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03/01/2010 MON 19i0 8 FAX 2024570059 G. A. P. G3002/017

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CONYERS AND NORTHOVER,

Appellants,

Docket No. CH-0752-09-0925-M

Docket No. AT-0752-10-0184-M

v.

DEPARTMENT OF DEFENSE,

Agency.

BRIEF OF THE GOVERNMENT ACCOUNTABILITY PROJECT

AS AMICUS CURIAE

PURSUANT TO 75 FEDERAL REGISTER 6728 NOTICE REQUESTING BRIEFS IN

THE MATTERS OF CONYERS K DEPARTMENT OF DEFENSE AND NORTHOVER V.

DEPARTMENT OF DEFENSE

UJ

THOMAS M. DEVINE

LEGAL DIRECTOR,

GOVERNMENT ACCOUNTABILITY

PROJECT

1612 K Street NW, Suite 1100

Washington, DC 20005

(202)408-0034 Ext. 124

COUNSEL OF RECORD, AMICUS CURIAE

ON THIS BRIEF: KASEY DUNTON
03-/01/201Q MON 19J0 8 FAX 2024570059 6. A. P, Lfl003/017

TABLE OF CONTENTS

INTRODUCTION 1

INTEREST OF THE AMICUS 3

ARGUMENT., 4

I. The Crumpler Analysis Would Allow Federal Agencies to Cancel Any Independent Due

Process Rights to Enforce Merit System Principles for "Sensitive" Jobs 4

A. The Board Would Not Be Able to Review Agency Decisions to Classify Positions

as "Sensitive." 4

B. Agencies Would Not Be Required to Provide Any Due Process for Sensitivity

Decisions .5

II. The Rationale Articulated in the Crumpler Decision Cannot Coexist with the Supreme

Court's Egan Decision on which It Is Based 7

HI. The Analysis Articulated in the Crumpler Decision Cannot Coexist with the

Constitution 9

IV. The Analysis Articulated in the Crumpler Decision Cannot Coexist with the Merit

System 11

CONCLUSION 14
03-/01/2010 «ON 19:08 FAX 2024570059 G. A. P. 0004/017

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CONYERS AND NORTHOVER,

Appellants,

Docket No. CH-0752-09-0925-I-1

Docket No. AT-0752-10-0184-M

v.

DEPARTMENT OF DEFENSE,

Agency.

BRIEF OF THE GOVERNMENT ACCOUNTABILITY PROJECT

AS AMICUS CURIAE

j

PURSUANT TO 75 FEDERAL REGISTER 6728 NOTICE REQUESTING BRIEFS IN

THE MATTERS OF CONYERS V. DEPARTMENT OF DEFENSE AND NORTHOVER K

DEPARTMENT OF DEFENSE

INTRODUCTION

The Government Accountability Project respectfully submits this amicus curiae brief in

response to the notice in 75 Federal Register 6728 (Feb. 10,2010).

In 2009 the Merit Systems Protection Board issued two landmark decisions whose legacy

could functionally eliminate consistent Executive branch-wide standards and independent

enforcement of the merit system. Merit system principles generally, and whistleblower

protection in particular, would be under firm agency control with no functional oversight. In

Maclean v. Department of Homeland Security, 112 M.S.P.R. 4 (2009) the Board held that

agencies may enforce open-ended secrecy rules that cancel the free speech rights found in 5 USC

§ 2302(b)(8) of the Whistleblower Protection Act.1 In Grumpier v. Department of Defense, 2009

WL 3600334,2009 M.S.P.B. 224, the Board went further, holding that employees are not

See Amicus Curiae Brief of Government Accountability Project (March 9> 2009).
03/01/2010 MON 19:08 FAX 2024570059 G. A. P. 0005/017

entitled to independent due process rights if their position has been designated by the employing

agency as "sensitive," a vague category defined as any that "could enable its occupant to bring

about a material adverse effect on national security." 5 CFR 732.201. Although the Grumpier

case has been vacated, the confusion created by the decision should be erased through an

unequivocal restoration of the Board's mandate to enforce the merit system. The analysis behind

the Maclean and Grumpier cases replaces the national civil service with a feudal structure

granting agencies, normally institutional defendants, the power to customize merit system due

process rights as they see fit.

The Board is to be commended for vacating Grumpier and seeking views from amid.

Pending legislation to restore the Whistleblower Protection Act is in the final stages. However,

no bills address the decisions which balkanized both merit system due process rights and

whistleblower free speech rights. That is unfortunate, because the Grumpier analysis and the

MacLean decision would render the new legislation largely a voluntary guideline, to be followed

or ignored at the whim of agency discretion. The Board's leadership is both needed and

welcomed.2

INTEREST OF THE AMICUS

The Government Accountability Project (GAP) is a non-partisan, non-profit public

interest law firm specializing in legal advocacy for "whistleblowers" - government and corporate

employees who use free speech rights to challenge abuses of power that betray the public

interest.

GAP's efforts are based on the belief that a professional and dedicated civil service is

essential to an effective democracy. As the link between the government and the public it serves,

The law would be clarified if the Board chooses to address in Conyers and fforthover the misstatement of

law caneling independent due process rights, and mischaractenzation of defined terms such as "security clearance"

in the Grumpier Decision. See Crumpler, slip op, at 5.
03/01/2010 MON 19:08 FAX 2024570059 6. A. P. J2006/017

civil servants are the foundation of a responsible, law-abiding political and corporate system.

However, when whistleblowers encounter retaliation or removal for speaking truth to power, that

link is severed. While laws written to protect federal employees from prohibited personnel

practices, particularly whistleblower reprisals, are an important first step, laws cannot fulfill their

intended purpose if they remain unenforced. It is GAP's firm belief that, in order to protect both

the independence of the civil service and the responsiveness of federal institutions to the

citizenry, dedicated members of the federal civil service must not be forced to choose between

their jobs and their integrity,

GAP has substantial expertise on protecting government employees' rights, having

assisted over 5,000 whistleblowers since 1979. GAP attorneys have testified regularly before

Congress on the effectiveness of existing statutory protections, filed numerous amicus curiae

briefs on constitutional and statutory issues relevant to whistleblowers, co-authored the model

whistleblower protection laws to implement the Inter-American Convention Against Corruption,

and led legislative campaigns for a broad range of relevant federal laws, including the

Whistleblower Protection Act of 1989, P.L. No. 101-12, 103 Stat. 16 (April 10, 1989) (WPA)

and subsequent 1994 amendments, as well as the employee rights provisions in the SarbanesOxley Act of 2002, 18 U.S.C. §1514(A) and all six corporate whistleblower statutes passed

subsequently.

GAP also serves as counsel in Grimes v. Department of Justice (Docket No. AT-0752-

09-0698-1-2). Ms. Grimes was a Department of Justice paralegal who blew the whistle on

alleged politicization and prosecutorial misconduct by the U.S. Attorney in a prosecution of the

Governor of Alabama. Although she did not need classified access for her job duties, she was

terminated on grounds that she is not eligible for a security clearance due to alleged false
03-/Q1/2010 MON 19:09 FAX 2024570059 G. A. P. 0007/017

statements in a confidential mediation. Her case is one of several currently pending which the

Board has dismissed without prejudice, pending resolution of equivalent or identical issues to

those in Conyers and Northover.

ARGUMENT

I. THE GRUMPIER ANALYSIS WOULD ALLOW FEDERAL AGENCIES TO CANCEL

ANY INDEPENDENT DUE PROCESS RIGHTS TO ENFORCE MERIT SYSTEM

PRINCIPLES FOR "SENSITIVE" JOBS,

If the principles articulated in the Grumpier opinion are not contradicted, the Board, an

independent authority charged with maintaining a consistent body of law, no longer will be able

to enforce merit system principles for any "sensitive" federal position. Individual agencies

would replace the Board and possess unreviewable discretion to substitute an "at will" doctrine

for the current merit system enforced through due process. Two structural factors make that

result inevitable.

A. The Board would not be able to review agency decisions that classify positions as

'sensitive."

Whether a position actually requires eligibility for a clearance is not reviewable by the

Board or any other extra-agency entity. This means agencies can designate or re-designate any

position at any time as noncritical sensitive, and avoid Board review of subsequent actions by

exploiting that status. Chairman McPhie emphasized that the Board does not have authority to

review agency designation of a position as sensitive, including noncritical sensitive jobs for

which a clearance or access to classified information is unnecessary. Grumpier, slip op. at 4-5;

Skees v. Department of the Navy, 864 F. 2d 1576, 1578 (Fed. Cir. 1989); Bolden v. Department

of the Navy, 62 M.S.P.R. 151, 154(1994). Furthermore, these decisions can be made very

casually. In Doe v. Department of Justice, 2009 WL 3785086 (MSPB 2009), a memorandum to
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staff that "AH AUSA positions and Information Technology positions are designated Level 4"

was adjudicated sufficient to establish security clearance eligibility as a position requirement.

Agencies already are taking advantage of this license to disqualify workforces from the

merit system en masse. In Grumpier, the Department of Defense applied noncritical sensitive

status to a checkout cashier, as well as to all other civilian employees on an Air Force base. As

confirmed by discovery documents in Grimes,, in three fourths of all U.S. Attorney offices a

majority of employees were rendered unprotected by the merit system as their positions are

designated noncritical sensitive. The average is 57%, and up to 70%.3

B. Agencies would not be required to provide any due process for sensitivity decisions.

It is not disputed that under Executive Order 12698, agencies must provide internal due

process for security clearance decisions, and that under Egan the Board can review and enforce

the agency procedures. That is not the case for position classification designations under

Executive Order 10450, even for noncritical sensitive positions.4

Ironically, that means judgment calls with the least national security significance receive

the largest exemption from merit system rights, somehow on national security grounds. To

illustrate, in Grimes the Department of Justice did not provide the employee with due process

rights that would have been available had it been seeking to revoke her clearance. Under

Department of Justice regulations, employees whose security clearance is revoked or denied are

able to appeal that decision to the Access Review Committee (ARC).5 However, as noted by the

Administrative Judge in Doe v. Department of Justice, an employee whose eligibility for a

clearance was revoked cannot challenge that decision before the ARC because there was no

Grimes v. Department of Justice, Document PLS

4

 In Section !4(a)(2), the Office of Personnel Management has limited authority to conduct studies and

recommend improvements to the National Security Council if it finds deficiencies such as violation of individual

rights.

5

 See 28 C.F.R. 17.47(d) (2009)
03/01/2010 MON 19:09 PAX 2024570059 G. A- P. ' 1^009/017

"actual access to classified information due to [a] lack of a security clearance." Doe at 4-5. In

Grimes, as in Doe, there were no internal processes to appeal the decision that led to termination,

>

because there was nothing on access to classified information for the ARC to review.

Without a national merit system, the best case scenario under a Grumpier structure would

be a feudal, inconsistent hodgepodge of job classification standards and due process rights that

vary from agency to agency. This already is occurring. The term "noncritical sensitive" does

not have a standard meaning across the executive branch. The national security risk can be as

high as duties that require regular receipt of Secret and Confidential information; of as low as an

individual who has access to "market sensitive information,"6 In some agencies, the terms

"noncritical sensitive" and "public trust" are used interchangeably or in conjunction with one

another, while in others they are two distinct levels requiring different degrees of background

investigation.7

The same inconsistencies are occurring for due process rights. At the Department of

Navy, procedural protections on eligibility for a sensitive position are the same as those for a

clearance.8 By contrast, as confirmed in Grimes, the Department of Justice does not provide any

due process rights for its employees affected by the same decision. No federal law requires that

agencies provide internal review processes for any employee with less than critical sensitive

access, rendering a nearly incomprehensible hodgepodge of coverage for noncritical sensitive

federal employees,

The worst case scenario wi!l be cancellation of the merit system for any federal position

an agency decides to call "sensitive." Had the initial ruling remained, Grumpier would have

See, e.g., www.sec-oig.gov/Reports/AuditsInspections/2001/339fin.pdf,

www,aphis.usda.gov/mrpbs/hr/personnel_secuHty.shtmi.

7

 5eewww.usdoj.gov/oig/reports/BOP/e0001/i200001pl.htm

8

 SECNAV M-S5I0.30, Sections 8-4 and 8-5, retrieved at

httop://doni.daps.dia.mii/SECNAV%20Manua!sl/55I0.30.pdf.
OVQ1/2010 MON 19:09 FAX 2024570059 G. A. P. 0010/017

created a due process loophole for every position arbitrarily clothed in that label, providing

agencies every incentive to abandon even preexisting internal appeal procedures, because that

unreviewable act would create an "at will" doctrine beyond the Board's reach. Conyers and

Northover provide an opportunity to affirmatively close this loophole. Just as nearly any piece

of information can be deemed "sensitive" by a federal agency with little to no warning, nearly

every position in the federal workforce can be categorized as "sensitive." If even a store clerk

/

can be determined to potentially adversely impact national or operational security merely by

virtue of her duty station on a military base, then there are very few federal positions that could

not be similarly declared sensitive and reclassified as noncritical sensitive.

II. THE RATIONALE ARTICULATED IN THE GRUMPIER DECISION CANNOT

COEXIST WITH THE SUPREME COURT'S EGAN DECISION ON WHICH IT IS BASED.

In its November 2 decision, the Board explained that its limitations on review of agency

action came from Department of the Navy v. Egan, 484 U.S. 518 (1988). That premise cannot

withstand scrutiny. In Egan the Court held that the Board does not have authority to make

subjective determinations whether individuals are sufficiently trustworthy for a security

clearance to view classified information when required by their jobs. It based its conclusion on

the lack of any specific congressional intent to the contrary. In Grumpier the Board held that it

cannot review any actions connected with maintaining a "sensitive" position, even one not

requiring a security clearance for access to classified information. Chairman McPhie bridged the

gap by explaining that "the term 'security clearance' should not be viewed as a term of art, but

merely as a semantic device" extending to preliminary background investigations. Grumpier, slip

op. at 5.
03/01/2010 MON 19:09 FAX 202457005 9 G. A. P. . 0011/017

There is no authority for this landmark abdication of Board jurisdiction. Initially, there

simply is no basis in legislative text, executive order, agency regulations, or precedent to

downgrade the term "security clearance" from a specific legal status to an open-ended adjective.9

This is Chairman McPhie's uniquely personal contribution. Further, as detailed by Vice

Chairman Rose's opinion in Brown v. Department of Defense^ 110 M.S.P.R. 593 (2009), there is

ample authority for the Board to enforce civil service law in proceedings that are ancillary to a

decision it cannot review. Similarly, there is no precedent extending Egan's restrictions on the

Board to eligibility scenarios where the employee neither was applying for nor had a security

clearance.

Egan*s foundation was an exhaustive review of the legislative record to see whether

Congress specifically intended to delegate authority normally reserved for the Commander in

Chief. The Court's cornerstone principle for rejecting Board jurisdiction to order a clearance

was as follows: "[Ujnless Congress specifically has provided otherwise, courts traditionally have

been reluctant to intrude upon the authority of the Executive in military and national security

affairs." Egan, 484 l/.S. at 530 (citations omitted). The Court said it examined the whole

statutory framework, as well as all Civil Service Reform Act legislative history and objectives

for any indication of intent to cover security clearances, but found none. Based on that

comprehensive review, the Court concluded, "The [Civil Service Reform] Act by its terms does

not confer broad authority on the Board to review a security-clearance determination," Id.

By contrast, in Grumpier^ the Board omitted any reference to the legislative branch. As

detailed below, the Board was disregarding ample statutory language and legislative history on

9

 In its decisions in the Conyers and Northaver cases, it is vital for the Board to clarify the term "security

clearance" in light of C ha rim an McPhie's inaccurate characterization of the term in the Crumpler case.
Q3-/01/2010 MON 19:09 FAX 2024570059 G-A. P. 0012/017

employee rights with respect to adverse actions and retaliatory investigations that violate the

Whistleblower Protection Act. While now vacated, the Crumpler analysis also must be refuted.

III. THE ANALYSIS ARTICULATED IN THE CRUMPLER DECISION CANNOT COEXIST

WITH THE CONSTITUTION.

The Board's cancellation of due process rights in Grumpier was unconstitutionally vague

and overly broad. That doctrine long has been applied against exercise of government authority

that is so undefined or unrestricted that it chills or cancels constitutional rights, even in national

security contexts. See, e.g., Youngstown Sheet- & Tube Co. v. Sawyer, 343 U.S. 579 (1952);

Baggell v. Bullitl, 377 U.S. 360 (1964); American Foreign Service Association v, Garfinkel, 688

RSupp 671(DDC.1988).

In 5 USC § 2302(a)(2)(B) and (C), Congress already created specific boundaries for

which agencies and positions are exempt from merit system appeals on national security

grounds. A broad principle in regulations cannot replace unequivocal statutory language.

This loose standard is sufficient as a broad umbrella principle to guide discretionary

actions in regular government business, but it is unnecessarily broad as the basis to restrict merit

system rights. For example, the investigation processes for noncritical sensitive positions are

vastly different than that for critical sensitive jobs. The background investigation forms a

potential employee fills out are different - clearances require an SF-86, while noncritical

sensitive positions require an SF-85P which is less in-depth. A DOT-OIG audit estimates that

the cost for each employee's background check prior to obtaining a security clearance is $2300-

2700 with a reinvestigation every five years. By contrast, the investigation for a noncritical

sensitive employee (without a clearance) is $77 and requires no reinvestigation. Some agencies

do require reinvestigation of noncritical sensitive employees, but less frequently than for critical
03/01/2010 MON 19s 10 PAX 202457005 9 G. A. P. EI013/017

sensitive employees. Also unlike those whose positions require a clearance, those whose

positions are designated noncritical sensitive do not need to be "cleared" before the employee

can begin work. Federal regulations require only that the process for investigating noncritical

sensitive employees be started within fourteen days of when the employee has started work.'0

In terms of impact, it is hard to conceive of any job that could not "enable its occupant to

bring about a material adverse effect on national security." Agencies are already making broad

brushed, unreviewable designations to exploit the generality for noncritical jobs, canceling merit

system appeal rights for all civilian employees on a military base. Even if the due process

cancellation were limited to positions currently categorized as noncritical sensitive, the effect

would be to dwarf the federal merit system as envisioned by Congress in the civil Service

Reform Act and Whistlweblwoer Protection Act.. To illustrate, the following positions would be

excluded from Board review although none have been exempted from the merit system under 5

USC 2302(a)(2)(B) and (C):

. -AH Department of Defense contract and procurement officers, and those in the

accounting division for the Department of Defense.l'

-Positions in the Internal Revenue Service ranging from data transcribers and clerks to

program analysts and managers.12

-Nearly all Office of Inspector General employees.

-Nearly all law enforcement personnel, from Federal Air Marshals to government

building security guards.

;

-All Information Technology professionals with access to networks but who do not

require Top Secret information or documents.13

10

 See http://www.sec-oig.gov/Reports/AuditsInspections/2001/3 3 9fin.pdf.

11

 ^ehttp://www.fedsmith.com/articles/comment_print.php?a=1363.

12

 See http://www.irs.gov/irm/part I0/irm_l0-023-003.html.

13

 See, e.g., http://www.navair.navy.mi!/forms/AIR7.4&7.2%20

Memo%20dtd%2016Oct08%20IT%20Position%20Reqmts.pdf.

10
03/01/2010 MON 19:10 FAX 202457005 9 G. A. P. 1^014/017

-Employees who have "market sensitive information" within the Securities and Exchange

Commission,14 Department of Agriculture,15 and National Institutes of Health.

-Industrial hygienists and other analysts at the Occupational Safety and Health

Administration.

 l6

-Transportation Security Administration screeners.'

This list is by no means exhaustive, to say nothing of the number of positions that would

be re-categorized as noncritical sensitive if the Board were to reject merit system review as the

Grumpier decision suggested.

IV. THE ANALYSIS ARTICULATED IN THE GRUMPIER DECISION CANNOT COEXIST

WITH THE MERIT SYSTEM.

As seen above, in Grumpier the Board did not abdicate its jurisdiction where Congress

had been silent, which was the context in Egan for security clearances. To the contrary, the

Board ignored a specific policy model and structure that Congress had created through statutory

provisions and legislative history. In particular, it substituted agency definitions of "sensitive"

for the legislative model with respect to suitability determinations and retaliatory investigations.

The Board's resolution of the Conyers and Northover cases should eliminate any confusion on

this issue.

In Egctn, 484 U.S. at 525-26, the Supreme Court was clear that its holding on security

clearance decisions did not cancel access to adverse action due process rights otherwise available

under Chapter 75. Egan's restrictions are not ripe until the job requires access to classified

information. By applying them in scenarios where classified access is irrelevant, an analysis

similar to that in Grumpier analysis would vastly extend the Egan doctrine beyond the limits

^ehtipV/www.sec-oig.gov/Reports/Auditslnspections/SOO 1/3 39fin.pdf.

^eehttpy/www.aphis.usda.gov/mrpbs/hr/personne^security.shtml.

See http://jobs.trovit.com/jobs/industrial-hygienist.

See https://tsa. vitapowered.com/airpoilFAQs/alb.pdf.

II
03Y01/2010 MON 19110 FAX 2024570059 G. A. P. $015/017

drawn by the Supreme Court. For all practical purposes, the new boundary will be generic

suitability determinations, instead of security clearances..

That vast expansion comes at the expense of the Board's authority over disciplinary actions.

A negative suitability determination is appealable to the Board as an adverse action under 5 USC

7513. Dillingham v. Department of Justice, 87 M.S.P.R. 538, 541 (1997); 5 C.F.R. 731.501

(2002). Office of Personnel Management regulations contemplate position-specific suitability

determinations, Edwards v. Department of Justice, 87 M.S.P.R. 5 i 8,423 (2001), rather than

broad-brushed characterizations for everyone with the same job description. Further, a

suitability determination cannot be camouflaged through another label or characterization, as a

device to avoid Board review. Dillingham, supra.

The framework articulated in Grumpier would institutionalize the option to replace

suitability determinations and Board review with eligibility determinations and no Board review

in non-national-security contexts that are irrelevant to classified information. As noted, agencies

already are exploiting this approach to circumvent due process through creative labeling. In

Grimes, for example, the agency removed clearance eligibility for a paralegal who neither had a

security clearance nor needed access to classified documents, based on alleged misconduct

actionable under Chapter 75.

The Board also canceled a significant Whistleblower Protection Act right when Chairman

McPhie redefined security clearance actions to include background investigations. By modifying

a position and triggering a new background investigation, agencies can engage without restraint

in the most common, ugly form of retaliation against whistleblowers. Congress specifically

established a mandate against retaliatory investigations in the 1994 amendments, a policy choice

that before Grumpier the Board and Federal Circuit Court of Appeals have respected. There is

12
OJ/01/2010 MON 19:10 FAX 2024570059 G. A. P. 0016/017

no authority in Egan for the Board to disregard Congress and cancel protection, against

retaliatory investigations.

Currently, retaliatory investigations are actionable under the WPA as threatened

personnel actions. Threatened personnel actions are as illegal as actual personnel actions,

because of their deep chilling effect. The 1994 legislative history for that provision highlights

"retaliatory investigations, threat of or referral for prosecution, defending, reductions in force

and denial of workers compensation benefits" to .illustrate "threatened" personnel actions,

because they are a prelude to or create a precondition for more conventional reprisals. The

primary criterion for a prohibited threat is that alleged harassment "is discriminatory, or could

have a chilling effect on merit system duties and responsibilities." H.R. Rep, No. 103-79, at 15;

140 Cong. Rec. 29, 353 (statement of Rep, McCloskey).

Case law has been consistent with the legislative history. In Gityer v. Department of

Justice, BN-1221-92-0310-B-l, as summarized in 116 F.3d 1497, p. 2 (Fed Cir 1997), the Board

permitted the appellant to challenge an investigation as pretextual. In Russell v. Department of

Justice, 76VMSPR 317, 324-25 (1997) the Board explained,

When, as here, an investigation is so closely related to the personnel action that it

could have been a pretext for gathering evidence to retaliate, and the agency does

not show by clear and convincing evidence that the evidence would have been

gathered absent the protected disclosure, then the appellant will prevail on his

affirmative defense of retaliation for whistleblowing. That the investigation itself

is conducted in a fair and impartial manner, or that certain acts of misconduct are

discovered during the investigation, does not relieve an agency of its obligation to

demonstrate by clear and convincing evidence that it would have taken the same

personnel action in the absence of the protected disclosure. See 5 U.S.C.

§ 1221(e)(2). To here hold otherwise would sanction the use of a purely

retaliatory tool, selective investigations.

Accord- Johnson v. Department of Justice, 104 MSPR 624, 631 (2007).

13
03/01/2010 MON 19:10 PAX 2024570059 G. A. P. 0017/017

Retaliatory investigations to build a record against whistleblowers are the most common

foundation for harassment. Many are openly initiated after whistleblowing to send a message

that frightens the initial and any potential supporting whistleblowers into silence. While current

law does not impede ministerial investigations, the Grumpier analysis would cancel a significant

merit system defense against pretexts and create maximum chilling effects over indefinite

periods, frequently extending for years.

CONCLUSION

For the above reasons, amicus recommends that in the Conyers and Northover cases the

Board address the taulty analysis in Grumpier and reinstate the Supreme Court's original

boundary in Egan — Board authority to enforce full merit system rights for all but subjective

national security assessments when evaluating access for classified information. At the same

time, the Board should restore clear access to Chapter 75 appeal rights in all other contexts, and

to the Whistleblower Protection Act against retaliatory investigations.

^Respectfuily submitted this 1st day of March, 2010,

Thomas M. Devine, Esq.

Legal Director

Government Accountability Project

16I2KStNW, Suite 1100

Washington, DC 20006

Counsel for the Amicus

On this brief: Kasey Dunton

14