Appeals Court Treats Commissary Gatorade Supplies as a “Clear and Present Danger”
Navy v. Egan–the SCOTUS case Executive Branch officials always point to to claim unlimited powers over classification authority–just got bigger.
Berry v. Conyers extends the national security employment veto over commissary jobs
The original 1988 case pertained to Thomas Egan, who lost his job as a laborer at a naval base when he was denied a security clearance. He appealed his dismissal to the Merit Systems Protection Board, which then had to determine whether it had authority to review the decision to fire him based on the security clearance denial. Ultimately, SCOTUS held that MSPB could not review the decision of the officer who first fired Egan.
The grant or denial of security clearance to a particular employee is a sensitive and inherently discretionary judgment call that is committed by law to the appropriate Executive Branch agency having the necessary expertise in protecting classified information. It is not reasonably possible for an outside, nonexpert body to review the substance of such a judgment, and such review cannot be presumed merely because the statute does not expressly preclude it.
Unlike Egan, the plaintiffs in this case did not have jobs that required they have access to classified information. Nevertheless, plaintiffs Rhonda Conyers (who was an accounting clerk whose “security threat” pertained to personal debt) and Devon Haughton Northover (who worked in a commissary and also charged discrimination) were suspended and demoted, respectively, when the government deemed them a security risk.
In a decision written by Evan Wallach and joined by Alan Lourie, the Federal Circuit held that the Egan precedent,
require[s] that courts refrain from second-guessing Executive Branch agencies’ national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information.
That is, the Federal government can fire you in the name of national security if you have a “sensitive” job, whether or not you actually have access to classified information.
As Timothy Dyk’s dissent notes, the effect of this ruling is to dramatically limit civil service protections for any position the government deems sensitive, both within DOD–where both Conyers and Northover work–and outside it.
Under the majority’s expansive holding, where an employee’s position is designated as a national security position, see 5 C.F.R. § 732.201(a), the Board lacks jurisdiction to review the underlying merits of any removal, suspension, demotion, or other adverse employment action covered by 5 U.S.C. § 7512.
As OPM recognizes, under the rule adopted by the majority, “[t]he Board’s review . . . is limited to determining whether [the agency] followed necessary procedures . . . [and] the merits of the national security determinations are not subject to review.”
In doing so, the dissent continues, it would gut protection against whistleblower retaliation and discrimination.
As the Board points out, the principle adopted by the majority not only precludes review of the merits of adverse actions, it would also “preclude Board and judicial review of whistleblower retaliation and a whole host of other constitutional and statutory violations for federal employees subjected to otherwise appealable removals and other adverse actions.” Board Br. at 35. This effect is explicitly conceded by OPM, which agrees that the agency’s “liability for damages for alleged discrimination or retaliation” would not be subject to review. OPM Br. at 25. OPM’s concession is grounded in existing law since the majority expands Egan to cover all “national security” positions, and Egan has been held to foreclose whistleblower, discrimination, and other constitutional claims.
Tracking Gatorade supplies can now represent a “clear and present danger”
There are a couple of particularly troubling details about how Wallach came to his decision. In a footnote trying to sustain the claim that a commissary employee might be a national security threat, Wallach argues that Northover could represent a threat in the commissary by observing how much rehydration products and sunglasses service members were buying.
The Board goes too far by comparing a government position at a military base commissary to one in a “Seven Eleven across the street.”
Commissary employees do not merely observe “[g]rocery store stock levels” or other-wise publicly observable information. Resp’ts’ Br. 20. 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. Read more →