Berry v. Conyers

Decision Date17 August 2012
Docket NumberNo. 2011–3207.,2011–3207.
Citation34 IER Cases 324,692 F.3d 1223
PartiesJohn BERRY, Director, Office of Personnel Management, Petitioner, v. Rhonda K. CONYERS and Devon Haughton Northover, Respondents, and Merit Systems Protection Board, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

OPINION TEXT STARTS HERE

Abby C. Wright, Attorney, Appellate Staff, Commercial Litigation Branch, United States Department of Justice, of Washington, DC, argued for petitioner. With her on the brief were Tony West, AssistantAttorney General, Jeanne E. Davidson, Director, Todd M. Hughes, Deputy Director, Allison Kidd–Miller, Senior Trial Counsel, and Douglas N. Letter, Attorney. Of counsel on the brief were Elaine Kaplan, General Counsel, Kathie A. Whipple, Deputy General Counsel, Steven E. Abow, Assistant General Counsel, Office of the General Counsel, Office of Personnel Management, of Washington, DC.

Andres M. Grajales, American Federation of Government Employees, of Washington, DC, argued for respondents Rhonda K. Conyers and Devon Haughton Northover. With him on the brief were David A. Borer, General Counsel, and Joseph F. Henderson, Deputy General Counsel.

Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With him on the brief were James M. Eisenmann, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.

Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, of Washington, DC, for amici curiae American Civil Liberties Union of the National Capital Area. With him on the brief were Gregory O'Duden, General Counsel, Larry J. Adkins, Deputy General Counsel, Julie M. Wilson, Associate General Counsel, and Paras N. Shah, Assistant Counsel, National Treasury Employees Union, of Washington, DC.

Before LOURIE, DYK, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge WALLACH.

Dissenting opinion filed by Circuit Judge DYK.

WALLACH, Circuit Judge.

The Director of the Office of Personnel Management (OPM) seeks review of the decision by the Merit Systems Protection Board (Board) holding that the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), limits Board review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. Egan, however, prohibits Board review of agency determinations concerning eligibility of an employee to occupy a “sensitive” position, regardless of whether the position requires access to classified information. Accordingly, we REVERSE and REMAND.

I. Background

Rhonda K. Conyers (Conyers) and Devon Haughton Northover (“Northover” and collectively, Respondents) 1 were indefinitely suspended and demoted, respectively, from their positions with the Department of Defense (“Agency”) after they were found ineligible to occupy “noncritical sensitive” positions. 2 Ms. Conyers and Mr. Northover independently appealed the Agency's actions to the Board. In both appeals, the Agency argued that, because Respondents' positions were designated “noncritical sensitive,” the Board could not review the merits of the Agency's determinations under the precedent set forth in Egan.

A. The Egan Holding

In Egan, the Supreme Court held that the Board plays a limited role in adverse action cases involving national security concerns. The respondent in Egan lost his laborer's job at a naval facility when he was denied a required security clearance. 484 U.S. at 520, 108 S.Ct. 818. Reversing our decision in Egan v. Department of the Navy, 802 F.2d 1563 (Fed.Cir.1986), rev'd,484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the Court held that the Board does not have authority to review the substance of the security clearance determination, contrary to what is required generally in other adverse action appeals. 484 U.S. at 530–31, 108 S.Ct. 818. Rather, the Court held that the Board has authority to review only: (1) whether an Executive Branch employer determined the employee's position required a security clearance; (2) whether the clearance was denied or revoked; (3) whether the employee was provided with the procedural protections specified in 5 U.S.C. § 7513; and (4) whether transfer to a nonsensitive position was feasible. Id. at 530, 108 S.Ct. 818.

B. Ms. Conyers's Initial Proceedings

Ms. Conyers occupied a competitive service position of GS–525–05 Accounting Technician at the Defense Finance and Accounting Service. Conyers v. Dep't of Def., 115 M.S.P.R. 572, 574 (2010). Following an investigation, the Agency's Washington Headquarters Services (“WHS”) Consolidated Adjudications Facility (“CAF”) discovered information about Ms. Conyers that raised security concerns. J.A. 149–52. As a result, effective September 11, 2009, the Agency indefinitely suspended Ms. Conyers from her position because she was denied eligibility to occupy a sensitive position by WHS/CAF. Conyers, 115 M.S.P.R. at 574. The Agency reasoned that Ms. Conyers's noncritical sensitive “position required her to have access to sensitive information,” and because WHS/CAF denied her such access, she did not meet a qualification requirement of her position.” 3Id. at 574.

Ms. Conyers appealed her indefinite suspension to the Board. Id. In response, the Agency argued that Egan prohibited Board review of the merits of WHS/CAF's decision to deny Ms. Conyers eligibility for access “to sensitive or classified information and/or occupancy of a sensitive position.” Id. On February 17, 2010, the administrative judge issued an order certifying the case for an interlocutory appeal and staying all proceedings pending resolution by the full Board. Id. at 575. In her ruling, the administrative judge declined to apply Egan and “informed the parties that [she] would decide the case under the broader standard applied in ... other [5 U.S.C.] Chapter 75 cases which do not involve security clearances.” Id. (brackets in original).

C. Mr. Northover's Initial Proceedings

Mr. Northover occupied a competitive service position of GS–1144–07 Commissary Management Specialist at the Defense Commissary Agency. Northover v. Dep't of Def., 115 M.S.P.R. 451, 452 (2010). Effective December 6, 2009, the Agency reduced Mr. Northover's grade level to part-time GS–1101–04 Store Associate “due to revocation/denial of his Department of Defense eligibility to occupy a sensitive position.” Id. at 453. In its Notice of Proposed Demotion, the Agency stated that Mr. Northover was in a position that was “designated as a sensitive position” and that WHS/CAF had denied him “eligibility for access to classified information and/or occupancy of a sensitive position.” Id. at 453 (citation omitted).

Mr. Northover subsequently appealed the Agency's decision to the Board. Id. In response, the Agency argued it had designated the Commissary Management Specialist position a “moderate risk” national security position with a sensitivity level of “noncritical sensitive,” and under Egan, the Board is barred from reviewing the merits of an agency's “security-clearance/eligibility determination.” Id.

On April 2, 2010, contrary to the ruling in Conyers, the presiding chief administrative judge ruled that Egan applied and that the merits of the Agency's determination were unreviewable. Id. The chief administrative judge subsequently certified his ruling to the full Board. Id. All proceedings were stayed pending resolution of the certified issue. Id.

D. The Full Board's Decision in Conyers and Northover

On December 22, 2010, the full Board affirmed the administrative judge's decision in Conyers and reversed the chief administrative judge's decision in Northover, concluding that Egan did not apply in cases where security clearance determinations are not at issue. Conyers, 115 M.S.P.R. at 590; Northover, 115 M.S.P.R. at 468. Specifically, the Board held that Egan limited the Board's review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information.4Conyers, 115 M.S.P.R. at 590; Northover, 115 M.S.P.R. at 467–68. Because Ms. Conyers and Mr. Northover did not occupy positions that required access to classified information, the Board concluded that Egan did not preclude Board review of the underlying Agency determinations. Conyers, 115 M.S.P.R. at 585; Northover, 115 M.S.P.R. at 464.

OPM moved for reconsideration of the Board's decisions, which the Board denied. Berry v. Conyers, et al., 435 Fed.Appx. 943, 944 (Fed.Cir.2011) (order granting OPM's petition for review). OPM petitioned for review to this court, and the petition was granted on August 17, 2011. Id. We have jurisdiction to review the Board's final decision under 5 U.S.C. § 7703(d) and 28 U.S.C. § 1295(a)(9).5

II. Statutory grounds for national security based removal of government employees

The statutes provide a two-track system for removal of employees based on national security concerns. Egan, 484 U.S. at 526, 108 S.Ct. 818. In particular, relevant provisions of the Civil Service Reform Act of 1978 (“CSRA” or the “Act”), Chapter 75 of Title 5 of the United States Code entitled, “Adverse Actions,” provides two subchapters related to removals. The first, subchapter II (§§ 7511–7514), relates to removals for “cause.” Under § 7512, an agency's indefinite suspension and a reduction in grade of an employee, as here, may qualify as “adverse actions.” 5 U.S.C. § 7512(2)-(3). An employee subject to an adverse action is entitled to the protections of § 7513, which include written notice of the specific reasons for the proposed action, an opportunity to respond to the charges, the requirement that the agency's action is taken to promote the efficiency of the service, and the right to review by the Board of the action. An employee removed for “cause” has the right, under § 7513(d), to appeal to the...

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3 cases
  • Kaplan v. Conyers
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 20 Agosto 2013
    ...case and concluding that determinations pertaining to eligibility to occupy a “sensitive” position were unreviewable. Berry v. Conyers, 692 F.3d 1223 (Fed.Cir.2012). We granted rehearing en banc and vacated the panel decision on January 24, 2013. Berry v. Conyers, 497 Fed.Appx. 64 (Fed.Cir.......
  • Foote v. Chu
    • United States
    • U.S. District Court — District of Columbia
    • 5 Marzo 2013
    ...“instigation of the investigation into [a] security clearance”). The Defendant cites to the Federal Circuit's decision in Berry v. Conyers, 692 F.3d 1223 (Fed.Cir.2012), in support of his position, which held that Egan prevents the Merit Systems Protection Board from reviewing any decision ......
  • Toy v. Holder
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 29 Abril 2013
    ...one further case to support a broad reading of Egan to encompass revocation of building access. The government cites Berry v. Conyers, 692 F.3d 1223, 1226 (Fed.Cir.2012), reh'g en banc granted, opinion vacated, 497 Fed.Appx. 64 (Fed.Cir.2013), which held that Egan applied not only to securi......

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