Let’s go out on a limb. The U.S. Court of Appeals for the Federal Circuit will decide Conyers v. Berry in favor of the Office of Personnel Management (OPM).
The en banc U.S. Court of Appeals for the Federal Circuit heard Conyers v. Berry arguments Friday, 24 May, 2013, from Department of Justice’s Abby C. Wright, who argued on behalf of former Federal employee advocate turned Acting Director of OPM, Ms. Elaine Kaplan (see “Acting Director Pushes for Big Changes in Federal Human Capital Management”) and Andres Grajales from the American Federation of Government Employees (AFGE).
The Court’s August 17, 2012 per curium opinion now at issue, written by Obama’s 2011 appointee Judge Evan J. Wallach, explains that the “core question [of Conyers v. Berry] is whether an agency determination concerns eligibility of an employee to occupy a sensitive position that implicates national security. When the answer to that question is in the affirmative,” wrote Wallach, “. . . . the [Merit Systems Protection] Board plays a limited role in its review of the determination.”
Courts of appeal do not usually decide black-and-white issues – they function in a grey area: they often and understandably ground decisions on potentially longer-term and broader implications of those decisions. Wright understands that nuance. Grajales’ argument, however, simply does not allow that consideration.
In Conyers v. Berry, a decision in favor of OPM changes little relating to eligibility review for employees filling designated sensitive positions. While there may be residual questions about an agency’s over-designating positions as sensitive (an agency process that might warrant some objective scrutiny – an Inspector General sort of scrutiny) the Court’s decision for OPM would be erring on the side of national security, by just a shade, something most expect these days.
As Abby Wright explains early in her argument, the MSPB’s “review of adverse action doesn’t extend to the underlying national security determination . . . an eligibility determination is not in itself an adverse action, and nothing in the [Civil Services Reform Act] empowers or directs the board to go beyond the adverse action itself.”
According to Wright, the limit of MSPB’s authority is to determine “whether the position was in fact designated as sensitive, whether in fact the employee’s eligibility was revoked or denied, and whether the procedures that were required were followed. And that’s the scope of the board’s review.” Whether an employee represents any degree of threat to national security is simply not MSPB ground.
But if the Court decides in favor of the Merit Systems Protection Board (MSPB), then MSPB’s self-described quasi-judicial authority could expand significantly into an area of essentially case-by-case deference to questions of eligibility that are related to national security, an authority not grounded in any law or policy (but only in courtesy), as the Court’s questions forced AFGE’s attorney Andy Grajales to admit. Grajales represents Rhonda K. Conyers and Devon H. Northover.
The implication of a ruling favorable to MSPB would be that in the MSPB’s process of determining the propriety or impropriety of a particular personnel action, the MSPB could theoretically begin to question, for example, the logic behind DoD’s security designations, a step that would inevitably require MSPB members to hold security clearances necessary for them to access classified information in order make fair, informed rulings.
I’m betting the Court is not about to open that flood gate.
The real problem here that chaps MSPB is agencies’ over-designation of sensitive positions, a problem most easily and efficiently solved with an IG prod.
Exactly what Conyers and Northover did to lose their eligibility to serve in DoD designated sensitive positions is not clear, though that question may be the most interesting for some 200,000 Federal employees whom the decision might affect.
The Court’s questions during arguments make clear that the next series of issues the Court anticipates along these same lines surround the relationship between Executive Order 10450 – the textual foundation of OPM’s current argument – and the Whistleblower’s Protection Act.
In short, can the Office of Special Counsel protect its whistleblowing clients from losing security clearances – and, then, their jobs – when one’s whistleblowing propensity brings into question the whistleblower’s ability to safeguard classified information?
Stay tuned for a future article which will unpack that question.
