AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

John Gage

National President

J. David Cox, Sr.

National Secretary-Treasurer

Augusta Y. Thomas

National Vice President for

Women and Fair Practices

7y/ConyersNorthover/273470

March 1,2010

William D. Spencer

Clerk of the Board

Office of Clerk of the Board

U.S. Merit Systems Protection Board

1615 M Street, N.W.

Washington, D.C. 20419

mspbf%mspb.gov

(202) 653-7130 (fax)

Re: Amicus Brief, Conyers and Northover

Dear Mr. Spencer:

Please find enclosed the amicus brief of the American Federation of Government

Employees in the Conyers and Northover cases.

Sincerely,

the

lores. M. Graj

Assistant Generi

AFGE, Office o

80 F. Street, N.W.

Washington, D.C. 20001

Tel: 202-639-6426

Fax: 202-639-6441

Email: Grajaa@afge.org

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General Counsel

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80 F Street, N.W, Washington, DC 20001 • (202) 737-8700 • FAX (202) 639-6490 • www.afge.org
UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RHONDA K. CONYERS

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DEVON HAUGHTON NORTHOVER

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

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

Docket No. AT-0752-10-0184-I-1

AMICUS BRIEF. CONYERS AND NORTHOVER

BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

Pursuant to notice published by the United States Merit Systems Protection Board

("Board") in the Federal Register on February 10, 2010, the American Federation of

Government Employees, AFL-CIO, ("AFGE") submits this brief as an amicus curiae in

the above-captioned matters. See 75 Fed. Reg. 6728 (February 10,2010). The Board has

posed the question of whether, "pursuant to 5 CFR Part 732, National Security Position,

the nde in Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), limiting the

scope of MSPB review of an adverse action based on the revocation of a security

clearance also applies to an adverse action involving an employee in a "non-critical
sensitive" position due to the employee having been denied continued eligibility for

employment in a sensitive position." Id.

AFGE thanks the Board for the opportunity to present argument on this important

question. The Board's decision regarding the scope of review is likely to impact the

continuing viability of adverse action appeal rights for a great number of current and

nature federal civilian employees, hi this regard, AFGE submits that the Board should

not apply the rule in Department of the Navy v. Egan, 484 U.S. 518 (1988), ("£ga«") to

the review of adverse actions taken against employees occupying "non-critical sensitive"

positions that are premised on the denial of continued eligibility for employment in a

sensitive position.

AFGE also respectfully suggests, however, that the cases of Rhonda K. Conyers v.

Department of Defense, docket number CH-0752-09-0952-I-1, ("Conyers91) and Devon

.Hough ton Northo ver v. Department of Defense, AT-0752-10-0184-1-1, ("AforMover")

may not be ripe for consideration of the question posed by the Board. Although the

administrative judge in Conyers issued an order declining to limit the scope of her review

of the agency's action that she then certified for interlocutory appeal, there has been no

hearing in that matter. Likewise, there has been no initial decision in Northover nor has

there been any other order in that case concerning the scope of review that has been

certified to the Board for interlocutory appeal. Indeed, AFGE has recently entered an

appearance as appellant's counsel in Northover, and in this capacity intends to shortly file

an opposition to the agency's assertion that the scope of the Board's authority to review
the agency's action against Northover is limited by Egan.1

 Conyers and Northover

therefore present sparse factual records that may form an inadequate base on which to

rest the Board's consideration of the scope of review question.

Combined with the fact that the Board has solicited an advisory opinion from the

United States Office of Personnel Management ("OPM") regarding the intent of Part 732

that is not returnable until April 5,2010, and the fact that a motion for remand to the

Board remains pending in Brown v. Department of Defense^ United States Court of

Appeals for the Federal Circuit docket number 2009-3176, (which presents essentially the

same question as Conyers and Northover), AFGE respectfully suggests that Board's

request for amicus briefing and its consideration of the scope of review issue may be

premature.

Nevertheless, in the interest of efficiency and given the importance of the

question posed by the Board, AFGE submits this amicus brief opposing the application of

Egan to adverse action appeals arising out of sensitive position eligibility determinations.

Nothing in Part 732 of Title 5 of the United States Code of Federal Regulations (Part

732) compels the application of Egan to cases involving eligibility for employment in a

sensitive position.

Egan announced a narrow exception to the Board's general authority to review the

merits of agency action decisions that was premised on the close relationship between

possession of a security clearance and access to classified national security information.

Because an employee's eligibility to occupy a sensitive position is not synonymous with

an employee's ability to maintain a security clearance, and therefore not an accurate

Accordingly, AFGE reserves the right to supplement the factual record in Northover and to present

additional argument regarding the scope of the Board's authority to review adverse actions arising out of

sensitive position eligibility determinations.
barometer of an employee's access to classified national security information, the

application of Egan to sensitive position eligibility matters is incompatible with the

rationale underlying Egan. Further, applying Egan to eligibility matters would break

with established Board precedent, and would unnecessarily and unfairly diminish the

rights of those myriad federal employees who occupy sensitive designated positions but

who do not have access to classified national security information.

L BACKGROUND

In order to provide as full a background as possible, AFGE will discuss the basic

facts of Conyers and Northover, the facts and underlying rationale of Egan as well as

Board cases subsequent to Egan, including: Adams v. Department of the Army, 105

M:S.P.R. 50, 2007 MSPB 57 (2007), aff'd, 273 F. App'x 947 (Fed. Cir. 2008)

("Adams"); Brown v. Department of Defense, 110 M.S.P.R. 593, 2009 MSPB 32 (2009),

("Brown") and Grumpier v. Department of Defense, 112 M.S.P.R. 636, 2009 MSPB 224

(2009), vacated, 2009 MSPB 233 (2009). ("Grumpier").

A. Convers

Rhonda Conyers is an Accounting Technician, GS-05, with the Defense Finance

and Accounting Service ("DFAS") in Columbus Ohio. DFAS indefinitely suspended

Conyers from this non-critical sensitive position based on a determination to deny her

access to classified or sensitive information. See Conyers, Initial Decision (Jan. 13,

2010). Conyers, however, did not hold nor was she required to hold a security clearance

in order to occupy her Accounting Technician position.
Conyers appealed her indefinite suspension to the Board. The agency then sought

to limit the scope of the Board's review of Conyers' indefinite suspension by arguing that

Egan prohibited the Board from reviewing the merits of the agency's decision denying

Conyers continued eligibility for employment in her non-critical sensitive position. Id.

On February 17,2010, following the Board's request for amicus briefs, the administrative

judge in Conyers issued an order memorializing her decision not to apply Egan to limit

the scope of her review of the agency's action, and certifying her decision for

interlocutory appeal to the board. Conyers, Order Granting Motion For Certification Of

\

Interlocutory Appeal and Staying Proceeding (Feb. 17,2010).

B. Northover

Beginning in 2002, Devon Northover occupied the position of Commissary

Management Specialist with the Defense Commissary Agency. In this position,

Northover was responsible for, inter alia^ maintaining adequate inventory at the Gunter

Air Force Base Commissary. On or about March 6,2009, the agency denied Northover

eligibility for access to classified information and/or occupancy of a sensitive position.

Thereafter, on or about December 6,2009, the agency demoted Northover from his

Management Specialist position to a Store Associate position. The agency took this

action based solely on Northover's inability to maintain eligibility to occupy a sensitive

position.2

Like Conyers, Northover did not hold nor was he required to hold a security

\

clearance in order to occupy his Management Specialist position.

2

 For purposes of this brief, AFGE assumes but does not concede that Northover was demoted from a noncritical sensitive position. !
C. Eean

The facts of Egan are familiar. Thomas Egan occupied the position of "laborer

leader" with the Department of the Navy, hi this position, Egan worked on Trident

submarines at the agency's Trident Naval Refit Facility in Bremerton, Washington.

Egan, 484 U.S. at 521. At the time, the Trident was the Navy's premier nuclear

submarine and was capable of carrying and launching nuclear weapons. The Trident

played a "crucial part in our Nation's defense system." Id at 520.

As a result of the Trident's direct and crucial role in national security, Egan was

required to hold a security clearance in order to remain in his laborer leader position. Id

at 522. hi approximately 1983, the agency denied Egan a security clearance following a

background investigation. The agency then removed Egan for failure to maintain a

security clearance as required for his position. Id.

When the case arrived at the Supreme Court, the Court framed the question

narrowly, asking whether the Board had statutory authority, "to review the substance of

an underlying decision to deny or revoke a security clearance in the course of reviewing

an adverse action." Id at 520. Citing, "the Government's "compelling interest" in

withholding national security information from unauthorized persons in the course of

executive business," the Court carved out a limited exception to the scope of the Board's

review authority under Chapters 75 and 77 of Title V of the United States Code. Id at

527. The Court reasoned that deference to the Executive was appropriate when access

to classified information, which the Court equated with the formal grant of a security

clearance, was at issue. Id at 529 (".. .the protection of classified information must be
committed to the broad discretion of the agency responsible, and this must include broad

discretion to determine who may have access to it.")

The Court repeatedly made it clear that access to classified information was the

primary consideration in limiting the Board's power to review the merits of an agency's

decision to deny or revoke a security clearance. Id at 527-29. Thus, the Court did not

address application of its holding to instances where access to classified information was

not present.

D. Post-Esan Board Cases

In 2007, the Board addressed the application oiEgan to an adverse action appeal

vv

where the possession of a security clearance, and hence access to classified information,

was not a factor in an agency's decision to remove an employee from service based on

the agency's revocation of his access to a computer system containing sensitive

information. See Adams, 105 M.S.P.R. 50. In Adams, the agency revoked Adams'

access to a computer system used in his position as a human resources assistant after

receiving the results of a background investigation conducted by OPM. The agency cited

Adams' financial situation as the basis for its revocation. Id at 52. The agency then

removed Adams from service based on the revocation of his computer access.

When Adams appealed to the Board the agency expressly argued that Egan

precluded the Board from reviewing the merits of its decision to deny Adams computer

access. Id at 54-55. In rejecting the agency's argument, the Board first reiterated that

when an agency charge against an employee, "consists of the employing agency's

withdrawal or revocation of its certification or other approval of the employee's fitness or

other qualification to hold his position, the Board's authority generally extends to a
review of the merits of that withdrawal or revocation." Id at 55. Next, the Board

dispensed with the agency's argument that Egan applied, finding that the national

security considerations that motivated Egan were absent from Adams' case. Even though

the agency characterized the information in its computer system as "sensitive," the Board

rejected the agency's Egan argument because the information contained in the agency's

system was not classified, and because Adams was not required to hold a security

clearance in order to occupy his position. Id.

Beginning with his separate non-precedential opinion in Brown and ending with

the now-vacated opinion in Grumpier, involving a GS-4 Store Associate, former Board

Chairman McPhie rejected Adams and argued that Egan should be extended to limit

Board review of sensitive position eligibility determinations. See Grumpier, 112

M.S.P.R. at 641-42. Chairman McPhie saw no ''meaningful distinction" between an

agency determination that an employee is ineligible to occupy a sensitive position and an

agency determination denying or revoking a security clearance. Id.

Further, relying on Romero v. Department of Defense, 527 F.3d 1324 (Fed. Cir.

2008) ("Romero"), he went on to argue that whether an employee's position required a

security clearance or access to classified information was irrelevant to whether Egan

should be applied because the term "security clearance" is not a term of art. Id at 643.
II. ARGUMENT

As argued above, the Board should not apply Egan to limit its review of adverse

action appeals arising from agency determinations on employee eligibility to occupy

sensitive positions. To begin with, the Board should not expand Egan to cover sensitive

position eligibility determinations because the term "security clearance" is, in fact, a term

of art used to connote access to classified information. This is so because access to

classified information, the proxy used by the Court in Egan for access to national security

information, is governed by an executive order separate and apart from Executive Order

10450 and its implementing regulations found in Part 732.

Specifically, access to classified information is controlled by Executive Order

12968. ;60 Fed. Reg. 40245 ("This order establishes a uniform Federal personnel security

program for employees who will be considered for initial or continued access to

classified information.") Executive Order 12968 sets forth, inter alia, the parameters

governing when an employee should be granted access to classified information, what

constitutes classified information, and the procedures governing review of agency access

determinations. Id.

This means that the distinction between an agency determination that an

employee is ineligible to occupy a sensitive position and an agency determination

denying or revoking a security clearance is a distinction with a difference. It would make

no sense to erect a separate program controlling access to classified information only to

have that program rendered superfluous by treating all employees as if they had access to

classified national security information for purposes of their adverse action appeal rights.
It is the possession of a security clearance and the attendant access to classified

information that implicates national security.

In turn, it is the definite relationship between a security clearance, classified

information and national security that formed the basis for the Court's opinion in Egan.

Any other reading of Egan simply ignores the plain language of that decision. Supra pgs.

6-7. Consequently, the Board should not apply Egan to sensitive position eligibility

determinations because there is no definite relationship between sensitive position

eligibility determinations and national security similar to that present in the security

clearance context. See Brown, 110 M.S.P.R. at 603 (agency designated appellant's

position as non-critical sensitive because of the need to protect store inventory, and not

for national security reasons). Put another-way, whether the commissary at Gunter Air

Force Base has a sufficient number of mustard jars on its shelves is not the type of

information that the Court sought to protect in Egan.

Further, the mere assertion that certain information is "sensitive" is not analogous

to a properly made determination that information is classified by virtue of its national

security value. See Executive Order 12968. In this vein, former Chairman McPhie's

attempt to distinguish Adams by reliance on Romero fails. The appellant in Romero, like

the appellants in Tchahnafg'ian v. Department of Defense, 57 F. App'x 438, 440 (Fed.

Cir. 2003), and Brown v. Department of the Navy, 49 M.S.P.R. 277, 282 (1991), was

required to hold a security clearance. Romero, 527 F.3d,at 1325. Thus, because Romero

never contested that he was required to hold a security clearance, the application of Egan

was never in doubt. The court's discussion of whether Romero's security clearance had

been revoked, relied on by McPhie in Brown and Crumpler, only went to the question of

10
whether the agency had proved the fact of the clearance's revocation, and was part and

parcel of Romero's argument that the agency made procedural errors when it revoked his

clearance. Id at 1329-30. The court was not passing on the question of whether

eligibility to occupy a sensitive position was equivalent to possession of a security

clearance for the purpose of Board review.

Finally, the argument that the Board should apply Egan to adverse actions arising

out of agency eligibility determinations because otherwise the Board will have no

standard by which to weigh the merits of agency decisions is a red herring. As evidenced

by the Board's decision in Adams, the Board is well equipped to weigh the merits of

agency eligibility determinations just as the Board weighs any of the numerous questions

that the Board is forced to resolve in other adverse actions brought under Chapter 75; the

bottom line question being whether an agency's adverse action promotes the efficiency of

the service. AFGE believes this result to be particularly appropriate considering that

there is no meaningful distinction between Adams and the Conyers and Northover cases.

Weighed against the large number of employees who occupy non-critical

sensitive positions, and especially considering the more than twenty years of

Congressional silence since Egan was decided, it would be a perversion of the Court's

rationale in Egan to allow that narrow exception to swallow the rule of Federal

employment.

11
III. CONCLUSION

Based on all of the foregoing, AFGE respectfully submits that the Board should

not should not apply Egan to limit its review of adverse actions taken against employees

occupying "non-critical sensitive" positions that are premised on the denial of continued

eligibility for employment in a sensitive position.

Respectfully submitted,

Andres M. Grajale;

Assistant Generalo26unse

AFGE, AFL-CIO

80 F. Street, NW

Washington, D.C. 20001

Tel.: 202-639-6426

Fax.: 202-639-6441

Email: GraiaafS).afge.org

March 1.2010

Date

Mark D. Roth

General Counsel

AFGE, AFL-CIO

80 F Street, NW

Washington, D.C. 20001

Tel: (202) 639-6424

RothM@afge.org

12
CERTIFICATE OF SERVICE

AMICUS BRIEF. CONYERS AND NORTHOVER

I hereby certify and affirm that on this day, March 1, 2010,1 caused complete

copies of the Amicus Brief, Conyers and Northover, by the American Federation of

Government Employees to be filed as follows:

MSPB

(via fax and U.S. First Class Certified Mail)

William D. Spencer

Clerk of the Board

Office of the Clerk of the Board

U.S. Merit Systems Protection Board

1615 M, Street N.W.

Washington, D.C. 20419

202-653-7130 (fax)

res M. Graj

Assistant Gen

Date

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