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News from the Supreme Court: Cert for 'Sensitive' Employees' Case?

News from the Supreme Court: On November 15, 2013, the American Federation of Government Employees (AFGE) appealed the August 20, 2013, en banc decision of the U.S. Court of Appeals for the Federal Circuit in Kaplan v. Conyers and MSPB, Case No. 2011-3207, to the Supreme Court.  The Supreme Court has discretion on which cases it takes for appeal, and so this AFGE appeal is more formally referred to as a petition for a writ of certiorari (or 'cert petition') Passman & Kaplan previously analyzed Conyers in this blog and in its Federal Legal Corner.   

Now captioned as Northover v. Archuleta, Director, Office of Personnel Management, this case deals with whether the Merit Systems Protection Board has jurisdiction over adverse action cases where the action is based upon determinations that the employee is no longer qualified to hold a "sensitive" position. The Supreme Court's 1988 decision in Dept. of the Navy v. Egan held that the MSPB lacks jurisdiction to look into the underlying merits of agencies' decisions denying security clearances to employees. Under Egan, an employee appealing a removal for loss of security clearance could not challenge the reasons why the clearance was revoked, only whether or not the clearance had been revoked and whether proper procedures were followed in revoking the clearance.

The majority of the Federal Circuit applied Egan to the broader class of employees whose positions do not require security clearances but are deemed "critical sensitive" or "non-critical sensitive"--a category including literally hundreds of thousands of federal employees across many agencies. Hence, the Federal Circuit has stripped these employees of MSPB review of removals on the basis these employees are no longer qualified or eligible to hold sensitive positions.

In its cert petition, AFGE argues consistent with the Federal Circuit's dissenting opinion that the Federal Circuit's majority opinion is incorrect statutory interpretation and inconsistent with the structure of the Civil Service Reform Act, fails to properly defer to the MSPB's interpretation of a statute which it administers, and adopts an interpretation of Egan inconsistent with the interpretation of several other Circuit Courts of Appeals. After the government files its response to AFGE's cert petition, the Supreme Court will decide whether or not to hear the case.

If you are a current federal employee who has received a proposed adverse action, and would like to discuss your rights, please contact the law firm of Passman & Kaplan, P.C. to request an initial consultation.

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