Recent oral arguments before the en banc U.S. Court of Appeals for the Federal Circuit in Conyers v. Berry will establish the reach of the Merit Systems Protection Board (MSPB) when “an agency determination concerns eligibility of an employee to occupy a sensitive position that implicates national security.” In Conyers, two employees in designated sensitive positions lost their cleared status and, thus, found themselves ineligible for their government jobs.
We can expect that the U.S. Court of Appeals will decide Conyers v. Berry in favor of the Office of Personnel Management (OPM), which means that MSPB authority will not extend to underlying security questions: MSPB’s will only determine “whether the position was in fact designated as sensitive, whether in fact the employee’s eligibility was revoked or denied, and whether the procedures that were required were followed. And that’s the scope of the board’s review,” as Department of Justice’s Abby C. Wright explained in her oral argument.
One important question Conyers v. Berry raises – and that Wright explicitly left unanswered when the Court asked – anticipates a next significant battle between the Department of Defense (DoD) and MSPB in which a complainant challenges ineligibility due to loss of security clearance in the wake of a whistle blowing episode.
While most believe that the Whistleblower Protection Act would necessarily protect the rights of the whistleblower in a way that would discourage any subsequent adverse personnel actions, Conyers suggests that conclusion may not be exactly correct.
Indeed, in a roundabout way, the whistleblower’s security clearance – and thus, the employee’s cleared job – remains vulnerable.
A proposed rule to streamline security clearance investigations poses even more concern. The Office of Personnel Management proposal would expand the number of positions considered ‘sensitive.’ The goal is to improve reciprocity and bring the various agencies together in their determinations of who has access to classified information.
Critics are concerned the rule would allow the government to deem almost any position sensitive, and provide government supervisors another means of punishing employees who would then have little recourse to appeal.
In two follow-up articles we’ll look at how position sensitivity and a security clearance may come into play for government whistleblowers. Specifically how an incident report in JPAS works, and how they may be used to leave a whistleblower without a job, and with little recourse to fight it.