This case asked whether the Merit Systems Protection Board and the federal courts can review a decision that an employee is unqualified to serve in a position that is classified as “sensitive,” but that does not require a security clearance. The Civil Service Reform Act authorizes the Board to review adverse employment actions against federal civil servants. But in Department of the Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court ruled that the Board and the courts may not review an agency decision to grant, deny, or revoke a security clearance.
The employees in this case were Rhonda Conyers, a Defense Department accounting technician, and Devon Northover, a grocery clerk at a military Post Exchange. They found themselves in debt, which the government considers a threat to those who guard the nation’s secrets because they may be more susceptible to bribes. But neither of these employees held a security clearance or had access to classified information. When they were fired because of their debts, they sought Board review—review that had been available in such circumstances for a decade before Egan and for two decades after Egan—but DOD suddenly argued that their cases were covered by the Egan rule because their jobs required access to “sensitive” information. The Board rejected that argument, but the Office of Personnel Management petitioned for review in the Federal Circuit. In February 2012, we filed an amicus brief together with the National Treasury Employees Union (NTEU), arguing that Egan was limited to security clearance determinations and did not affect the Board’s authority in these cases.
In August 2012, the Federal Circuit held that the Egan rule extended to eligibility for sensitive positions. In October 2012, we joined the NTEU and the National Whistleblowers Center in filing an amicus brief supporting petitions for rehearing en banc. In January 2013 the petitions were granted and the panel decision was vacated. We again joined with the NTEU in filing an amicus brief to the en banc court. But in August 2013, the en banc court held that the Egan rule applied.
Mr. Northover sought Supreme Court review (DOD had changed its mind about Ms. Conyers and re-hired her), but in March 2014 the Court denied certiorari.
