Alexandra Cumings
ABSTRACT
The Civil Service Reform Act of 1978 (“CSRA”) established procedures by which federal agencies handle personnel actions. Federal employees who believe they were terminated or demoted without merit may appeal the agency’s action to an independent board for review. The U.S. Supreme Court articulated, however, that when review of an action could cause national security secrets to be divulged, a less comprehensive review is required.
For decades, this exception to a full independent review was limited to adverse actions that would require the reviewing board to adjudicate the merits of a security clearance denial or revocation. Then, in August 2013, the U.S. Court of Appeals for the Federal Circuit extended the exception to adverse actions stemming from an agency’s determination that an employee is no longer eligible to occupy a national security “sensitive” position. Reasoning that both security clearances and sensitive positions pose the same national security concerns, the Federal Circuit prohibited independent review over the Department of Defense’s termination of two civilian employees in non-critical sensitive positions.
This Comment first discusses the purpose and procedures of the CSRA and details the recent Federal Circuit decision. This Comment then explores how expanding the U.S. Supreme Court’s national security exception to the CSRA disrupts congressional intent, precedent, and the rights of millions of federal employees. Finally, this Comment concludes that the Congress should pass legislation that effectively reverses the Federal Circuit’s decision.
preferred citation: Alexandra Cumings, Kaplan v. Conyers: Preventing the Grocery Store Clerk from Disclosing National Security Secrets, 119 Penn St. L. Rev. 553 (2014)