kaplan v. conyers

7/27/2019 Kaplan v. Conyers

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United States Court of Appeals

for the Federal Circuit ______________________ ELAINE D. KAPLAN, Acting Director, Office of

Personnel Management, Petitioner,

v.

RHONDA K. CONYERS AND DEVON HAUGHTONNORTHOVER,

Respondents,

AND

MERIT SYSTEMS PROTECTION BOARD, Respondent.

______________________

2011-3207 ______________________

Petition for review of the Merit Systems ProtectionBoard in Nos. CH0752090925-R-1 and AT0752100184-R-1.

______________________

Decided: August 20, 2013 ______________________

A BBY C. WRIGHT , Attorney, Appellate Staff, Commer-cial Litigation Branch, United States Department of Justice, of Washington, DC, argued for petitioner onrehearing en banc. With her on the brief were S TEWARTF. DELERY , Acting Assistant Attorney General, B ETH S. BRINKMANN , Deputy Assistant Attorney General, J EANNE


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KAPLAN v. CONYERS 2

E. D AVIDSON , Director, T ODD M. H UGHES , Deputy Direc-tor, D OUGLAS N. LETTER and M ARLEIGH D. DOVER , Attor-neys. Of counsel on the brief were S HARON M. MCG OWAN ,

Acting General Counsel, K ATHIE A NN WHIPPLE , DeputyGeneral Counsel, S TEVEN E. A BOW , Assistant GeneralCounsel, and R OBERT J. G IROUARD , Senior Counsel, Officeof the General Counsel, Office of Personnel Management,of Washington, DC. Of counsel was A LLISON K IDD -M ILLER , Senior Trial Counsel, United States Departmentof Justice, of Washington, DC.

A NDRES M. GRAJALES , American Federation of Gov-ernment Employees, of Washington, DC, argued forrespondents Rhonda K. Conyers, et al. on rehearing en

banc. With him on the brief were D AVID A. BORER , Gen-eral Counsel, and J OSEPH F. H ENDERSON , Deputy GeneralCounsel.

J EFFREY A. G AUGER , Attorney, Office of the GeneralCounsel, Merit Systems Protection Board, of Washington,DC, argued for respondent Merit Systems ProtectionBoard on rehearing en banc. With him on the brief wereBRYAN G. P OLISUK , General Counsel, and K EISHA D AWNBELL , Deputy General Counsel.

THOMAS DEVINE , Legal Director, Government Ac-countability Project, of Washington, DC, for amicus curiaeGovernment Accountability Project on rehearing en banc.

E LISABETH R. BROWN , Attorney, United States Officeof Special Counsel, of Washington, DC, for amicus curiaeThe United States Office of Special Counsel on rehearingen banc.

A RTHUR B. SPITZER , American Civil Liberties Union of

the Nations Capital, of Washington, DC, for amici curiaeNational Treasury Employee Union, et al. on rehearing enbanc. With him on the brief were G REGORY ODUDEN ,


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KAPLAN v. CONYERS 3

General Counsel, L ARRY J. A DKINS , Deputy GeneralCounsel, J ULIE M. W ILSON , Associate General Counsel,and P ARAS N. S HAH , Assistant Counsel, National Treasury

Employees Union, of Washington, DC. ______________________

Before R ADER , Chief Judge, N EWMAN , LOURIE , D YK , P ROST , MOORE , OM ALLEY , REYNA , W ALLACH , and

T ARANTO , Circuit Judges. 1

Opinion for the court filed by Circuit Judge W ALLACH , inwhich R ADER , Chief Judge , L OURIE , P ROST , M OORE ,

OM ALLEY , and T ARANTO , Circuit Judges , join.

Dissenting opinion filed by Circuit Judge D YK , in which

N EWMAN and R EYNA , Circuit Judges , join.W ALLACH , Circuit Judge.

In this federal employment case implicating nationalsecurity, the Director of the Office of Personnel Manage-ment 2 (OPM) seeks review of the decision by the MeritSystems Protection Board (Board) holding that theSupreme Courts decision in Department of the Navy v.Egan , 484 U.S. 518 (1988), limits Board review only toactions involving security clearance determinations, i.e. ,determinations concerning eligibility of access to classi-

fied information. Egan , however, is not so limited.Egan s principles prohibit Board review of the Depart-ment of Defenses (DoD or the Agency) determinationsconcerning eligibility of an employee to occupy a sensi-

1 Circuit Judge Chen did not participate in this de-cision.

2 Elaine D. Kaplan took office as the Director of the

Office of Personnel Management during the pendency of this case, replacing John Berry. Pursuant to Federal Ruleof Appellate Procedure 43(c)(2), Director Kaplan is auto-matically substituted as Petitioner in this case.


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KAPLAN v. CONYERS 4

tive position, regardless of whether the position requiresaccess to classified information. 3 As to the Respondents,we hold that Rhonda K. Conyers (Conyers) no longermaintains a cognizable interest in the outcome of thiscase. Ms. Conyers is therefore dismissed from this ap-peal. With respect to Devon Haughton Northover(Northover), we reverse and remand for further proceed-ings.

I. B ACKGROUND

Ms. Conyers and Mr. Northover 4 were indefinitelysuspended and demoted, respectively, from their positionswith the Agency after they were found ineligible to occupynoncritical sensitive positions. 5 Ms. Conyers and Mr.

3 Ms. Conyers and Mr. Northover are DoD employ-ees. DoD regulations define sensitive positions as thosethat may have an effect on national security. See 32C.F.R. 154.13. We do not have before us the regulationsof other agencies. Accordingly, we do not consider non-DoD sensitive positions.

4 The Board, Ms. Conyers, and Mr. Northover wereall Respondents in this case. This court will refer to the

Board as the Board, Mr. Northover as Northover, andMs. Conyers as Conyers, where discussion is appropri-ate given her dismissal.

5 Departments and agencies of the Governmentclassify jobs in three categories: critical sensitive, non-critical sensitive, and nonsensitive. Egan , 484 U.S. at528. The underlying cases involve noncritical sensitivepositions, which are defined as: Positions with potentialto cause damage to . . . national security , up to and includ-ing damage at the significant or serious level. Thesepositions include: (1) Access to Secret, L, Confidentialclassified information[;] (2) Any other positions with

potential to cause harm to national security to a moderatedegree . . . . J.A. 326 (emphases added).


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KAPLAN v. CONYERS 5

Northover independently appealed the Agencys actions tothe Board. In both appeals, the Agency argued that,because these positions were designated noncriticalsensitive, the Board could not review the merits of the

Agencys eligibility determinations under Egan s prece-dent.

A. The Egan Holding

In Egan , the Supreme Court held that the Boardplays a limited role in adverse action cases involvingnational security concerns. The respondent in Egan losthis laborers job at a naval facility when he was denied arequired security clearance. 484 U.S. at 520. Reversingour decision in Egan v. Department of the Navy , 802 F.2d

1563 (Fed. Cir. 1986), revd , 484 U.S. 518 (1988), theCourt held that the Board does not have authority toreview the substance of the security clearance determina-tion, contrary to what is required generally in otheradverse action appeals. 484 U.S. at 53031. Rather, theCourt held that the Board has authority to review only:(1) whether an Executive Branch employer determinedthe employees position required a security clearance; (2)whether the clearance was denied or revoked; (3) whetherthe employee was provided with the procedural protec-tions specified in 5 U.S.C. 7513; and (4) whether trans-

fer to a nonsensitive position was feasible. Id. at 530.B. Ms. Conyerss Initial Proceedings

Ms. Conyers occupied a competitive service position of GS52505 Accounting Technician at the Defense Fi-nance and Accounting Service. Conyers v. Dept of Def. ,115 M.S.P.R. 572, 574 (2010). Following an investigation,the Agencys Washington Headquarters Services (WHS)Consolidated Adjudications Facility (CAF) discoveredinformation about Ms. Conyers that raised security con-cerns. J.A. 14952. Effective September 11, 2009, the

Agency indefinitely suspended Ms. Conyers from herposition because she was denied eligibility to occupy asensitive position by WHS/CAF. Conyers , 115 M.S.P.R. at


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574. The Agency reasoned that Ms. Conyerss noncriticalsensitive position required her to have access to sensitiveinformation, and because WHS/CAF denied her suchaccess, she did not meet a qualification requirement of her position. Id .

Ms. Conyers appealed her indefinite suspension to theBoard. Id. In response, the Agency argued that Egan prohibited Board review of the merits of WHS/CAFsdecision to deny Ms. Conyers eligibility for access tosensitive or classified information and/or occupancy of asensitive position. Id. (internal citation and quotationmarks omitted). On February 17, 2010, the administra-tive judge issued an order certifying the case for an inter-locutory appeal and staying all proceedings pendingresolution by the full Board. Id. at 575. In her ruling, theadministrative judge declined to apply Egan and in-formed the parties that [she] would decide the case underthe broader standard applied in . . . other [5 U.S.C.]Chapter 75 cases which do not involve security clearances. . . . Id. (brackets in original).

C. Mr. Northovers Initial Proceedings

Mr. Northover occupied a competitive service positionof GS114407 Commissary Management Specialist atthe Defense Commissary Agency. Northover v. Dept of

Def. , 115 M.S.P.R. 451, 452 (2010). Effective December 6,2009, the Agency reduced Mr. Northovers grade level topart-time GS110104 Store Associate due to revoca-tion/denial of his DoD eligibility to occupy a sensitiveposition. Id . at 453. In its Notice of Proposed Demotion,the Agency stated that Mr. Northover was in a positionthat was designated as a sensitive position and thatWHS/CAF had denied him eligibility for access to classi-fied information and/or occupancy of a sensitive position.Id. (internal citation and quotation marks omitted).

Mr. Northover subsequently appealed the Agencysdecision to the Board. Id. In response, the Agency arguedit had designated the Commissary Management Special-


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KAPLAN v. CONYERS 7

ist position a moderate risk national security positionwith a sensitivity level of noncritical sensitive, andunder Egan , the Board is barred from reviewing themerits of the Agencys security-clearance/eligibilitydetermination. 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 Agencys determinationwere unreviewable. Id. The chief administrative judgesubsequently certified his ruling to the full Board. Id. Allproceedings were stayed pending resolution of the certi-fied issue. Id.

D. The Full Boards Interlocutory Review of

Conyers and Northover On December 22, 2010, the full Board affirmed the

administrative judges decision in Conyers and reversedthe chief administrative judges decision in Northover ,concluding that Egan did not apply in cases where securi-ty clearance determinations are not at issue. Conyers ,115 M.S.P.R. at 590; Northover , 115 M.S.P.R. at 46768.The Board held that Egan limits the Boards review of anotherwise appealable adverse action only if that action isbased upon eligibility for or a denial, revocation, or sus-pension of access to classified information. 6 Conyers , 115M.S.P.R. at 58990; Northover , 115 M.S.P.R. at 46768.Because Ms. Conyers and Mr. Northover did not occupypositions that required access to classified information,the Board concluded that Egan did not preclude Boardreview of the underlying Agency determinations. Conyers ,115 M.S.P.R. at 585; Northover , 115 M.S.P.R. at 464.

6 The Board considered security clearance to besynonymous with access to classified information.Conyers , 115 M.S.P.R. at 580.


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KAPLAN v. CONYERS 8

OPM moved for reconsideration of the Boards deci-sions, which the Board denied. Berry v. Conyers , 435 F.

Appx 943, 944 (Fed. Cir. 2011) (order granting OPMspetition for review). OPM petitioned for review to thiscourt, and the petition was granted on August 17, 2011.Id. at 945. On August 17, 2012, a divided panel reversedthe Board, holding that Egan applied to this case andconcluding that determinations pertaining to eligibility tooccupy a sensitive position were unreviewable. Berry v.Conyers , 692 F.3d. 1223 (Fed. Cir. 2012). We grantedrehearing en banc and vacated the panel decision onJanuary 24, 2013. Berry v. Conyers , 497 F. Appx 64 (Fed.Cir. 2013). Oral arguments were held on May 24, 2013.

II. J URISDICTION

The underlying cases in Conyers and Northover wererespectively dismissed by the Board as moot, Conyers v.

Dept of Def. , No. CH0752090925I3, 2011 WL6939837 (M.S.P.B. Sept. 29, 2011), and dismissed withoutprejudice pending the outcome of this appeal, see J.A.176567; 1821. The parties do not dispute that the case ismoot as to Ms. Conyers. Because the parties agree thatMs. Conyers has no cognizable interest in the outcome of this appeal, her case is dismissed. Cooper v. Dept of theNavy , 108 F.3d 324, 326 (Fed. Cir. 1997) (If an appeala-

ble action is canceled or rescinded by an agency, anyappeal from that action becomes moot.). Conversely, theparties do not dispute that Mr. Northover maintains acognizable interest in the outcome of this appeal, in part,because the Defense Commissary Agencys rescission of its action does not dispose of Mr. Northovers discrimina-tion claims. See J.A. 176567; 1821. Hence, Northover remains in this appeal.

We have jurisdiction under 5 U.S.C. 7703(d)(1),which provides that OPM may seek review of a finalBoard order or decision when it determines the Boarderred in interpreting a civil service law, rule or regulation,and that the decision will have a substantial impact onthe administration of the civil service. The granting of


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KAPLAN v. CONYERS 9

OPMs petition for judicial review is at the discretion of this court. Id.

While we may grant such petitions, the decision forreview must be final, since this court lacks jurisdiction toreview non-final Board decisions. See Weed v. Social Sec.

Admin. , 571 F.3d 1359, 136263 (Fed. Cir. 2009) (Boardsremand order was not final order subject to immediatereview). A motions panel and the prior merits panel heldthat the Boards decisions in Conyers and Northover wereappealable under the collateral order doctrine as articu-lated in Cohen v. Beneficial Indus. Loan Corp ., 337 U.S.541, 546 (1949). We agree that jurisdiction is proper to

address OPMs petition for review.Cohen held that final decisions by district courts, pur-

suant to 28 U.S.C. 1291, encompass not only judgmentsthat terminate an action, but also a small class of collateral rulings that, although they do not end thelitigation, are appropriately deemed final. 337 U.S at54546. That small category includes only decisions thatare conclusive, that resolve important questions separatefrom the merits, and that are effectively unreviewable onappeal from the final judgment in the underlying action.Id. at 546. This practical approach applies to adminis-trative actions. Mathews v. Eldridge , 424 U.S. 319, 330 31 (1976) (allowing judicial review of administrativeaction on collateral issue). Although recognizing thediffering policy considerations between appeals fromdistrict courts and administrative actions, Mathews emphasized the core principle that statutorily createdfinality requirements should, if possible, be construed soas not to cause crucial collateral claims to be lost andpotentially irreparable injuries to be suffered remainsapplicable. Id. at 331 n.11.

We find that the Board decision before this court issufficiently conclusive to require resolution of Egan sapplication to sensitive position determinations. Await-


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KAPLAN v. CONYERS 10

ing a final judgment in such cases would require Execu-tive Branch agencies to litigate the merits and to poten-tially disclose matters concerning national security.Hence, this matter has the requisite substantial impacton a civil service law, 7703(d)(1), and in turn, qualifiesas one of those small class of collateral rulings that,although they do not end the litigation, are appropriatelydeemed final, Cohen , 337 U.S at 54546.

The Board asserts that under Kloeckner v. Solis , 133S. Ct. 596 (2012), this court lacks jurisdiction because, inpart, Mr. Northovers appeal is a mixed case involving aremoval action in addition to a discrimination caseproperly before a federal district court. Kloeckner , howev-er, interpreted 5 U.S.C. 7703(b) and not 7703(d), whichis applicable here. As we reasoned in Horner :

There are sound reasons for Congress to establishin sections 7701 and 7703 different standards forthe Directors participation. Under section 7701,the Directors participation before the board is inaddition to the respondent agencys participation.Under section 7703(d), the Director has sole au-thority to seek judicial review of a board decisionthat is unfavorable to an agency. The Directoracts under section 7703 to protect the interests of

the respondent agency or to protect the interestsof the civil service as a whole.

Horner v. Schuck , 843 F.2d 1368, 1373 (Fed. Cir. 1988). Accordingly, Northover is subject to immediate reviewunder 7703(d).

III. S TATUTORY GROUNDS FOR N ATIONAL S ECURITY B ASED REMOVAL OF G OVERNMENT E MPLOYEES

The statutes provide a two-track system for removalof employees based on national security concerns. Egan ,484 U.S. at 526. In particular, relevant provisions of theCivil Service Reform Act of 1978 (CSRA), Chapter 75 of Title 5 of the United States Code entitled, Adverse

Actions, provide two subchapters related to removals.


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The first, subchapter II ( 75117514), relates to remov-als for cause. Under 7512, a reduction in grade of anemployee, as here, may qualify as an adverse action. 5U.S.C. 7512(3). An employee subject to an adverseaction is entitled to the protections of 7513, whichinclude written notice of the specific reasons for theproposed action, an opportunity to respond to the charges,and the requirement that the agencys action is taken topromote the efficiency of the service. An employee re-moved for cause has the right, under 7513(d), to ap-peal to the Board. On review of the action by the Boardunder 7701, 7 the agency must show that its decision issupported by a preponderance of the evidence. 5 U.S.C. 7701(c)(1)(B). The appeal here proceeded pursuant to 5

U.S.C. 7513(d).The second, subchapter IV ( 75317533), relates to

suspensions and removals based upon national securityconcerns. An employee suspended under 7532(a) is notentitled to appeal to the Board. Nonetheless, the statuteprovides for a summary removal process that entitles theemployee to specified pre-removal procedural rights,

7 5 U.S.C. 7701 provides, in relevant part: Anemployee, or applicant for employment, may submit anappeal to the Merit Systems Protection Board from anyaction which is appealable to the Board under any law,rule, or regulation. 5 U.S.C. 7701(a). It is undisputedthat Northover is an employee as defined in the applica-ble statutes in this case. See 5 U.S.C. 7511(a)(1)(A)(i),(ii) ([E]mployee means . . . an individual in the competi-tive service . . . who is not serving a probationary or trialperiod under an initial appointment; or . . . who hascompleted 1 year of current continuous service underother than a temporary appointment limited to 1 year orless.).


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including a hearing by an agency authority. 5 U.S.C. 7532(c).

IV. E GAN S A PPLICATION TO THIS C ASE

The Board and Northover urge this court to limitEgan s application to security clearance determinations,reasoning that national security concerns articulated inthat case pertain to access to classified information only.Egan cannot be so confined. Its principles instead requirethat courts refrain from second-guessing DoD nationalsecurity determinations concerning eligibility of an indi-vidual to occupy a sensitive position, which may notnecessarily involve access to classified information. Forthe following reasons, Egan must apply.

A. Egan Addressed Broad National Security ConcernsThat Are Traditionally the Responsibility of the

Executive Branch

Egan , at its core, explained that it is essential for thePresident and the DoD to have broad discretion in makingdeterminations concerning national security. In particu-lar, Egan noted the absence of a statutory provision in 7512 precluding appellate review of determinationsconcerning national security created a presumption infavor of judicial review. 484 U.S. at 52627. The Court,

nevertheless, held that proposition is not without limit,and it runs aground when it encounters concerns of national security , as in this case, where the grant of security clearance to a particular employee, a sensitiveand inherently discretionary judgment call, is committedby law to the appropriate agency of the ExecutiveBranch. Id . at 527 (emphasis added). Affording suchdiscretion to agencies, according to Egan , flows primarilyfrom [the Commander in Chief Clause] and exists quiteapart from any explicit congressional grant. 484 U.S. at527. The Court has consistently articulated that matters

touching upon foreign policy and national security fallwithin an area of executive action in which courts havelong been hesitant to intrude absent congressional


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authorization. Lincoln v. Vigil , 508 U.S. 182, 192 (1993)(quoting Franklin v. Massachusetts , 505 U.S. 788, 819(1992) (Stevens, J., concurring in part and concurring inthe judgment)); see also Egan , 484 U.S. at 529 (Foreignpolicy is the province and responsibility of the Executive .. . . [C]ourts traditionally have been reluctant to intrudeupon the authority of the Executive in military and na-tional security affairs.) (citation omitted).

The deference owed to the Executive Branch in thesematters stems from our constitutional principle of separa-tion of powers among the branches of government, see United States v. Curtiss-Wright Exp. Corp. , 299 U.S. 304,320 (1936) (recognizing the plenary and exclusive powerof the President as the sole organ of the federal govern-ment in the field of international relations), and the long-recognized convention that the judiciarys institutionalexpertise is limited under these circumstances,

Boumediene v. Bush , 553 U.S. 723, 797 (2008) (Unlikethe President and some designated Members of Congress,neither the Members of this Court nor most federal judgesbegin the day with briefings that may describe new andserious threats to our Nation and its people. The lawmust accord the Executive substantial authority to ap-prehend and detain those who pose a real danger to oursecurity.). Indeed, Egan applied that same reasoning inthe context of this case:

[I]t is not reasonably possible for an outside non-expert body to review the substance of such a

judgment and to decide whether the agencyshould have been able to make the necessary af-firmative prediction with confidence. Nor cansuch a body determine what constitutes an ac-ceptable margin of error in assessing the potentialrisk.

484 U.S. at 529. This rationale applies to all prediction of risk regarding national security. Thus, absent congres-


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sional action, judicial review of national security mattersis generally prohibited. 8

The Board and Northovers focus on only one factor,

eligibility of access to classified information, is misplaced.The centerpiece of the Egan analysis, Executive Order No.10,450, makes no mention of classified information. 9

8 The Dissent argues that we should afford Chevron deference to the Boards interpretation of its own jurisdic-tion under the CSRA. Dissent 21. Although Chevron would normally apply to the Boards interpretation of theCSRA, where the agencys interpretation raises seriousconstitutional doubts, courts are required to inquirewhether there exists another permissible interpretation.Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. andConst. Trades Council , 485 U.S. 568, 57576 (1988). Theprinciple of separation of powers dictates here and we donot read the CSRA to assum[e] that Congress . . . casual-ly authorize administrative agencies to interpret a statuteto push the limit of congressional authority. Solid Waste

Agency of N. Cook Cnty. , 531 U.S. 159, 17273 (2001).The President has the primary responsibility along withthe necessary power to protect the national security. TheBoard cannot usurp that power by asserting Chevron .

9 The Dissent contends no Presidential Order hereauthorizes the DoD to make judgments whether an em-ployee is a risk to national security. Dissent 4. ExecutiveOrder No. 10,450 directs agencies, such as the DoD, toestablish programs to insure that the employment andretention . . . of any civilian . . . employee . . . is clearlyconsistent with the interests of the national security.That Presidential Order applied in Egan . It applies here.The Dissent nevertheless claims support in Cole v. Young ,

351 U.S. 536 (1956), but the Dissents reliance on Cole iserroneous. The question in Cole was whether the CivilService Commission could review Mr. Coles dischargefrom the military. The government conceded the review


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Exec. Order No. 10,450, 3, 3 C.F.R. 937 (19491953Comp.) (The head of any department or agency shalldesignate, or cause to be designated, any position withinhis department or agency the occupant of which couldbring about, by virtue of the nature of the position, amaterial adverse effect on the national security as asensitive position.). In addition, other relevant statutesand regulations define sensitive position in the broadestsense by referring to national security generally. See 10U.S.C. 1564 (Security clearance investigations . . . . (e)Sensitive duties. -- For the purposes of this section, it isnot necessary for the performance of duties to involveclassified activities or classified matters in order for theduties to be considered sensitive and critical to the na-

tional security.) (emphasis added); see also 5 C.F.R. 732.102 ((a) For purposes of this part, the term nationalsecurity position includes: (1) Those positions that involveactivities of the Government that are concerned with theprotection of the nation from foreign aggression or espio-nage . . . .). The Board and Northover also conflateclassified information with national security infor-mation, but Egan does not imply those terms have thesame meaning. In fact, Egan s core focus is not on infor-mation, but rather on the Executives discretion to act onthreatsinformation-based or notto national security

generally. 484 U.S. at 527 (recognizing the governmentscompelling interest in withholding national securityinformation) (emphasis added).

was expressly authorized by the Veterans Preference Actof 1944 (VPA), but argued express authorization in the

VPA can be overridden by Executive action pursuant toExecutive Order No. 10,450. Thus, the issue presentedwas whether the Executive could override express Con-gressional authority to take action. In this case, as inEgan , there is no such express Congressional authority.


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As explained in Egan , government positions may re-quire different types and levels of security protection,depending upon the sensitivity of the position sought. 484U.S. at 528. A government appointment is expresslymade subject to a background investigation that varies inscope according to the degree of adverse effect the appli-cant could have on national security. Id. (citing Exec.Order No. 10,450, 3, 3 C.F.R. 937 (19491953 Comp.)).

As OPM states: An agencys national security calculuswill vary widely depending upon, inter alia, the agencysmission, the particular project in question, and the degreeof harm that would be caused if the project is compro-mised. OPMs Br. 33. As a result, an agencys determi-nation concerning national security entails consideration

of multiple factors.For example, categorizing a sensitive position is un-

dertaken without regard to access to classified infor-mation, but rather with regard to the effect the positionmay have on national security. See Exec. Order No.10,450 3, 3 C.F.R. 937 (19491953 Comp.). Similarly,agencies make predictive judgments about an individualas:

an attempt to predict his [or her] possible futurebehavior and to assess whether, under compulsion

of circumstances or for other reasons, he [or she]might compromise sensitive information. It maybe based, to be sure, upon past or present conduct,but it also may be based upon concerns completelyunrelated to conduct such as having close rela-tives residing in a country hostile to the UnitedStates.

Egan , 484 U.S. at 52829. These predictive judgmentsare predicated on an individuals potential to compromisenational security, which may entail classified or unclassi-fied information. Consequently, the inquiry in these

Agency determinations concerning national security is notcontingent upon access to information.


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Even if the focus is placed on information, the Boardand Northover fail to appreciate that the compellinginterest of withholding both classified and unclassifiedinformation is not new. Courts have long recognized thatsensitive but unclassified material can be vital to nationalsecurity. See , e.g. , Snepp v. United States , 444 U.S. 507,51112 (1980) (per curiam) ([F]ormer intelligence agentspublication of . . . material relating to intelligence activi-ties can be detrimental to vital national interests even if the published information is unclassified.). The Courtprovides us with an illustrative example:

A foreign government can learn a great deal aboutthe [CIAs] activities by knowing the publicsources of information that interest the Agency.The inquiries pursued by the Agency can often tellour adversaries something that is of value tothem. For example, disclosure of the fact that the

Agency subscribes to an obscure but publiclyavailable Eastern European technical journalcould thwart the Agencys efforts to exploit itsvalue as a source of intelligence information. Sim-ilarly, had foreign governments learned the Agen-cy was using certain public journals and ongoingopen research projects in its MKULTRA researchof brainwashing and possible countermeasures,they might have been able to infer both the gen-eral nature of the project and the general scopethat the Agencys inquiry was taking.

CIA v. Sims , 471 U.S. 159, 177 (1985) (internal citationomitted).

Certainly, unclassified information can have detri-mental effects on national security the same way asclassified information. That is acknowledged by Execu-tive Order No. 13,526, which states, in part: Compila-tions of items of information that are individuallyunclassified may be classified if the compiled informationreveals an additional association or relationship that . . .meets the standards for classification under this or-


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der . . . . Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec.29, 2009); 32 C.F.R. 2001.13(c). In addition, courts haverecognized the same. See Kiareldeen v. Ashcroft , 273 F.3d542, 551 n.2 (3d Cir. 2001) (Certain information whichwould otherwise be unclassified when standingalone . . . may require classification when combined withor associated with other unclassified or classified infor-mation. Additionally, when presented in a context thatwould reveal the FBIs investigative interest in certainindividuals, organizations, or countries, informationwhich would normally be unclassified may be properlyclassified.); see also Kasza v. Browner , 133 F.3d 1159,116869 (9th Cir. 1998) (recognizing the mosaic orcompilation theory of classifying information based on a

combination of unclassified items of information).The Board nevertheless cites Cole v. Young , 351 U.S.

536 (1956), and references the Courts discussion of thelegislative history of the Act of August 26, 1950 10 (the

Act) in support of its proposition that national securityconcerns relate strictly to access to classified information.The Boards analysis is flawed. Cole held that a sensitiveposition is one that implicates national security, and indefining national security as used in the Act, the Courtconcluded that the term was intended to comprehendonly those activities of the Government that are directlyconcerned with the protection of the Nation from internalsubversion or foreign aggression , and not those which

10 The Act of August 26, 1950, Pub. L. No. 81733,ch. 803, 64 Stat. 476 (1950), gave heads of certain de-partments and agencies of the Government summarysuspension and unreviewable dismissal powers over theircivilian employees, when deemed necessary in the interestof the national security of the United States. Conyers , 115M.S.P.R. at 583 n.17. The Act was the precursor to 5U.S.C. 7532. Id .


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contribute to the strength of the Nation only throughtheir impact on the general welfare. 351 U.S. at 544(emphasis added). 11 Thus, even in Cole , sensitive posi-tions were defined as those that involve national securitygenerally and not necessarily those that involve classifiedinformation only.

Furthermore, sensitive positions that can affect na-tional security and access to classified information areparallel concepts that are not necessarily the same. Asthe Court reasoned:

Where applicable, the Act authorizes the agencyhead summarily to suspend an employee pendinginvestigation and, after charges and a hearing, fi-

nally to terminate his employment, such termina-tion not being subject to appeal. There is anobvious justification for the summary suspensionpower where the employee occupies a sensitiveposition in which he could cause serious damageto the national security during the delay incidentto an investigation and the preparation of charg-es. Likewise , there is a reasonable basis for theview that an agency head who must bear the re-sponsibility for the protection of classified infor-mation committed to his custody should have the

11 It follows that an employee can be dismissed inthe interest of the national security under the Act only if he occupies a sensitive position , and thus that a conditionprecedent to the exercise of the dismissal authority is adetermination by the agency head that the position occu-

pied is one affected with the national security . Cole , 351U.S. at 551 (emphasis added). Accordingly, the Court inCole remanded the case to determine whether the peti-tioners position was one in which he could adverselyaffect national security. Id. at 557.


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final say in deciding whether to repose his trust inan employee who has access to such information.

Id . at 546 (emphasis added). 12 DoD regulations support

this conclusion.32 C.F.R. 154.13(a) states [c]ertain civilian posi-

tions that entail duties of such a sensitive nature,including access to classified information are referred toas sensitive positions. Hence, the regulations definesensitive positions as a position that may include butthat is not limited to access to classified information. Forexample, DoD categorizes a position as noncritical sensi-tive position by considering one or more of the followingcriteria:

(A) Access to Secret or Confidential information.(B) Security police/provost marshal-type dutiesinvolving the enforcement of law and security du-ties involving the protection and safeguarding of DoD personnel and property.

(C) Category II automated data processing posi-tions.

(D) Duties involving education and orientation of DoD personnel.

(E) Duties involving the design, operation, ormaintenance of intrusion detection systems de-ployed to safeguard DoD personnel and property.

(F) Any other position so designated by the headof the Component or designee.

12 By using the word, likewise, the Court comparesthe two concepts, sensitive positions and access toclassified information. In doing so, it makes clear thatthey are parallel but not identical concepts.


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32 C.F.R. 154.13(b)(ii). A position entailing any one ormore of these instructive examples and the misconduct,malfeasance, or nonfeasance of an incumbent in any suchposition would potentially have an unacceptably adverseimpact upon national security. 32 C.F.R. 154.13(a).The regulations contemplate the fact that a noncriticalsensitive position requiring access to classified infor-mation is of the same substance as a noncritical sensi-tive position involving, inter alia , security police-typeduties involving enforcement of law and protection andsafeguarding of DoD personal property. Regardless of access to classified information, these positions might besensitive.

Accordingly, there is no meaningful difference in sub-stance between a designation that a position is sensitiveand a designation that a position requires access toclassified information. Rather, what matters is that bothdesignations concern national security. As a result, Egan prohibits review of DoD national security determinationsconcerning eligibility of an individual to occupy a sensi-tive position, which may not necessarily involve access toclassified information. Consequently, Egan s pronounce-ments regarding national security must apply to this caseabsent contrary congressional action.

B. The CSRA Does Not Grant Broad Authority to theBoard in This National Security Context

Despite the undisputed role of the Executive withinthis realm, Northover argues applying Egan to thesecases may deprive either the Congress or the Judiciary of all freedom of action merely by invoking national securi-ty. Northovers Br. 23. Certainly, under the Constitu-tion, Congress has a substantial role in both foreignaffairs and national security. Subject to Constitutionalconstraints, Congress has the power to guide and limitthe Executives application of its powers. Neither theCSRA nor any other legislative action provides a basis forlimiting the Executives role in these cases.


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As Egan explained:

An employee who is removed for cause under 7513, when his required clearance is denied, is en-

titled to the several procedural protections speci-fied in that statute. The Board then maydetermine whether such cause existed, whether infact clearance was denied, and whether transfer toa nonsensitive position was feasible. Nothing inthe Act, however, directs or empowers the Boardto go further.

484 U.S. at 53031. As a result, Congress presumablyhas left the President and Executive Branch agenciesbroad discretion to exercise their powers in this area. See

Dames & Moore v. Regan , 453 U.S. 654, 678 (1981) (Con-gress cannot anticipate and legislate with regard to everypossible action the President may find it necessary to takeor every possible situation in which he might act, and[s]uch failure of Congress . . . does not, especially . . . inthe areas of foreign policy and national security, implycongressional disapproval of action taken by the Execu-tive.) (citation omitted). Accordingly, when the Presi-dent acts pursuant to an express or implied authorizationfrom Congress, his actions should be supported by thestrongest of presumptions and the widest latitude of

judicial interpretation, and the burden of persuasion . . .rest[s] heavily upon any who might attack it. Id. at 668(quoting Youngstown Sheet & Tube Co. v. Sawyer , 343U.S. 579, 637 (1952) (Jackson, J., concurring)). Nothingin the CSRA directs otherwise.

The CSRA was amended in 1990 after United Statesv. Fausto , 484 U.S. 439 (1988). Fausto held the CSRAssilence regarding appeal rights reflected congressionalintent to preclude any review under chapter 75 for non-preference eligible members of the excepted service. Id. at448. In response, Congress passed the Civil Service DueProcess Amendments (1990 Amendments) expandingthe Boards jurisdiction to some, but not all, non-


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preference eligible excepted service employees. Pub. L.No. 101376, 104 Stat. 461 (1990).

Northover construes the 1990 Amendments as extend-

ing by implication Board review of agency determinationsconcerning sensitive positions. Because certain agenciesrelating to national security, such as the FBI, CIA, andthe NSA, were expressly exempted, Northover posits thatBoard review must extend to all other positions not ex-pressly excluded. However, certain employees of theGeneral Accounting Office, the Veterans Health Sciencesand Research Administration, the Postal Service, thePostal Rate Commission, and the Tennessee Valley Au-thority were also excluded. See Pub. L. No. 101376, 104Stat. 461 (1990). The exclusion of these varying agenciesnegates Northovers contention that there was a congres-sional directive for the Board to review security decisionsaffecting all employees of particular intelligence agencies.The argument that Congress crafted some exceptions fornational security and not others is flawed; national secu-rity was not a categorical factor in these exclusions.

Similarly, the Board and Northover point to the crea-tion of the National Security Personnel System (NSPS)in 2003 to support their argument that Congress spoke onthe issue before this court. This position is supported

neither by statutory language nor legislative history.NSPS was established to overhaul the then-existingpersonnel management system and polices of the DoD.See National Defense Authorization Act, Pub. L. 108136,117 Stat. 1392 (2003). The Board and Northovers focuson the provisions relating to appellate procedures, whichreplaced Board review and provided that: [t]he Secretary. . . may establish an appeals process that provides em-ployees of the [DoD] organizational and functional unitsthat are included in the [NSPS] fair treatment in anyappeals that they bring in decision relating to their em-

ployment . . . . Id . But the NSPS also provided for sever-al other modifications to the DoDs personnel system,including a pay for performance system and modifications


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to certain collective bargaining rights. Id. ; see Am. Feder-ation of Govt Emps., AFL-CIO v. Gates , 486 F.3d 1316,1330 (D.C. Cir. 2007).

In 2009, NSPS was repealed largely due to strong op-position from labor organizations regarding collectivebargaining issues. H.R. Rep. No. 110146 at 394 (2007)(The committee is concerned that the implementingregulations, issued in November, 2005, exceeded congres-sional intent, especially with respect to limitations onemployee bargaining rights.); S. Rep. No. 11077 at 11(2007) (Repealing the existing authority of the [DoD] toestablish a new labor relations system under the [NSPS].This would guarantee the rights of DoD employees tounion representation in NSPS.); see also S. Rep. No. 111 35 at 185 (2009) ([T]he committee has received manycomplaints from DoD employees during the 5 years dur-ing which the D[oD] has sought to implement NSPS, tothe detriment of needed human capital planning andworkforce management initiatives.); Department of Defense Human Resources Management and LaborRelations Systems, 70 Fed. Reg. 66,116, 66,123 (Novem-ber 1, 2005) (Significant differences with many of thelabor organizations remain . . . .). The statute creatingthe NSPS, the subsequent repeal of certain regulationsconcerning the DoD appeals process, and the ultimaterepeal of the statute creating the NSPS itself in 2009, donot prove congressional intent to preclude DoD frominsulating employment decisions concerning nationalsecurity from Board review.

The Board and Northover nevertheless claim supportin the enactment and subsequent repeal of the NSPS. Inparticular, Northover contends that Congress created theNSPS to give DoD power to foreclose Board review in non-security clearance cases because it recognized that Egan was confined to security clearances; Congress repeal of

NSPS thereby returned to the full scope of Board reviewthat had existed prior to the creation of the NSPS. Theseassertions are also speculative.


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There is nothing in Congress enactment or repeal of NSPS indicating that Congress was concerned with theapplication of Egan . Indeed, changes proposed to theappeals process in the NSPS applied to all DoD employ-ees, and therefore, they made no particular exceptions tosecurity clearance determinations. In addition, the Boardand Northovers emphasis on the NSPSs appellate pro-cess is misplaced because the NSPS did far more thanattempt to replace the Boards review of DoD employmentcases, it fundamentally altered labor-management rela-tions and pay structures. As discussed above, the NSPSfaced strong opposition from labor organizations due tounpopular limitations on bargaining rights. That Con-gress chose to ultimately repeal the NSPS has no bearing

on the issue in this case.The Board and Northover further argue that Congress

has spoken directly on the issue of removal for nationalsecurity concerns by enacting 7532. This argument hasalready been rejected by Egan . 484 U.S. at 533 (Theargument is that the availability of the 7532 procedureis a compelling factor in favor of Board review of a secu-rity-clearance denial in a case under 7513. We are notpersuaded.).

In Egan , the Court observed the alternative availabil-

ity of 7513 and 7532. Id. at 532. Specifically, theCourt acknowledged that 7532 does not preempt 7513and that the two statutory provisions stand separatelyand provide alternative routes for administrative action.Id. In addition, the Court held that the two sections werenot anomalous, but rather, different. Id. at 533. TheCourt also held that one section did not necessarily pro-vide greater procedural protections than the other. Id. at53334.

The Court in Carlucci v. Doe , 488 U.S. 93 (1988), fur-ther articulated and clarified 7532s applicability. Inthat case, the Court determined that the summary re-


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moval mechanism(s) set out in 7532 and 50 U.S.C. 833 13 were discretionary mechanisms in cases involvingdismissals for national security reasons. Id. at 100. TheCourt found that 7532 was not mandatory, but permis-sive: [n]otwithstanding other statutes, the head of anagency may suspend and remove employees in theinterests of national security. Id. at 10001 (findingnothing in 7532 or its legislative history indicating thatthe statutes procedures are the exclusive means forremovals on national security grounds or that 7532displaces the otherwise applicable removal provisions of the agencies covered by the section). Therefore, it washeld that the National Security Agency was not requiredto apply either 7532 or 833 and was entitled to act

13 Section 833 was a summary removal provision inthe 1964 National Security Agency Personnel SecurityProcedures Act, 50 U.S.C. 83135 (repealed October 1,1996).


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under its ordinary dismissal procedure if it so wished. 14 Id. at 99100.

Moreover, Carlucci held that Congress enacted 7532

to supplement, not narrow, ordinary agency removalprocedures. Id. at 102. The Court reasoned that becauseof its summary nature, Congress intended 7532 to beinvoked only where there is an immediate threat of harmto the national security in the sense that the delay frominvoking normal dismissal procedures could cause seriousdamage to the national security. Id. (internal quotationmarks omitted) (citing Cole v. Young , 351 U.S. 536, 546(1956)). Consequently, should 7532 be mandatory asthe Board and Northover effectively argue, it wouldbecome the exclusive procedure in this case and similarcases, and no national security termination would bepermissible without an initial suspension and adherenceto the Cole v. Young standard. Id. Given Carlucci steaching, we are unconvinced that Congress intended any

14 The Carlucci Court also affirmed Egan s conclu-sion regarding 7513 and 7532:

We thus agree with the conclusion of the Mer-

it Systems Protection Board in a similar case thatsection 7532 is not the exclusive basis for remov-als based upon security clearance revocations,Egan v. Department of the Navy , 28 M.S.P.R. 509,521 (1985), and with the Court of Appeals for theFederal Circuit that [t]here is nothing in the textof section 7532 or in its legislative history to sug-gest that its procedures were intended to preemptsection 7513 procedures whenever the removalcould be taken under section 7532. The languageof section 7532 is permissive. Egan v. Department

of the Navy , 802 F.2d 1563, 1568 (Fed. Cir. 1986),revd , 488 U.S. 518 (1988).

Carlucci , 488 U.S. at 95.


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such result when it enacted 7532. Id. No congressionalact exists curtailing the Executives inherent powers inthese matters to make the underlying eligibility determi-nation concerning national security. Thus applying Eganhere, the DoDs discretion to control the selection andretention of employees whose positions present risks tonational security, whether or not they involve access toinformation, need not be second-guessed.

C. Predictive Judgments Must be Committed to Agency Discretion

National security concerns render the Board andNorthovers positions untenable. It is naive to supposethat employees without direct access to already classified

information cannot affect national security. The Boardand Northovers narrow focus on access to classifiedinformation ignores the impact employees without securi-ty clearances, but in sensitive positions, can have. 15

15 There are certainly numerous government posi-tions with potential to adversely affect national security.The Board goes too far by comparing a government posi-tion at a military base commissary to one in a Seven

Eleven across the street. Oral Argument at 28:1015, Berry v. Conyers , 20113207 (May 11, 2012), available athttp://www.cafc.uscourts.gov/oral-argument-recordings/search/audio.html. Commissary employees donot merely observe [g]rocery store stock levels or other-wise publicly observable information. Northovers Br. 20.In fact, commissary stock levels of a particular unclassi-fied itemsunglasses, for example, with shatterproof lenses, or rehydration backpacksmight well hint atdeployment orders to a particular region for an identifia-ble unit. Such troop movements are inherently secret. Cf.

Near v. State of Minnesota ex rel. Olson , 283 U.S. 697, 716(1931) (When a nation is at war many things that mightbe said in time of peace are such a hindrance to its effortthat their utterance will not be endured so long as men


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Defining the impact an individual may have on na-tional security is the type of predictive judgment thatmust be made by those with necessary expertise. SeeEgan , 484 U.S. at 529 (The attempt to define not only theindividuals future actions, but those of outside andunknown influences renders the grant or denial of securi-ty clearances . . . an inexact science at best.) (citationomitted). When evaluating an individual for employment,it is those with such expertise who effectively can applythe Agencys clearly consistent with the interests of

fight and that no Court could regard them as protected byany constitutional right . . . . No one would question butthat a government might prevent actual obstruction to itsrecruiting service or the publication of the sailing dates of transports or the number and location of troops .) (quotingSchenck v. United States , 249 U.S. 47, 52 (1919)) (empha-sis added). This is not mere speculation, because, as OPMcontends, numbers and locations could very well be de-rived by a skilled intelligence analyst from militarycommissary stock levels. See Oral Argument at 13:19 14:03, Berry v. Conyers , 20113207 (May 11, 2012), avail-able at http://www.cafc.uscourts.gov/oral-argument-recordings/search/audio.html (Q: Can a position besensitive simply because it provides observability? Thatis, one of these examples that was given was someoneworking at a commissary; it seems to me that someoneworking at a commissary has an opportunity, withoutaccess to classified information, to observe troop levels,potential for where someone is going, from what they arebuying, that sort of thing. A: I think that is right yourhonor. We agree with that, and I think in Egan , he, Mr.Egan worked on a nuclear submarine. And so, part of itwas simply from what he was observing by coming andgoing of a nuclear submarine. And so, sensitivity can bethe place where the employee works, what are they ableto observe, what could they infer from, what you say, fromthe purchases and shipments . . . .).


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national security standard, which otherwise wouldconflict with the Boards preponderance of the evidencestandard. While in certain circumstances courts cancertainly consider the merits of a decision concerningnational security, Egan held that scenario unworkablehere:

As noted above, security clearance normally willbe granted only if it is clearly consistent with theinterests of the national security. The Board,however, reviews adverse actions under a prepon-derance of the evidence standard. 7701(c)(1)(B).These two standards seem inconsistent. It is diffi-cult to see how the Board would be able to reviewsecurity-clearance determinations under a pre-ponderance of the evidence standard without de-parting from the clearly consistent with theinterests of the national security test. The clear-ly consistent standard indicates that security-clearance determinations should err, if they must,on the side of denials. Placing the burden on theGovernment to support the denial by a prepon-derance of the evidence would inevitably shift thisemphasis and involve the Board in second-guessing the agencys national security determi-nations.

Id. at 531. DoD regulations require that the determina-tion of an employees ineligibility to hold a sensitiveposition must be consistent with the interests of nationalsecurity. See 32 C.F.R. 154.6(b) (The personnel securi-ty standard that must be applied to determine whether aperson is eligible for access to classified information orassignment to sensitive duties is whether, based on allavailable information, the person's loyalty, reliability, andtrustworthiness are such that entrusting the person withclassified information or assigning the person to sensitive

duties is clearly consistent with the interests of nationalsecurity .) (emphasis added); see also Exec. Order No.10,450, 3, 3 C.F.R. 937 (19491953 Comp.). Thus,


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such Agency determinations cannot be reviewable by theBoard because it would improperly place an inconsistentburden of proof upon the government.

Further, the sources upon which intelligence is basedare often open and publically available. Sometimes,intelligence is obtained from sources in a fashion thesources government would find improper. Occasionally,those means of obtention are coercive and/or subversive.For example, the intelligence community may view cer-tain disparaging information concerning an employee as avulnerability which can be used to blackmail or coerceinformation out of the individual. See Egan , 484 U.S. at528 (recognizing that the government has a compellinginterest in protecting truly sensitive information fromthose who, under compulsion of circumstances or forother reasons . . . might compromise sensitive infor-mation). The type of information that can be coercedmay vary depending on the employees position.

In this case, Mr. Northover was a Commissary Man-agement Specialist for the Defense Commissary Agency.This position is not the type of position that involves merestocking of items on shelves. It is a management positionthat entails carrying out a range of computer assistedordering tasks. The work is described to include generat-

ing and utilizing a wide variety of system reports asinventory and merchandising management tools. Theincumbent is responsible for training, overseeing, andmonitoring the work of lower-grade employees. A Com-missary Management Specialist may work uncommontours of duty as required. At bottom, this position doesnot merely involve a low-level employee whose dutiesand exposure are inconsequential.

This area of National Security Law is largely aboutpreventing human source intelligence gathering in amanner which does not, in an open society, unnecessarilylimit the publics right to access information about itsgovernments activities. Still, there clearly is a need forsuch prevention. Within the sphere of national security


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limitations on government employment, our society hasdetermined that courts should defer to the agenciesthreat limiting expertise. See Egan , 484 U.S. at 52830.

While threats may change with time, Egan s analysisremains valid. The advent of electronic records manage-ment, computer analysis, and cyber-warfare have madepotential espionage targets containing means to accessmatters concerning national security vastly more suscep-tible to harm by people without security clearances. Themechanics of planting within a computer system a meansof intelligence gathering are beyond the ken of the judici-ary; what matters is that there are today more sensitiveareas of access than there were when Egan was authored.Its underlying analysis, nevertheless, is completely appli-cablethe President, as Commander-in-Chief, has theright and the obligation, within the law, to protect thenation against potential threats. Id. at 527.

The potential for arbitrary application of this rightunder the guise of national security is a point of conten-tion for Northover and the Board. These concerns howev-er do not require a different result. Specifically,Northover and the Board raise concerns of the likelypreclusion of judicial review of any alleged constitutionaland statutory violations ( e.g. , whistleblower retaliation)

for federal employees.16

Egan rejected similar concerns of

16 Petitioners and several amici discuss the termsand purposes behind the Whistleblower Protection Act,Pub. L. No. 10112, 103 Stat. 16 (1989) (WPA), at greatlength in their briefs. They contend that the WPA limitsthe Executives discretion with respect to the terminationor suspension of individuals in sensitive positions wherethose employment determinations are tied to retaliation

for the disclosure of certain classes of information. Peti-tioners and amici contend that Congress exercised its ownauthority to protect national security when it passed theWPA because it recognized that disclosures of certain


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arbitrary designations and pretextual removal of federalemployees, and there is no basis for a different conclusionin this case. Indeed, these concerns can no more justifyreview of an eligibility determination than of a clearancedetermination. Former Chief Judge Markeys analysis isworth noting:

The . . . underlying rationale is a felt necessity toprotect civilian employees against arbitrarydenials of security clearances. Amicus and themajority see the boogy-men of specious, arbi-trary, discriminatory clearance denials . . . .Whence the fear of arbitrary denials? Whence theautomatic refusal of even a modicum of at least in-itial trust in Navy officials? Whence the disregardof the process (denial response denial appeal finaldenial) conducted by the Navy . . . before denyinga clearance? . . . . The conjecture that Navy offi-cials might act arbitrarily is not only unwarrant-ed, it is far too weak a reed on which to rest adetermination that MSPB must decide which em-ployees of the armed forces should be granted se-curity clearances. Given that the responsibility isthe Navys, and given the system of high level, ob-

jective, impersonal, decisionmaking employed bythe Navy in carrying out that responsibility, in-cluding the employees chance to respond and toappeal to higher authority within the agency, Ican see no reason why, under those circumstanc-es, the Navy should not be allowed to exercise its

improprieties may actually advance the interests of national security. Whether Congress intended to limitthe authority of the Executive in making employmentdecisions when passing the WPA is not before us, howev-er. There are no whistleblower claims or defenses assert-ed here. We address only those issues presented by Mr.Northovers case.


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judgment in exercising its authority to grant ordeny security clearances.

Egan v. Dept of Navy , 802 F.2d 1563, 157677 (Fed. Cir.

1986) (Markey, C.J. dissenting), revd , 484 U.S. 518 (1988)(emphasis in original). Moreover, DoD maintains aninternal review process of eligibility determinations,which undermines the concerns Northover and the Boardraise. See 32 C.F.R. 154.56; see also Romero v. Dept of

Def. , 658 F.3d 1372, 1374 (Fed. Cir. 2011) (articulatingthe general organizational framework and review processused by the DoD when making security clearance deter-minations). Accordingly, the merits of the Agency deter-mination before us are not reviewable by the Board.

V. C ONCLUSION For the foregoing reasons, the Board cannot review

the merits of DoD national security determinations con-cerning eligibility of an employee to occupy a sensitiveposition that implicates national security. There is noth-ing talismanic about eligibility for access to classifiedinformation. The core question is whether the Agencydetermination concerns eligibility of an employee tooccupy a sensitive position that implicates national secu-rity. When the answer to that question is in the affirma-tive, Egan applies and the Board plays a limited role inits review of the determination. Thus, the Boards deci-sion with respect to Mr. Northover is reversed and re-manded for further proceedings consistent with thisdecision. Ms. Conyerss appeal is dismissed for lack of

jurisdiction.

DISMISSED IN PART, REVERSED, ANDREMANDED


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United States Court of Appealsfor the Federal Circuit

______________________

ELAINE D. KAPLAN, Acting Director, Office of Personnel Management,

Petitioner,

v.

RHONDA K. CONYERS AND DEVON HAUGHTON

NORTHOVER, Respondents,

AND

MERIT SYSTEMS PROTECTION BOARD, Respondent.

______________________

2011-3207 ______________________

Petition for review of the Merit Systems ProtectionBoard in Nos. CH0752090925-R-1 and AT0752100184-R-1.

______________________

Decided: August 20, 2013 ______________________

D YK , Circuit Judge , with whom Circuit Judges N EWMANand R EYNA join, dissenting.

The majority opinion upholds sweeping claims by theDepartment of Defense (DoD) that it may take adverseactions against non-critical sensitive employees without


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KAPLAN v. CONYERS 2

review by the Merit Systems Protection Board (MSPB orBoard). The effect is to effectively deny MSPB review forhundreds of thousands of federal employeesa numberthat is likely to increase as more positions are designatedas non-critical sensitive. In my view, the DoD has actedwithout authority from either the President or Congress,and contrary to the Civil Service Reform Act of 1978(CSRA), 5 U.S.C. 1101 et seq.

In essence, the majoritys decision rests on the flawedpremise that the DoD, acting on its ownwithout eitherCongressional or Presidential authorityhas inherentauthority to discharge employees on national securitygrounds. No decision of the Supreme Court or any othercourt supports this proposition. Whatever the policy

justifications for precluding MSPB review, this is a mat-ter for Congress (and the President), not the DoD, todetermine. Ironically, the majority rests its decision ongrounds of separation of powers. But the majority decisionboth blesses and itself engages in a violation of separationof powers principlessustaining agency action withouteither Presidential or Congressional authorization, andresting its decision on its own assessment of nationalsecurity requirements. I respectfully dissent.

I

As an initial matter, the majoritys decision is notmandated by, or even supported by, the Supreme Courtsdecision in Department of the Navy v. Egan , 484 U.S. 518(1988). The majority extends Egan to create an impliedexception to MSPB review of the merits of suitabilitydeterminations for non-critical sensitive employeeshere,a commissary employee (Northover) whose job requiredneither a security clearance nor access to classified infor-mation. 1

1 As noted in my original panel dissent, see Berry v.Conyers , 692 F.3d 1223, 1238 n.1 (Fed. Cir. 2012) (Dyk, J.,


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KAPLAN v. CONYERS 3

In Egan , the Supreme Court held that the MSPBcould not review the merits of an agency decision to denyan employee a security clearance where that employeewas required to access classified information as a condi-tion of his employment. See 484 U.S. at 520, 529. Themajority extends Egan to bar the MSPB from reviewingthe merits of agency determinations that employees arenot suitable to hold sensitive positions. In other words,the majority extends Egan s prohibition of MSPB meritsreview of the DoDs security clearance determinations toits suitability determinations (i.e., whether an employee iseligible to hold a non-critical sensitive position).

The majoritys extension of Egan is not supported bythe language of Egan itself. The Egan opinion emphasizesthat it decided the narrow question of whether the[MSPB] ha[d] authority by statute to review the sub-stance of an underlying decision to deny or revoke asecurity clearance in the course of reviewing an adverseaction. 484 U.S. at 520. The majoritys extension of Eganmarks a departure from our own prior reading of Eganand makes it unique among federal courts of appeals. Wehave explained that Egan held that the [MSPB] has noauthority to review the merits of a security clearancedetermination . Cheney v. Dept of Justice , 479 F.3d 1343,1349-50 (Fed. Cir. 2007) (emphasis added) (citing Egan ,484 U.S. at 529). Other circuits have similarly character-ized Egan as limited to security clearances. 2 Indeed, the

dissenting), the case as to Conyers is moot. The en bancmajority agrees. See Maj. Op. at 8. While the case as toConyers is moot, that case provides important context asto the breadth of the DoDs claim of authority. I agreewith the majority that we have jurisdiction overNorthovers appeal.

2 See, e.g. , Rattigan v. Holder , 689 F.3d 764, 768(D.C. Cir. 2012) (noting that Egan covers only securityclearance-related decisions); Zeinali v. Raytheon Co. , 636


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KAPLAN v. CONYERS 4

Fifth Circuit recently confirmed that [n]o court hasextended Egan beyond security clearances. Toy v. Holder ,714 F.3d 881, 885 (5th Cir. 2013).

While the majority appears not to dispute that the ac-tual holding in Egan does not support the DoDs actionhere, the majority finds in the principles of Egan DoDauthority to remove employees on national securitygrounds. See Maj. Op. at 3, 12. The majority concludesthat there is no distinction between security clearancedeterminations and suitability determinations when thosedeterminations implicate national security. In the majori-tys view, because Congressional legislation does notforbid the exercise of such authority, the DoD is assumedto possess inherent authority. But neither Egan nor anyother decision of the Supreme Court, this court, or anyother appeals court supports this remarkable claim of inherent authority. Rather, these decisions have rejectedsuch claims of independent agency authority.

A

First, in the Egan case, Egan did not contend that thePresident had failed to delegate authority to the agencies,and notably the agencies were specifically authorized byExecutive Order to make final access determinations.There is no similar Presidential Order here. The Presi-dent has not delegated any authority to the DoD to make

F.3d 544, 549-50 (9th Cir. 2011) (noting that the coreholding of Egan is that federal courts may not reviewthe merits of the executives decision to grant or deny asecurity clearance) ; Duane v. U.S. Dept of Def. , 275 F.3d988, 993 (10th Cir. 2002) ( Egan held that the Navyssubstantive decision to revoke or deny a security clear-

ance . . . was not subject to review on the merits by the[MSPB].).


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KAPLAN v. CONYERS 5

final decisions with respect to suitability determina-tions.

The President has traditionally had special authority

in safeguarding classified information, and has delegatedthat authoritywhich includes the authority to deny orrevoke such accessto agencies employing such individu-als. Egan recognized and relied on the Presidents uniqueauthority over classified information. The Egan courtnoted that the Presidents authority to classify andcontrol access to information bearing on national security. . . exists quite apart from any explicit congressionalgrant. 484 U.S. at 527.

While the delegation issue was not raised in Egan , the

Presidential authority was specifically delegated to therelevant agencies. Executive Orders, both at the time of Egan and later, prescribed procedures for granting andrevoking access to classified information, and the agencydecisions in those respects were explicitly deemed to befinal, unreviewable decisions. See Exec. Order No.12,968, 5.2(a)(6), 3 C.F.R. 391 (1995 Comp.) (appealspanel within the agency makes the final decision),reprinted as amended in 50 U.S.C. 435; Exec. Order No.10,865, 3, 3 C.F.R. 398 (1959-1963 Comp.) (allowing anauthorization for access to a specific classification catego-

ry granted by an agency to be finally denied or re-voked), reprinted as amended in 50 U.S.C. 435. Thus,the President unambiguously delegated to agenciesdeterminations as to whether an employee was entitled toaccess classified information. The President here hasclaimed no such executive authority over removal of employees on national security grounds, and there is nodelegation of removal authority to agencies. The majoritypoints to no Executive Order delegating removal authori-ty to the DoD.

While the Office of Personnel Management (OPM)suggests that authority can be found in Executive Order10,450, that Executive Order confers no authority toagencies to make either final classified access or suitabil-


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KAPLAN v. CONYERS 6

ity determinations. In Egan the Supreme Court relied onExecutive Order 10,450 for only two propositions: (1) thataccess to classified information could be granted onlyafter a background investigation and (2) the standard forsuch access was that the access was clearly consistentwith the interests of the national security. See Egan , 484U.S. at 528 (citing Exec. Order No. 10,450, 3, 3 C.F.R.936 (1949-1953 Comp.), reprinted as amended in 5 U.S.C. 7311). The Egan court did not rely on the ExecutiveOrder for the proposition that agencies have final,unreviewable authority with respect to the necessarysuitability determinations at issue herea matter thatwas addressed in the security clearance context by Execu-tive Order 10,865, as referenced above. Notably, a later

Executive Order specifically distinguished between 10,450and 10,865, noting that denial and revocation proce-dures were governed by Executive Order 10,865, asamended, and not by Executive Order 10,450. See Exec.Order No. 12,968, 7.2(c), 3 C.F.R. 391 (1995 Comp.).

Just as Executive Order 10,450 did not render deter-minations regarding access to classified informationunreviewable, it also does not render suitability determi-nations unreviewable, and unlike the situation in Egan ,there is no other executive order that does so. In otherwords, Executive Order 10,450 does not delegate to agen-cies either the authority to terminate access to classifiedinformation (a matter addressed in another executiveorder) or general removal authority where the employee isnot suitable for a national security position.

To the extent that Executive Order 10,450 deals withremoval at all, the executive order does no more thanprovide for removal pursuant to a specific Congressionalstatute authorizing such removal on national securitygrounds, 5 U.S.C. 7532, a provision not invoked here.See Exec. Order No. 10,450 4-6. This is confirmed by

the Supreme Courts decision in Cole v. Young , whichconcluded that


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KAPLAN v. CONYERS 7

it is clear from the face of . . . Executive Order[10,450] that the President did not intend to over-ride statutory limitations on the dismissal of em-ployees, and promulgated the Order solely as animplementation of the 1950 Act [i.e., 7532] . Thus 6 of the Order purports to authorize dismissalsonly in accordance with the said Act of August 26,1950, [ 7532] and similar references are made in 4, 5, and 7 . . . .

351 U.S. 536, 557 n.20 (1956) (emphasis added). At oralargument here, OPM conceded that, to the extent thatExecutive Order 10,450 addresses the Presidents removalauthority over employees, it does no more than implement 7532. 3 As the Court in Cole further noted:

When the President expressly confines his actionto the limits of statutory authority, the validity of the action must be determined solely by the con-gressional limitations which the President soughtto respect, whatever might be the result were thePresident ever to assert his independent poweragainst that of Congress.

351 U.S. at 557 n.20. Unsurprisingly, then, OPM conced-ed before the MSPB that its Part 732 regulations, whichhave their genesis in Executive Order 10[,]450, did notauthorize removal procedures and are silent on the scopeof an employees rights to Board review when an agency

3 The following exchange occurred:

The Court: [T]he Supreme Court in Cole says10,450, insofar as it deals with the removal power,is only implementing 7532, and it is very explicitabout that.

OPM: Thats correct.

Oral Argument at 5:10-5:30.


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KAPLAN v. CONYERS 8

deems the employee ineligible to occupy a sensitive posi-tion. J.A. 288.

In short, Executive Order 10,450 does not authorize

the DoDs actions. In contrast to the situation existing atthe time of Egan , OPM can point to no other ExecutiveOrder that renders final agency decisions with respect tosuitability. The lack of delegated authority with respect tosuitability determinations, as opposed to security clear-ance determinations, is fatal to OPMs position. The lackof such delegated authority here makes Egan inapposite,and the DoDs actions without authority.

B

Second, the few national security and foreign affairscases (other than Egan ) on which the majority relies allinvolve situations in which the authority asserted wasauthorized by Congressional legislation or an ExecutiveOrder of the President. See, e.g. , Dames & Moore v. Re-

gan , 453 U.S. 654, 686 (1981) ([T]he President wasauthorized to suspend pending claims pursuant to Execu-tive Order No. 12294 . (emphasis added)); United States v.Curtiss-Wright Exp. Corp. , 299 U.S. 304, 325-28 (1936)(various statutes and joint resolutions passed by Congressauthorized the President to prohibit certain exports fromthe United States). 4 None of those cases remotely sup-

4 See also Boumediene v. Bush , 553 U.S. 723, 732-33 (2008) (declining to address the question of whetherthe President has authority hold detainees at Guantana-mo Bay but holding that the statutes giving the Presidentauthority to suspend habeas corpus operate[d] as anunconstitutional suspension of the writ); Lincoln v. Vigil ,508 U.S. 182, 194 (1993) (holding that an agency decisionto discontinue a program was authorized by law because

the action f[ell] within the [Indian Health] Servicesstatutory mandate to provide health care to Indian peo-ple); Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S.579, 585, 588-89 (1952) (rejecting the Presidents asser-


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KAPLAN v. CONYERS 9

ports agency action on national security grounds withoutCongressional or Presidential authority.

C

Third, as a general matter, agencies only have suchremoval authority as is conferred by Congressional stat-ute. We are dealing with the DoDs authority to removeemployees for national security reasonseither by remov-ing them from a position by demotion as here (inNorthovers case) or by discharging them from DoD em-ployment entirely. 5 Employees such as Northover who areappointed by members of the Executive Branch otherthan the President can only be removed as authorized byCongressional legislation. In United States v. Perkins , 116

U.S. 483, 485 (1886), the Supreme Court made this clearin holding that Executive Branch employees not appoint-ed by the President cannot be removed without Congres-sional authority:

[W]hen Congress, by law, vests the appointmentof inferior officers [or civil service employees] inthe heads of [agencies] it may limit and restrictthe power of removal as it deems best for the publicinterest . The constitutional authority in Congressto thus vest the appointment implies authority tolimit, restrict, and regulate the removal by suchlaws as Congress may enact in relation to the of-ficers so appointed. The head of a[n] [agency] hasno constitutional prerogative of appointment to of-

fices independently of the legislation of Congress ,

tion of authority to seize steel mills because [t]he Presi-dents power, if any, to issue [an] order must stem eitherfrom an act of Congress or from the Constitution itself).

5In the case of Conyers, she was removed from herposition by an indefinite suspension.


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and by such legislation he must be governed, notonly in making appointments, but in all that is in-cident thereto [i.e., removals].

Id. (emphases added). There is no claim here that theDoDs actions bypassing MSPB review were authorized byCongress. 6 Perkins is directly inconsistent with the DoDsclaim of inherent authority to discharge employees ap-pointed by the agency without MSPB review.

This limitation on agency authority in the removalcontext is a manifestation of the general principle thatagencies do not have independent authority apart fromCongressional statute. Agencies may not act in excess of statutory jurisdiction, authority, or limitations, or short of

statutory right. 5 U.S.C. 706. And while the majorityrelies on a variety of DoD regulations to support itsposition, the Supreme Court has held that [t]he rulemak-ing power granted to an administrative agency chargedwith the administration of a federal statute is not the

6 The only statute that the majority cites that ap-pears remotely relevant is 10 U.S.C. 1564, which statesthat, [f]or the purposes of a statutory provision provid-

ing for expedited processing of background investigationsfor DoD security clearances, it is not necessary for theperformance of duties [of investigated employees] toinvolve classified activities or classified matters in orderfor the duties to be considered sensitive and critical to thenational security. See Maj. Op. at 15. This provision wasmerely meant to prioritize some DoD background investi-gations for positions that require investigations, see H.R.Rep. No. 106-945, at 853 (2000) (Conf. Rep.), and does notprovide any indication that Congress intended to grantauthority to agencies to take adverse actions, without

MSPB review, against DoD employees who do not requireaccess to classified information.


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power to make law. Rather, it is the power to adopt regu-lations to carry into effect the will of Congress as expressedby the statute . Ernst & Ernst v. Hochfelder , 425 U.S. 185,213-14 (1976) (emphasis added) (quotation marks omit-ted) .

D

Fourth, the Supreme Court has held that agencieshave no authority, apart from the President and Con-gress, to take action on grounds of national security. Theleading decision is Greene v. McElroy , 360 U.S. 474(1959). In that case, the petitioner was removed from his

job in the private sector after his required security clear-ance was revoked by the Secretary of the Navy, and that

revocation was affirmed by the Eastern Industrial Per-sonnel Security Board (EIPSB). Id. at 481-83, 489-90.The court of appeals there determined that the ExecutiveDepartment alone [wa]s competent to evaluate the com-peting considerations which exist in determining thepersons who are to be afforded security clearances, id. at491, much like the majority does here. However, theSupreme Court found that the removal procedures estab-lished by the agency and the EIPSB were established by. . . the Secretary of Defense or the Secretaries of the

Army, Navy and Air Force, and that [n]one [of the

procedures] was the creature of statute or of an ExecutiveOrder issued by the President. Id. at 495. Accordingly,the majority reversed the administrative determination,concluding that,

[i]n the context of security clearance cases, . . . itmust be made clear that the President or Congress,within their respective constitutional powers, spe-cifically has decided that the imposed proceduresare necessary and warranted and has authorizedtheir use . Such decisions cannot be assumed byacquiescence or nonaction. They must be madeexplicitly not only to assure that individuals arenot deprived of cherished rights under proceduresnot actually authorized, but also because explicit


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action, especially in areas of doubtful constitu-tionality, requires careful and purposeful consid-eration by those responsible for enacting andimplementing our laws. Without explicit action bylawmakers, decisions of great constitutional im-port and effect would be relegated by default toadministrators who, under our system of govern-ment, are not endowed with authority to decidethem.

Id. at 507 (emphasis added) (internal citations omitted);see also Cafeteria & Restaurant Workers Union v.McElroy , 367 U.S. 886, 889, 893 (1961) (upholding acommanding officers decision to deny a cafeteria workeraccess to a military installation where it was well settledthat a Post Commander c[ould], under the authorityconferred on him by statutes and regulations, . . . excludeprivate persons and property therefrom (emphasis add-ed)). Nothing in Egan purports to overrule Greene (citedby the Egan dissent, see 484 U.S. at 536 (White, J., dis-senting)), or suggests that agencies can exercise removalpowers without Presidential or Congressional authoriza-tion. Rather, as noted earlier, Egan relies on the exist-ence of Presidentialnot agencyauthority to determineaccess to classified information.

IIQuite apart from the DoDs lack of Presidential or

Congressional authority, the DoD action here is directlycontrary to the CSRA, which broadly provides for reviewof adverse actions. Congress, by adopting specific nationalsecurity exemptions from MSPB review that do not applyto Northover, has confirmed that the statutory MSPBreview procedures are applicable in other circumstances.This determination is binding on both the DoD and thePresident.

When it enacted the CSRA, Congress created a broadstatutory scheme that was designed to confer upon theMSPB extensive review authority over adverse actions


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affecting government employees. Subchapter II of Chap-ter 75 of the CSRA gives every employee the right toseek MSPB review of adverse actions, see 5 U.S.C. 7513(d), and employee includes most governmentemployees who have served in either the competitive orexcepted service for at least one year. See id. 7511(a)(1).Beyond the CSRAs broad coverage of government em-ployees, the act also provides the MSPB with reviewauthority over a broad array of adverse actions, includingremovals, suspension[s] for more than 14 days, reduc-tion[s] in grade, reduction[s] in pay, and furlough[s] of 30 days or less. See id. 7512. Congress made clear whenit passed the CSRA that [t]hese provisions [were to]govern any [adverse] action where the basis of the agency

action is misconduct or any other cause besides unac-ceptable performance. S. Rep. No. 95-969, at 46 (1978)(emphases added). The agency concedes that Northoverreceived a demotion, which is among the enumeratedadverse actions covered by the statute. See 5 U.S.C. 7512.

Congress granted this broad authority for a reason: byproviding for MSPB review, civil service employees wouldbe protected against arbitrary action, personal favorit-ism, and . . . partisan political coercion that may occurwithin government agencies. S. Rep. No. 95-969, at 19(1978). The MSPB was designed as a check on both agen-cy and OPM actions, as [e]stablishment of a strong andindependent Board was designed to discourage subver-sions of merit principles. Id. at 7. In fact, Congress madeclear that, [a]bsent . . . [the] mandate for independence[of] the Merit Board, it is unlikely that [Congress] wouldhave granted [OPM] the power it has or the latitude todelegate personnel authority to the agencies. Id.

Congress has been notably aware of national securityissues in the context of government employment. Con-

gress has not created a general national security excep-tion that places limitations on MSPB review or givenagencies the authority to create such an exception. In-


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stead, Congress created specific exceptions to deal withnational security issues, balancing the needs of nationalsecurity with the right to MSPB review. None of thoseexceptions is applicable here, and the very existence of these numerous exceptions refutes the existence of agencyauthority to create others.

First, implementing the decision in Egan , Congresshas authorized agencies to deny access to classified infor-mation and has exempted such determinations fromMSPB review. Congress, in 1994, added Title VIII to theNational Security Act of 1947, granting the Presidentauthority to establish procedures to govern access toclassified information. Intelligence Authorization Act forFiscal Year 1995, Title VIII, 802(a), 108 Stat. 3423, 3435(1994) (codified as amended at 50 U.S.C. 435(a))

kaplan v. conyers

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