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Federal Employees News Digest : Sep 2, 2013
September 2, 2013 Vol. 63, No. 7 3 Visit us on the Internet at www.FederalDaily.com holes that gutted statutory free speech rights," Devine stated. "Apparently the Federal Circuit did not get it. This time the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce. It erased all federal laws that shield the 2 million fed- eral employee workforce from becoming a national security spoils system." Appeals Court Judge Timothy Dyk, who issued a dissenting opinion in the case, said the majority opinion "upholds sweeping claims by the Department of Defense that it may take adverse actions against non-critical sensitive employees without review by the Merit Systems Protection Board." "The effect," Dyk wrote, "is to effec- tively 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 presi- dent or Congress, and contrary to the Civil Service Reform Act of 1978." "Due process rights are the very foundation of our civil service system," American Federation of Government Employees National President J. David Cox Sr. said in a statement. "That system itself has been undermined by the court today, if this ruling is allowed to stand." AFGE, which had provided counsel to the respondents in the case, said it expects to seek Supreme Court review. Key case grants wide discretion "The problem goes back to the Navy v. Egan case, decided by the Supreme Court in 1988," John Mahoney, a fed- eral employee attorney with the law firm of Tully Rinckey, told FEND. "Under Egan, if an agency's decision touches on national security---for instance, whether to grant access to information or a suit- ability determination for a sensitive posi- tion---the MSPB cannot second-guess the national security determinations of a federal agency." "This decision makes Egan [absolute], and I think that AFGE and other appel- lants will appeal the decision to the Supreme Court," Mahoney said. "What we see, from the plaintiff side, are abuses of agency national security power---when they suspend someone's security clearance or deny them access to critical sensitive positions or secu- rity clearances, actually making that sus- pension due to EEO or whistleblower activity. These [agency acts] are prohib- ited personnel practices," Mahoney told FEND. "What the board was trying to do in Kaplan was to try to give some relief to affected employees under those abu- sive circumstances---without touching the 'third rail,' which is the Egan c a s e ." "Look, these are people who may have their security clearance or access to sensitive information suspended for an unlimited period of time," Mahoney emphasized. "That can and does mean being put on indefinite unpaid suspen- sion---potentially for years, even in cases where there is clear evidence that their agency suspended them for EEO discrimination or some whistleblower activity. In Kaplan, the board was trying to combat these abuses. Now the [federal court has tossed that protection out]." "In my opinion, the abuse of security clearance process, under which agencies can suspend someone's clearance and without pay for years--- it's a perfect way to get back at, and harm, a person--- indefinitely suspend them---because they will run out of money, they won't really have a job, and they will go away eventually," Mahoney told FEND. "Under Egan, and now the Kaplan court decision, there's no necessity for investigation in these cases," he said. "And we have seen agencies use it as the perfect way to harm employees---in reprisal for whistleblower activity or the like." "This is exactly what the Whistleblower Protection Enhancement Act was trying to remedy, the abuse of many of these suspensions." Mahoney said. Supreme Court could be next Mahoney noted that the Supreme Court is likely to rule on the matter because different circuit rulings have created contradictions in the law. "Now, as a result of this case, there is clearly a dispute in how to handle such cases, between the federal circuit and the WPEA, No. 1," Mahoney said. "No. 2, in the original Kaplan decision of about a year ago, there was a footnote whereby the courts were allowed to examine alle- gations of constitutional violations or an agency's violation of their own pro- cedures---if it can be shown the agency had a wrongful motivation in the sus- pension." "[The Kaplan footnote followed from] a D.C. circuit court decision in Rattigan v. Holder (2012)," Mahoney said. "Here, the D.C. circuit made a narrow exception to the Egan rule, so that the courts can in cases of agency abuse review security- related decisions. But, since then, there is another Fourth Circuit case that has gone against the Rattigan decision. That means there's a split in the circuit---and the issue is ripe for the Supreme Court to step in and take a look at Egan." Mahoney reiterated that there is a "his- tory of abuse by agencies that want to discriminate against and retaliate against some employees." "I think it's time for the Supreme Court to carve out some exceptions to Egan," he said. "There could be an absolute bar on agency or court review of security deci- sions, unless there is some evidence of agency discrimination or retaliation. In such cases, the Supreme Court could carve out an exception." Mahoney said that if the Supreme Court chooses not to hear an appeal of Kaplan and create the necessary excep- tions, the president can create, through executive order, exceptions where there may be abuses by an agency, such as retaliation or harassment. "Under the Constitution, the presi- dent---as commander in chief---can determine who has access to national security secrets. Having access is a privi- lege, not a right. Ultimately, the power rests solely with the president," Mahoney continued from page 1 Don’t miss our discussion of weekly news topics. Discuss these stories and more with your fellow federal workers at www.FederalSoup.com. continued on page 4
Aug 26, 2013
Sep 9, 2013