Appeal Rights in Sensitive Positions

Wednesday, August 28, 2013

On August 20, 2013, the U.S. Court of Appeals for the Federal Circuit issued its split decision in OPM v. Conyers, Northover and MSPB, Case No. 2011-3207, which held that Dep't of the Navy v. Egan, 484 U.S. 518 (1988), applies when federal employees holding sensitive positions—and not just those involving access to classified information—are subject to adverse actions based upon a determination that they are not eligible to occupy such a position. Thus, these employees do not have appeal rights before the Merit Systems Protection Board.

Conyers was a GS-5 accounting technician at the Defense Finance and Accounting Service who was suspended because her agency denied her eligibility to occupy a sensitive position. Similarly, Northover was a GS-7 commissary management specialist at the Defense Commissary Agency who was demoted to a GS-4 store associate position on the same ground. Both employees appealed to the Board, and both cases were certified to the full Board for a determination on the issue of Board jurisdiction over determinations regarding an employee's eligibility for sensitive positions. The Board found that it had jurisdiction despite Egan—which held that it lacked jurisdiction over security clearance denials—on the ground that Egan was limited to security clearance cases.

After the Board denied the Office of Personnel Management's request to reconsider its decision, OPM appealed to the Federal Circuit, which reversed the Board's decision. The Federal Circuit then vacated its panel decision and issued a new opinion, en banc, holding that Egan does preclude Board review of national security determinations concerning eligibility to occupy a sensitive position—regardless of whether the position involves access to classified information.

In its analysis, the majority first reasoned that both Egan and relevant statutes and regulations focus on national security rather than on classified information. In fact, the majority concluded, Egan's focus is not on information at all, but on the Executive Branch's discretion to act on threats—information-based or not—to national security generally. Second, the majority reasoned that, even if the focus was on information, non-classified information may also have a detrimental effect on national security, as evidenced by Cole v. Young, 351 U.S. 536 (1956), and Department of Defense regulations, which define sensitive positions as those involving national security generally and not only those that involve classified information.

Moreover, the majority relied on Egan for the proposition that agency determinations of an employee's ineligibility to hold a sensitive position cannot be reviewable by the Board because it would place an improper burden of proof upon the government, i.e., the Board's preponderance of the evidence standard would conflict with the "clearly consistent with the interests of the national security" test applied when the agency makes such determinations. Lastly, the majority rejected the respondents' argument that the Civil Service Due Process Amendments—which expanded the Board's jurisdiction—evidences a congressional intent to allow Board review of agency determinations concerning sensitive positions since, unlike other determinations, these were not specifically exempted from the Board's jurisdiction. In the majority's view, such reliance was merely based on speculation.

The dissent, on the other hand, argued that, under Egan, the President had specifically authorized the agencies to make "final" access to classified information determinations, while such delegation has not taken place with respect to "final" decisions regarding suitability determinations. Also, unlike the majority, the dissent concluded that Congress's numerous exceptions to Board review in the national security context do, in fact, confirm that Congress did not create a general national security exemption from Board review, and, in any event, the Board's interpretation of its own jurisdiction under the Act is entitled to deference under Chevron v. U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

Finally, the dissent noted that the consequences of the majority opinion will be profound, since it will preclude judicial review of adverse actions affecting thousands of employees who occupy non-critical sensitive positions as well as review of other alleged unlawful discrimination, whistleblower retaliation and constitutional and statutory violations. In this respect, the majority relied on Egan's reasoning that such concern is unfounded and noted that, in any event, it is ameliorated by the fact that the DoD maintains an internal review process of eligibility determinations.