Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1.
The opinion of the court was delivered by: Wallach, Circuit Judge.
Before LOURIE, DYK, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH.
Dissenting opinion filed by Circuit Judge DYK.
The Director of the Office of Personnel Management ("OPM") seeks review of the decision by the Merit Systems Protection Board ("Board") holding that the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), limits Board review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. Egan, however, prohibits Board review of agency determinations concerning eligibility of an employee to occupy a "sensitive" position, regardless of whether the position requires access to classified information. Accordingly, we REVERSE and REMAND.
Rhonda K. Conyers ("Conyers") and Devon Haughton Northover ("Northover" and collectively, "Respondents")*fn1 were indefinitely suspended and demoted, respectively, from their positions with the Department of Defense ("Agency") after they were found ineligible to occupy "noncritical sensitive" positions.*fn2 Ms. Conyers and Mr. Northover independently appealed the Agency's actions to the Board. In both appeals, the Agency argued that, because Respondents' positions were designated "noncritical sensitive," the Board could not review the merits of the Agency's determinations under the precedent set forth in Egan.
In Egan, the Supreme Court held that the Board plays a limited role in adverse action cases involving national security concerns. The respondent in Egan lost his laborer's job at a naval facility when he was denied a required security clearance. 484 U.S. at 520. Reversing our decision in Egan v. Department of the Navy, 802 F.2d 1563 (Fed. Cir. 1986), rev'd, 484 U.S. 518 (1988), the Court held that the Board does not have authority to review the substance of the security clearance determination, contrary to what is required generally in other adverse action appeals. 484 U.S. at 530-31. Rather, the Court held that the Board has authority to review only:
(1) whether an Executive Branch employer determined the employee's position required a security clearance; (2) whether the clearance was denied or revoked; (3) whether the employee was provided with the procedural protections specified in 5 U.S.C. § 7513; and (4) whether transfer to a nonsensitive position was feasible. Id. at 530.
B. Ms. Conyers's Initial Proceedings
Ms. Conyers occupied a competitive service position of GS-525-05 Accounting Technician at the Defense Finance and Accounting Service. Conyers v. Dep't of Def., 115 M.S.P.R. 572, 574 (2010). Following an investigation, the Agency's Washington Headquarters Services ("WHS") Consolidated Adjudications Facility ("CAF") discovered information about Ms. Conyers that raised security concerns. J.A. 149-52. As a result, effective September 11, 2009, the Agency indefinitely suspended Ms. Conyers from her position because she was denied eligibility to occupy a sensitive position by WHS/CAF. Conyers, 115 M.S.P.R. at 574. The Agency reasoned that Ms. Conyers's noncritical sensitive "position required her to have access to sensitive information," and because WHS/CAF denied her such access, "she did not meet a qualification requirement of her position."*fn3 Id. at 574.
Ms. Conyers appealed her indefinite suspension to the Board. Id. In response, the Agency argued that Egan prohibited Board review of the merits of WHS/CAF's decision to deny Ms. Conyers eligibility for access "to sensitive or classified information and/or occupancy of a sensitive position." Id. On February 17, 2010, the administrative judge issued an order certifying the case for an interlocutory appeal and staying all proceedings pending resolution by the full Board. Id. at 575. In her ruling, the administrative judge declined to apply Egan and "informed the parties that [she] would decide the case under the broader standard applied in . . . other [5 U.S.C.] Chapter 75 cases which do not involve security clearances." Id. (brackets in original).
C. Mr. Northover's Initial Proceedings
Mr. Northover occupied a competitive service position of GS--1144--07 Commissary Management Specialist at the Defense Commissary Agency. Northover v. Dep't of Def., 115 M.S.P.R. 451, 452 (2010). Effective December 6, 2009, the Agency reduced Mr. Northover's grade level to part-time GS--1101--04 Store Associate "due to revocation/denial of his Department of Defense eligibility to occupy a sensitive position." Id. at 453. In its Notice of Proposed Demotion, the Agency stated that Mr. Northover was in a position that was "designated as a sensitive position" and that WHS/CAF had denied him "eligibility for access to classified information and/or occupancy of a sensitive position." Id. at 453 (citation omitted).
Mr. Northover subsequently appealed the Agency's decision to the Board. Id. In response, the Agency argued it had designated the Commissary Management Specialist position a "moderate risk" national security position with a sensitivity level of "noncritical sensitive," and under Egan, the Board is barred from reviewing the merits of an agency's "security-clearance/eligibility determination." Id.
On April 2, 2010, contrary to the ruling in Conyers, the presiding chief administrative judge ruled that Egan applied and that the merits of the Agency's determination were unreviewable. Id. The chief administrative judge subsequently certified his ruling to the full Board. Id. All proceedings were stayed pending resolution of the certified issue. Id.
D. The Full Board's Decision in Conyers and
On December 22, 2010, the full Board affirmed the administrative judge's decision in Conyers and reversed the chief administrative judge's decision in Northover, concluding that Egan did not apply in cases where security clearance determinations are not at issue. Conyers, 115 M.S.P.R. at 590; Northover, 115 M.S.P.R. at 468. Specifically, the Board held that Egan limited the Board's review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. *fn4
Conyers, 115 M.S.P.R. at 590; Northover, 115 M.S.P.R. at 467-68. Because Ms. Conyers and Mr. Northover did not occupy positions that required access to classified information, the Board concluded that Egan did not preclude Board review of the underlying Agency determinations. Conyers, 115 M.S.P.R. at 585; Northover, 115 M.S.P.R. at 464.
OPM moved for reconsideration of the Board's decisions, which the Board denied. Berry v. Conyers, et al., 435 F. App'x 943, 944 (Fed. Cir. 2011) (order granting OPM's petition for review). OPM petitioned for review to this court, and the petition was granted on August 17, 2011. Id. We have jurisdiction to review the Board's final decision under 5 U.S.C. § 7703(d) and 28 U.S.C. § 1295(a)(9).*fn5
II. STATUTORY GROUNDS FOR NATIONAL SECURITY BASED REMOVAL OF GOVERNMENT EMPLOYEES
The statutes provide a two-track system for removal of employees based on national security concerns. Egan, 484 U.S. at 526. In particular, relevant provisions of the Civil Service Reform Act of 1978 ("CSRA" or the "Act"), Chapter 75 of Title 5 of the United States Code entitled, "Adverse Actions," provides two subchapters related to removals. The first, subchapter II (§§ 7511-7514), relates to removals for "cause." Under § 7512, an agency's indefinite suspension and a reduction in grade of an employee, as here, may qualify as "adverse actions." 5 U.S.C. § 7512(2)-(3). An employee subject to an adverse action is entitled to the protections of § 7513, which include written notice of the specific reasons for the proposed action, an opportunity to respond to the charges, the requirement that the agency's action is taken to promote the efficiency of the service, and the right to review by the Board of the action. An employee removed for "cause" has the right, under § 7513(d), to appeal to the Board. On review of the action by the Board under § 7701,*fn6 the Board may sustain the agency's action only if the agency can show that its decision is supported by a preponderance of the evidence.
5 U.S.C. § 7701(c)(1)(B). *fn7
The second, subchapter IV (§§ 7531-7533), relates to removals based upon national security concerns. An employee suspended under § 7532(a) is not entitled to appeal to the Board. Nonetheless, the statute provides for a summary removal process that entitles the employee to specified pre-removal procedural rights, including a hearing by an agency authority. 5 U.S.C. § 7532(c).
III. EGAN'S APPLICATION TO CONYERS AND NORTHOVER
The Board and Respondents urge this court to limit Egan's application to security clearance determinations, reasoning that national security concerns articulated in that case pertain to access to classified information only. Egan cannot be so confined. Its principles instead require that courts refrain from second-guessing Executive Branch agencies' national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information. For the following reasons, Egan must apply.
A. Egan Addressed Broad National Security Concerns That Are Traditionally the Responsibility of the Executive Branch
Egan, at its core, explained that it is essential for the Executive Branch and its agencies to have broad discretion in making determinations concerning national security. Affording such discretion to agencies, according to Egan, is based on the President's "authority to classify and control access to information bearing on national security and to determine" who gets access, which "flows primarily from [the Commander in Chief Clause] and exists quite apart from any explicit congressional grant." 484 U.S. at 527. Egan also recognized the general principle that foreign policy is the "province and responsibility of the Executive." Id. at 529 (citation omitted). Accordingly, the Court reasoned:
[I]t is not reasonably possible for an outside non-expert body to review the substance of such a[n agency determination concerning national security] and to decide whether the agency should have been able to make the necessary affirmative prediction [that a particular individual might compromise sensitive information] with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk.
Id. Hence, unless Congress specifically has provided otherwise, courts traditionally have shown "great deference" to what "the President-the Commander in Chief- has determined . . . is essential to national security." Winter v. Natural Res. Def. Council, 555 U.S. 7, 24, 26 (2008) (citation omitted).
Despite the undisputed role of the Executive within this realm, Respondents argue applying Egan to these cases "may deprive either the Congress or the Judiciary of all freedom of action merely by invoking national security." Resp'ts' Br. 23. Certainly, under the Constitution, Congress has a substantial role in both foreign affairs and national security. Congress, therefore, has the power to guide and limit ...