Appeals Court Gives Federal Govt. Broad Leeway to Hit Workers for ‘Security’ Reasons, Disappointing Unions

WASHINGTON—A federal appeals court gave the federal government broad leeway to demote or fire civilian workers for “security” reasons by yanking their clearances, even when the workers don’t routinely handle classified and secret information.  Its ruling disappointed workers’ unions, who defended the employees.

The lead union, the American Federation of Government Employees, expects to appeal the case to the U.S. Supreme Court, union President J. David Cox said.

By a 7-3 margin on August 20, the U.S. Court of Appeals for the Federal Circuit, which handles federal workers’ cases, said the Merit Systems Protection Board (MSPB) could not challenge the Defense Department’s findings in such “security” cases.

The decision gives any agency virtually a free hand to unilaterally invoke “security” as a reason to discipline workers.  DOD has 700,000-plus civilian workers.

“AFGE is disappointed the court dismissed…the due process rights of tens of thousands of current and future federal workers,” Cox responded.  “Due process rights are the very foundation of our civil service system.  That system has been undermined by the court, if this ruling is allowed to stand.  AFGE’s attorneys are evaluating the lengthy opinion and we expect to seek Supreme Court review.  AFGE will leave no stone unturned in this litigation as long as appeal rights of our members are at stake.”

Specifically, the judges upheld the Defense Department’s 2009 demotion of Devon Northover from his “non-critical sensitive” full-time job as a DOD commissary management specialist to a part-time job as a commissary store associate.  Another worker’s case was dismissed as moot.

DOD said Northover lost the higher-class job in 2012 “due to revocation/denial of his DOD eligibility to occupy a sensitive position” because he was “now ‘not eligible to access classified information’” — even though Northover never dealt with classified information.  DOD did not say, in the court papers, why he flunked last year.

Northover challenged the demotion before the MSPB, and won.  But the federal Office of Personnel Management appealed, and the judges said MSPB has no power.

“There is no meaningful difference in substance between a designation that a position is ‘sensitive’ and a designation that a position requires ‘access to classified information,’” the court majority ruled.  “Rather, what matters is that both designations concern national security” and a prior U.S. Supreme Court ruling leaves the decision on who can get national security clearances – or have it yanked – up to DOD.  The Treasury Employees, who are unaffiliated, signed on to AFGE’s brief against DOD.