Berry v. Conyers , 692 F.3d 1223 ( 2012 )

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.
___________________________
Decided: August 17, 2012
___________________________
ABBY C. WRIGHT, Attorney, Appellate Staff, Commer-
cial Litigation Branch, United States Department of
Justice, of Washington, DC, argued for petitioner. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, TODD M.
BERRY v. CONYERS 2
HUGHES, Deputy Director, ALLISON KIDD-MILLER, Senior
Trial Counsel, and DOUGLAS N. LETTER, Attorney. Of
counsel on the brief were ELAINE KAPLAN, General Coun-
sel, KATHIE A. WHIPPLE, Deputy General Counsel, STEVEN
E. ABOW, Assistant General Counsel, Office of the General
Counsel, Office of Personnel Management, of Washington,
DC.
ANDRES M. GRAJALES, American Federation of Gov-
ernment Employees, of Washington, DC, argued for
respondents Rhonda K. Conyers and Devon Haughton
Northover. With her on the brief were DAVID A. BORER,
General Counsel, and JOSEPH F. HENDERSON, Deputy
General Counsel.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With him on the brief were
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
ARTHUR B. SPITZER, American Civil Liberties Union of
the Nation’s Capital, of Washington, DC, for amici curiae
American Civil Liberties Union of the National Capital
Area. With him on the brief were GREGORY O’DUDEN,
General Counsel, LARRY J. ADKINS, Deputy General
Counsel, JULIE M. WILSON, Associate General Counsel,
and PARAS N. SHAH, Assistant Counsel, National Treasury
Employees Union, of Washington, DC.
__________________________
Before LOURIE, DYK, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH.
Dissenting opinion filed by Circuit Judge DYK.
3 BERRY v. CONYERS
WALLACH, Circuit Judge.
The Director of the Office of Personnel Management
(“OPM”) seeks review of the decision by the Merit Sys-
tems Protection Board (“Board”) holding that the Su-
preme Court’s decision in Department of the Navy v.
Egan, 484 U.S. 518 (1988), limits Board review of an
otherwise appealable adverse action only if that action is
based upon eligibility for or a denial, revocation, or sus-
pension of access to classified information. Egan, how-
ever, prohibits Board review of agency determinations
concerning eligibility of an employee to occupy a “sensi-
tive” position, regardless of whether the position requires
access to classified information. Accordingly, we
REVERSE and REMAND.
I. BACKGROUND
Rhonda K. Conyers (“Conyers”) and Devon Haughton
Northover (“Northover” and collectively, “Respondents”) 1
were indefinitely suspended and demoted, respectively,
from their positions with the Department of Defense
(“Agency”) after they were found ineligible to occupy
“noncritical sensitive” positions. 2 Ms. Conyers and Mr.
1
Although the Board, Ms. Conyers, and Mr.
Northover are all Respondents, we refer to the Board as
the “Board” and “Respondents” will refer to Ms. Conyers
and Mr. Northover.
2
Departments and agencies of the Government
classify jobs in three categories: “critical sensitive,” “non-
critical sensitive,” and “nonsensitive.” Egan, 484 U.S. at
528. The underlying cases involve “noncritical sensitive”
positions, which are defined as: “Positions with potential
to cause damage to . . . national security, up to and includ-
ing damage at the significant or serious level. These
positions include: (1) Access to Secret, “L,” Confidential
classified information[;] (2) Any other positions with
BERRY v. CONYERS 4
Northover independently appealed the Agency’s actions to
the Board. In both appeals, the Agency argued that,
because Respondents’ positions were designated “noncriti-
cal sensitive,” the Board could not review the merits of the
Agency’s determinations under the precedent set forth in
Egan.
A. The Egan Holding
In Egan, the Supreme Court held that the Board
plays a limited role in adverse action cases involving
national security concerns. The respondent in Egan lost
his laborer’s job at a naval facility when he was denied a
required security clearance. 484 U.S. at 520. Reversing
our decision in Egan v. Department of the Navy, 802 F.2d
1563 (Fed. Cir. 1986), rev’d, 484 U.S. 518 (1988), the
Court held that the Board does not have authority to
review the substance of the security clearance determina-
tion, contrary to what is required generally in other
adverse action appeals. 484 U.S. at 530-31. Rather, the
Court held that the Board has authority to review only:
(1) whether an Executive Branch employer determined
the employee’s position required a security clearance; (2)
whether the clearance was denied or revoked; (3) whether
the employee was provided with the procedural protec-
tions specified in 5 U.S.C. § 7513; and (4) whether trans-
fer to a nonsensitive position was feasible. Id. at 530.
B. Ms. Conyers’s Initial Proceedings
Ms. Conyers occupied a competitive service position of
GS-525-05 Accounting Technician at the Defense Finance
and Accounting Service. Conyers v. Dep’t of Def., 115
M.S.P.R. 572, 574 (2010). Following an investigation, the
Agency’s Washington Headquarters Services (“WHS”)
potential to cause harm to national security to a moderate
degree . . . .” J.A. 326 (emphasis added).
5 BERRY v. CONYERS
Consolidated Adjudications Facility (“CAF”) discovered
information about Ms. Conyers that raised security con-
cerns. J.A. 149-52. As a result, effective September 11,
2009, the Agency indefinitely suspended Ms. Conyers
from her position because she was denied eligibility to
occupy a sensitive position by WHS/CAF. Conyers, 115
M.S.P.R. at 574. The Agency reasoned that Ms. Conyers’s
noncritical sensitive “position required her to have access
to sensitive information,” and because WHS/CAF denied
her such access, “she did not meet a qualification re-
quirement of her position.” 3 Id. at 574.
Ms. Conyers appealed her indefinite suspension to the
Board. Id. In response, the Agency argued that Egan
prohibited Board review of the merits of WHS/CAF’s
decision to deny Ms. Conyers eligibility for access “to
sensitive or classified information and/or occupancy of a
sensitive position.” Id. On February 17, 2010, the admin-
istrative judge issued an order certifying the case for an
interlocutory appeal and staying all proceedings pending
resolution by the full Board. Id. at 575. In her ruling, the
administrative judge declined to apply Egan and “in-
formed the parties that [she] would decide the case under
the broader standard applied in . . . other [5 U.S.C.]
Chapter 75 cases which do not involve security clear-
ances.” Id. (brackets in original).
3
The record indicates that Ms. Conyers requested
an appearance before an administrative judge with the
Defense Office of Hearings and Appeals (“DOHA”) regard-
ing her denial of eligibility to occupy a sensitive position.
Conyers, 115 M.S.P.R. at 574; J.A. 123. DOHA ultimately
denied relief. Conyers, 115 M.S.P.R. at 574. The Agency
subsequently removed Ms. Conyers effective February 19,
2010. Id.
BERRY v. CONYERS 6
C. Mr. Northover’s Initial Proceedings
Mr. Northover occupied a competitive service position
of GS–1144–07 Commissary Management Specialist at
the Defense Commissary Agency. Northover v. Dep’t of
Def., 115 M.S.P.R. 451, 452 (2010). Effective December 6,
2009, the Agency reduced Mr. Northover’s grade level to
part-time GS–1101–04 Store Associate “due to revoca-
tion/denial of his Department of Defense eligibility to
occupy a sensitive position.” Id. at 453. In its Notice of
Proposed Demotion, the Agency stated that Mr. Northover
was in a position that was “designated as a sensitive
position” and that WHS/CAF had denied him “eligibility
for access to classified information and/or occupancy of a
sensitive position.” Id. at 453 (citation omitted).
Mr. Northover subsequently appealed the Agency’s
decision to the Board. Id. In response, the Agency argued
it had designated the Commissary Management Special-
ist position a “moderate risk” national security position
with a sensitivity level of “noncritical sensitive,” and
under Egan, the Board is barred from reviewing the
merits of an agency’s “security-clearance/eligibility de-
termination.” Id.
On April 2, 2010, contrary to the ruling in Conyers,
the presiding chief administrative judge ruled that Egan
applied and that the merits of the Agency’s determination
were unreviewable. Id. The chief administrative judge
subsequently certified his ruling to the full Board. Id. All
proceedings were stayed pending resolution of the certi-
fied issue. Id.
D. The Full Board’s Decision in Conyers and
Northover
On December 22, 2010, the full Board affirmed the
administrative judge’s decision in Conyers and reversed
7 BERRY v. CONYERS
the chief administrative judge’s decision in Northover,
concluding that Egan did not apply in cases where secu-
rity clearance determinations are not at issue. Conyers,
115 M.S.P.R. at 590; Northover, 115 M.S.P.R. at 468.
Specifically, the Board held that Egan limited the Board’s
review of an otherwise appealable adverse action only if
that action is based upon eligibility for or a denial, revoca-
tion, or suspension of access to classified information. 4
Conyers, 115 M.S.P.R. at 590; Northover, 115 M.S.P.R. at
467-68. Because Ms. Conyers and Mr. Northover did not
occupy positions that required access to classified infor-
mation, the Board concluded that Egan did not preclude
Board review of the underlying Agency determinations.
Conyers, 115 M.S.P.R. at 585; Northover, 115 M.S.P.R. at
464.
OPM moved for reconsideration of the Board’s deci-
sions, which the Board denied. Berry v. Conyers, et al.,
435 F. App’x 943, 944 (Fed. Cir. 2011) (order granting
OPM’s petition for review). OPM petitioned for review to
this court, and the petition was granted on August 17,
2011. Id. We have jurisdiction to review the Board’s final
decision under 5 U.S.C. § 7703(d) and 28 U.S.C.
§ 1295(a)(9). 5
4
The Board considered “security clearance” to
be synonymous to “access to classified information.”
Conyers, 115 M.S.P.R. at 580.
5
On remand, Conyers was dismissed as moot,
and Northover was dismissed without prejudice to file
again pending the resolution of this petition. J.A. 900-05;
1821. To the extent there are any Article III case or
controversy concerns as a result of these dismissals, we
find that OPM, at the least, maintains sufficient interests
in this petition to satisfy any Article III case or contro-
versy requirement. See Horner v. Merit Sys. Protection
Bd., 815 F.2d 668, 671 (Fed. Cir. 1987) (“We have no
BERRY v. CONYERS 8
II. STATUTORY GROUNDS FOR NATIONAL SECURITY
BASED REMOVAL OF GOVERNMENT EMPLOYEES
The statutes provide a two-track system for removal
of employees based on national security concerns. Egan,
484 U.S. at 526. In particular, relevant provisions of the
Civil Service Reform Act of 1978 (“CSRA” or the “Act”),
Chapter 75 of Title 5 of the United States Code entitled,
“Adverse Actions,” provides two subchapters related to
removals. The first, subchapter II (§§ 7511-7514), relates
to removals for “cause.” Under § 7512, an agency’s in-
definite suspension and a reduction in grade of an em-
ployee, as here, may qualify as “adverse actions.” 5 U.S.C.
§ 7512(2)-(3). An employee subject to an adverse action is
entitled to the protections of § 7513, which include writ-
ten notice of the specific reasons for the proposed action,
an opportunity to respond to the charges, the requirement
that the agency’s action is taken to promote the efficiency
of the service, and the right to review by the Board of the
action. An employee removed for “cause” has the right,
under § 7513(d), to appeal to the Board. On review of the
question that the issue of the [Office of Special Counsel]’s
authority to bring a general disciplinary action against an
employee, and in turn the issue of the board’s jurisdiction
to hear such a case, the latter being dependent on the
former, is of vital interest to OPM, which has administra-
tive responsibility for personnel practices and policies
throughout most parts of government. These interests
are more than sufficient to satisfy the section 7703(d)
requirements and any Article III case or controversy
requirement.”); see also Berry, 435 F. App’x at 945 (grant-
ing petition for review because “[w]e agree that the issues
in the Board’s orders raise an issue of such interest, i.e.,
whether the agency must disclose its determinations
regarding what it classifies as issues of national security
and must litigate the merits of such a determination, and
thus are subject to immediate review.”).
9 BERRY v. CONYERS
action by the Board under § 7701, 6 the Board may sustain
the agency’s action only if the agency can show that its
decision is supported by a preponderance of the evidence.
5 U.S.C. § 7701(c)(1)(B). 7
The second, subchapter IV (§§ 7531-7533), relates to
removals based upon national security concerns. An
employee suspended under § 7532(a) is not entitled to
appeal to the Board. Nonetheless, the statute provides for
a summary removal process that entitles the employee to
specified pre-removal procedural rights, including a
hearing by an agency authority. 5 U.S.C. § 7532(c).
III. EGAN’S APPLICATION TO CONYERS AND NORTHOVER
The Board and Respondents urge this court to limit
Egan’s application to security clearance determinations,
reasoning that national security concerns articulated in
that case pertain to access to classified information only.
Egan cannot be so confined. Its principles instead require
that courts refrain from second-guessing Executive
Branch agencies’ national security determinations con-
cerning eligibility of an individual to occupy a sensitive
position, which may not necessarily involve access to
6
5 U.S.C. § 7701 provides, in relevant part: “An
employee, or applicant for employment, may submit an
appeal to the Merit Systems Protection Board from any
action which is appealable to the Board under any law,
rule, or regulation.” 5 U.S.C. § 7701(a). It is undisputed
that Respondents are “employees” as defined in the appli-
cable statutes in this case. See 5 U.S.C. § 7511(a)(1)(A)
(“[E]mployee means . . . an individual in the competitive
service . . . .”).
7
The two cases on appeal here proceeded pur-
suant to 5 U.S.C. § 7513(d).
BERRY v. CONYERS 10
classified information. For the following reasons, Egan
must apply.
A. Egan Addressed Broad National Security Con-
cerns That Are Traditionally the Responsibil-
ity of the Executive Branch
Egan, at its core, explained that it is essential for the
Executive Branch and its agencies to have broad discre-
tion in making determinations concerning national secu-
rity. Affording such discretion to agencies, according to
Egan, is based on the President’s “authority to classify
and control access to information bearing on national
security and to determine” who gets access, which “flows
primarily from [the Commander in Chief Clause] and
exists quite apart from any explicit congressional grant.”
484 U.S. at 527. Egan also recognized the general princi-
ple that foreign policy is the “province and responsibility
of the Executive.” Id. at 529 (citation omitted). Accord-
ingly, the Court reasoned:
[I]t is not reasonably possible for an outside non-
expert body to review the substance of such a[n
agency determination concerning national secu-
rity] and to decide whether the agency should
have been able to make the necessary affirmative
prediction [that a particular individual might
compromise sensitive information] with confi-
dence. Nor can such a body determine what con-
stitutes an acceptable margin of error in assessing
the potential risk.
Id. Hence, unless Congress specifically has provided
otherwise, courts traditionally have shown “great defer-
ence” to what “the President—the Commander in Chief—
has determined . . . is essential to national security.”
Winter v. Natural Res. Def. Council, 555 U.S. 7, 24, 26
(2008) (citation omitted).
11 BERRY v. CONYERS
Despite the undisputed role of the Executive within
this realm, Respondents argue applying Egan to these
cases “may deprive either the Congress or the Judiciary of
all freedom of action merely by invoking national secu-
rity.” Resp’ts’ Br. 23. Certainly, under the Constitution,
Congress has a substantial role in both foreign affairs and
national security. Congress, therefore, has the power to
guide and limit the Executive’s application of its powers.
Nevertheless, no controlling congressional act is present
here.
As Egan recognized, the CSRA did not confer broad
authority to the Board in the national security context. 8
8
The dissent states the majority has “com-
pletely fail[ed] to come to grips with the [CSRA].” Dissent
Op. at 7. In 1990, the CSRA was amended after the
Court’s decision in U.S. v. Fausto, 484 U.S. 439 (1988).
There, the Court decided that the CSRA’s silence regard-
ing appeal rights for non-preference eligible members of
the excepted service reflected congressional intent to
preclude any review under chapter 75 for such employees.
Id. at 448. In response, Congress passed the Civil Service
Due Process Amendments (“1990 Amendments”) expand-
ing the Board’s jurisdiction to some, but not all, non-
preference eligible excepted service employees. Pub. L.
No. 101–376, 104 Stat. 461 (1990).
The dissent construes the 1990 Amendments as
extending by implication Board review of agency determi-
nations concerning sensitive positions. Dissent Op. at 10.
Because certain agencies, such as the Federal Bureau of
Investigation, Central Intelligence Agency, and National
Security Agency were expressly exempted, the dissent
posits that Board review must extend to all other posi-
tions that were not excluded. Id. at 11. Certain employ-
ees of the General Accounting Office, the Veterans Health
Sciences and Research Administration, the Postal Service,
the Postal Rate Commission, and the Tennessee Valley
Authority, however, were also excluded, because separate
statutes excluded the employees of these agencies from
the normal appeals process. H.R. Rep. No. 101-328 at 5
BERRY v. CONYERS 12
484 U.S. at 530-31 (“An employee who is removed for
‘cause’ under § 7513, when his required clearance is
denied, is entitled to the several procedural protections
specified in that statute. The Board then may determine
whether such cause existed, whether in fact clearance was
denied, and whether transfer to a nonsensitive position
was feasible. Nothing in the Act, however, directs or
(1989), reprinted in 1990 U.S.C.C.A.N. 695. Thus, the
dissent’s view that Congress “crafted some exceptions for
national security and not others” is speculative because
“national security” was not a factor providing for these
exclusions.
Similarly, the dissent refers to the Department of
Defense’s (“DOD”) creation of the National Security
Personnel System (“NSPS”) in 2003 to further support the
notion that Congress spoke on the issue before this court.
Dissent Op. at 15. The dissent’s position is neither sup-
ported by statutory language nor legislative history. The
statute creating the NSPS, the subsequent repeal of
certain regulations concerning the DOD’s appeals process,
and the ultimate repeal of the statute creating the NSPS
itself in 2009, do not show that Congress intended to
preclude the DOD from insulating employment decisions
concerning national security from Board review. NSPS
was established to overhaul the then-existing personnel
management system and polices of the DOD. See National
Defense Authorization Act, Pub. L. 108–136, 117 Stat.
1392 (2003). In 2009, NSPS was repealed largely due in
part to strong opposition from labor organizations regard-
ing issues of collective bargaining. See Department of
Defense Human Resources Management and Labor
Relations Systems, 70 Fed. Reg. 66,123; see also S. Rep.
No. 111-35 at 185 (2009) (“[T]he committee has received
many complaints from DOD employees during the 5 years
during which the [DOD] has sought to implement NSPS,
to the detriment of needed human capital planning and
workforce management initiatives.”). There is nothing in
these statutes that shows Congress intended Board
review of agency determinations pertaining to employees
in sensitive positions.
13 BERRY v. CONYERS
empowers the Board to go further.”) (emphasis added). As
a result, Congress presumably has left the President and
Executive Branch agencies broad discretion to exercise
their powers in this area. See Dames & Moore v. Regan,
453 U.S. 654, 678 (1981) (“Congress cannot anticipate and
legislate with regard to every possible action the Presi-
dent may find it necessary to take or every possible situa-
tion in which he might act,” and “[s]uch failure of
Congress . . . does not, ‘especially . . . in the areas of
foreign policy and national security,’ imply ‘congressional
disapproval’ of action taken by the Executive.”) (quoting
Haig v. Agee, 453 U.S. 280, 291 (1981)). Accordingly,
when “the President acts pursuant to an express or im-
plied authorization from Congress,” his actions should be
“supported by the strongest of presumptions and the
widest latitude of judicial interpretation, and the burden
of persuasion . . . rest[s] heavily upon any who might
attack it.” Id. at 668 (quoting Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring)). Courts thus must tread lightly when faced
with the potential of second-guessing discretionary agency
determinations concerning national security.
The existence of § 7532 does not alter the agencies’
broad discretion to exercise their powers in the national
security context. The Board and Respondents argue that
Congress has spoken directly on the issue of removal for
national security concerns by enacting § 7532, and that
applying Egan in this instance “would in essence allow
the Executive to replace § 7532 with § 7513 . . . rendering
§ 7532 a nullity.” Resp’ts’ Br. 24-25; see Board’s Br. 42-43.
This argument is similar, if not identical, to those rejected
by the Egan Court. 484 U.S. at 533 (“The argument is
that the availability of the § 7532 procedure is a ‘compel-
ling’ factor in favor of Board review of a security-clearance
denial in a case under § 7513.”).
BERRY v. CONYERS 14
In Egan, the Court observed the alternative availabil-
ity of § 7513 and § 7532. Id. at 532. Specifically, the
Court acknowledged that § 7532 does not preempt § 7513
and that the two statutes stand separately and provide
alternative routes for administrative action. Id. In addi-
tion, the Court found that the two sections were not
anomalous, but merely different. Id. at 533. The Court
also found that one section did not necessarily provide
greater procedural protections than the other. Id. at 533-
34.
The Court in Carlucci v. Doe, 488 U.S. 93 (1988), fur-
ther articulated and clarified § 7532’s applicability. In
that case, the Court determined that the summary re-
moval mechanism set out in § 7532, as well as 50 U.S.C.
§ 833, 9 were discretionary mechanisms in cases involving
dismissals for national security reasons. Id. at 100. The
Court found that § 7532 was not mandatory, but rather
permissive: “‘Notwithstanding other statutes,’ the head of
an agency ‘may’ suspend and remove employees ‘in the
interests of national security.’” Id. (quoting § 7532) (find-
ing nothing in the legislative history of § 7532 indicating
that the statute’s procedures are the exclusive means for
removals on national security grounds or that § 7532
displaces the otherwise applicable removal provisions of
the agencies covered by the section). Therefore, it was
held that the National Security Agency was not required
to apply either § 7532 or § 833 and could have acted under
9
50 U.S.C. § 833 was a summary removal provision
in the 1964 National Security Agency Personnel Security
Procedures Act, 50 U.S.C. §§ 831-35 (repealed October 1,
1996).
15 BERRY v. CONYERS
its ordinary dismissal procedure if it so wished. 10 Id. at
99-100.
Moreover, Carlucci held that Congress enacted § 7532
to “supplement, not narrow, ordinary agency removal
procedures.” Id. at 102. The Court reasoned that because
of its summary nature, “Congress intended § 7532 to be
invoked only where there is ‘an immediate threat of harm
to the national security’ in the sense that the delay from
invoking ‘normal dismissal procedures’ could ‘cause
serious damage to the national security.’” Id. (quoting
Cole v. Young, 351 U.S. 536, 546 (1956)). Consequently,
should § 7532 be mandatory as the Board and Respon-
dents effectively argue, it would become the exclusive
procedure in this case and similar cases, and “no national
security termination would be permissible without an
initial suspension and adherence to the Cole v. Young
standard.” Id. Given Carlucci’s teaching, we are uncon-
vinced that Congress intended any such result when it
10
The Carlucci Court also affirmed Egan’s con-
clusion regarding §§ 7513 and 7532:
We thus agree with the conclusion of the Merit
Systems Protection Board in a similar case that
“section 7532 is not the exclusive basis for remov-
als based upon security clearance revocations,”
Egan v. Department of the Navy, 28 M.S.P.R. 509,
521 (1985), and with the Court of Appeals for the
Federal Circuit that “[t]here is nothing in the text
of section 7532 or in its legislative history to sug-
gest that its procedures were intended to preempt
section 7513 procedures whenever the removal
could be taken under section 7532. The language
of section 7532 is permissive.” Egan v. Department
of the Navy, 802 F.2d 1563, 1568 (Fed. Cir. 1986),
rev’d, 488 U.S. 518 (1988).
Carlucci, 488 U.S. at 104.
BERRY v. CONYERS 16
enacted § 7532. Id. Accordingly, eligibility to occupy a
sensitive position is a discretionary agency determination,
principally within the purview of the Executive Branch,
the merits of which are unreviewable by the Board.
B. Egan’s Analysis Is Predicated On “National Secu-
rity Information”
The Board and Respondents conflate “classified in-
formation” with “national security information,” but Egan
does not imply those terms have the same meaning. 11 In
fact, Egan’s core focus is on “national security informa-
tion,” not just “classified information.” 484 U.S. at 527
(recognizing the government’s “compelling interest in
withholding national security information”) (emphasis
added). As Egan noted, the absence of a statutory provi-
sion in § 7512 precluding appellate review of determina-
tions concerning national security creates a presumption
in favor of review. Id. The Court, nevertheless, held that
this “proposition is not without limit, and it runs aground
when it encounters concerns of national security, as in this
case, where the grant of security clearance to a particular
employee, a sensitive and inherently discretionary judg-
ment call, is committed by law to the appropriate agency
of the Executive Branch.” Id. (emphasis added). 12 Egan
therefore is predicated on broad national security con-
cerns, which may or may not include issues of access to
11
Likewise, the dissent’s key error is that it con-
flates “authority to classify and control access to informa-
tion bearing on national security” with “the authority to
protect classified information.” Dissent Op. at 24-25.
12
It is clear from the use of the clause “as in this
case” following the “runs aground” clause that national
security concerns are the Supreme Court’s general propo-
sition, and security clearances simply exemplify the types
of concerns falling within this broad category.
17 BERRY v. CONYERS
classified information. Thus, Egan is not limited to
adverse actions based upon eligibility for or access to
classified information.
In addition, sensitive positions concerning national
security do not necessarily entail access to “classified
information” as the Board and Respondents contend. The
Board cites Cole v. Young and references the Court’s
discussion of the legislative history of the Act of August
26, 1950 13 in support of its proposition that national
security concerns relate strictly to access to classified
information. However, the Board’s analysis is flawed.
Cole held that a sensitive position is one that impli-
cates national security, and in defining “national security”
as used in the Act of August 26, 1950, the Court con-
cluded that the term “was intended to comprehend only
those activities of the Government that are directly con-
cerned with the protection of the Nation from internal
subversion or foreign aggression, and not those which
contribute to the strength of the Nation only through
their impact on the general welfare.” 351 U.S. at 544
(emphasis added). 14 Thus, even in Cole, sensitive posi-
13
The Act of August 26, 1950, Pub. L. No. 81-733,
ch. 803, 64 Stat. 476 (1950), gave heads of certain de-
partments and agencies of the Government summary
suspension and unreviewable dismissal powers over their
civilian employees, when deemed necessary in the interest
of the national security of the United States. Conyers, 115
M.S.P.R. at 580 n.17. The Act was the precursor to 5
U.S.C. § 7532. Id.
14
It follows that an employee can be dismissed ‘in
the interest of the national security’ under the Act only if
he occupies a ‘sensitive’ position, and thus that a condition
precedent to the exercise of the dismissal authority is a
determination by the agency head that the position occu-
pied is one affected with the ‘national security.’” Cole, 351
BERRY v. CONYERS 18
tions were defined as those that involve national security
information and not necessarily those that involve classi-
fied information.
Indeed, “sensitive positions” that can affect national
security and “access to classified information” are parallel
concepts that are not necessarily the same. As the Court
reasoned:
Where applicable, the Act authorizes the agency
head summarily to suspend an employee pending
investigation and, after charges and a hearing, fi-
nally to terminate his employment, such termina-
tion not being subject to appeal. There is an
obvious justification for the summary suspension
power where the employee occupies a “sensitive”
position in which he could cause serious damage
to the national security during the delay incident
to an investigation and the preparation of
charges. Likewise, there is a reasonable basis for
the view that an agency head who must bear the
responsibility for the protection of classified in-
formation committed to his custody should have
the final say in deciding whether to repose his
trust in an employee who has access to such in-
formation.
Cole, 351 U.S. at 546 (emphasis added). 15 Hence, con-
trary to the Board and Respondents’ contentions, “classi-
U.S. at 551 (emphasis added). Accordingly, the Court in
Cole remanded the case to determine whether the peti-
tioner’s position was one in which he could adversely
affect national security. Id. at 557.
15
By using the word, “likewise,” the Court compares
the two concepts, “sensitive positions” and “access to
classified information.” In doing so, it makes clear that
they are parallel concepts that are not the same.
19 BERRY v. CONYERS
fied information” is not necessarily “national security
information” available to an employee in a sensitive
position.
The Board and Respondents’ focus on one factor, eli-
gibility of access to classified information, is misplaced. 16
Government positions may require different types and
levels of clearance, depending upon the sensitivity of the
position sought. Egan, 484 U.S. at 528. A government
appointment is expressly made subject to a background
investigation that varies in scope according to the degree
of adverse effect the applicant could have on national
security. Id. (citing Exec. Order No. 10,450, § 3, 3 C.F.R.
937 (1949-1953 Comp.)). As OPM states: “An agency’s
national security calculus will vary widely depending
upon, inter alia, the agency’s mission, the particular
16
The centerpiece of the Egan analysis, Executive
Order No. 10,450, makes no mention of “classified infor-
mation.” Exec. Order No. 10,450, § 3, 3 C.F.R. 937 (1949-
1953) (“The head of any department or agency shall
designate, or cause to be designated, any position within
his department or agency the occupant of which could
bring about, by virtue of the nature of the position, a
material adverse effect on the national security as a sensi-
tive position.”) (emphasis added). In addition, other
relevant statutes and regulations define “sensitive” posi-
tion in the broadest sense by referring to “national secu-
rity” generally. See 10 U.S.C. § 1564 (“Security clearance
investigations . . . (e) Sensitive duties.--For the purposes of
this section, it is not necessary for the performance of
duties to involve classified activities or classified matters
in order for the duties to be considered sensitive and
critical to the national security.”) (emphasis added); see
also 5 C.F.R. § 732.102 (“(a) For purposes of this part, the
term national security position includes: (1) Those posi-
tions that involve activities of the Government that are
concerned with the protection of the nation from foreign
aggression or espionage . . . .”) (emphasis added).
BERRY v. CONYERS 20
project in question, and the degree of harm that would be
caused if the project is compromised.” OPM’s Br. 33. As a
result, an agency’s determination in controlling access to
national security information entails consideration of
multiple factors.
For example, categorizing a sensitive position is un-
dertaken without regard to access to classified informa-
tion, but rather with regard to the effect the position may
have on national security. See Exec Order No. 10,450 § 3.
Similarly, predictive judgments 17 are predicated on an
individual’s potential to compromise information, which
might be unclassified. Consequently, the inquiry in these
agency determinations concerning national security is not
contingent upon access to classified information.
Finally, Egan’s concerns regarding the agencies’
“clearly consistent with the interests of national security”
standard conflicting with the Board’s preponderance of
the evidence standard apply equally here. Egan held
that:
As noted above, security clearance normally will
be granted only if it is “clearly consistent with the
interests of the national security.” The Board,
however, reviews adverse actions under a prepon-
derance of the evidence standard. § 7701(c)(1)(B).
These two standards seem inconsistent. It is diffi-
cult to see how the Board would be able to review
17
A predictive judgment of an individual is “an at-
tempt to predict his [or her] possible future behavior and
to assess whether, under compulsion of circumstances or
for other reasons, he [or she] might compromise sensitive
information. It may be based, to be sure, upon past or
present conduct, but it also may be based upon concerns
completely unrelated to conduct such as having close
relatives residing in a country hostile to the United
States.” Egan, 484 U.S. at 528-29.
21 BERRY v. CONYERS
security-clearance determinations under a pre-
ponderance of the evidence standard without de-
parting from the “clearly consistent with the
interests of the national security” test. The
clearly consistent standard indicates that secu-
rity-clearance determinations should err, if they
must, on the side of denials. Placing the burden on
the Government to support the denial by a pre-
ponderance of the evidence would inevitably shift
this emphasis and involve the Board in second-
guessing the agency’s national security determi-
nations.
484 U.S. at 531. An agency’s determination of an em-
ployee’s ineligibility to hold a sensitive position must be
“consistent with the interests of national security.” See
Exec. Order No. 10,450, § 3. Thus, such agency determi-
nations cannot be reviewable by the Board because this
would improperly place an inconsistent burden of proof
upon the government. Accordingly, Egan prohibits review
of Executive Branch agencies’ national security determi-
nations concerning eligibility of an individual to occupy a
sensitive position, which may not necessarily involve
access to classified information.
IV. UNCLASSIFIED INFORMATION CAN HAVE A MATERIAL
ADVERSE EFFECT ON NATIONAL SECURITY
National security concerns render the Board and Re-
spondents’ positions untenable. It is naive to suppose
that employees without direct access to already classified
information cannot affect national security. The Board
and Respondents’ narrow focus on access to classified
BERRY v. CONYERS 22
information ignores the impact employees without secu-
rity clearances, but in sensitive positions, can have. 18
18
There are certainly numerous government posi-
tions with potential to adversely affect national security.
The Board goes too far by comparing a government posi-
tion at a military base commissary to one in a “Seven
Eleven across the street.” Oral Argument at 28:10–15,
Berry v. Conyers, et al., 2011-3207, available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/search/audio.html. Commissary employees do
not merely observe “[g]rocery store stock levels” or other-
wise publicly observable information. Resp’ts’ Br. 20. In
fact, commissary stock levels of a particular unclassified
item – sunglasses, for example, with shatterproof lenses,
or rehydration products – might well hint at deployment
orders to a particular region for an identifiable unit. Such
troop movements are inherently secret. Cf. Near v. State
of Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931)
(“When a nation is at war many things that might be said
in time of peace are such a hindrance to its effort that
their utterance will not be endured so long as men fight
and that no Court could regard them as protected by any
constitutional right . . . . No one would question but that
a government might prevent actual obstruction to its
recruiting service or the publication of the sailing dates of
transports or the number and location of troops.”) (citing
Schenck v. United States, 294 U.S. 47, 52 (1919)) (empha-
sis added). This is not mere speculation, because, as OPM
contends, numbers and locations could very well be de-
rived by a skilled intelligence analyst from military
commissary stock levels. See Oral Argument at 13:19-
14:03, Berry v. Conyers, et al., 2011-3207, available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/search/audio.html (Q: “Can a position be
sensitive simply because it provides observability? That
is, one of these examples that was given was someone
working at a commissary; it seems to me that someone
working at a commissary has an opportunity without
access to classified information to observe troop levels,
potential for where someone is going, from what they are
buying, that sort of thing.” A: “I think that is right your
23 BERRY v. CONYERS
Defining the impact an individual may have on na-
tional security is the type of predictive judgment that
must be made by those with necessary expertise. See
Egan, 484 U.S. at 529 (“The attempt to define not only the
individual’s future actions, but those of outside and
unknown influences renders the ‘grant or denial of secu-
rity clearances . . . an inexact science at best.’”) (quoting
Adams v. Laird, 420 F.2d 230, 239 (D.C. Cir. 1969)). The
sources upon which intelligence is based are often open
and publically available. Occasionally, intelligence is
obtained from sources in a fashion the source’s govern-
ment would find improper. Occasionally, those means of
obtention are coercive and/or subversive. 19
honor. We agree with that, and I think in Egan, he, Mr.
Egan worked on a nuclear submarine. And so, part of it
was simply from what he was observing by coming and
going of a nuclear submarine. And so, sensitivity can be
the place where the employee works, what are they able
to observe, what could they infer from, what you say, from
the purchases and shipments . . . .”).
19
For example, the intelligence community may
view certain disparaging information concerning an
employee as a vulnerability which can be used to black-
mail or coerce information out of the individual. See Egan,
484 U.S. at 528 (recognizing that the government has a
compelling interest in protecting truly sensitive informa-
tion from those who, “under compulsion of circumstances
or for other reasons . . . might compromise sensitive
information.”); see also Exec. Order 10,450, § 8
(“[I]nvestigations conducted . . . shall be designed to
develop information as to whether the employment or
retention in employment . . . is clearly consistent with . . .
national security . . . . Such information [relating, but not
limited to] . . . (ii) Any deliberate misrepresentations,
falsifications, or omissions of material facts . . . (iii) Any
criminal, infamous, dishonest, immoral, or notoriously
disgraceful conduct, habitual use of intoxicants to excess,
drug addiction, sexual perversion, or financial irresponsi-
BERRY v. CONYERS 24
This area of National Security Law is largely about
preventing human source intelligence gathering in a
manner which does not, in an open society, unnecessarily
limit the public’s right to access information about its
government’s activities. Still, there clearly is a need for
such prevention. Within the sphere of national security
limitations on government employment, our society has
determined that courts should tolerate and defer to the
agencies’ threat limiting expertise. See id.
While threats may change with time, Egan’s analysis
remains valid. The advent of electronic records manage-
ment, computer analysis, and cyber-warfare have made
potential espionage targets containing means to access
national security information vastly more susceptible to
harm by people without security clearances. The mechan-
ics of planting within a computer system a means of
intelligence gathering are beyond the ken of the judiciary;
what matters is that there are today more sensitive areas
of access than there were when Egan was authored. Its
underlying analysis, nevertheless, is completely applica-
ble—the President, as Commander-in-Chief, has the right
and the obligation, within the law, to protect the govern-
ment against potential threats. Egan, 484 U.S. at 527.
Some rights of government employees are certainly
abrogated in national security cases. The Board and
Respondents must recognize that those instances are the
result of balancing competing interests as was the case in
Egan and as is the case here. See Hamdi v. Rumsfeld, 542
U.S. 507, 529 (2004) (“[T]he process due in any given
instance is determined by weighing the ‘private interest
that will be affected by the official action’ against the
bility.”) (emphasis added). Hence, as the Agency found,
information regarding Ms. Conyers’s debt is a reasonable
concern. See J.A. 149-52.
25 BERRY v. CONYERS
Government’s asserted interest, ‘including the function
involved’ and the burdens the Government would face in
providing greater process.”) (quoting Mathews v. Eldridge,
424 U.S. 319, 335 (1976)). 20 Hence, as Lord Cyril Rad-
cliffe noted, security must be weighed against other
important questions “in that free dialogue between gov-
ernment . . . and people” out of which public life is built. 21
In our society, it has been accepted that genuine and
legitimate doubt is to be resolved in favor of national
security. 22 See Egan, 484 U.S. at 527; see also United
20
Working for the government is not only an exam-
ple of civic duty but also an honorable and privileged
undertaking that citizens cannot take lightly. This is
especially true when the government position implicates
national security. In other words, being employed by a
government agency that deals in matters of national
security is not a fundamental right. Accordingly, the
competing interests in this case undoubtedly weigh on the
side of national security.
21
218 Parl. Deb., H.L. (5th ser.) (1967) 781-83,
available at
http://hansard.millbanksystems.com/lords/1967/jul/06/the-
d-notice-system-radcliffe-committees (discussing the
publication of a story concerning national security).
22
Although adverse actions of this type are largely
unreviewable, courts may examine allegations of constitu-
tional violations or allegations that an agency violated its
own procedural regulations. See, e.g., Egan, 484 U.S. at
530. For example, the government’s invocation of na-
tional security authority does not preclude judicial review
in instances involving fundamental rights. See Hamdi,
542 U.S. at 529-30 (finding due process violation of those
classified as “enemy combatants” and affording great
weight to physical liberty as a fundamental right). On the
other hand, courts generally do not accord similar weight
to an individual in cases concerning national security
where no such fundamental right is implicated. See, e.g.,
BERRY v. CONYERS 26
States v. Robel, 389 U.S. 258, 267 (1967) (“[W]hile the
Constitution protects against invasions of individual
rights, it does not withdraw from the Government the
power to safeguard its vital interests . . . . The Govern-
ment can deny access to its secrets to those who would use
such information to harm the Nation.”) (citation omitted).
That was the philosophical underpinning of Egan and it is
the holding of this court today. Accordingly, the merits of
these agency determinations before us are not reviewable
by the Board.
V. CONCLUSION
For the foregoing reasons, the Board cannot review
the merits of Executive Branch agencies’ national security
determinations concerning eligibility of an employee to
Bennet v. Chertoff, 425 F.3d 999, 1004 (D.C. Cir. 2005)
(holding that substantial evidence of national security
concerns as a contemporaneous reason for the agency’s
action in a Title VII case was enough for resolution in
favor of executive discretion). In other very limited cir-
cumstances, Title VII claims raised in the context of a
security clearance investigation may be justiciable. In
Rattigan v. Holder, --- F.3d ----, No. 10-5014, 2012 WL
2764347 (D.C. Cir. July 10, 2012), the court held that: (1)
“Egan’s absolute bar on judicial review covers only secu-
rity clearance-related decisions made by trained Security
Division personnel and does not preclude all review of
decisions by other FBI employees who merely report
security concerns,” id. at *3; and (2) “Title VII claim[s]
may proceed only if . . . [it can be shown] that agency
employees acted with a retaliatory or discriminatory
motive in reporting or referring information that they
knew to be false,” id. at *7. Although distinguishable
from this case because Rattigan is specific only to security
clearances, Rattigan does emphasize the importance of
predictive judgments and the deference that courts must
afford Executive Branch agencies in matters concerning
national security. Id. at *3-5.
27 BERRY v. CONYERS
occupy a sensitive position that implicates national secu-
rity. As OPM notes, “there is nothing talismanic about
eligibility for access to classified information.” OPM’s Br.
27. The core question is whether an agency determina-
tion concerns eligibility of an employee to occupy a sensi-
tive position that implicates national security. When the
answer to that question is in the affirmative, Egan ap-
plies and the Board plays a limited role in its review of
the determination. We REVERSE and REMAND for
further proceedings consistent with this decision.
REVERSED AND REMANDED
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.
__________________________
DYK, Circuit Judge, dissenting.
The majority, reversing the Merit Systems Protection
Board (“Board”), holds that hundreds of thousands of
federal employees—designated as holding national secu-
rity positions—do not have the right to appeal the merits
of adverse actions to the Board simply because the De-
partment of Defense has decided that such appeals should
not be allowed.
BERRY v. CONYERS 2
The majority reaches this conclusion even though the
Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C.
§ 1101 et seq., unquestionably gives these employees the
right to appeal the merits of adverse agency personnel
actions to the Board, and Congress has acted specifically
to deny Board jurisdiction under the CSRA with respect
to certain national security agencies—the Central Intelli-
gence Agency (“CIA”), the Federal Bureau of Investigation
(“FBI”), and intelligence components of the Department of
Defense—but has not exempted the non-intelligence
components of the Department of Defense involved here.
And the majority reaches this conclusion despite the fact
that Congress in 2003 authorized the Department of
Defense to create just such an exemption for its non-
intelligence components and then repealed that authori-
zation in 2009. The majority offers little explanation as to
how its decision can be consistent with the CSRA other
than to dismissively state that “no controlling congres-
sional act is present here.” Majority Op. at 11.
The majority’s sole ground for its reversal of the
Board is the Supreme Court’s decision in Department of
the Navy v. Egan, 484 U.S. 518 (1988). What the Su-
preme Court itself characterized as the “narrow” decision
in Egan does not remotely support the majority’s position.
See id. at 520. It simply holds that where access to classi-
fied information is a necessary qualification for a federal
position, revocation of a security clearance pursuant to
the predecessor of Executive Order No. 12,968, 60 Fed.
Reg. 40,245 (Aug. 2, 1995), is a ground for removal, and
that the merits of the security clearance revocation are
outside the Board’s jurisdiction. The employees’ positions
here required no such access, and the employees in ques-
tion had no security clearances. Far from supporting
elimination of Board jurisdiction in such circumstances,
Egan explicitly recognized that national security employ-
3 BERRY v. CONYERS
ees could challenge their removal before the Board. 484
U.S. at 523 n.4 (noting that where the agency fails to
invoke the summary removal procedures of 5 U.S.C.
§ 7532, an employee’s “removal . . . presumably would be
subject to Board review as provided in § 7513.”).
The breadth of the majority’s decision is exemplified
by the low level positions involved in this very case. Ms.
Conyers served as a GS-05 Accounting Technician (ap-
proximately $32,000 to $42,000 annual salary range) at
the Defense Finance and Accounting Service. Mr. Nor-
thover was employed by the Defense Commissary Agency
as a GS-07 Commissary Management Specialist (ap-
proximately $39,000 to $50,000 annual salary range),
where he performed inventory control and stock manage-
ment duties. I respectfully dissent. 1
1 Quite apart from the merits, it seems to me that
Ms. Conyers’s case is moot. The Office of Personnel
Management (“OPM”) admits that “no ongoing dispute
exists between Ms. Conyers and the Department of De-
fense.” OPM Br. at 20 n.12. Relying on Horner v. Merit
Systems Protection Board, 815 F.2d 668 (Fed. Cir. 1987),
the majority notes that although the appeal as to Ms.
Conyers was dismissed as moot, “OPM . . . maintains
sufficient interests in this petition to satisfy any Article
III case or controversy requirement.” Majority Op. at 7
n.5. I disagree. OPM’s only interest in Ms. Conyers’s case
is in securing an advisory opinion on the requirements of
federal law. Nothing is better established than the im-
permissibility under Article III of rendering such advisory
opinions. See Flast v. Cohen, 392 U.S. 83, 96 (1968) (“[I]t
is quite clear that the oldest and most consistent thread
in the federal law of justiciability is that the federal
courts will not give advisory opinions.” (internal quotation
marks omitted)).
Horner is readily distinguishable from this case. In
Horner, the result of the appeal would have had conse-
quences for the employee, as “the disciplinary action
against him [would] be a nullity if [the court] overturn[ed]
BERRY v. CONYERS 4
I
At the outset, it is important to be clear about the ex-
act nature of the majority’s decision. Under the majority’s
expansive holding, where an employee’s position is desig-
nated as a national security position, see 5 C.F.R.
§ 732.201(a), 2 the Board lacks jurisdiction to review the
underlying merits of any removal, suspension, demotion,
or other adverse employment action covered by 5 U.S.C.
§ 7512. The majority holds that “the Board cannot review
the merits of Executive Branch agencies’ national security
determinations concerning eligibility of an employee to
occupy a sensitive position that implicates national secu-
rity.” Majority Op. at 26. The majority concedes that its
holding renders “adverse actions of this type [ ] largely
unreviewable.” 3 Majority Op. at 25 n.22. Thus, the
the board’s decision.” 815 F.2d at 671. In this case, even
if the Board is overturned, Ms. Conyers will not be af-
fected because she has already received all relief to which
she is entitled based on her suspension. See Cooper v.
Dep’t of the Navy, 108 F.3d 324, 326 (Fed. Cir. 1997) (“If
an appealable action is canceled or rescinded by an
agency, any appeal from that action becomes moot.”).
2 5 C.F.R. § 732.201(a) provides, “the head of each
agency shall designate, or cause to be designated, any
position within the department or agency the occupant of
which could bring about, by virtue of the nature of the
position, a material adverse effect on the national security
as a sensitive position at one of three sensitivity levels:
Special–Sensitive, Critical–Sensitive, or Noncritical–
Sensitive.”
3 As OPM recognizes, under the rule adopted by the
majority, “[t]he Board’s review . . . is limited to determin-
ing whether [the agency] followed necessary procedures . .
. [and] the merits of the national security determinations
are not subject to review.” OPM Br. at 25; see also Egan,
484 U.S. at 530. “The Board’s review does not . . . include
the merits of the underlying determination that Mr.
Northover and Ms. Conyers were not eligible to occupy a
5 BERRY v. CONYERS
majority’s holding forecloses the statutorily-provided
review of the merits of adverse employment actions taken
against civil service employees merely because those
employees occupy a position designated by the agency as a
national security position.
The majority’s holding allows agencies to take adverse
actions against employees for illegitimate reasons, and
have those decisions shielded from review simply by
designating the basis for the adverse action as “ineligibil-
ity to occupy a sensitive position.” As the Board points
out, the principle adopted by the majority not only pre-
cludes review of the merits of adverse actions, it would
also “preclude Board and judicial review of whistleblower
retaliation and a whole host of other constitutional and
statutory violations for federal employees subjected to
otherwise appealable removals and other adverse ac-
tions.” Board Br. at 35. This effect is explicitly conceded
by OPM, which agrees that the agency’s “liability for
damages for alleged discrimination or retaliation” would
not be subject to review. OPM Br. at 25.
OPM’s concession is grounded in existing law since
the majority expands Egan to cover all “national security”
positions, and Egan has been held to foreclose whistle-
blower, discrimination, and other constitutional claims.
Relying on Egan, we have held that the Board lacks
jurisdiction where a petitioner alleges that his security
clearance had been revoked in retaliation for whistleblow-
ing. See Hesse v. Dep’t of State, 217 F.3d 1372, 1377-80
(Fed. Cir. 2000), cert. denied, 531 U.S. 1154 (2001). So
too, the majority’s decision renders unreviewable all
claims of discrimination by employees in national security
positions under Title VII of the Civil Rights Act of 1964,
sensitive position for national security reasons.” OPM
Reply Br. at 15.
BERRY v. CONYERS 6
42 U.S.C. § 2000e-5. Several circuits have held that
courts lack jurisdiction to adjudicate discrimination
claims where the adverse action is based on a security
clearance revocation because “a Title VII analysis neces-
sarily requires the court to perform some review of the
merits of the security clearance decision,” which is prohib-
ited by Egan. Brazil v. U.S. Dep’t of the Navy, 66 F.3d
193, 196 (9th Cir. 1995); see Bennett v. Chertoff, 425 F.3d
999, 1003 (D.C. Cir. 2005) (“While [the plaintiff] claims
that [the agency’s] security clearance explanation is
pretextual, . . . a court cannot adjudicate the credibility of
that claim.”). 4 Indeed, in this case, Mr. Northover’s
discrimination claims were dismissed without prejudice
pending the outcome of this appeal. Constitutional claims
by employees occupying national security positions are
also barred by the majority’s decision despite the major-
ity’s contrary protestations. In El-Ganayni v. U.S. De-
partment of Energy, 591 F.3d 176, 184-86 (3d Cir. 2010),
the Third Circuit held that a plaintiff could not prevail on
his First Amendment and Fifth Amendment claims where
he alleged his security clearance had been revoked in
retaliation for constitutionally protected speech and/or
based on his religion and national origin.
4 See also Tenenbaum v. Caldera, 45 F. App’x 416,
418 (6th Cir. 2002); Ryan v. Reno, 168 F.3d 520, 523-24
(D.C. Cir. 1999); Becerra v. Dalton, 94 F.3d 145, 149 (4th
Cir. 1996); Perez v. FBI, 71 F.3d 513, 514-15 (5th Cir.
1995) (“Because the court would have to examine the
legitimacy and the possibly pretextual nature of the
[agency’s] proffered reasons for revoking the employee’s
security clearance, any Title VII challenge to the revoca-
tion would of necessity require some judicial scrutiny of
the merits of the revocation decision.” (footnote omitted)).
7 BERRY v. CONYERS
II
The majority completely fails to come to grips with the
statute, the fact that it provides for review of the merits of
the adverse agency action involved here, and that the
majority’s holding effectively nullifies the statute.
The primary purpose of the CSRA—providing review
of agencies’ adverse employment actions—was to ensure
that “[e]mployees are . . . protected against arbitrary
action, personal favoritism, and from partisan political
coercion.” S. Rep. No. 95-969, at 19 (1978), reprinted in
1978 U.S.C.C.A.N. 2723, 2741. In order to ensure such
protection, the CSRA created the Board to be “a quasi-
judicial body, empowered to determine when abuses or
violations of law have occurred, and to order corrective
action.” Id. at 24. The protections were afforded to the
vast majority of employees of the executive branch.
Subchapter II of Chapter 75 of the CSRA explicitly
gives every “employee” the right to seek Board review of
adverse employment actions. 5 U.S.C. § 7513(d); see also
id. § 7701. The term “employee” is defined to include all
employees in the competitive or excepted services 5 who
are not serving a probationary period or under temporary
5 The “competitive service” consists of “all civil ser-
vice positions in the executive branch” with the exception
of those positions that are specifically exempted by stat-
ute, those positions which are appointed for confirmation
by the Senate (unless included by statute), and those
positions that are in the Senior Executive Service; other
civil service positions that have been “specifically included
in the competitive service by statute”; and “positions in
the government of the District of Columbia which are
specifically included in the competitive service by stat-
ute.” 5 U.S.C. § 2102(a). The “excepted service” consists
of all “civil service positions which are not in the competi-
tive service or the Senior Executive Service.” Id.
§ 2103(a).
BERRY v. CONYERS 8
appointment, and who, in the case of excepted service
employees, has completed two years of specified service. 6
An employee is entitled to appeal “a removal,” “a suspen-
sion for more than 14 days,” “a reduction in grade” or pay,
or “a furlough of 30 days or less” to the Board. Id. § 7512.
In order to determine whether an adverse action con-
stitutes arbitrary agency action, the Board necessarily
examines the merits of the underlying agency decision. 7
6 The statute defines an “employee” as:
(A) an individual in the competitive service--
(i) who is not serving a probationary or trial
period under an initial appointment; or
(ii) who has completed 1 year of current con-
tinuous service under other than a temporary
appointment limited to 1 year or less;
(B) a preference eligible in the excepted service
who has completed 1 year of current continuous
service in the same or similar positions--
(i) in an Executive agency; or
(ii) in the United States Postal Service or
Postal Regulatory Commission; and
(C) an individual in the excepted service (other
than a preference eligible)--
(i) who is not serving a probationary or trial
period under an initial appointment pending
conversion to the competitive service; or
(ii) who has completed 2 years of current con-
tinuous service in the same or similar posi-
tions in an Executive agency under other than
a temporary appointment limited to 2 years or
less . . . .
5 U.S.C. § 7511(a)(1).
7 See Adams v. Dep’t of the Army, 105 M.S.P.R. 50,
55 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008)
(“[W]hen the charge consists of the employing agency's
withdrawal or revocation of its certification or other
approval of the employee’s fitness or other qualifications
to hold his position, the Board's authority generally
9 BERRY v. CONYERS
Under 5 U.S.C. § 7513, an agency may take an adverse
employment action against an employee “only for such
cause as will promote the efficiency of the service.” Id.
§ 7513(a). In order to demonstrate that the adverse
action will promote the efficiency of the service, “the
agency must show by preponderant evidence that there is
a nexus between the misconduct and the work of the
agency, i.e., that the employee’s misconduct is likely to
have an adverse impact on the agency's performance of its
functions.” Brown v. Dep’t of the Navy, 229 F.3d 1356,
1358 (Fed. Cir. 2000). In evaluating whether the agency
has satisfied the nexus requirement, “[t]he Board rou-
tinely evaluates such factors as loyalty, trustworthiness,
and judgment in determining whether an employee's
discharge will promote the efficiency of the service.”
James v. Dale, 355 F.3d 1375, 1379 (Fed. Cir. 2004)
(quoting Egan, 484 U.S. at 537 n.1 (White, J., dissent-
ing)). This merits evaluation is not modified merely
because the removal is cloaked under the cloth of being
“in the interests of national security.”
The decision by Congress to afford such review to the
great majority of federal employees is made clear from the
history of the CSRA. Initially, review of adverse actions
was extended only to preference eligibles. 8 See United
States v. Fausto, 484 U.S. 439, 444 (1988). In 1978,
Subchapter II of Chapter 75 of the CSRA was enacted to
extend protections to employees in the competitive service
in addition to preference eligibles, but generally not to
employees in the excepted service. See Civil Service
extends to a review of the merits of that withdrawal or
revocation.”).
8 A “preference eligible” generally includes veterans
discharged under honorable conditions, disabled veterans,
and certain family members of deceased or disabled
veterans. See 5 U.S.C. § 2108(3).
BERRY v. CONYERS 10
Reform Act of 1978, Pub. L. No. 95-454, § 204(a), 92 Stat.
1111. In United States v. Fausto, 484 U.S. at 444, 455,
the Supreme Court held that the CSRA did not cover non-
preference eligible excepted service employees and that
such employees could also not seek review of an adverse
action in a suit for back pay in what is now the United
States Court of Federal Claims.
In 1990, in response to Fausto, Congress expanded
the CSRA to apply to all federal government employees in
the competitive and excepted services with narrow excep-
tions (discussed below). See Civil Service Due Process
Amendments, Pub. L. No. 101-376, 104 Stat. 461 (1990).
In expanding the CSRA’s reach to include employees in
the excepted service, Congress recognized that “no matter
how an employee is initially hired, that employee acquires
certain expectations about continued employment with
the Government. . . . [Excepted service employees] should
have the same right to be free from arbitrary removal as
do competitive service employees.” H.R. Rep. No. 101-
328, at 4 (1989), reprinted in 1990 U.S.C.C.A.N. 695, 698.
Both Ms. Conyers and Mr. Northover held permanent
positions in the competitive service and both had com-
pleted more than one year of “current continuous service
under other than a temporary appointment.” Thus, both
fall squarely within the definition of “employee” under the
statute. Ms. Conyers was indefinitely suspended and Mr.
Northover was reduced in grade, both adverse actions
which entitle them to seek Board review. Thus, the Board
had jurisdiction over both Ms. Conyers’s and Mr. Nor-
thover’s appeals.
That Congress clearly intended that Board review ex-
tend to these employees is made apparent by Congress’s
decision to craft specific exceptions to Board jurisdiction
where national security was a concern, and not to extend
11 BERRY v. CONYERS
such exceptions to the positions involved here. In expand-
ing the CSRA’s coverage to excepted service employees in
1990, Congress created exceptions for specified employees
based on national security concerns. Congress excluded
particular government agencies, such as the FBI and the
National Security Agency (“NSA”), “because of their
sensitive missions,” and also recognized that other agen-
cies, such as the CIA, had already been specifically ex-
cluded from the CSRA by separate statute. Id. at 5. In
1996, the exceptions were expanded to cover all “intelli-
gence component[s] of the Department of Defense.” 9 5
U.S.C. § 7511(b).
Congress’s decision to specifically exempt certain na-
tional security positions from the protections of the CSRA
provides strong evidence that it intended that Board
review extend to other positions classified as national
security positions that were not exempted. As the Su-
preme Court noted in United States v. Brockamp, 519
9 The 1990 amendment originally excluded inter
alia “the National Security Agency [and] the Defense
Intelligence Agency” from Chapter 75 of the CSRA. Pub.
L. No. 101-376, § 2. However, in 1996, Congress elimi-
nated this language and replaced it with “an intelligence
component of the Department of Defense.” Pub. L. No.
104-201, § 1634(b), 110 Stat. 2422 (1996). The current
version of the statute contains this language. See 5
U.S.C. § 7511(b). An “intelligence component of the
Department of Defense” includes the NSA, the Defense
Intelligence Agency, the National Geospatial-Intelligence
Agency, and “[a]ny other component of the Department of
Defense that performs intelligence functions and is desig-
nated by the Secretary of Defense as an intelligence
component of the Department of Defense.” 10 U.S.C.
§ 1614(2). Neither the Defense Finance and Accounting
Service (where Ms. Conyers was employed), nor the
Defense Commissary Agency (where Mr. Northover was
employed) is an “intelligence component of the Depart-
ment of Defense.”
BERRY v. CONYERS 12
U.S. 347, 352 (1997), an “explicit listing of exceptions . . .
indicate[s] to us that Congress did not intend courts to
read other unmentioned . . . exceptions into the statute
that it wrote.” See also TRW Inc. v. Andrews, 534 U.S. 19,
28 (2001) (“Where Congress explicitly enumerates certain
exceptions . . . additional exceptions are not to be implied,
in the absence of evidence of a contrary legislative intent.”
(quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-
17 (1980)). The governing principle is simple enough.
Where Congress has crafted some exceptions for national
security and not others, employees are entitled to Board
review of the merits of adverse employment actions,
regardless of the Department of Defense’s or the major-
ity’s views that additional exceptions for national security
positions would be desirable. Significantly too, in enact-
ing 5 U.S.C. § 7532, 10 Congress provided an alternative
mechanism to bypass the Board for national security
purposes—an alternative not invoked here.
The majority contends that Congress’s decision to ex-
empt the FBI, CIA, and intelligence components of the
Department of Defense based on national security con-
cerns is “speculative because ‘national security’ was not a
factor providing for these exclusions.” Majority Op. at 12
10 Under section 7532, “the head of an agency may
suspend without pay an employee of his agency when he
considers that action necessary in the interests of national
security.” 5 U.S.C. § 7532(a). “[T]he head of an agency
may remove an employee [who has been] suspended . . .
when, after such investigation and review as he considers
necessary, he determines that removal is necessary or
advisable in the interests of national security. The deter-
mination of the head of the agency is final.” Id. § 7532(b).
Although the agency may summarily remove an employee
under section 7532, that section also provides for certain
procedural protections to an employee before he or she
can be removed. See id. § 7532(c).
13 BERRY v. CONYERS
n.8. The majority is clearly mistaken, as both the lan-
guage and the legislative history of the exemptions cre-
ated for these agencies demonstrate that these
exemptions were specifically granted based on the poten-
tial impact that employees in these agencies could have
on national security.
Adverse actions taken against CIA employees are
governed by 50 U.S.C. § 403-4a, which was originally
enacted pursuant to the National Security Act of 1947,
Pub. L. No. 80-253, § 102(c), 61 Stat. 495, 498. In enact-
ing the National Security Act of 1947, Congress acknowl-
edged that one of the central purposes of the Act was to
“establish[] a structure fully capable of safeguarding our
national security promptly and effectively.” S. Rep. No.
80-239, at 2 (1947) (emphasis added). To that end, Con-
gress provided the Director of the CIA plenary authority
to “terminate the employment of any officer or employee
of the [CIA] whenever he shall deem such termination
necessary or advisable in the interests of the United
States.” Pub. L. No. 80-253, § 102(c); see also 50 U.S.C.
§ 403-4a(e)(1).
In 1964, Congress crafted a similar exemption for em-
ployees of the NSA, modeling it after that created for the
CIA in 1947. See Act of Mar. 26, 1964, Pub. L. No. 88-290,
§ 303(a), 78 Stat. 168, 169. In providing this exemption,
Congress explicitly recognized that “[t]he responsibilities
assigned to the [NSA] are so great, and the consequences
of error so devastating, that authority to deviate from a
proposed uniform loyalty program for Federal employees
should be granted to this Agency.” S. Rep. No. 88-926, at
2 (1964). Congress also noted that the exemption “recog-
nizes the principle that the responsibility for control of
those persons who are to have access to highly classified
information should be accompanied by commensurate
authority to terminate their employment when their
BERRY v. CONYERS 14
retention and continued access to extremely sensitive
information is not clearly consistent with the national
security.” Id. (emphasis added).
When Congress expanded Chapter 75 to cover em-
ployees in the excepted service in 1990, it continued to
exclude the FBI, CIA, and NSA, acknowledging that “[t]he
National Security Act of 1946 [sic] provides the Director of
the [CIA] with plenary authority to deal with personnel of
the CIA,” and explained that it had “preserved the status
quo in relation to the FBI and NSA because of their sensi-
tive missions.” See H.R. Rep. No. 101-328, at 5 (emphasis
added). In 1996, Congress passed the National Defense
Authorization Act for Fiscal Year 1997, Pub. L. No. 104-
201, 110 Stat. 2422 (1996), creating a new exemption for
all “intelligence components of the Department of De-
fense,” id. §§ 1632-33. This exemption is codified at 10
U.S.C. §§ 1609 and 1612, which explicitly provide the
Secretary of Defense with authority to take adverse action
against certain employees where “the procedures pre-
scribed in other provisions of law [i.e. the provisions of
Chapter 75] . . . cannot be invoked in a manner consistent
with the national security.” 10 U.S.C. § 1609(a)(2) (em-
phasis added); see also id. § 1612 (“Notwithstanding any
provision of chapter 75 of title 5, an appeal of an adverse
action by an individual employee . . . shall be determined
within the Department of Defense.”). Thus, that Congress
intended to exclude these agencies from the protections of
Chapter 75 for national security reasons is undeniable.
The majority also appears to argue that Congress’s
decision to craft other exemptions for employees of other
government agencies is somehow inconsistent with the
notion that Congress’s exclusion of the FBI, CIA, and
NSA was for national security reasons. However, Con-
gress, in enacting the CSRA, excluded certain non-
intelligence agencies, such as the General Accounting
15 BERRY v. CONYERS
Office, the Veterans Health Sciences and Research Ad-
ministration, the Postal Service, the Postal Rate Commis-
sion, and the Tennessee Valley Authority because the
employees of these agencies were already provided with
appeal rights through alternative mechanisms. See H.R.
Rep. No. 101-328, at 5.
Finally, if Congress’s legislative creation of certain
exemptions based upon national security concerns were
not enough to refute the majority’s construction, there has
also been an express decision by Congress to deny the
national security exemptions claimed here by the De-
partment of Defense for its non-intelligence components.
In 2003, Congress enacted legislation that allowed the
Department of Defense to exclude employees holding
national security positions from the review procedures
provided by Chapter 75 of the CSRA. See National De-
fense Authorization Act for Fiscal Year 2004, Pub. L. No.
108-136, § 1101, 117 Stat. 1392 (2003). This legislation
provided that the Secretary may “establish . . . a human
resources management system [the National Security
Personnel System (“NSPS”)] for some or all of the organ-
izational or functional units of the Department of De-
fense.” Id. § 1101(a) (codified at 5 U.S.C. § 9902(a))
(emphasis added). Among other things, the Secretary was
permitted to promulgate regulations to “establish an
appeals process that provides employees . . . fair treat-
ment in any appeals that they bring in decisions relating
to their employment.” Id. (codified at 5 U.S.C.
§ 9902(h)(1)(A)). Following the Secretary’s promulgation
of such regulations, “[l]egal standards and precedents
applied before the effective date of [the NSPS] by the
[Board] and the courts under chapters 43, 75, and 77 of
[the CSRA] shall apply to employees of organizational and
functional units included in the [NSPS], unless such
standards and precedents are inconsistent with legal
BERRY v. CONYERS 16
standards established [by the Secretary].” Id. (codified at
5 U.S.C. § 9902(h)(3)) (emphasis added). In other words,
the Secretary’s regulations could bar review by the Board.
Pursuant to the statutory authorization, the Secretary
promulgated regulations that in fact limited the Board’s
authority. See Department of Defense Human Resources
Management and Labor Relations Systems, 70 Fed. Reg.
66,116 (Nov. 1, 2005). Under the regulations, “[w]here it
is determined that the initial [Board] decision has a direct
and substantial adverse impact on the Department's
national security mission, . . . a final [Department of
Defense] decision will be issued modifying or reversing
that initial [Board] decision.” Id. at 66,210 (codified at 5
C.F.R. § 9901.807(g)(2)(ii)(B)). Thus, a Board decision
reversing an agency’s adverse action was subject to veto
by the agency if it was determined to have “a direct and
substantial adverse impact on the Department's national
security mission”—a less draconian version of the agency
authority asserted here. Also, under the regulations, if
the Secretary determined “in his or her sole, exclusive,
and unreviewable discretion [that an offense] has a direct
and substantial adverse impact on the Department’s
national security mission,” id. at 66,190 (codified at 5
C.F.R. § 9901.103) (emphasis added), the Board could not
mitigate the penalty for such an offense, id. at 66,210
(codified at 5 C.F.R. § 9901.808(b)).
On January 28, 2008, Congress amended the NSPS
statute to eliminate the Department of Defense’s author-
ity to create a separate appeals process and invalidate the
existing regulations limiting Board authority established
by the Secretary, see National Defense Authorization Act
for Fiscal Year 2008, Pub. L. No. 110-181, § 1106(a),
(b)(3), 122 Stat. 3, 349, 356-57, bringing the “NSPS under
Governmentwide rules for disciplinary actions and em-
ployee appeals of adverse actions,” National Security
17 BERRY v. CONYERS
Personnel System, 73 Fed. Reg. 56,344, 56,346 (Sept. 26,
2008). 11 The repeal of the Department of Defense’s au-
thority to create a separate appeals process (exempting
employees from Board review) and the repeal of Secre-
tary’s regulations implementing this appeals process
demonstrate conclusively that Congress intended to
preclude the Department of Defense from insulating
adverse employment decisions as to employees of non-
intelligence components from Board review on the merits.
The majority’s argument to the contrary is unconvinc-
ing. The majority is incorrect in suggesting that the
repeal of these provisions was due to concerns about
collective bargaining. See Majority Op. at 12 n.8. In fact,
the provisions of the NSPS limiting collective bargaining
were addressed in a 2008 amendment to a separate
provision in response to litigation brought by labor or-
ganizations on behalf of Department of Defense employ-
ees. 12 See Am. Fed’n of Gov’t Emps., AFL-CIO v. Gates,
486 F.3d 1316 (D.C. Cir. 2007). The 2008 amendment to
the collective bargaining provisions had nothing to do
with the repeal of the Chapter 75 exemption authority or
the repeal of the regulations restricting adverse action
appeal rights. As the Department of Defense itself noted,
the restoration of adverse action appeal rights to its
11 The remaining statutory provisions creating the
NSPS were ultimately repealed on October 28, 2009. See
National Defense Authorization Act for Fiscal Year 2010,
Pub. L. No. 111-84, § 1113(b), 123 Stat. 2190, 2498 (2009);
see also National Security Personnel System, 76 Fed. Reg.
81,359 (Dec. 28, 2011) (repealing regulations implement-
ing the NSPS effective January 1, 2012).
12 The provisions of the NSPS concerning collective
bargaining were contained in subsection (m) of 5 U.S.C.
§ 9902, whereas the provisions relating to adverse action
appeal rights were contained in subsection (h), and had
nothing to do with collective bargaining.
BERRY v. CONYERS 18
employees was designed to “[b]ring[] NSPS under Gov-
ernmentwide rules for disciplinary actions and employee
appeals of adverse actions.” National Security Personnel
System, 73 Fed. Reg. at 56,346. The Department of
Defense cannot now claim authority specifically denied by
Congress.
III
The majority suggests that cases such as Dames &
Moore v. Regan, 453 U.S. 654 (1981), and Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), recog-
nizing the existence of Presidential authority to act even
when Congress has not, support the agency action here.
See Majority Op. at 13. There are three serious flaws
with this argument. First, as the majority itself recog-
nizes, the President cannot act contrary to congressional
legislation except perhaps in the most unusual circum-
stances—which are not claimed to exist here. 13 As de-
scribed immediately above, Congress has acted to provide
for Board review.
Second, this case does not involve a Presidential ac-
tion. Dames and Youngstown both involved agency action
taken pursuant to an Executive Order of the President.
See Dames, 453 U.S. at 662-63 (Executive Order author-
ized the Secretary of the Treasury to promulgate regula-
tions to block the removal or transfer of all property held
by the government of Iran); Youngstown, 343 U.S. at 582-
83 (Executive Order directed the Secretary of Commerce
to seize the nation’s steel mills). The only Executive
13 See Youngstown, 343 U.S. at 637 (Jackson, J.,
concurring) (“When the President takes measures incom-
patible with the expressed or implied will of Congress, his
power is at its lowest ebb, for then he can rely only upon
his own constitutional powers minus any constitutional
powers of Congress over the matter.”).
19 BERRY v. CONYERS
Orders that are potentially relevant here are Executive
Order No. 12,968, 60 Fed. Reg. 40,245, and Executive
Order No. 10,450, 18 Fed. Reg. 2489. Neither grants the
agency the authority it now seeks.
Executive Order No. 12,968, prior versions of which
formed the basis for Egan, relates exclusively to “access to
classified information.” It delegates to the heads of execu-
tive agencies the responsibility to “establish[] and main-
tain[] an effective program to ensure that access to
classified information by each employee is clearly consis-
tent with the interests of the national security,” and sets
forth the conditions under which employees may be
granted access to classified information. Exec. Order No.
12,968, § 1.2(b)-(e), 60 Fed. Reg. at 40,246-47. It provides
that an agency’s decision to revoke an employee’s security
clearance shall be “final.” Id. § 5.2(b). Executive Order
No. 12,968 has nothing to do with this case because the
agency’s adverse employment actions against Ms. Conyers
and Mr. Northover were not based on denials of eligibility
to access classified information, and neither position
involved in this case required a security clearance or
access to classified information.
Executive Order No. 10,450 provides that the heads of
government agencies and departments “shall be responsi-
ble for establishing and maintaining within [their] de-
partment or agency an effective program to insure that
the employment and retention in employment of any
civilian officer or employee within the department or
agency is clearly consistent with the interests of the
national security.” Exec. Order No. 10,450, § 2, 18 Fed.
Reg. at 2489. The order also delegates to agencies the
authority to determine investigative requirements for
positions “according to the degree of adverse effect the
occupant of the position . . . could bring about . . . on the
national security.” Id. § 3; see also 5 C.F.R. § 732.201
BERRY v. CONYERS 20
(setting forth the three levels of sensitivity). Nothing in
the order in any way suggests that those falling into a
sensitive category should be exempt from Board review.
Rather, the order provides for the alternative removal
mechanism provided in section 7532. Where an agency
head determines that continued employment of an em-
ployee is not “clearly consistent with the interests of the
national security,” the agency head “shall immediately
suspend the employment of the person involved if he
deems such suspension necessary in the interests of the
national security and, following such investigation and
review as he deems necessary, the head of the department
or agency concerned shall terminate the employment of
such suspended officer or employee whenever he shall
determine such termination necessary or advisable in the
interests of the national security, in accordance with the
said act of August 26, 1950.” 14 Id. § 6. As the Supreme
Court previously noted, “it is clear from the face of the
Executive Order that the President did not intend to
override statutory limitations on the dismissal of employ-
14 The Act of Aug. 26, 1950, Pub. L. No. 81-733, 64
Stat. 476, was the predecessor to 5 U.S.C. § 7532. It
provided:
[N]otwithstanding . . . the provisions of any other
law, [designated agency head] may, in his abso-
lute discretion and when deemed necessary in the
interest of national security, suspend, without
pay, any civilian officer or employee of the
[agency] . . . . The agency head concerned may, fol-
lowing such investigation and review as he deems
necessary, terminate the employment of such sus-
pended civilian officer or employee whenever he
shall determine such termination necessary or
advisable in the interest of the national security of
the United States, and such determination by the
agency head concerned shall be conclusive and fi-
nal.
21 BERRY v. CONYERS
ees, and promulgated the Order solely as an implementa-
tion of the 1950 Act,” i.e., what is now 5 U.S.C. § 7532.
Cole v. Young, 351 U.S. 536, 557 n.20 (1956) (emphasis
added). The “statutory limitations” in question in Cole
required review of adverse employment actions with
respect to those employees enjoying veterans’ preference
rights, and served as the predecessor of the current Chap-
ter 75 which protects federal civil service employees
generally. See Veterans’ Preference Act of 1944, ch. 287,
58 Stat. 387, 390-91. 15 If Executive Order No. 10,450 did
not override the earlier limited protections, it can hardly
be read to override the later-enacted expanded protections
in the current CSRA. Thus, neither Executive Order No.
12,968 nor Executive Order No. 10,450 authorizes agen-
cies to insulate adverse employment actions from Board
review where the employees occupy a national security
position, outside the context of security clearance revoca-
tions or actions under section 7532—neither of which
exists here.
Third, neither Dames nor Youngstown supports
agency (as opposed to Presidential) action independent of
congressional authorization. An agency cannot adminis-
tratively create authority for agency action. “Agencies are
created by and act pursuant to statutes.” Elgin v. Dep’t of
the Treasury, 132 S. Ct. 2126, 2136 n.5 (2012). An agency
may not act “in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right.” 5 U.S.C. § 706.
Agencies “act[] as a delegate to the legislative power,” and
15 Prior to enactment of the CSRA in 1978, “only
veterans enjoyed a statutory right to appeal adverse
personnel action to the Civil Service Commission (CSC),
the predecessor of the MSPB.” Fausto, 484 U.S. at 444;
see also 5 U.S.C. § 7701 (1976) (“A preference eligible
employee . . . is entitled to appeal to the Civil Service
Commission from an adverse decision . . . of an adminis-
trative authority so acting.”).
BERRY v. CONYERS 22
“[a]n agency may not finally decide the limits of its statu-
tory power. That is a judicial function.” Social Sec. Bd. v.
Nierotko, 327 U.S. 358, 369 (1946). As the Supreme Court
noted in Ernst & Ernst v. Hochfelder, even where an
agency has been given the authority to fill gaps in the
statute, “[t]he rulemaking power granted to an adminis-
trative agency charged with the administration of a
federal statute is not the power to make law. Rather, it is
the power to adopt regulations to carry into effect the will
of Congress as expressed by the statute.” 425 U.S. 185,
213-14 (1976) (internal quotation marks omitted); see also
Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 616
(1944) (“The determination of the extent of authority
given to a delegated agency by Congress is not left for the
decision of him in whom authority is vested.”). Where, as
here, Congress has not authorized the agency to limit
Board review of its decisions, and has indeed revoked
such authorization, the agency acts in excess of its statu-
tory authority.
IV
The majority contends that the Supreme Court’s deci-
sion in Department of the Navy v. Egan, 484 U.S. 518,
supports the exemption of all national security positions
from Board jurisdiction over the merits of adverse actions.
Majority Op. at 10-12. However, the Supreme Court itself
made clear that Egan’s holding is limited to addressing
the “narrow question” of “whether the [Board] has author-
ity by statute to review the substance of an underlying
decision to deny or revoke a security clearance in the
course of reviewing an adverse action.” Egan, 484 U.S. at
520 (emphasis added). Indeed, every other circuit that
has considered Egan has uniformly interpreted it as
23 BERRY v. CONYERS
relating to security clearance determinations. 16 The Egan
Court treated the revocation or denial of a security clear-
ance as a failure to satisfy a job qualification where
determinations as to underlying basis for the qualifica-
tion—whether a security clearance should be granted—
had been constitutionally committed to the discretion of
another party—the President. See id. at 520 (“[A] condi-
tion precedent to Egan’s retention of his employment was
‘satisfactory completion of security and medical reports.’”);
id. at 522 (“Without a security clearance, respondent was
not eligible for the job for which he had been hired.”); see
also id. at 527 (“The authority to protect [classified]
information falls on the President as head of the Execu-
tive Branch and as Commander in Chief.”).
Where an employee fails to satisfy a qualification re-
quired for a position and the determination as to whether
the employee is eligible for the qualification is committed
to the discretion of a third party, it is unsurprising that
the Board’s inquiry is limited to whether the job was
16 See, e.g., Rattigan v. Holder, No. 10-5014, 2012
WL 2764347, at *3 (D.C. Cir. July 10, 2012) (“Egan's
absolute bar on judicial review covers only security clear-
ance-related decisions made by trained Security Division
personnel . . . .”); Zeinali v. Raytheon Co., 636 F.3d 544,
549-50 (9th Cir. 2011) (“The core holding[] of Egan . . . [is]
that federal courts may not review the merits of the
executive’s decision to grant or deny a security clear-
ance.”); Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir.
2008) (“[Courts] have jurisdiction to review [claims that]
do[] not necessarily require consideration of the merits of
a security clearance decision.”); Duane v. U.S. Dep’t of
Defense, 275 F.3d 988, 993 (10th Cir. 2002) (“Egan held
that the Navy's substantive decision to revoke or deny a
security clearance-along with the factual findings made
by the AJ in reaching that decision-was not subject to
review on its merits by the Merit Systems Protection
Board.”).
BERRY v. CONYERS 24
conditioned on a particular qualification and whether the
employee’s qualifying status had been revoked. See id. at
530. In this vein, the Board has held that it lacks author-
ity to evaluate the merits of a decision to revoke an attor-
ney’s bar license, or an employee’s reserve membership,
where such license or membership is required for a par-
ticular government position. See, e.g., Buriani v. Dep’t of
the Air Force, 777 F.2d 674, 677 (Fed. Cir. 1985) (holding
that the Board should not examine the merits of the Air
Force’s decision to remove an employee from reserve
membership); McGean v. NLRB, 15 M.S.P.R. 49, 53 (1983)
(holding that “the Board is without authority to review
the merits” of a decision to suspend an attorney’s mem-
bership in the Bar). 17
Contrary to the majority, Egan turned solely on the
President’s constitutional “authority to classify and
control access to information bearing on national security
17 See Williams v. U.S. Postal Serv., 35 M.S.P.R.
581, 589 (1987) (“[T]he Board's refusal to examine reasons
for bar decertification where the employee is removed for
failure to maintain bar membership is firmly grounded in
its refusal to collaterally attack the decision of another
tribunal, statutorily charged with the authority to render
the decision under review. . . . The Board also affords
discretion to the military on matters peculiarly within its
expertise because ‘[t]he military constitutes a specialized
community governed by a separate discipline from that of
the civilian’ and it is not within the role of the judiciary to
intervene in the orderly execution of military affairs.”
(quoting Orloff v. Willoughby, 345 U.S. 83, 94 (1953))); see
also Christofili v. Dep’t of the Army, 81 M.S.P.R. 384, 392
(1999) (“It is well-settled that the regulation of the prac-
tice of law and the discipline of members of a state bar is
exclusively a state court matter.”); Egan v. Dep’t of the
Navy, 28 M.S.P.R. 509, 518 (1985) (“In all these contexts,
the underlying actions, i.e., termination of reserve status .
. . and bar decertification, are committed to appropriate
procedures within the respective entities . . . .”).
25 BERRY v. CONYERS
and to determine whether an individual is sufficiently
trustworthy to occupy a position in the Executive Branch
that will give that person access to such information.” 484
U.S. at 527 (emphasis added). Just as the authority to
revoke an attorney’s bar license or a military member’s
reserve status lies with an expert third party (the highest
court of a state or the military), the authority to protect
classified information “falls on the President as head of
the Executive Branch and as Commander in Chief.” Id.
As the Supreme Court noted, Presidents have exercised
such authority through a series of Executive Orders. Id.
at 528 (citing Executive Orders); see also Exec. Order No.
12,968, 60 Fed. Reg. 40,245. As noted, those Executive
Orders provide that the agency decision to revoke a
security clearance shall be “final.” As discussed above, no
similar Executive Order purporting to make the agency
decision “final” exists here. Contrary to the majority,
Egan has been uniformly treated as limited only to limit-
ing review of the underlying merits of the Executive
Branch’s decision to revoke or deny a security clearance,
and has not been expanded to apply to all conduct that
may have the potential to impact national security. See,
e.g., Bennett, 425 F.3d at 1002 (“[T]he two determinations
[suitability for federal employment and eligibility for
security clearance] are subject to different processes of
review: whereas suitability determinations are subject to
appeals to the Merit Systems Protection Board and sub-
sequent judicial review, security clearance denials are
subject to appeal within the agency.” (internal citations
omitted)). 18 Egan itself recognized that national security
18 See also, e.g., Jacobs v. Dep’t of the Army, 62
M.S.P.R. 688, 695 (1994) (“The Supreme Court’s decision
in Egan was narrow in scope and specifically applied only
to security clearance revocations.”); Cosby v. Fed. Aviation
Admin., 30 M.S.P.R. 16, 18 (1986) (“Egan addresses only
those adverse actions which are based substantially on an
BERRY v. CONYERS 26
employees can otherwise challenge adverse employment
actions before the Board, such that Egan’s “removal . . .
presumably would be subject to Board review as provided
in § 7513.” 484 U.S. at 523 n.4. In this case, Ms. Conyers
and Mr. Northover were not required to have a security
clearance in order to hold their respective positions.
Thus, Egan is inapplicable.
The majority’s reliance on Carlucci v. Doe, 488 U.S. 93(1988), is also misplaced. Unlike the employees here, the
NSA employee in Carlucci had been specifically exempted
from the provisions of the CSRA providing for Board
review of adverse actions. See id. at 96; see also 10 U.S.C.
§ 1612(3) (providing that appeals of such adverse actions
must take place exclusively within the Department of
Defense pursuant to procedures prescribed by the Secre-
tary).
***
In summary, Congress’s decision is clear—with the
exception of designated agencies such as the CIA, FBI,
and intelligence components of the Department of De-
fense, employees may challenge the merits of adverse
actions before the Board. At the same time Congress has
provided a safety valve in section 7532, allowing the
agencies to summarily remove employees “when, after
such investigation and review as [the agency head] con-
siders necessary, he determines that removal is necessary
or advisable in the interests of national security.” 5
U.S.C. § 7532(b). It is not the business of the Department
of Defense, the Office of Personnel Management, or this
court to second-guess the congressional decision to pro-
vide Board review. I respectfully dissent.
agency’s revocation or denial of an employee’s security
clearance.”).