News from the Federal Circuit: On August 20, 2013, the U.S. Court of Appeals for the Federal Circuit issued its en banc decision in v. Conyers and MSPB, Case No. 2011-3207. & previously analyzed Conyers in this blog and in its Federal Legal Corner.
Conyers 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Egan, an employee appealing a removal for loss of security clearance could not challenge the reasons why the clearance was revoked, only whether or not the clearance had been revoked and whether proper procedures were followed in revoking the clearance.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. The case now potentially goes to the Supreme Court.