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Justices Won't Review Board Appeal Rights For National Security Eligibility Evaluations

Tuesday, April 1, 2014

By Anne A. Marchessault  

March 31 --Denying a petition by a demoted federal employee, the U.S. Supreme Court March 31 let stand an appeals court decision that the Merit Systems Protection Board is prohibited from reviewing the merits of Defense Department determinations concerning eligibility of employees to occupy sensitive positions that implicate national security.

The court denied review of the U.S. Court of Appeals for the Federal Circuit's 7-3 ruling that the MSPB improperly held that Department of the Navy v. Egan, 484 U.S. 518 (1988), limits board review only of adverse employment actions involving security clearance determinations that concern eligibility of access to classified information (Kaplan v. Conyers, 733 F.3d 1148, 36 IER Cases 647 (Fed. Cir. 2013)(en banc); ). The Egan decision is not so limited, the appeals court held.

DOD employee Devon Northover argued in his petition that the Supreme Court should review the Federal Circuit's decision because the appeals court has exclusive power to bind the MSPB.

“The MSPB is limited to following the rulings of its single reviewing court; in this case a ruling that will adversely affect hundreds of thousands of federal employees, none of whom is required to possess a security clearance or access classified information,” Northover wrote.

Office of Personnel Management Director Katherine Archuleta denied Northover's argument that the Federal Circuit ruling created a circuit split. She also said the appeals court correctly concluded that the MSPB lacked jurisdiction to review the merits of the DOD's determination that Northover wasn't eligible to hold a national security sensitive position because there is no evidence that Congress intended such determinations to be reviewable.

Federal Circuit Extends Egan to Sensitive Positions

Northover worked as a commissary management specialist with the Defense Commissary Agency (DECA). He didn't possess a security clearance or have access to classified information, although the agency classified his position as “noncritical sensitive.”

After the DOD determined Northover was ineligible to occupy a noncritical sensitive position and demoted him, he appealed to the MSPB.

The DOD argued that the MSPB couldn't review the merits of its eligibility determinations.

The board disagreed and decided that it could review the agency's determination regarding Northover because Egan limits such review only if an adverse action is based upon eligibility for or a denial, revocation or suspension of access to classified information.

Reversing the MSPB decision, the Federal Circuit ruled that Egan prohibits courts from adjudicating DOD security determinations concerning an employee's eligibility to occupy a sensitive position, regardless of that position's eligibility for access to classified information.


Reversing the MSPB decision, the Federal Circuit ruled 7-3 that Egan prohibits courts from adjudicating DOD security determinations concerning an employee's eligibility to occupy a sensitive position, regardless of that position's eligibility for access to classified information.  

Egan, at its core, explained that it is essential for the President and the DoD to have broad discretion in making determinations concerning national security,” Judge Evan J. Wallach wrote for the majority. “Defining the impact an individual may have on national security is the type of predictive judgment that must be made by those with necessary expertise.”

Writing for the dissent, Judge Timothy B. Dyk criticized the majority for extending Egan to create an implied exception to MSPB review of suitability determinations for noncritical sensitive employees.

Employee Points to Clear CSRA

Northover argued that deciding whether to extend Egan to cover MSPB appeals arising from agency determinations that don't involve access to classified information “will have a widespread impact on the Federal workforce.”

Agreeing with Dyk's dissent for the Federal Circuit, Northover contended that the majority erred by reversing the MSPB's “reasonable” interpretation of its appeal powers under the Civil Service Reform Act.

Congress specifically excluded certain employees from the CSRA's coverage, Northover noted. “Most relevant here, these excluded employees include employees of intelligence components of the DoD,” Northover said. “They do not include employees of other DoD components, such as DECA.”

Furthermore, Northover said, Congress established a specific, separate procedure in the CSRA for appealing national security-based suspensions and removals.

“It was thus error for the court of appeals to find an unspoken exception to the MSPB's review when Congress chose to speak so clearly and comprehensively in favor of MSPB review,” he said.

Northover also argued that no other appeals court has read Egan to extend beyond the province of classified information, and that all have instead confined Egan to security clearance determinations.

“The Federal Circuit's exclusive power among the courts of appeals to bind the MSPB renders this conflict particularly appropriate for this Court's resolution,” Northover wrote.

Existence of Split Disputed

In opposing review, Archuleta contended that no other appeals court has specifically addressed whether Egan applies to prohibit MSPB review of an agency's determination that a person is ineligible for a national security sensitive position.

Because there is no circuit split, Archuleta continued, further review is not warranted.

Furthermore, Archuleta said, Northover incorrectly claimed that the Federal Circuit enjoys exclusive power to bind the board because certain board decisions are in fact reviewable in other appeals courts.

The Federal Circuit correctly concluded that the MSPB lacked jurisdiction to review the merits of the DOD's determination that Northover wasn't eligible to hold a national security sensitive position, Archuleta said, because there is no evidence that Congress intended such determinations to be reviewable.

In both positions requiring access to classified information and positions deemed national security sensitive, Archuleta said, the president has required that the agency make an affirmative prediction that granting the clearance or finding eligibility is clearly consistent with national security.

“And in both determinations,” Archuleta said, “making the wrong decision can lead to severe national security consequences.”

“Even those sensitive positions that do not require access to classified information may entail entrusting the employee with access to sensitive facilities, technology, or supply chains, development of military or other sensitive technology, or protective functions,” she said.

These types of determinations are committed to the broad discretion of the responsible agency, Archuleta concluded.

Union Says Review 'Unquestionably Essential.'

The National Treasury Employees Union filed an amicus brief to support Northover's petition and to “describe the damage to the basic procedural rights of hundreds of thousands of federal employees that has resulted from the Federal Circuit's divided decision.”

According to the NTEU, the ruling gives federal agencies incentive to designate even greater numbers of positions as “sensitive” to insulate personnel decisions from board review and, consequently, judicial review.

“Such impartial review is unquestionably essential: without it, employees who Congress intended to protect are at the mercy of an unaccountable and subjective agency process,” the NTEU argued.

American Federation of Government Employees Deputy General Counsel Andres M. Grajales was counsel of record for Northover. Solicitor General Donald B. Verrilli was counsel of record for Archuleta. NTEU General Counsel Gregory O'Duden was counsel of record for the union.

 

To contact the reporter on this story: Anne A. Marchessault in Washington at amarchessault@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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