“Hundreds of Thousands” of Federal Employees Lose Civil Service Rights

Devon Northover was GS-7 Commissary Management Specialist for the Defense Commissary Agency (DCA). His work involved managing the commissary, or grocery store, on a US military base in Alabama.  His position did not require that he have a security clearance, because he did not have access to “classified information.”  However, the Department of Defense had designated his position as “non-critical sensitive,” which is defined as “a position with potential to cause harm to national security.” 

Unfortunately, Northover got behind in paying his bills, and as a result, DCA informed him that he was no longer “suitable” to hold his position.  As a federal employee, he appealed this decision to the Merit Systems Protection Board.  In response, DCA argued that the MSPB had no jurisdiction to review the merits of DCA’s decision, citing Department of the Navy v. Egan, 484 U.S. 518 (1988).  Egan was a controversial Supreme Court decision holding that the MSPB had no jurisdiction to review Department of Defense decisions to deny employees access to classified information, in other words, security clearances.

The MSPB held that Egan did not apply, because Northover’s case did not involve a security clearance issue.  But on August 20, 2013, the US Court of Appeals for the Federal Circuit overturned that decision, holding that Egan cannot be confined to security clearance determinations.  Instead, Egan prohibited courts from “second-guessing DoD national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information.”  The Court held that even employees without access to classified information can affect national security. The case is Kaplan v. Conyers, Case 11-3207.

One interesting exchange that had occurred at oral argument became a noteworthy part of the decision.  The discussion involved how it could be that someone who worked in a grocery store on an Army post could be a national security position.  The government argued that if the store’s stock of sunglasses or Gatorade was suddenly depleted in the wintertime, it could be a hint that soldiers on that post had been given deployment orders to a hot climate.  This assertion appeared somewhat laughable at the time, especially since no one mentioned the fact that any other shoppers, such as military spouses, also would have access to this same information, simply by noticing that an item was depleted on the empty shelves.

Nevertheless, the judge writing for the majority obviously found this argument persuasive:

Commissary employees do not merely observe “[g]rocery store   stock levels” or other-wise publicly observable information… In fact, commissary stock levels of a particular unclassified item – sunglasses, for example, with shatterproof lenses, or rehydration products – might well hint at deployment orders to a particular region for an identifiable unit. Such troop movements are inherently secret…This is not mere speculation, because … numbers and locations could very well be derived by a skilled intelligence analyst from military commissary stock levels.

The dissent accurately noted that the Supreme Court in Egan expressly noted that it was deciding the “narrow question” of whether the MSPB had the authority to review the substance of an underlying decision to deny or revoke a security clearance,” and that the majority therefore improperly extended Egan to a case that did not involve a security clearance determination:

The majority opinion upholds sweeping claims by the Department of Defense (“DoD”) that it may take adverse actions against non-critical sensitive employees without review by the Merit Systems Protection Board (“MSPB” or “Board”). The effect is to effectively deny MSPB review for hundreds of thousands of federal employees–a number that is likely to increase as more positions are designated as non-critical sensitive.

It is expected that Northover, who is represented by the American Federation of Government Employees, will ask the Supreme Court to review this decision.

If you have been denied a security clearance, the lawyers at Kalijarvi, Chuzi, Newman & Fitch can help you with your appeal and advise you about your rights.  Call Elizabeth Newman, author of the leading text on security clearances, “Security Clearance Law and Procedure,” available from the publisher, Dewey Publications.  


For more information, please check out the updated edition of Security Clearance Law and Procedure by KCNF partners Elaine Fitch & Mary Kuntz.