Mar 01 2010 13:41=04 18664551786 Kallijaruii Chuzi fi Page 001

FAX COVER SHEET

To: Clerk MSPB

From: "Elizabeth Newman"

<enewman@kcnlaw.com>

Company: Date: 03/01/10 01:39:55 PM

Fax Number: 2026537130 Pages (Including cover): 9

Re: Amicus Brief in Conyers v. DOD and Northover v. DOD

Notes:

TO: Clerk of the Board

Please find attached for filing the amicus brief of the National Employment Lawyers Association

and Metropolitan Washington Employment Lawyers Association in the cases Conyers v. DOD.

No. CH-0752-09-0925-M, and Northover v. DOD. No. AT-0752-10-0184-1-1.

ELIZABETH L. NEWMAN

Kalijarvi, Chuzi & Newman, PC

1901 L Street, NW

Suite 610

Washington, DC 20036

tel 202-331-9260

fax 866-452-5789

Thii me stag* tnd the attached document*, if any, may contain information that is confidential and/or privileged If you tin not the intended

recipient, you may not read, copy, distribute, or use this information. If you have received thi* tran»mi**ion in error, please notify the sendee by reply

e-mail and then delete this message

r~

rn

O CO

WE raw^K OF FAJt (I* VOUS KMAiL
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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

Conycrs,

Appellant

v.

Department of Defense*

Agency,

and

North over,

Appellant

v.

Department of Defense,

Agency.

* Docket No. CH-0752-09-0925-I-1

* Docket No. AT-0752-10-0184-I-l

*

A

*

*

#

BRIEF OF AMICI CURIAE

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION

AND

METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION

introduction

I. Statement of Amici Curiae.

The National Employment Lawyers Association (NELA) is a professional membership

organization comprised of lawyers who represent workers in tabor, employment, and civil rights

disputes- NELA and its 68 state and local affiliates have a membership of more than 3,000

lawyers throughout the country who represent workers in employment disputes, including federal
Mar 81 2010 13:41:39 18664551786 -> Kallijaruii Chuzi ft Page 003

employees with appeals before the MSPB. NELA strives to protect the rights of its members'

clients, and regularly supports precedent-setting litigation affecting the rights of individuals in

the workplace. NELA is thus well positioned as an organization to address the legal issues raised

in the cases at bar.

The Metropolitan Washington Employment Lawyers Association ("MWELA") is a local

affiliate of NELA. MWELA is comprised of over 250 members who represent plaintiffs in

employment and civil rights litigation in the Washington, D.C. metropolitan area, including

litigation within the MSPB. MWELA's purpose is to bring into close association plaintiffs'

employment lawyers in order to promote the efficiency of the legal system, elevate the practice of

employment law, and promote fair and equal treatment under the law.

Both NELA and MWELA have filed amici briefs with appellate courts around the

country regarding the proper interpretation of the federal, state, and local laws that protect

employees.

II. Summary of Argument.

The Merit Systems Protection Board, in reviewing the removal of an employee

occupying a non-critical sensitive position for failure to maintain their access to sensitive

information, has the authority to review the merits of the agency determination to deny eligibility

for access to sensitive information, and to set aside that determination.

III. Argument.

A. A "sensitive" position need not require access to classified information.

The two instant cases involve employees who were removed from "noncritical sensitive"

positions due to having been denied continued eligibility for employment in sensitive positions.

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75 Fed, Reg. 6,728-6,729 (Feb. 10, 2010). Agency heads have authority to classify positions "in

three categories: critical sensitive, noncriticol sensitive, and nonsensitive." Department of the

Navy v, Egan^ 484 U.S. 518, 528 (1988). This is derived from the President's delegation of

authority to heads of agencies to "protect sensitive information and to ensure proper

classification throughout the Executive Branch." Id While the Board does not have authority to

review the merits of an agency's designation of a position as a "sensitive position1' atone of the

three levels, Ste&s v. Deportment of the Navyt 864 F.2d 1576, 1578 (Fed. Cir. 1989); Brady v.

Department of the Navy, 50 MS.P.R. 133, 138 (199)) (holding that the Board has no authority to

review an agency's decision to classify a position as non-critical sensitive), the Board does have

the authority to review the merits of an agency's determination to deny continued eligibility for

employment in a non-sensitive position where the employee's security clearance was revoked.

A "sensitive" position is defined as one in which the "occupant could bring about a

material adverse effect on national security." 5 C.F.R. § 732.201 (a). However, occupying a

non-critical sensitive position does not necessarily require that the individual hold a security

clearance. In Brown v. Department of Defense, 110 MS.P.R. 593 (2009), for example, the

employee occupied a non-critical sensitive position, but the agency did not require the incumbent

of that position to hold a security clearance. Similarly, in Crumpler v. Department of Defense,

} 12 M.S.P.R. 636 (2009), vacated for rehearing, 2009 MS.P.B, 233, 2009 WL 5248887

(M .S.P.B. Dec. 18,2009), the appellant was a GS-4 Store Associate at an Air Force base

commissary, a position that similarly did not require a security clearance. Nevertheless, in both

Brown and Crumpler7 the appellants were denied reinstatement even though their positions did

not require any security clearance, so that the lack of a security clearance should not have been

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used as a criterion in denying reinstatement. Jn contrast, in Egan, the agency could not reassign

the employee "to a non-sensitive position at the facility ... because there was no nonsensitive

position there," £#«*/», 484 U.S. at 522, which would be a legitimate basis for denying

reassignment.

B. Eyan applies ojiiv to positions requiring: access to classified information

Amid respectfully submit that the two cases at bar, as well as Brown, supra, and

Crumpter, supra, were wrongly decided, because EgQn counsels Board deference only to

positions requiring access to classified information.-' Pursuant to 5 U.S.C. § 7513, employees

who may appeal their removals to the Board are entitled to a review of the reasons for those

actions, and a review of the merits of the determinations underlying those reasons. Adjudication

of a removal appeal requires the Board to determine whether the agency has proven the charge or

charges upon which the removal is based.

In Egan, the U.S. Supreme Court held that the Board did not have the authority, in an

appeal of an adverse action based on the revocation or denial of a security clearance, to review

the substance of the security clearance determination, or to require the agency to support the

revocation or denial by a preponderance of the evidence, as it would be required to do in other

adverse action appeals. In reaching its conclusion, the Supreme Court emphasized the Executive

Branch's need to commit "the protection of classified information ... to the broad discretion of

the agency responsible," Egan, 484 U.S. at 529; and that "an agency head who must bear the

responsibility for the protection of classified information committed to his custody should have

- The appellant in Brown noticed an appeal to the U.S. Court of Appeals for the Federal

Circuit No. 2009-3116, However, that court's docket shows that the appellant fiJed a motion to

remand on January 13,2010, which had not yet been decided as of February 26,2010.
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the final say in deciding whether to repose his trust in an employee who has access to such

information.'" /</. (quoting Cole v. Young, 351 U.S. 536, 546 (1956)),

In contrast, the Board has always retained jurisdiction to scrutinize a range of agency

decisions that result in an employee being deemed ineligible to hold a particular position where

the revocation or denial of a security clearance is not being challenged. The Board has

scrutinized the underlying merits in cases involving, for example, the decision of an agency

credentials committee to revoke an employee's medical clinical privileges, Siegert v. Department

of the Army, 38 M.S.P.R. 684, 687-91 (1988); the validity of a medical determination underlying

the removal of an air traffic control specialist, Cosby v. Federal Aviation Administration^ 30 •

M.S.P.R. 16, 18-19 (1986); failure to maintain access to a computer system, Adams v.

Department of the Army, 105 M.S.P.R. 50, fl 6, 9-12 (2007), aff'd, 273 F. App'x 947 (Fed. Cir.

2008); withdrawal of agency approval of employee's qualifications as an attorney, Laycock v.

Department of the Army, 97 M.S.P.R. 597, fl 14-18 (2004), aff'ci, 139 F. App'x 270 (Fed. Cir.

2005); a helicopter flight instructor's disqualification under medical fitness standards, Boidineau

v. Department of the Army, 57 M.S.P.R. 244, 245, 247-48 & n.6 (1993); a medical officer's

failure to maintain agency medical credentials, Graham v. Department of the Air Force, 46

M.S.P.R. 227,229,233-37 (1990); disqualification of a quality assurance specialist

(ammunition) under agency's Personnel Reliability Program, Dodwn v. Department of the Army,

35 M.S.P.R. 562, 564, 566-67 (1987); removal of a supervisory police officer for failing to file

tax returns, a failure that violated the agency's minimum standards of conduct, Crawford v.

Department of the Treasury, 56 M.S.P.R. 224, 226, 230-32 (1993); and a security guard's

disqualification from the Chemical Personnel Reliability Program based on his alleged verbal

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assault on a security officer, Jacobs v, Deparfme.nl of the Army, 62 M.S.P.R. 688,689 (1994),

Where the Board has the authority to scrutinize the underlying agency decision, it has

done so because that agency decision did not involve the application of any specialized

knowledge. In contrast, the Board has held that it lacked the authority to look behind certain

determinations, such as "wholly military determinations," Stegert v. Department of the Army, 38

M.S.P.R. 684, 690 (1988); removal based on loss of membership in the active military reserve,

Burtonl v. Department of (he Air Force., Ill F.2d 674, 675-77 (Fed. Cir. 1985); ftutl&r v.

Deportment of the Air Force, 73 M.S.P.R. 313, 318 (1997) (same); Schaffer v. Department of the

Air Force, 9 M.S.P.R. 305, 309 (1981) (same), aff'd, 694 F.2d 281 (D.C. Cir. 1982) (table); a

criminal conviction in order to determine the innocence or guilt of an appellant whose adverse

action was based on such a conviction, Crofoot v. United States Government Printing Office, 21

M.S.P.R. 248, 252 (1984), rev'd on other grounds, 761 F.2d661, 665 (Fed. Cir. 1985).

The two cases at bar are clearly analogous to the cases in which the Board has

scrutinized the underlying reasons for the agency action. In Adams, supra, for example, the

vacancy announcement for the position included a statement that a personnel security

investigation would be required of selectees, and, after selecting the appellant, the agency

arranged to have the appellant's background investigated by the Office of Personnel Management

(OPM). Adams, 105 M.S.P.R. at 52. The OPM investigative report disclosed that the appellant

had failed to pay certain debts and had more than $63,000 "charged off" by his creditors. As a

result, the agency questioned the appellant should continue to have computer access. Id, at 52-

53. The agency stated that it would allow him continued access if he consolidated his debts and

made monthly payments; whereas the appellant stated that he intended not to consolidate, but to

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• '

pay his debts off one at a time. Id. at 53. The Board correctly held that Adams' appeal did not

involve the national security considerations presented in figctn, because granting access to a

computer system is not equivalent to possession of a security clearance. Id, at 55-56,

Where the Board erred in Brown and Cntmpter. is in assuming that because the

administrative process the agency used to deny an employee eligibility to occupy a sensitive

position is the same as the process used to deny an employee a security clearance, that Egan

necessarily applied in both instances. Thus, in Crumpler, supra ^ the administrative judge found

that, although the appellant was not denied a security clearance and her position did not require

one, the agency's decision to deny the appellant's eligibility to occupy a position designated as

sensitive under 5 C.F.R. § 732.201 (a) was "virtually identical" to the "security clearance"

determination considered in Egan, and that the reasoning in that case was equally applicable to

the circumstances of the appellant's case. This fails to recognize that the Supreme Court's

decision in Egan is based on the special deference due a decision to deny access to classified

information, where the employee could not be reassigned to a position that did not require a

security clearance. The Board recognized this problem in granting the motion to reopen

Crumpler > when it stated that:

The Board's November 2,2009 decision marked a momentous change in the

law. In the previous 21 years the Board had never interpreted Egan as

restricting Board review in an appeal brought by an employee who was not

required to maintain a security clearance for access to classified

information to hold his position. The Board's November 2, 2009 decision

thus announced a major limitation on the "basic procedural rights" of untold

numbers of employees in the Department of Defense, Department of Homeland

Security, and elsewhere whose work does not involve access to classified

information, but whose positions have been designated non-critical sensitive.

Cntmpler, 2009 MS.P.B 233, at \ 6,2009 WL 5248S87, at *2 (emphasis supplied). Since the

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Crumpler case was subsequently settled, amici respectfully submit that this Board now has the

opportunity in Conyers and NoHhovw to rectify an issue of significant concern to numerous

federal employees across the country - that the denial of a security clearance should have no

bearing on an employee's ability to hold a position that does not require access to classified

information,

Conclusion

Because the determination underlying the removals at issue here are not denials of access

to classified information, NELA respectfully submits that the Board has the authority to review

the merits of those determinations.

Respectfully submitted,

Elizabeth L. Newman

Kalijarvi, Chuzi & Newman, P.C.

1901L Street, N.W.

Suite 610

Washington, D.C. 20036

tel 202-33 J-9260

fax 866-452-5789

Counsel for Amici Cwiae

National Employment Lawyers Association

and Metropolitan Washington Employment

s Association