News from the Supreme Court: On March 31, 2014, the Supreme Court declined to hear the appeal of Northover v. Archuleta. This decision ends the appeal process for the Conyers/Northover cases, which Passman & Kaplan previously analyzed in this blog and in its Federal Legal Corner.
Conyers/Northover dealt 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Egan, an employee appealing a removal for loss of security clearance could not challenge the reasons why the clearance was revoked, only whether or not the clearance had been revoked and whether proper procedures were followed in revoking the clearance.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." With the Supreme Court declining to hear Northover, the en banc decision of the U.S. Court of Appeals for the Federal Circuit is the current controlling law on this issue. According to Judge Dyk's dissent in the Federal Circuit's en banc decision, this category includes at least 200,000 employees at the Department of Defense alone, as well as significant portions of the workforces at large federal agencies such as the Departments of Homeland Security, Justice, Energy and State. As a result, literally hundreds of thousands of executive branch employees have lost their substantive MSPB appeal rights, should management use the expedient of removal for loss of "non-critical sensitive" eligibility. With no major judicial appeals on the horizon, this stripping of appeal rights will remain in force absent either action by the Administration or a legislative fix.
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.