Merit Systems Protection Board Balances National Security Exceptions Against Employee Rights

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Breaking with prior tradition the Board held Oral Arguments for the first time in nearly three decades to determine the
potentially far reaching implications of an appeal from two Defense Department
employees, both of whom were disciplined for national security reasons. 

In announcing the hearing, the board
said it will use oral arguments in cases “that present issues of special
significance because of their broad potential impact on the federal civil
service and merit systems.” The oral arguments were set in the elegant backdrop of
the U.S. Court of Appeals for the Federal Circuit, in the latter part of September.

The hearings primarily concerned
attempts by the Defense Finance and Accounting Service and the Defense
Commissary Agency to restrict the board’s ability to consider actions against
employees in certain circumstances on the grounds of national security, even
when their duties do not require security clearances and they neither have, nor
require, access to classified information.

Currently the Board does not have authority
to review the judgment of executive branch officials regarding which employees
receive security clearances. The Pentagon argued that the MSPB also does not
have the authority to decide cases involving employees whose positions are
classified as “non-critical sensitive.”

Contrary to the Pentagon’s position
however, it is difficult to ignore that no statute or regulation exists that
would otherwise preclude the MSPB from exercising jurisdiction over
“non-critical sensitive” positions. Neither of the employment positions that formed the impetus for holding
the oral arguments involved classified information or security clearances, that
much was undisputed, even by the government.   

The first appeal was that of Rhonda K.
Conyers, a Defense Finance and Accounting Service (DFAS) accounting technician
in Columbus, Ohio, whose security clearance was removed by the Pentagon. The revocation later resulted in Ms.
Conyers’ dismissal from her position, which did not require a security
clearance to perform, and after twenty years of successful federal service. 

DFAS asserted that “[s]ince the Agency
did not have work available for [Conyers] to perform without a security
clearance, her removal promoted the efficiency of the service, [as] it allowed
her superior to replace her with someone who met all the qualifications of the
. . . position,” the Defense finance agency wrote in its brief.  The dismissal was particularly troubling
in light of a decision by an administrative judge with the Defense Department,
who recommended that she be granted eligibility for a sensitive position.

The second case concerned the demotion
of Devon Northover, who worked for the Defense Commissary Agency at Gunter Air
Force Base in Alabama. He was demoted after officials decided to deny him
“eligibility for access to classified information and/or occupancy of a
sensitive position,” according to the agency’s brief.

“There is no dispute that
appellant’s eligibility was revoked in this case,” the brief says.
“Nor has the appellant raised any argument that the agency failed to
follow applicable procedural requirements.”

The common nucleus of each appeal is
that neither Conyers nor Northover, required security clearances to do their
jobs, a point that Defense Department attorneys did not contest. Notwithstanding the undisputed facts,
the government argues that a National Security exception prevents the Board
from hearing their appeals.

In the event the Board adopts the Pentagon’s
argument, it will effectively overturn well-settled Board precedent, and
unnecessarily diminish the rights of those myriad federal employees who occupy
sensitive designated positions, but who do not have access to classified
national security information.

Susan Tsui Grundmann, Chairman of the MSPB
stated, “it is incumbent upon the Board to… conduct oral argument in
order to shed light on the issues, the debate, and the process. Doing so should
result in the best decisions for federal employees and agencies, and the
American people.”

What remains to be seen however, is
whether the Board will adopt a potentially all encompassing national security
exception that will prevent it from hearing appeals like that of Conyers
and Northover at the expense of the letter and spirit of the civil
service law. 

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Ariel E. Solomon, Esq. is a Senior Attorney and concentrates her practice in all facets of Federal Employment Law and Civil Litigation on behalf of employees in complex litigation matters before the MSPB, the EEOC, the Office of Special Counsel, and Federal District Courts. She has served as principal counsel in precedent setting cases before the U.S. Court of Appeals for the Federal Circuit on behalf of federal employees for wrongful termination, and violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA).