Earlier this year, the MSPB held an unprecedented oral argument in two security clearance cases, Conyers and Northover, both against the Department of Defense. MWELA and NELA submitted an excellent amicus brief, authored by Elizabeth Newman. The MSPB just issued its favorable ruling in the Conyers case.
http://www.mwela.org/docs/NELABrief2009Amicus-ConyersNorthoverVDoDefense.pdf (MWELA's amicus brief)
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=562382&version=564015&application=ACROBAT (MSPB decision)
http://www.mspb.gov/decisions/decisions.htm (alternate link to MSPB decision)
The key issue is whether:
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.
The MSPB split, 2-1, in Ms. Conyers' favor (Mary Rose, dissenting -- she argued that any decision would be a nullity and contrary to the Executive Branch's authority in security clearance cases). It is possible that the government will seek interlocutory review by the Federal Circuit.
Some excerpts follow:
We therefore find that the Board has the authority to review the merits of the agencys decision to find the appellant ineligible to occupy an NCS position, and that the Board's authority to exercise its statutory review of the appellant's indefinite suspension is not limited by Egan. Applying the full scope of Board review in appeals such as this will not prevent agencies from taking conduct-based adverse actions or suitability actions in appropriate cases. Likewise, agencies may respond to urgent national security issues, even for employees who do not have eligibility for access to, or access to, classified information, by exercising their statutory authority to impose indefinite suspensions and removals through the national security provisions in 5 U.S.C. § 7532. See, e.g., King v. Alston, 75 F.3d 657, 659 n.2 (Fed. Cir. 1996). Here, however, the agency did not choose to act under 5 U.S.C. § 7532, an option the dissent fails to mention. If the agency believed that a Board appeal would involve delicate national security matters beyond the Boards expertise, or that a Board order might create a conflict with its national security obligations pursuant to Executive Order No. 10,450, it could have exercised its authority pursuant to 5 U.S.C. § 7532. See id.
The agency argues that a Board decision to reverse its action would place it in an impossible position because it must either violate an agency head's decision and allow an employee "who presents a national security risk" to occupy a sensitive position or violate the Board's order. PFR File, Tab 17, Resp. at 8-9. We note, however, that the agency's own actions belie its concern. Although on June 27, 2007, the WHS/CAF issued the appellant its tentative decision to deny her eligibility to occupy her NCS position, the agency did not issue its decision to actually suspend her from the position until September 3, 2009. IAF, Tab 5, Subtabs 4b, 4i. Thus, the agency kept the appellant in her NCS position for over two years after making a tentative determination to deny her eligibility. Although the appellant was admittedly proceeding through the agency's internal review process during part of this time, the record does not indicate that the agency took any action between the appellant's September 22, 2007 response to its tentative determination to deny her eligibility and its February 18, 2009 decision to deny her eligibility, i.e., for over one year. Id., Subtabs 4d, 4e. Therefore, the agencys own actions do not support its fear of being put in an impossible position by the possibility that the Board might disagree with its decision and order reinstatement.
DISSENTING OPINION OF MARY M. ROSE
in
Rhonda K. Conyers v. Department of Defense
MSPB Docket Nos. CH-0752-09-0925-I-1 & CH-0752-09-0925-I-2
As explained below, I would hold that the Board cannot review the reasons underlying the agency's determination that the appellant is no longer eligible to occupy a sensitive position. When Congress created the Merit Systems Protection Board, it did not mean to limit (assuming it could have) the longstanding discretion vested in the President and agency heads over national security matters. The substance of an agency's decision that retaining an employee would be inconsistent with the interests of national security has never been subject to third-party review before today, and I would hold that it is not subject to such review.
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