News from the Federal Circuit: On January 24, 2013, the U.S. Court of Appeals for the Federal Circuit vacated the August 17, 2012, decision of a three-judge panel of the Court in Berry, Director, Office of Personnel Management v. Conyers, Northover and Merit Systems Protection Board, Case No. 2011-3207, and agreed to rehear the case before the entire Court (rehearing en banc). The issue is whether the Merit Systems Protection Board has jurisdiction over removal cases where the employee was removed for failure to remain eligible for a “critical sensitive” or “non-critical sensitive” position.
& , P.C. analyzed the three-judge panel’s August 17, 2012 decision in Conyers/Northover in its Federal Legal Corner. In brief, Conyers/Northover deals with whether the Merit Systems Protection Board has jurisdiction over adverse action cases where the adverse action is based upon determinations that a given 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Egan, an employee appealing a removal for loss of security clearance could not challenge the reasons why the clearance was revoked, only whether or not the clearance had been revoked and whether proper procedures were followed in revoking the clearance. A three-judge panel of the Federal Circuit applied Egan’s ruling to a broader class of positions: those deemed “sensitive.” It is this decision of the three-judge panel which has been vacated and is under review by the full court.
On rehearing, the Federal Circuit will be asked to decide whether Egan is limited to the security clearance context, or it instead also applies to the wider pool of employees whose positions do not require security clearances but are deemed “critical sensitive” or “non-critical sensitive”. In its order for rehearing, the Federal Circuit directed the parties to specifically address four specific sub-issues which might impact how the full Federal Circuit decides the Conyers/Northover appeal anew.