On August 17, in Berry v. Conyers, the U.S. Court of Appeals for the Federal Circuit substantially broadened presidential power, minimized the judiciary’s role in national security, largely ignored congressional policy regarding the civil service and misread the U.S. Supreme Court’s decision in Dep’t of the Navy v. Egan (1988). As a result, hundreds of thousands of federal employees are now more vulnerable to arbitrary dismissals and downgrades, including employees who exercise their whistleblower rights to disclose agency waste and corruption.
The Supreme Court’s decision in 1988 concerned Thomas Egan. After being hired for a laborer’s job at a nuclear submarine facility, he became ineligible when denied a security clearance required for the position. He sought review by the Merit Systems Protection Board, the quasi-judicial board that hears appeals brought by federal workers. The Supreme Court, divided 5-3, upheld the Navy’s action and denied that the board possessed authority to review and reverse the Navy’s decision.
