By JOSH GERSTEIN
President Barack Obama’s administration is not backing down in its fight to limit the rights of hundreds of thousands of federal workers in jobs deemed “national security sensitive,” but appears to be trying to limit the damage the legal dispute has done to the White House’s relationship with groups supporting whistleblowers.
In a new legal brief, the Justice Department persists in arguments that the civil service system, and effectively the courts, have no authority to review the federal government’s decision to desginate certain jobs as “sensitive” and to fire or demote such employees by determining that they’re unsuitable to hold a sensitive post.
In the brief filed Monday with the U.S. Court of Appeals for the Federal Circuit (and posted here), the Justice Department argues that agency managers who make such decisions are entitled to “nothing short of total deference” from civil service monitors at the Merit Systems Protection Board.
“The Board is not qualified to evaluate questions of susceptibility to coercion, loyalty, and trustworthiness; only agency officials are qualified to make such determinations given their expertise, familiarity with the particular national security sensitive position, the intelligence available to them, and their experience in handling and evaluating information bearing on national security,” the DOJ brief says.
Justice Department lawyers argue that a 1988 Supreme Court case putting decisions about classified information clearances beyond independent review applies with equal force to decision about who can fill a “sensitive” job, even those that don’t involve handling classified information. “The predictive judgments required…are identical,” the brief says.
The dispute before the federal appeals court pertains to two low-level Defense Department employees found unsuitable for “national security sensitive jobs.” One was suspended from her job as a bookkeeper. The other was a commissary manager demoted to grocery stock clerk. Often such actions are based on poor credit ratings or high debt, though they can also stem from concerns about an employee’s family or foreign contacts.
The new brief says nothing in particular about the sensitivity of the duties of the bookkeeper or grocery store manager, but suggests that opening such suitability determinations to independent review would involve second-guessing about the backgrounds of Customs agents who guard against the entry of terrorist weapons, terrorists and biological agents and Defense Department personnel who drive trucks loaded with jet fuel.
Major federal employee unions, which are usually closely allied with the Obama White House, have openly dissented from the administration’s position and are backing the workers’ right to full review of such personnel actions.
Neither of the two employees whose cases are at the crux of the fight was a whistleblower, but advocates for whistleblowers warned that the administration’s stance would allow agencies or managers to use the pretext of unsuitability for a sensitive job to retaliate against employees who expose waste, fraud or abuse.
“This case does not involve whistleblowing,” the administration’s brief says. “The government is not attempting to ‘carve out an exception from …the Whistleblower Protection Act.'”
Despite that assurance, the government brief is silent on what an alleged whistleblower’s rights would be under that law if stripped of clearance to hold a sensitive job. The brief essentially leaves that dispute for another day, though when DOJ lawyer refer to the dangers of “inexpert” adjudicators resolving such disputes it seems doubtful the administration would acquiesce to whistleblower watchdogs like the Office of Special Counsel wading into such cases.
Sen. Chuck Grassley (R-Iowa) warned Tuesday that if the Obama administration prevails in the dispute, whistleblower protections could be gutted.
“The Justice Department and the Obama Administration are currently engaged in waging the war on whistleblowers in federal courts across the country, most notably a case pending before the federal courts titled Berry v. Conyers,” Grassley said during a joint hearing of two House subcommittees. “We all need to keep an eye on this case as it could effectively end protecting whsitleblowers in the federal government.”
One whistleblower advocate, Tom Devine of the Government Accountability Project, said the Obama Administration brief “could have been much worse.”
“It’s a real relief that the government has removed the Whistleblower Protection Act from its sights in this attack on the civil service,” Devine said. “But we’re very disappointed that the administration didn’t recognize the supremacy of the merit system in any personnel action, whether founded in national security or sexual harassment.”
Devine acknowledged that the Obama Administration didn’t agree to respect whistleblower rights in the “sensitive” job context, but simply sought to take that issue off the table for now.
“Of course, the same principles could apply to [whistleblower] retaliation cases, but for the time being they’re limiting the attack to the due process rights of employees defending their reliability for sensitive jobs,” Devine said.
The case is set for argument before the full bench of the Federal Circuit on May 24.