Berry v. Conyers ( 2013 )

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHN BERRY, DIRECTOR, OFFICE OF
PERSONNEL MANAGEMENT,
Petitioner,
v.
RHONDA K. CONYERS AND DEVON HAUGHTON
NORTHOVER,
Respondents,
and
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3207
__________________________
Petition for Review of the Merit Systems Protection
Board in consolidated case nos. CH0752090925-R-1 and
AT0752100184-R-1.
__________________________
Before RADER, Chief Judge, NEWMAN, LOURIE, BRYSON ∗,
DYK, PROST, MOORE, O’MALLEY, REYNA, and WALLACH,
Circuit Judges.
∗
Judge Bryson assumed senior status on Janu-
ary 7, 2013, after participating in the decision regarding
rehearing en banc.
BERRY v. CONYERS 2
PER CURIAM.
ORDER
Separate petitions for rehearing en banc were filed by
Respondent Merit Systems Protection Board (“MSPB”)
and Respondents Rhonda K. Conyers (“Conyers”) and
Devon Haughton Northover (“Northover”). A single
response was invited by the court and filed by Petitioner.
The petitions for panel rehearing were considered by
the panel that heard the appeal, and thereafter the peti-
tions for rehearing en banc, response, and brief of amici
curiae were referred to the circuit judges who are author-
ized to request a poll of whether to rehear the appeal en
banc. A poll was requested, taken, and the court has
decided that the appeal warrants en banc consideration.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petitions for panel rehearing of Respondent
MSPB and Respondents Conyers and Northover are
denied.
(2) The petitions for rehearing en banc of Respondent
MSPB and Respondents Conyers and Northover are
granted.
(3) The court’s opinion of August 17, 2012 is vacated,
and the appeal is reinstated.
(4) The parties are requested to file new briefs. The
briefs should, inter alia, address the following issues:
a. Does the Supreme Court’s ruling in Department of
the Navy v. Egan, 484 U.S. 518 (1988), foreclose MSPB
review of the merits of determinations that an employee
is ineligible for a “sensitive” position, or is the ruling
confined to determinations that an employee is ineligible
to hold a security clearance?
3 BERRY v. CONYERS
b. To what extent, if any, has Congressional action pre
or post-Egan demonstrated that Congress intended to
preserve MSPB review of adverse actions with respect to
employees holding “sensitive” positions that do not in-
volve intelligence agencies or security clearances?
c. What are the differences between the relevant pro-
cesses and criteria associated with obtaining security
clearances, and those involved in determining whether an
individual is deemed eligible to hold a “non-critical sensi-
tive” or “critical sensitive” position that does not require a
security clearance?
d. What problems, if any, would the MSPB encounter
in determining adverse action appeals for employees
holding “sensitive” positions not requiring a security
clearance; to what extent should the MSPB defer to the
agency’s judgment on issues of national security in resolv-
ing such adverse action appeals?
(5) This appeal will be heard en banc on the basis of
the additional briefing ordered herein and oral argument.
An original and 30 copies of new en banc briefs shall be
filed, and two copies of each en banc brief shall be served
on opposing counsel. The en banc briefs of Conyers,
Northover, and the MSPB are due 45 days from the date
of this order. The en banc response brief is due within 30
days of service of the new en banc briefs of Conyers,
Northover, and the MSPB, and the reply briefs within 15
days of service of the response brief. Briefs shall adhere
to the type-volume limitations set forth in Federal Rule of
Appellate Procedure 32 and Federal Circuit Rule 32.
(6) The court invites the views of amici curiae. Any
such amicus briefs may be filed without consent and leave
of court but otherwise must comply with Federal Rule of
Appellate Procedure 29 and Federal Circuit Rule 29.
BERRY v. CONYERS 4
(7) Oral argument will be held at a time and date to
be announced later.
FOR THE COURT
January 24, 2013 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: David A. Borer, Esq.
Joseph F. Henderson, Esq.
Andres M. Grajales, Esq.
James M. Eisenman, Esq.
Keisha Dawn Bell, Esq.
Jeffrey A. Gauger, Esq.
Stuart F. Delery, Esq.
Beth S. Brinkmann, Esq.
Marleigh D. Dover, Esq.
Charles W. Scarborough, Esq.