Activists Laud Special Counsel’s Entry into Whistleblower Case

Special Counsel Carolyn Lerner Special Counsel Carolyn Lerner Congressional Subcommittee on Oversight and Reform

In a first since passage last November of the Whistleblower Protection Enhancement Act, the Office of Special Counsel on Thursday filed an amicus brief challenging a ruling it says would deny federal employees who feel they are unfairly removed from so-called “sensitive” national security positions appropriate recourse. The move was applauded by nonprofit whistleblower advocates’ groups.

Special Counsel Carolyn Lerner, siding with the Merit Systems Protection Board, filed a brief in the U.S. Appeals Court for the Federal Circuit, arguing that a Defense Department decision to declare two civilian employees ineligible for positions deemed sensitive, if upheld in court, “would undermine Congress’ repeated efforts to strengthen whistleblower and other good government protections for federal workers.” Lerner added that “it could also limit OSC’s jurisdiction to investigate allegations of whistleblower reprisal for hundreds of thousands of federal employees.”

The case, Berry v. Conyers, involves two low-level Defense civilians, one of whom worked preparing product inventory at a commissary and another who was a GS-5 accounting technician. Pentagon supervisors stripped them of their status as “non-critical sensitive,” demoting one and suspending the other. Both filed a complaint to the MSPB, though neither claimed to be whistleblowers. The Office of Personnel Management backed the Pentagon and petitioned for the court to overrule the anticipated decision by the merit board.

In August 2012, a three-judge circuit court panel ruled against the employees, based on an expanded reading of a 1988 Supreme Court ruling that had allowed agencies to deny employees’ sensitive positions in a narrow set of circumstances affecting national security, the OSC said. Two of the three judges ruled that national security required “deference to agencies” in such cases. The reasoning, the OSC wrote, is that “the commissary employee’s ability to observe stock levels of sunglasses and sports drinks could hint at future deployments of troops and impact national security. Accordingly, review of eligibility determinations to hold such positions should be limited to the agency involved.”

The OSC, MSPB and nonprofits that work with whistleblowers argued that such a ruling “eliminates independent due process hearings at the MSPB for employees who lose their eligibility to hold a sensitive position.” The case could have wide impact because the Pentagon employs some 500,000 in jobs designated as sensitive, with tens of thousands more at other agencies.

The whistleblower angle emerged because the one dissenting judge noted that the decision could affect employees who allege that their eligibility to hold a sensitive position was revoked in retaliation for whistleblowing. OSC, the amicus brief argues, would be in danger of losing its jurisdiction to investigate whistleblower cases involving determinations of job sensitivity.

In January, the full appeals court agreed to hear the case, which is what prompted the Special Counsel’s Office to weigh in.

Tom Devine, legal director of the nonprofit Government Accountability Project, which filed its own amicus brief in the case, said in an email to Government Executive that "the OSC is right where it should be, defending the merit system against the civil service equivalent of a nuclear attack.” If OPM gets its way, he said, “virtually any job can be labeled ‘sensitive’ and require renewed ‘eligibility’ apart from the civil service system. Once that happens, agencies could circumvent the rule of law in place since 1883 for a nonpartisan federal workforce. The federal work force could be purged at will.”

Devine warned that the new whistleblower law “and all other merit system laws guarding against discrimination will be swept away. So would the most basic right of a free society -- independent due process to defend against government charges of misconduct.”

Angela Canterbury, director of public policy at the Project on Government Oversight, called the special counsel “a breath of fresh air, someone actually doing the job.” She called the position taken by the Pentagon and OPM “an incredibly dangerous one that could have far-reaching effects.”

Both POGO and GAP view the case an example of the Obama administration being “at war” with itself. “We really have two American governments,” Canterbury said. “One looks like a democracy, the other a national security state where rights and freedom of speech all too often are superseded by claims of national security.”

She spoke of a “dichotomy” within agencies under President Obama. “On one hand he more than any other president has supported and advanced fundamental protections under the law for federal employees,” she said. “On the other hand, the administration created this huge national security loophole for whistleblowers, brought an appeal to the federal circuit, and blew a hole in the Whistleblower Protection Act and the Civil Service Reform Act.”

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