United States Court of Appealsfor the Federal Circuit
__________________________ JOHN BERRY, D
IRECTOR
,
O
FFICE OF
P
ERSONNEL
M
ANAGEMENT
,
Petitioner,
v.RHONDA K. CONYERS
AND
DEVON HAUGHTONNORTHOVER,
Respondents,
andMERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3207
__________________________
Petition for Review of the Merit Systems ProtectionBoard in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1.
___________________________
Decided: August 17, 2012
___________________________
A
BBY
C.
W
RIGHT
, Attorney, Appellate Staff, Commer-cial Litigation Branch, United States Department of Justice, of Washington, DC, argued for petitioner. Withher on the brief were T
ONY
W
EST
, Assistant AttorneyGeneral, J
EANNE
E.
D
AVIDSON
, Director, T
ODD
M.
BERRY
v.
CONYERS
2
H
UGHES
, Deputy Director, A
LLISON
K
IDD
-M
ILLER
, SeniorTrial Counsel, and D
OUGLAS
N.
L
ETTER
, Attorney. Of counsel on the brief were E
LAINE
K
APLAN
, General Coun-sel, K
ATHIE
A.
W
HIPPLE
, Deputy General Counsel, S
TEVEN
E.
A
BOW
, Assistant General Counsel, Office of the GeneralCounsel, Office of Personnel Management, of Washington,DC. A
NDRES
M.
G
RAJALES
, American Federation of Gov-ernment Employees, of Washington, DC, argued forrespondents Rhonda K. Conyers and Devon HaughtonNorthover. With her on the brief were D
AVID
A.
B
ORER
,General Counsel, and J
OSEPH
F.
H
ENDERSON
, DeputyGeneral Counsel.J
EFFREY
A.
G
AUGER
, Attorney, Office of the GeneralCounsel, Merit Systems Protection Board, of Washington,DC, argued for respondent. With him on the brief wereJ
AMES
M.
E
ISENMANN
, General Counsel, and K
EISHA
D
AWN
B
ELL
, Deputy General Counsel. A
RTHUR
B.
S
PITZER
, 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 G
REGORY
O’D
UDEN
,General Counsel, L
ARRY
J.
A
DKINS
, Deputy GeneralCounsel, J
ULIE
M.
W
ILSON
, Associate General Counsel,and P
ARAS
N.
S
HAH
, Assistant Counsel, National TreasuryEmployees Union, of Washington, DC.
__________________________
Before L
OURIE
, D
YK
, and W
ALLACH
,
Circuit Judges
.Opinion for the court filed by
Circuit Judge
W
ALLACH
.Dissenting opinion filed by
Circuit Judge
D
YK
.
BERRY
v.
CONYERS
3
W
ALLACH
,
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 anotherwise appealable adverse action only if that action isbased upon eligibility for or a denial, revocation, or sus-pension of access to classified information.
Egan
, how-ever, prohibits Board review of agency determinationsconcerning eligibility of an employee to occupy a “sensi-tive” position, regardless of whether the position requiresaccess to classified information. Accordingly, weREVERSE and REMAND.I. B
ACKGROUND
Rhonda K. Conyers (“Conyers”) and Devon HaughtonNorthover (“Northover” and collectively, “Respondents”)
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.
Ms. Conyers and Mr.
1
Although the Board, Ms. Conyers, and Mr.Northover are all Respondents, we refer to the Board asthe “Board” and “Respondents” will refer to Ms. Conyersand Mr. Northover.
2
Departments and agencies of the Governmentclassify jobs in three categories: “critical sensitive,” “non-critical sensitive,” and “nonsensitive.”
Egan
, 484 U.S. at528. The underlying cases involve “noncritical sensitive”positions, which are defined as: “
Positions with potentialto cause damage to . . . national security
, up to and includ-ing damage at the significant or serious level. Thesepositions include: (1) Access to Secret, “L,” Confidentialclassified information[;] (2)
Any other positions with
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Egan Review by Federal Court
In 1988, the U.S. Supreme Court ruled on an employee’s right to challenge an Agency’s security clearance determination finding that such decisions cannot be second guessed by MSPB. The Court narrowly limited MSPB’s Authority to whether…
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