Berry v. Conyers
692 F.3d 1223
| Fed. Cir. | 2012Background
- OPM seeks review of MSPB’s ruling that Egan limits Board review to cases involving access to classified information, not all sensitive-position determinations.
- Respondents Conyers and Northover were indefinitely suspended and demoted for ineligibility to occupy noncritical sensitive positions at the DoD.
- Conyers held a GS-525-05 Accounting Technician; Northover held a GS-1144-07 Commissary Management Specialist.
- Agency designated the positions as sensitive and denied eligibility for access to sensitive information or occupancy of a sensitive position.
- Board ruled Egan applied only to security-clearance merits and allowed Board review of the underlying agency determinations; court reverses and remands to apply Egan’s broader national-security framework.
- The CSRA provides two tracks: subchapter II for adverse actions with Board review on the merits, and subchapter IV (§7532) for national-security removals with summary procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Egan applies to eligibility to occupy a sensitive position, not just access to classified information. | Conyers/Northover: Egan should not be limited to classified-access cases; sensitive-position eligibility is a national-security determination. | OPM/Agency: Egan confines Board review to security-clearance actions; sensitive positions are not reviewable merit determinations. | Egan applies to sensitive-position eligibility determinations; merits are not reviewable. |
| Whether the Board may review merits of agency national-security determinations under CSRA. | Conyers/Northover: Board should review merits like other adverse actions where not exempted. | Agency: national-security determinations are non-reviewable under Egan and related authorities. | Board review of merits in national-security determinations is limited; in this case, Egan governs. |
| How CSRA structure (subchapter II vs subchapter IV) interacts with national-security removals. | CSRA provides broad Board review rights for most employees, except where Congress carved out exemptions. | National-security exemptions exist (e.g., FBI/NSA); NSPS history shows Congressional intent to limit Board review in some DoD contexts. | CSRA framework governs; Congress did not unconditionally exempt non-intelligence DoD positions; review remains available where not expressly carved out. |
Key Cases Cited
- Department of the Navy v. Egan, 484 U.S. 518 (U.S. 1988) (limits Board review of security-clearance determinations; broad national-security deference)
- Carlucci v. Doe, 488 U.S. 93 (U.S. 1988) (summary removal authority; Congress’ intent to supplement not replace normal procedures)
- Cole v. Young, 351 U.S. 536 (U.S. 1956) (national-security exemptions; sensitive positions parallel to access considerations)
- United States v. Fausto, 484 U.S. 439 (U.S. 1988) (CSRA expansion to non-preference excepted service; contextual background for Board review rights)
- Bennett v. Chertoff, 425 F.3d 999 (D.C. Cir. 2005) (review limits in security-clearance contexts; separation of processes)