On August 17, 2012, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in Berry, Director, Office of Personnel Management v. Conyers, Northover and Merit Systems Protection Board, Case No. 2011-3207. Overturning the MSPB’s decision below, the Federal Circuit found that federal employees holding either "critical sensitive" or "noncritical sensitive positions"—and not just those directly involving direct access to classified information—could be subject to adverse actions such as indefinite suspensions or removals without the ability to appeal the merits of the decision to the Merit Systems Protection Board (MSPB), if the adverse action was couched as based upon a judicially-unreviewable determination that they were no longer eligible to occupy a sensitive position.

Conyers was a GS-5 accounting technician at the Defense Finance and Accounting Service who was indefinitely suspended because her agency revoked her eligibility to hold a sensitive position. The other employee respondent, Northover, was a GS-7 commissary management specialist for the Defense Commissary Agency who was demoted to a GS-4 store associate position for similar reasons. Both employees appealed their respective adverse actions to the MSPB. Both cases were certified by MSPB administrative judges to the Board itself for determination on the issue of MSPB jurisdiction over these sensitive position eligibility determinations.

After hearing oral argument from the parties and amici curiae at its first oral argument in 27 years, the MSPB found that it had jurisdiction over Northover’s and Conyers’ appeals. At issue was whether Supreme Court’s decision in Department of the Navy v. Egan—which had found that the MSPB lacked jurisdiction to look behind the merits of security clearance denials (even when later adverse actions were expressly based on the lack of security clearance)—extended beyond the security clearance context. The MSPB decided that it did not, and limited Egan to the narrow context of security clearance cases. Even though both Northover’s and Conyers’ appeals were then dismissed on remand, the Office of Personnel Management (OPM) requested that the MSPB reconsider its decision, and when that was denied, appealed to the Federal Circuit.

Writing for the majority, Judge Wallach found that Egan was not limited to the security clearance context, and that it instead extended to all positions which fall within the "noncritical sensitive" category—even if those positions have no access to classified information. Judge Wallach found that personnel decisions for such positions were solely committed to the discretion of the executive branch, and that MSPB appellate reviews of such adverse actions were limited to (a) finding whether or not the position was "noncritical sensitive", (b) finding whether a decision had been made that the employee was no longer eligible to occupy a sensitive position, (c) whether the employee had been provided due process rights on the adverse action at the agency level, and (d) whether transfer to a nonsensitive position was feasible. Judge Wallach admitted that the Federal Circuit’s decision would render affected adverse actions largely unreviewable outside the agency, but noted that affected employees would still be able to raise claims of constitutional violations or claims that the agency had violated its own procedural regulations.

In dissent, Judge Dyk opined that the case was moot since both Northover’s and Conyers’ appeals had been dismissed on remand, that the majority inappropriately applied Egan outside of its narrow security clearance context (contrary to the decisions of several other circuit courts of appeals), that legislative history showed Congress expressly repealed the Department of Defense’s prior authority to bar MSPB appeals in non-security clearance cases, and that no executive order authorized barring of MSPB appeals outside the security clearance context.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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