“You’re Fired!”

By: Amanda Maguire

A little over a week ago, The United States Court of Appeals for the Federal Circuit ruled that the Merit Systems Protection Board (“MSPB”) is prohibited from reviewing demotions and dismissals of federal employees who hold “noncritical sensitive” positions with government agencies.[1]  In other words, the MSPB—“an independent, quasi-judicial agency in the executive branch that serves as the guardian of fair employment rules” and a check on executive agency employment actions— has been stripped of some of its power and it can no longer protect “noncritical sensitive” employees.[2] As a result of this decision, employees in these positions are left unprotected and, in some cases, unemployed.

In Berry v. Conyers, Rhonda K. Conyers and Devon Haughton Northover “were indefinitely suspended and demoted, respectively, from their positions with the Department of Defense (“DOD”) after they were found ineligible to occupy ‘noncritical sensitive’ positions.”[3] Ms. Conyers was an Accounting Technician at the Defense Finance and Accounting Service.[4] Shortly after September 11th, the government revoked her security clearance.[5] DOD indefinitely suspended Ms. Conyers because the position “required her to have access to sensitive information” and, because she no longer had security clearance, she was no longer eligible for the job.[6] Mr. Northover was a Commissary Management Specialist at the Defense Commissary Agency.[7] He was demoted to a part-time Associate after DOD revoked his security clearance.[8] Both individuals appealed to the MSPB, which held that “because Ms. Conyers and Mr. Northover did not occupy positions that required access to classified information, Egan did not preclude Board review of the underlying Agency determinations.”[9]

The Federal Circuit disagreed with MSPB’s interpretation of Egan and instead held that Egan extends to “noncritical sensitive” employees regardless of whether they have access to classified information.[10] Therefore, according to the majority, any position that may potentially give the employee access to classified information falls within the scope of Egan.[11] It does not matter whether the employee actually has access or ever will have access. The potential for access is what triggers the prohibition against MSPB review.

The government grounds its decision in the need for the executive branch to have unlimited (and unregulated) authority when it comes to issues of national security.  According to the majority, Egan “require[s] that courts refrain from second-guessing Executive Branch agencies’ national security determinations concerning eligibility of an individual to occupy a sensitive position.”[12] The court emphasized that it “is essential for the Executive Branch and its agencies to have broad discretion in making determinations concerning national security.”[13]

The elimination of review of these agency decisions is quite troubling for a couple of reasons.  Firstly, it enables the government to hide discriminatory acts behind the national security shield. Without review of agency determinations, an agency is free to essentially do what it wants with its employees because it will never have to explain itself. As highlighted by Judge Dyk’s dissent, the majority’s decision “preclude[s] Board and judicial review of whistleblower retaliation and a whole host of other constitutional and statutory violations for federal employees.”[14] The effect of the decision “is explicitly conceded by OPM, which agrees that the agency’s ‘liability for damages for alleged discrimination or retaliation’ would not be subject to review.”[15] The agency thus can demote a homosexual or fire a female who complains about sexual harassment without any ramifications, so long as they claim it is related to some sort of security clearance.

The Federal Circuit’s decision is further troubling because it greatly extends the power of the Executive when it comes to national security. SCOTUS’ ruling in Egan was limited to employees who had access to classified information.  In Berry, the D.C. Circuit extended Egan to another group of employees regardless of whether they had access to classified information. As previously noted, if there is a potential for the employee to have access to classified information, he or she falls under the scope of Egan, despite the fact that he or she may never actually have access to classified information.  What’s next? Is the next case going to extend Egan over all federal employees? Executive unaccountability will just continue to grow.  Tom Devine, the Legal Director of the Government Accountability Project, sums it up best: “The Federal Circuit has given agencies a blank check to categorize almost any federal job as ‘sensitive’ – demoted from the civil service merit system to a national security world of secret law.”[16] I guess we’ll just have to wait and see whether more federal employees will disappear into the deep, dark world of national security law.


[1] Berry v. Conyers, No. 2011-3207, slip op. at 3 (Fed. Cir. Aug. 17, 2012), http://www.cafc.uscourts.gov/opinions-orders/0/all/berry-v-conyers.

[2] Pete Yost, Appeals Court Removes Key Civil Service Protection, Associated Press (Aug. 22, 2012) http://finance.yahoo.com/news/appeals-court-removes-key-civil-protection-063815775.html

[3] Berry v. Conyers, No. 2011-3207, slip op. at 3 (Fed. Cir. Aug. 17, 2012), http://www.cafc.uscourts.gov/opinions-orders/0/all/berry-v-conyers.

[4] Id. at 4.

[5] Id. at 5.

[6] Id.

[7] Id. at 6.

[8] Id.

[9] Id. at 7.

[10] Id. at 3.

[11] Dylan Blaylock, Gap Condemns Federal Circuit Decision, Gov’t Accountability Project Blog (Aug. 20, 2012),http://www.whistleblower.org/blog/42-2012/2192-gap-condemns-federal-circuit-decision.

[12] Berry v. Conyers, No. 2011-3207, slip op. at 9 (Fed. Cir. Aug. 17, 2012), http://www.cafc.uscourts.gov/opinions-orders/0/all/berry-v-conyers.

[13] Id. at 10.

[14] Berry v. Conyers, No. 2011-3207, slip op. at 5 (Fed. Cir. Aug. 17, 2012)(Dyk, dissenting), http://www.cafc.uscourts.gov/opinions-orders/0/all/berry-v-conyers.

[15] Id.

[16] Dylan Blaylock, Gap Condemns Federal Circuit Decision, Gov’t Accountability Project Blog (Aug. 20, 2012),http://www.whistleblower.org/blog/42-2012/2192-gap-condemns-federal-circuit-decision.

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