typically conducts independent reviews when whistleblowers allege agency retaliation.

Special Counsel Carolyn Lerner called the ruling "disappointing."

"This decision poses a significant threat to whistleblower protections for hundreds of thousands of federal employees in sensitive positions and may chill civil servants from blowing the whistle," she said in an Aug. 21 statement. "OSC looks forward to working with Congress to strengthen existing whistleblower protections for all civil servants, including employees in sensitive positions."

But Grajales pointed to the potentially far-reaching effects of the case.

"This goes beyond whistleblowers," he said. "This is something that could have a truly substantial and negative impact on the bulk of the federal workforce."

Grajales said AFGE would likely appeal the case to the Supreme Court.

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