UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RHONDA K. CONYERS,

Petitioner,

v.

DEPARTMENT OF DEFENSE,

Respondent.

Docket Number:

CH-0752-09-0925-Ic=»_ 3D

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Docket Number: o

AT-0752-10-0184-I-l~

DEVON HAUGHTON NORTHOVER,

Petitioner,

v.

DEPARTMENT OF DEFENSE,

Respondent.

AMICUS BRIEF OF THE NATIONAL TREASURY EMPLOYEES UNION

IN SUPPORT OF CONYERS AND NORTHOVER

Pursuant to a Federal Register notice published on February

10, 2010 (75 Fed. Reg. 6728), the Merit Systems Protection Board

seeks comments on whether the Supreme Court's decision in

Department of the Navy v. Egan, 484 U.S. 518 (1988), limits the

scope of Board review of a removal from a "non-critical

sensitive" position even when the employee does not have access

to classified information. The National Treasury Employees

Union (NTEU) is a federal sector labor organization that

represents many thousands of employees who, like petitioners,

occupy sensitive positions but do not hold security clearances.

It files this brief to demonstrate the inapplicability of Egan,

as well as to describe the potential damage to the basic

procedural rights of federal employees that will result, if the
scope of the Board's review in this context were to be as

limited as it is in the context of a denial of a security

clearance.

SUMMARY OF ARGUMENT

The Department of Defense argues for an expansive

application of Egan, limiting the Board to a procedural review

in all cases involving employees designated as "sensitive," even

where the employee has no access to classified information.

Such a reading of Egan misapprehends the Supreme Court's

overriding concern: that the Board, as an "outside nonexpert

body," simply does not have the "necessary expertise" regarding

the protection of classified information to evaluate the

underlying merits of a security clearance determination. That

same concern is not present in circumstances where the employee

does not have a security clearance. Thus, there is no

"compelling interest" present to justify stripping the Board of

its broad jurisdiction over these adverse action appeals.

Moreover, to apply Egan's rationale to cases that do not

involve access to classified information would mean that many

thousands, or even hundreds of thousands, of employees would no

longer be entitled to full Board review should they be removed

due to a finding by their agency that they are "ineligible" to

serve in their "sensitive" positions. Nothing in the statute or

in the "national security" regulations promulgated by the Office
of Personnel Management suggests that this is the intended or

desired outcome. Certainly nothing indicates that Congress

intended such a dramatic reduction of Board jurisdiction.

ARGUMENT

THE BOARD HAS THE AUTHORITY, IN THE COURSE OF REVIEWING AN

ADVERSE ACTION, TO EXAMINE THE MERITS OF AN UNDERLYING

DECISION TO DENY AN EMPLOYEE ELIGIBILITY TO OCCUPY A

"SENSITIVE" POSITION IF THE ADVERSE ACTION WAS BASED ON THE

EMPLOYEE'S INELIGIBILITY AND NOT A SECURITY CLEARANCE

DETERMINATION.

A. The MSPB Has Broad Statutory Jurisdiction To Review

the Merits of a Decision Underlying an Employee's Removal

Under Section 7513.

1. It is undisputed that the Board has statutory

jurisdiction over all removals taken by a federal agency

pursuant to 5 U.S.C. 7513, and regulatory jurisdiction under 5

C.F.R. Part 752. Egan v. Dep't of the Navy, 28 M.S.P.R. 509,

514 (1986) . Moreover, by 5 U.S.C. 1205, the Board is mandated

to adjudicate all matters within its jurisdiction. Id.

Employees are given the right to invoke the Board's jurisdiction

over any appealable action by virtue of 5 U.S.C. 7701. Id. The

Board's authority to review the merits of a removal case

presumptively includes a review of the merits of any

determination underlying that removal. Id. at 517 n.5. See

also Adams v. Dep't of the Army, 105 M.S.P.R. 50, 55 (2007),

affd 273 Fed. Appx. 947 (Fed. Cir. 2008) .
At issue in this case is the applicability of one of the

few narrow exceptions to the scope of that statutory

jurisdiction: the limited scope of Board review in cases

involving security clearance determinations. In Department of

the Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court held

that the Board did not have the authority to examine the

substance of a security clearance determination, or to require

the agency to support its decision to revoke or deny a security

clearance by a preponderance of the evidence, in an appeal of a

removal based on the revocation or denial of that clearance.

Id. at 530-31.

The Egan Court made clear, however, that it was addressing

only the "narrow question" of whether the Board could review the

substance of an underlying decision to deny a security

clearance. Id. at 520. In ruling on that narrow question, the

Court took great care to stress its concerns about interfering

with the President's vital ability to protect the Nation's

secrets. Id. at 527 (recognizing the Government's "* compelling

interest' in withholding national security information from

unauthorized persons in the course of executive business."). It

showed great deference to the President's role as Commander in

Chief, which, the Court believed, entailed the right to

determine whether an employee should have access to classified

information. Id. According to the Egan Court, the making of
such a critical decision should be made only by those with the

"necessary expertise" regarding the protection of classified

information--a role assigned to the executive agency responsible

for the information. Id. at 529.

The Court thus concluded that the Board did not have

jurisdiction to review an agency's security clearance

determination in the context of an adverse action appeal. In

declining to grant the Board the right to review such

determinations, the Court noted that "an agency head who must

bear the responsibility for the protection of classified

information committed to his custody should have the final say

in deciding whether to repose his trust in an employee who has

access to such information." Id., quoting Cole v. Young, 351

U.S. 536, 546 (1956).

2. By contrast, the Board has long held that it has

jurisdiction to review the merits of agency determinations

regarding employee fitness that do not involve security

clearance determinations. Indeed, it has so held in instances

where the agency withdrew or revoked its certification or other

approval of the employee's qualifications to hold a position

that implicates important security concerns. For example, the

Board asserted jurisdiction to review the merits of an agency

determination that an employee should not have access to a

command computer system with sensitive (but unclassified)
information because the employee's background investigation

revealed unpaid debts. Adams v. Dep't of the Army, 105 M.S.P.R.

50 (2007) . It similarly reviewed the merits of an agency

disqualification of a security guard from its Chemical Personnel

Reliability Program (a program "designed to ensure the safety,

security, and reliability of chemical agents and weapons in the

custody of the U.S. Army") where the agency claimed an alleged

verbal assault by the guard demonstrated poor judgment, contempt

for authority, and an unprofessional attitude. Jacobs v. Dep't

of the Army, 62 M.S.P.R. 688 (1994). See also Thompson v. Dep't

of the Air Force, 2007 MSPB LEXIS 8504 (Oct. 24, 2007) (AJ

Decision) (civilian employee of Air Force removed from position

for failure to maintain an Air Traffic Control Specialist

certificate); Dodson v. Dep't of the Army, 35 M.S.P.R. 562

(1987) (Quality Assurance Specialist (Ammunition) disqualified

from Army's Personnel Reliability Program).

In Adams, Jacobs, and Thompson, the Board considered, and

rejected, the contention that its review should be limited

consistent with Egan. The Board read Egan as narrow in scope

and specifically limited to removals based on the denial of a

security clearance. See Adams, 50 M.S.P.R. at 55; Jacobs, 62

M.S.P.R. at 695. The Board refused to expand Egan to situations

where the government is assessing the dependability, stability,

social adjustment, or judgment of the incumbents. As it pointed
out in Jacobs, there are countless government jobs that require

such qualities. In order to guard its role as "protector of the

government's merit systems," the Board declined to expand the

scope of Egan to "divest federal employees whose positions do

not require a security clearance of basic protections against

non-meritorious agency actions"--even, the Board held, when the

position involved the protection of a national chemical weapons

program. Jacobs, 62 M.S.P.R. at 695.

3. The reasoning in those cases applies with equal force

in the instant context. Just as the Board exercised its

authority to review agency determinations that an employee was

"unfit" for reasons such as financial problems or incidents that

suggested poor judgment, so too can it review the underlying

basis for a determination that the employee is "ineligible" to

hold a sensitive position. Indeed, the Board's experience in

these fitness cases demonstrates that it possesses the necessary

expertise to evaluate the evidence and the interests at stake.

As illustrated in Adams and Dodson, the Board is appropriately

attentive to the agency's security concerns and findings that

the employee's alleged misconduct reflects adversely on the

employee's integrity and responsibility. At the same time, the

employee is assured of a neutral third party review of the

underlying factual allegations.
There is simply no reason to conclude that the mere fact

that petitioners' positions are designated "non-critical

sensitive" demonstrates a "compelling interest" that justifies

stripping the Board of its normal jurisdiction regarding

removals. The granting of a clearance clearly and directly

involves "compelling" national security interests because that

action gives access to the Nation's secrets. And it is this

tightly controlled access to classified information, coupled

with the Executive's special role in protecting that

information, which led the Egan Court to create a narrow

exception restricting the normal scope of the Board's

jurisdiction.

4. Extending Egan to instances that do not involve

security clearance determinations would have a profound impact

on the statutory scheme crafted by Congress for review of

adverse actions. Although NTEU does not know precisely how many

federal employees without security clearances are classified as

"sensitive," it has reason to believe that they could easily

include half of the federal workforce or more.1

By Office of Personnel Management (OPM) regulation, each

agency is required to designate any position as "sensitive" if

1 NTEU respectfully suggests that the Board would find it

useful if OPM were to provide information concerning the number

of federal employees who hold "sensitive" designations but who

do not hold security clearances.
the occupant could have "a material adverse effect on the

national security." 5 C.F.R. 732.201(a). While many employees

government-wide are designated "non-sensitive," the trend is to

classify increasing numbers as "sensitive" to some degree:

either non-critical sensitive, critical-sensitive, or specialsensitive. At U.S. Customs and Border Protection (CBP), for

example, every single position within the agency is designated

as at least "non-critical sensitive," although very few

positions require a security clearance. As a consequence, the

approximately 24,000 CBP employees represented by NTEU (and an

unknown number of non-bargaining unit employees) would be

subject to removal for "ineligibility to hold a sensitive

position" with only minimal MSPB review, should Egan be extended

to this context.

At the Department of Defense, employees can apparently be

classified as "non-critical sensitive" based on their fiduciary

responsibilities. Petitioner Northover was a GS-07 Commissary

/

Management Specialist at a military commissary who had no access

to classified information and, accordingly, no security

clearance.2 He is thus closely analogous to Jeanell Brown, the

appellant in Brown v. Dep't of Defense, who was a GS-05

Commissary Contractor Monitor. A representative of the

2 It is NTEU's understanding that petitioner Conyers was a

GS-05 Accounting Technician. 2010 MSPB LEXIS 264 (Jan. 13,

2010).
Department of Defense cited the need to protect the commissary's

valuable inventory in support of Brown's "non-critical

sensitive" status. He pointed out that Brown worked at the

commissary when it was closed to the public and was responsible

for ensuring that the doors were locked and that only authorized

personnel were permitted to enter. 110 M.S.P.R. 593 (Mar. 12,

2009).

A decision limiting Board review of ineligibility

determinations would permit agencies to remove large numbers of

employees virtually at will, merely by declaring that they are

"ineligible" to hold a "sensitive" position. The sensitivity

rating process is shrouded in mystery, although it is obviously

broad and elastic. We are aware of no public guidance

explaining how agencies are to interpret and apply the

definition of "national security position" in 5 C.F.R. 732.102.

There is also no public guidance on how agencies are to

determine which positions are "non-critical sensitive," as

opposed to "critical sensitive" or "special sensitive."

Moreover, the "investigative requirements" for each sensitivity

level are contained in "0PM issuances" that are not made public.

See 5 C.F.R. 732.201(b).

Not only is there no transparency in the sensitivity

designation process, but the resulting designations are also

immune from Board review. Skees v. Dep';t of the Navy, 864 F.2d

10
1576, 1578 (Fed. Cir. 1998). Consequently, if the expansive

application of Egan proposed by the Department of Defense is

accepted by the Board, there is a very real possibility that

agencies would evade the substantive adverse action protections

specified by statute through "sensitivity" designations.

Indeed, NTEU has seen first-hand an attempt by an agency to

circumvent the adverse action appeal process using this method.

We currently represent an employee who, after successfully

challenging his removal before an arbitrator, is now subject to

a second proposed removal for his alleged failure to satisfy the

investigative requirements associated with his "national

security position." Tellingly, the employee's alleged

"ineligibility" is based on the very same evidence that the

arbitrator rejected as not warranting the employee's initial

removal. Under the Department of Defense's rationale, because

the employee occupies a "sensitive" position, the agency gets a

second bite at the apple, and this time the agency's

determination is, in essence, non-reviewable. That result

cannot be consistent with Congress' intent when it granted the

Board broad authority to review adverse actions.

B. Nothing in 5 C.F.R. Part 732 (National Security Positions)

Limits the Scope of Board Review.

As discussed above, there is no statutory basis for

extending Egan's limited appeal rights to cover employees who do

11
not have access to classified information. Contrary to the

views of then-Chairman McPhie in Brown v. Dep't of Defense, 110

M.S.P.R. 593 (2009), there is nothing in 5 C.F.R. Part 732 that

demands a different conclusion.

Part 732 does not even speak to the appeal rights of an

employee removed from a "national security position." A denial

of substantive appeal rights can hardly be inferred through

silence. But, even if the regulation did attempt to spell out

only a limited form of MSPB review, that regulation would be

contrary to the statutory provisions cited above outlining the

Board's jurisdiction.

Moreover, 0PM is not authorized to promulgate regulations

that limit the Board's jurisdiction. See Siegert v. Dep't of

the Army, 38 M.S.P.R. 684, 691 (1988) ("an agency cannot through

its own action confer or take away Board jurisdiction.").

(Internal citations omitted.) In fact, the Board recently

questioned 0PM's characterization of a removal action as a

"suitability action" subject to limited Board review, instead of

as an adverse action under Chapter 75, based on its concern for

protecting its statutory jurisdiction under 5 U.S.C. 7513(d) .

Aguzie v. 0PM, 112 M.S.P.R. 276 (Sept. 3, 2009). As the Board

further stated, "To the extent that § 731.203(f) may purport to

carve out an exception to the Board's statutory jurisdiction

under 5 U.S.C. § 7513(d), the validity of the regulation is in

12
doubt." Id. at 279. A similar concern should animate the

Board's analysis in this case.

In any event, OPM has traditionally construed "national

security positions," in, for example, the context of background

investigations, to cover only those employees who have access to

classified information. This is consistent with OPM's longstanding recognition of the critical distinction among employees

who occupy "sensitive" positions--namely, a distinction between

those who have access to classified information and hold a

security clearance and those who do not. Since at least 1991,

OPM has carefully limited "national security" background

investigations to the former group. See 56 Fed. Reg. 18650

(Apr. 23, 1991). Thus, it has directed agencies to use the

Standard Form (SF) 86 (Questionnaire for National Security

Positions) as the basis for any background investigation

involving employees needing access to classified information.

See, e.g., SF 86 (revised Sept. 1995)(form "used primarily as

the basis for investigation for access to classified information

or special nuclear information or material;" to be completed

after offer made "for a position requiring a security

clearance.").3 Conversely, OPM instructs agencies to use a

3 A new SF 86 was adopted in July 2008. According to the

instructions on that form, it should be completed by persons in

"national security positions as defined in 5 C.F.R. Part 732 and

for positions requiring access to classified information." We

13
separate form, the SF 85P (Questionnaire for Public Trust

Positions), for employees who are in "sensitive" positions that

do not require such access. See 59 Fed. Reg. 59260 (Nov. 16,

1994) .

4

OPM's suitability regulations at 5 C.F.R. Part 731

underline this distinction. Section 731.106 describes the

designation of "public trust" positions, or those positions that

involve a range of duties demanding "a significant degree of

public trust" or "access to or operation or control of financial

records, with a significant risk for causing damage or realizing

public gain." Those regulations further specify that all

positions designated as high or moderate risk public trust

positions "must also receive a [national security] sensitivity

designation of Special-Sensitive, Critical-Sensitive, or

Noncritical Sensitive, as appropriate." 5 C.F.R. 731.106 (c) (2)

(emphasis added). Notwithstanding their concurrent sensitivity

designation, at least some of these employees remain subject to

the SF 85P and the other investigative requirements appropriate

for public trust employees. If OPM intended all employees

are not aware, however, that OPM has changed its practice of

requiring that form only of employees with current or potential

access to classified information.

4 Illustrating this practice, Grumpier completed the SF 85P

notwithstanding her status as "noncritical sensitive." Grumpier

v. Dep't of Defense, Docket No. DC-0752-09-0033-I-1, Amended

Agency Prehearing Submission (Dec. 5, 2008).

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occupying "sensitive" national security positions to be subject

to the same burdensome investigation requirements, using the SF

86, and due process restrictions, then there would be no need

for the "public trust" designation and a separate SF 85P.

Accordingly, by instructing agencies to use the SF 86 only for

employees who have (or need) access to classified information,

OPM has traditionally interpreted narrowly the designation of

"national security position" for purposes of 5 C.F.R. Part 732.

CONCLUSION

For the foregoing reasons, NTEU urges the Board to conclude

that it has jurisdiction to review the merits of an eligibility

determination when reviewing an employee removal from a

"sensitive" position that does not involve access to classified

information.

Respedtfullv submitted,

Gregory O'Duden

General Counsel

Barbara A. Atkin

Deputy General Counsel

Date: March 1, 2010

ie M. Wilson

istant Counsel

NATIONAL TREASURY EMPLOYEES UNION

1750 H Street, N.W.

Washington, D.C. 20006

Telephone: (202) 572-5500

Facsimile: (202) 572-5645

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