Nicholas Woodfield, principal of The Employment Law Group® law firm, was recently interviewed by Law360 regarding a recent Federal Circuit decision which held that national security concerns may limit the review of employment decisions made by federal agencies, even by employees who do not have access to classified information. The decision is widely anticipated to limit the ability of federal employees to contest adverse personnel decisions.
The decision, Berry v. Conyers, held that the Supreme Court’s decision in Department of the Navy v. Egan prohibits the Merits System Protection Board (MSPB) from reviewing a federal agency’s decision relating to an employee’s eligibility to hold a sensitive position, irrespective of whether the position explicitly requires having access to classified materials.
According to Mr. Woodfield, the “Federal Circuit majority’s discussion of what could be construed as sensitive information that implicates national security demonstrates just how elastic the category can be.”
For example, according to Woodfield, a distinction can be drawn “between an employee working in a commissary on a military base and an employee at a nearby 7-11 with the explanation that stock levels of certain unclassified items at the commissary, such as sunglasses, could hint at deployment orders to a particular region for an identifiable unit.”
“What the Federal Circuit uses as an example,” Woodfield continued, “is the perfect example of how the narrow limit set forth in Egan can be expanded to just about anything. Ultimately, he noted, “you can use that creative logic to strip people of their rights.”
Regarding the issue of whether the Federal Circuit’s decision will be challenged, Woodfield observed that “if the employees do opt to pursue a further appeal, given the strength of the dissent, the case could be a good candidate for en banc review”.
At stake in the case “is essentially a battle between two philosophies,” Woodfield explained:
“The majority is saying national security should expansively trump personal rights, the minority is saying national security should narrowly trump personal rights. Which way the Federal Circuit might hold on rehearing is anyone’s guess.”
The article, entitled “Fed. Circ. Limits Federal Workers’ Employment Appeal Rights”, appeared in the August 22, 2012 edition of Law360.