The case of Northover v. Archuleta, formerly known as Berry v. Conyers, raises the question of whether the Merit System Protections Board (“MSPB”) and the U.S Court of Appeals for the Federal Circuit can review a decision that an employee is unqualified to serve in a position that is classified as “sensitive,” but that does not require a security clearance.
This case arose when Ronda Conyers, a Defense Department accounting technician, and Devon Northover, a grocery clerk, realized they were in debt. Typically, this is a risk to the government because when those who are protecting it fall into debt, they in theory become more susceptible to potential bribes. Neither Conyers nor Northover possessed a security clearance or had access to classified information. Nonetheless, they were ousted from their jobs because they had debt. Conyers and Northover went to the MSPB for review, however the Department of Defense (“DOD”) dismissed their claim under the Egan rule- the idea that they could be fired because their jobs required access to “sensitive” information. Initially, the MSPB rejected the DOD’s argument but the Office of Personnel Management petitioned to the Federal Circuit for review. More details are available here.
On October 12, 2012, National Whistleblowers Center (“NWC”) joined with the American Civil Liberties Union (“ACLU”) in an amicus brief filed by the National Treasury Employees Union (“NTEU”). In this post from Whistleblower Network News, it’s noted that the brief refers to the text of the Civil Service Reform Act (CSRA) gives the MSPB jurisdiction under 5 U.S.C. § 7701. It highlights how The CSRA has no provision denying jurisdiction based on eligibility to handle “sensitive” information and notes how federal managers could easily abuse authority to deny “eligibility” to “sensitive” information, particularly in whistleblower cases where the federal employee has used access to information to disclose waste, fraud or abuse. On October 16, the Federal Circuit granted leave to file the brief.
Discontent with the findings of the Federal Circuit, Northover petitioned for Writ of Certiorari, meaning the chance to have a supreme court hearing. In 2014, the petition was denied. This case marked a loss for whistleblowers as it demonstrated how the judicial system often works against individuals in circumstances like these.
Photo by Dmitrij Paskevic