The Federal Circuit Court of Appeals ruled last week in Berry v. Conyers that federal employees in "noncritical sensitive" positions are out of luck if their agencies decide that they are ineligible to hold their jobs.
Relying on the Supreme Court's decision in Department of the Navy v. Egan, the appellate court concluded that the Merit Systems Protection Board (MSPB) cannot review an agency's determination concerning eligibility of an employee to occupy a "sensitive" position, regardless of whether the position requires access to classified information.
Rhonda K. Conyers and Devon Haughton Northover were indefinitely suspended and demoted, respectively, from their positions with the Department of Defense after they were found ineligible to occupy "noncritical sensitive" positions. They independently appealed the DOD's actions to the MSPB.
In both appeals, the DOD argued that, because the employees' positions were designated "noncritical sensitive," the Board could not review the merits of the decisions under the precedent set forth in Egan.
In Egan, the Supreme Court held that the MSPB does not have authority to review the substance of the security clearance determination. Instead, the Court held that the Board can only review:
- Whether an Executive Branch employer determined the employee's position required a security clearance,
- Whether the clearance was denied or revoked,
- Whether the employee was provided with the procedural protections specified in 5 U.S.C. § 7513, and
- Whether transfer to a nonsensitive position was feasible.
Barring a Supreme Court reversal, that means even less work for the MSPB, which already has a light load of oral arguments. (The Berry v. Conyers arguments were the MSPB first oral arguments in 27 years, The Washington Post reports.)
Tom Devine, legal director of the Government Accountability Project, told the Post that the Federal Circuit's decision essentially gives agencies a "blank check" because a "noncritical sensitive" label "can be applied to virtually any federal job."
The appellate court's decision is consistent with Egan, but is it fair to federal employees?
- Berry v. Conyers (FindLaw's CaseLaw)
- Position Designation of National Security and Public Trust Positions (OPM)
- Federal Employees Abroad Entitled to Protections of ADEA (FindLaw's DC Circuit Blog)