Recently, the Office of Personnel Management (“OPM”) sought review of the Merit Systems Protection Board (MSPB or “the Board”) decision seeking to expand its jurisdiction in cases involving security clearance determinations.  The board held that the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988) limits Board review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. The Court found that “Egan prohibits Board review of agency determinations concerning eligibility of an employee to occupy a “sensitive” position, regardless of whether the position requires access to classified information.”

Judging from the appearance list at the beginning of the decision, just about every attorney at the Board was involved in arguing this case.  Also involved and supporting the Board, to the surprise of none,  were the American Federation of Government Employment and the ACLU.

The case involved two different employees who worked for the Defense Department and had positions determined by the Agency to be “noncritical sensitive”.

The Army is covered by the same rules as DoD and according to it’s website:

Certain civilian positions within the Army entail sensitive duties including access to classified information. Misconduct, illegal action or even inaction on the part of an employee in a designated sensitive position could directly compromise the national security. In the interests of national security, care must be exercised in selecting individuals to fill sensitive positions.

There are four types of sensitivity designations:

  Nonsensitive - All other positions not identified below. Requires National Agency Check investigation.

Noncritical Sensitive - Position involves access to CONFIDENTIAL or SECRET information, IT-II/CAT II ADP duties, duties in chemical/biological PRP. Requires an advanced National Agency Check with inquiries/National Agency Check with local and credit check investigation.

Critical Sensitive - Position involves access to TOP SECRET information, IT-I/CAT I ADP duties, or requires enrollment in Nuclear PRP programs. Requires a single scope background investigation (SSBI).

Special Sensitive - Position involves sensitive information related to National Security, intelligence, or strategic technologies requiring access to TOP SECRET/SENSITIVE COMPARTMENTED information (SCI). Requires a single scope background investigation (SSBI).

In both cases, following an investigation, the Agency discovered information about the employees that raised security concerns. As a result the Agency indefinitely suspended the first employee from her position because she was denied eligibility to occupy a sensitive position by the Agency’s security adjudication staff. The Agency reasoned that the noncritical sensitive “position required the employee to have access to sensitive information,” and because of the access denial, “she did not meet a qualification requirement of her position.”  The employee was later removed for this reason.  The second employee was reduced in grade from a position that was critical sensitive to one that wasn’t.

The gist of the Board’s theory was that unless an employee had access to classified information, Egan didn’t apply.

The Court gave the Board a lecture on the differences between adverse actions under Subchapter II of Title 5 in which MSPB has jurisdiction and Subchapter IV relating to removals for national security reasons in which the Board’s review is severely limited.  The Court, apparently concerned about something not apparently important to MSPB, said “Courts thus must tread lightly when faced with the potential of second-guessing discretionary agency determinations concerning national security.”

It went on to say:

“The Board and Respondents conflate “classified in-formation” with “national security information,” but Egan does not imply those terms have the same meaning.11 In fact, Egan’s core focus is on “national security information,” not just “classified information.” 484 U.S. at 527 (recognizing the government’s “compelling interest in withholding national security information”) (emphasis added). As Egan noted, the absence of a statutory provision in § 7512 precluding appellate review of determinations concerning national security creates a presumption in favor of review. Id. The Court, nevertheless, held that this “proposition is not without limit, and it runs aground when it encounters concerns of national security, as in this case, where the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch.””

BTW, Websters uses the synonyms confuse, confound, mistake, mix (up) for “conflate”, just in case the lawyers involved didn’t get it and thought they won the case.

The Court found the Board’s and friends’ logic “flawed”.  It said:

“The Board and Respondents’ focus on one factor, eligibility of access to classified information, is misplaced.16 Government positions may require different types and levels of clearance, depending upon the sensitivity of the position sought.”

The Court understood what the Board didn’t:

“Some rights of government employees are certainly abrogated in national security cases. The Board and Respondents must recognize that those instances are the result of balancing competing interests as was the case in Egan and as is the case here.

Let’s not lose sight of the fact that this was a political decision by the Board using government resources to advance an ideological view.  The current Board disagrees with Egan and sought to weaken it with no regard for the consequences on national security as intimated in the decision of the court.  Go back to your union jobs, MSPB staff where you can legitimately advance your political agenda before the Congress not use our money to do it before the courts.  Many in the business hoped MSPB would chart a different path than the Federal Labor Relations Authority’s majority members whose politically driven decisions have divested it of any semblance of neutrality or even handedness.  Apparently, the same attitude infecting FLRA has arrived at the Board.

As always, the opinions expressed here are my responsibility.

The Advanced Labor Relations Class in Chicago in September is a go.  There are a few seats left.  If you want more information get in touch with Dennis Hermann or go to this link.

Recently, the Office of Personnel Management (“OPM”) sought review of the Merit Systems Protection Board (MSPB or “the Board”) decision seeking to expand its jurisdiction in cases involving security clearance determinations.  The board held that the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988) limits Board review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. The Court found that “Egan prohibits Board review of agency determinations concerning eligibility of an employee to occupy a “sensitive” position, regardless of whether the position requires access to classified information.”

Judging from the appearance list at the beginning of the decision, just about every attorney at the Board was involved in arguing this case.  Also involved and supporting the Board, to the surprise of none,  were the American Federation of Government Employment and the ACLU.

The case involved two different employees who worked for the Defense Department and had positions determined by the Agency to be “noncritical sensitive”.

The Army is covered by the same rules as DoD and according to it’s website:

Certain civilian positions within the Army entail sensitive duties including access to classified information. Misconduct, illegal action or even inaction on the part of an employee in a designated sensitive position could directly compromise the national security. In the interests of national security, care must be exercised in selecting individuals to fill sensitive positions.

There are four types of sensitivity designations:

  Nonsensitive - All other positions not identified below. Requires National Agency Check investigation.

Noncritical Sensitive - Position involves access to CONFIDENTIAL or SECRET information, IT-II/CAT II ADP duties, duties in chemical/biological PRP. Requires an advanced National Agency Check with inquiries/National Agency Check with local and credit check investigation.

Critical Sensitive - Position involves access to TOP SECRET information, IT-I/CAT I ADP duties, or requires enrollment in Nuclear PRP programs. Requires a single scope background investigation (SSBI).

Special Sensitive - Position involves sensitive information related to National Security, intelligence, or strategic technologies requiring access to TOP SECRET/SENSITIVE COMPARTMENTED information (SCI). Requires a single scope background investigation (SSBI).

In both cases, following an investigation, the Agency discovered information about the employees that raised security concerns. As a result the Agency indefinitely suspended the first employee from her position because she was denied eligibility to occupy a sensitive position by the Agency’s security adjudication staff. The Agency reasoned that the noncritical sensitive “position required the employee to have access to sensitive information,” and because of the access denial, “she did not meet a qualification requirement of her position.”  The employee was later removed for this reason.  The second employee was reduced in grade from a position that was critical sensitive to one that wasn’t.

The gist of the Board’s theory was that unless an employee had access to classified information, Egan didn’t apply.

The Court gave the Board a lecture on the differences between adverse actions under Subchapter II of Title 5 in which MSPB has jurisdiction and Subchapter IV relating to removals for national security reasons in which the Board’s review is severely limited.  The Court, apparently concerned about something not apparently important to MSPB, said “Courts thus must tread lightly when faced with the potential of second-guessing discretionary agency determinations concerning national security.”

It went on to say:

“The Board and Respondents conflate “classified in-formation” with “national security information,” but Egan does not imply those terms have the same meaning.11 In fact, Egan’s core focus is on “national security information,” not just “classified information.” 484 U.S. at 527 (recognizing the government’s “compelling interest in withholding national security information”) (emphasis added). As Egan noted, the absence of a statutory provision in § 7512 precluding appellate review of determinations concerning national security creates a presumption in favor of review. Id. The Court, nevertheless, held that this “proposition is not without limit, and it runs aground when it encounters concerns of national security, as in this case, where the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch.””

BTW, Websters uses the synonyms confuse, confound, mistake, mix (up) for “conflate”, just in case the lawyers involved didn’t get it and thought they won the case.

The Court found the Board’s and friends’ logic “flawed”.  It said:

“The Board and Respondents’ focus on one factor, eligibility of access to classified information, is misplaced.16 Government positions may require different types and levels of clearance, depending upon the sensitivity of the position sought.”

The Court understood what the Board didn’t:

“Some rights of government employees are certainly abrogated in national security cases. The Board and Respondents must recognize that those instances are the result of balancing competing interests as was the case in Egan and as is the case here.

Let’s not lose sight of the fact that this was a political decision by the Board using government resources to advance an ideological view.  The current Board disagrees with Egan and sought to weaken it with no regard for the consequences on national security as intimated in the decision of the court.  Go back to your union jobs, MSPB staff where you can legitimately advance your political agenda before the Congress not use our money to do it before the courts.  Many in the business hoped MSPB would chart a different path than the Federal Labor Relations Authority’s majority members whose politically driven decisions have divested it of any semblance of neutrality or even handedness.  Apparently, the same attitude infecting FLRA has arrived at the Board.

As always, the opinions expressed here are my responsibility.

The Advanced Labor Relations Class in Chicago in September is a go.  There are a few seats left.  If you want more information get in touch with Dennis Hermann or go to this link.

As the Pentagon prepares to unveil its fiscal year 2013 budget request next week, the sequestration beast is back in the news again.

Pentagon officials would be wise to make fallback plans that would prepare for hundreds of billions in additional funding cuts in the next decade should Congress fail to enact legislation in the next 11 months to nullify the massive cuts, dubbed “sequestration,” that are set to go into effect in January 2013, a pair of prominent analysts warned Wednesday.

“The failure to plan for the possibility of further reductions [in defense spending], I think, really is a major shortfall in the new defense strategy that they laid out,” said Todd Harrison of the Center for Strategic and Budgetary Assesments (CSBA) discussing the Pentagon’s soon to be released 2013 budget request this morning in Washington. “Because if you look at history, you don’t see plateaus in defense spending, it doesn’t just decline a little bit and then flatten out for the rest of the decade …if this decline is anything like what we’ve seen in the past three defense cycles [post Korean, Vietnam and Cold Wars], there are further cuts to come and the current strategy needs to be flexible and adaptable enough to adjust to that. The Pentagon can and they should begin preparing for the possibility of more reductions, especially sequestration, and I think if they fail to do that they run the risk of being unprepared for what is a perfectly foreseeable contingency.”

Harrison was referring to the fact that the Pentagon’s new 21st Century Defense Strategy does not seem to plan for any further funding cuts beyond the $487 billion in savings it is supposed to achieve in the next decade.

He added that the best chance to avoid sequestration died when the 12 lawmakers of the so called, deficit reduction supercommittee, failed to come up with a specific plan to reduce government spending. Now, all of Congress will have less than a year to hammer out a plan to reduce government spending in order to offset sequestration.

“You’ve got to 60 votes in the Senate and you’re subject to any number of amendments in both houses so that just complicated the process … if there was an easy fix, it would have been found by the supercommittee,” said Harrison.

Pentagon officials have said they are not planning a backup budget or strategy in case sequestration goes into effect next January. This may prove to be a big mistake, said CSBA’s President, Andrew Krepinevich.

“I remember the day that they [Pentagon brass] realized they [Congress] had the votes on the Hill and [the generals] had nothing and they tried to put something together quickly and come back to them but it was too late, they didn’t need to negotiate with them anymore and that’s the way things turned out back in ’86,” said Krepinevich of the Pentagon’s attempts to prevent the previous round of sequestration by refusing to cooperate with lawmakers in finding defense spending areas that could be cut out of a fear that doing so would enable the sequestration; an approach that backfired and left DoD officials with little input as to what programs could be cut, according to the think tank’s president.

“If I were secretary Panetta, I’d probably have a small group, sworn to secrecy, working something, and oftentimes small groups are where you get the best results, but he’s already gone out on a limb,” said Krepinevich. “I don’t think there’s any way he can easily say, ‘Oh well, remember what I said about throw our strategy out the window [if sequestration kicks in], no I didn’t really mean that.’”

All of this comes at a time of unprecedented change and threats to global security, said Krepinevich.

The sequestration that kicked off the post Cold War decline in Pentagon spending amounted to a 5 percent reduction in DoD budgets, verses the 10 percent cut over the next decade as laid out in the current sequestration package, according to Harrison.

“The last [major defense] drawdown started with a sequester, and it started before the threat environment started improving significantly,” said Harrison referring to the post-Cold War defense drawdown that actually began with a deficit reduction effort by Congress in fiscal year 1986, before the collapse of the Soviet Union. “I think that’s what the department should actually be worried about right now; a prolonged decline in defense spending that is not necessarily driven by a reduction in the threat environment and it could begin or be enforced by sequestration over the long term.”

Furthermore, the savings achieved by the Pentagon’s current budget reduction plan will not make much of a dent in any effort to eliminate the record federal deficit in the next ten years, added Krepinevich.

As the Pentagon prepares to unveil its fiscal year 2013 budget request next week, the sequestration beast is back in the news again.

Pentagon officials would be wise to make fallback plans that would prepare for hundreds of billions in additional funding cuts in the next decade should Congress fail to enact legislation in the next 11 months to nullify the massive cuts, dubbed “sequestration,” that are set to go into effect in January 2013, a pair of prominent analysts warned Wednesday.

“The failure to plan for the possibility of further reductions [in defense spending], I think, really is a major shortfall in the new defense strategy that they laid out,” said Todd Harrison of the Center for Strategic and Budgetary Assesments (CSBA) discussing the Pentagon’s soon to be released 2013 budget request this morning in Washington. “Because if you look at history, you don’t see plateaus in defense spending, it doesn’t just decline a little bit and then flatten out for the rest of the decade …if this decline is anything like what we’ve seen in the past three defense cycles [post Korean, Vietnam and Cold Wars], there are further cuts to come and the current strategy needs to be flexible and adaptable enough to adjust to that. The Pentagon can and they should begin preparing for the possibility of more reductions, especially sequestration, and I think if they fail to do that they run the risk of being unprepared for what is a perfectly foreseeable contingency.”

Harrison was referring to the fact that the Pentagon’s new 21st Century Defense Strategy does not seem to plan for any further funding cuts beyond the $487 billion in savings it is supposed to achieve in the next decade.

He added that the best chance to avoid sequestration died when the 12 lawmakers of the so called, deficit reduction supercommittee, failed to come up with a specific plan to reduce government spending. Now, all of Congress will have less than a year to hammer out a plan to reduce government spending in order to offset sequestration.

“You’ve got to 60 votes in the Senate and you’re subject to any number of amendments in both houses so that just complicated the process … if there was an easy fix, it would have been found by the supercommittee,” said Harrison.

Pentagon officials have said they are not planning a backup budget or strategy in case sequestration goes into effect next January. This may prove to be a big mistake, said CSBA’s President, Andrew Krepinevich.

“I remember the day that they [Pentagon brass] realized they [Congress] had the votes on the Hill and [the generals] had nothing and they tried to put something together quickly and come back to them but it was too late, they didn’t need to negotiate with them anymore and that’s the way things turned out back in ’86,” said Krepinevich of the Pentagon’s attempts to prevent the previous round of sequestration by refusing to cooperate with lawmakers in finding defense spending areas that could be cut out of a fear that doing so would enable the sequestration; an approach that backfired and left DoD officials with little input as to what programs could be cut, according to the think tank’s president.

“If I were secretary Panetta, I’d probably have a small group, sworn to secrecy, working something, and oftentimes small groups are where you get the best results, but he’s already gone out on a limb,” said Krepinevich. “I don’t think there’s any way he can easily say, ‘Oh well, remember what I said about throw our strategy out the window [if sequestration kicks in], no I didn’t really mean that.’”

All of this comes at a time of unprecedented change and threats to global security, said Krepinevich.

The sequestration that kicked off the post Cold War decline in Pentagon spending amounted to a 5 percent reduction in DoD budgets, verses the 10 percent cut over the next decade as laid out in the current sequestration package, according to Harrison.

“The last [major defense] drawdown started with a sequester, and it started before the threat environment started improving significantly,” said Harrison referring to the post-Cold War defense drawdown that actually began with a deficit reduction effort by Congress in fiscal year 1986, before the collapse of the Soviet Union. “I think that’s what the department should actually be worried about right now; a prolonged decline in defense spending that is not necessarily driven by a reduction in the threat environment and it could begin or be enforced by sequestration over the long term.”

Furthermore, the savings achieved by the Pentagon’s current budget reduction plan will not make much of a dent in any effort to eliminate the record federal deficit in the next ten years, added Krepinevich.