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'Sensitive' Loophole Leaves Thousands of Fed. Workers Unprotected

By William Peacock, Esq. on August 30, 2013 | Last updated on March 21, 2019

The government just got a blank check for managing employees with reduced oversight, thanks to the Federal Circuit, and critics are already the worst.

When a federal employee has a grievance, often, their remedy is to appeal the issue to the Merit Systems Protection Board. Common appeals include whistleblower claims and furlough complaints, which are extremely popular in the time of sequestration.

Now, after the Federal Circuit Court of Appeals extended the Supreme Court's Egan v. Navy decision from 1988, holding that the MSPB could not review security clearance determinations, the door to the MSPB will now be closed for a larger group of workers: "noncritical sensitive" positions.

An Accountant and a Commissary Worker Walk Into a MSPB

One of the employees, Rhonda Conyers, was an accounting technician who was suspended indefinitely and declared ineligible for her sensitive position due to $10,000 in outstanding personal debt, blamed in part on her marital separation and divorce, reports the Washington Post.

The other employee, Devon Northover, was a commissary management specialist, which the Post calls "a fancy title" for someone who manages inventory in a government store. He was demoted to a part-time position and is claiming discrimination.

The complaints of both would ordinarily be heard by the MSPB, but due to their classification as "noncritical sensitive," the Office of Personnel Management argued that the MSPB was unable to review their cases. Neither had access to classified information, nor was either requited to obtain a high level of security clearance. The MSPB held otherwise, leading to the OPM's appeal to the Federal Circuit

Or Not

A divided Federal Circuit panel reversed the MSPB and held that Egan limit's the board's review. That decision was vacated before the present en banc proceedings, which came to the same conclusion: no board review for positions labeled "noncritical sensitive."

In addressing the "sensitive" issue, the court stated, "It is naïve to suppose that employees without direct access to already classified information cannot affect national security," before citing the example of a hypothetical commissary worker, who notices a buildup of certain types of supplies, and tips off the enemy.

Loophole Dangerous for Whistleblowers

The majority's decision has great implications and even greater dangers. With this "noncritical sensitive" loophole, the government can easily shield any decision from review by classifying the position as sensitive.

"If positions of grocery store clerk and accounting secretary are deemed to be sensitive, it is difficult to see which positions in the DoD or other executive agencies would not be deemed sensitive."

The dissent worries about the implications for whistleblowers and the possibility of mass reclassifications of relatively unimportant positions as "sensitive" for the sake of avoiding MSPB review.

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