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News and Case Alert
Issue #4-7
In this issue...
The Federal Circuit Rules on Conyers
EEOC Publishes Final Rule Revising Federal Sector Complaint Process



NEW RELEASES!


EEO Counselors' and Investigators' Manual

By: Hadley & Sumner
Price: $190.00
Sku: 12ECIM
Edition: 2nd/2012
Availability: Released 7/25/12
Format: Book, CD, or eBook

This manual is a comprehensive, easy to follow, and insightful guide to counseling and investigating EEO complaints. (more info)



MSPB Case Summaries

By: Broida & Davis
Price: $200.00
Sku: 12MSCS
Edition: 3rd/2012
Availability: Released 8/01/12
Format: Book, CD, or eBook

Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2012 into concise, useable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically for ease of use. (more info)


Consolidated Federal
Sector EEO Update
2004-2012

By: Vitaro, Goodfriend & Gilbert
Price: $190.00
Sku: 12CEUP
Edition: 8th/2012
Availability: Released 6/19/12
Format: Book, CD, or eBook

Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through 2011 and reviews EEO laws, regulations, guidance, and recent trends, Arranged by subject matter areas of employment discrimination jurisprudence and further categorized alphabetically for ease of use. (more info)



A Federal EEO
Counselor's Manual

By: Corum
Price: $55.00
Sku: 12EECM
Edition: 2nd/2012
Availability: Released 7/11/12
Format: Book, CD, or eBook

This how-to handbook traces the EEO counselor's responsibilities through the complaint process. Especially important for new counselors, the text offers a clear explanation of counselor's role in assembling information and interacting with the complainant and managers. (more info)



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The Federal Circuit Rules on Conyers

Berry v. Conyers, 2011-3207 (August 17, 2012)

by Natania Davis

Late last week, the Federal Circuit reversed the MSPB's decision in Conyers v. Dept. of Defense, 115 MSPR 572 (2010), holding that Dept. of Navy v. Egan, 484 US 518 (1988), prohibits Board review of agency determinations relating to an employee's eligibility to occupy a "sensitive" position. This is true, according to the court, regardless of whether the position requires access to classified information.

By way of a quick review, the Conyers Board held that Egan did not apply in cases where security clearance determinations are not at issue. Restated, "Egan limited the Board's review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information." OPM moved for reconsideration of the Board's decision, and petitioned the Federal Circuit for review when the Board denied its reconsideration request. For a more detailed factual briefing of the case below, see Dewey's News and Case Alerts #4-4 and #3-1.

The court held that the principles set forth in Egan require that "courts refrain from second-guessing Executive Branch agencies' national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information." The court based its decision on the following premises:

  • "Egan Addressed Broad National Security Concerns That Are Traditionally the Responsibility of the Executive Branch" - Citing Egan, the court observed the alternative availability of § 7513, removals for "cause" and procedural protections, and § 7532, removals based upon national security concerns allowing for summary removals. Section 7532 does not preempt § 7513. The two statutes are separate and provide alternative routes for administrative action. One section does not necessarily provide greater procedural protections than the other. The court rejected the Board and respondents' (Conyers and Northover) urging that § 7532 is mandatory because "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 [only where there is 'an immediate threat of harm to the national security']." The court concluded that with respect to sections 7532 and 7513, "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."

  • "Egan's Analysis Is Predicated On 'National Security Information'", not classified information, and the two terms in this context are not synonymous. "Cole [v. Young, 351 U.S. 536, 546 (1956),] held that a sensitive position is one that implicates national security, and in defining 'national security' as used in the Act of August 26, 1950, the Court concluded that the term 'was intended to comprehend only those activities of the Government that are directly concerned 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.' Thus, even in Cole, sensitive positions were defined as those that involve national security information and not necessarily those that involve classified information."
  • The court further noted that unclassified information can have a material adverse effect on national security. "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 information ignores the impact employees without security clearances, but in sensitive positions, can have." The court went on, in a footnote, to observe that even a commissary employee without access to classified information can glean from the inventory received certain national secrets. For instance, "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."

    The court concluded its opinion with this:

    In our society, it has been accepted that genuine and legitimate doubt is to be resolved in favor of national security. ...That was the philosophical underpinning of Egan and it is the holding of this court today. ...For the foregoing reasons, 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 security. As OPM notes, "there is nothing talismanic about eligibility for access to classified information." The core question is whether an agency determination concerns eligibility of an employee to occupy a sensitive position that implicates national security. When the answer to that question is in the affirmative, Egan applies and the Board plays a limited role in its review of the determination.


    Judge Dyk wrote a dissenting opinion that is worth reading as this case could receive Supreme Court attention. For now, the majority opinion here is the law and it has undone the Board's efforts in Conyers, and perhaps other decisions, to limit the reach of Egan. See Williams v. Dept. of Defense, 2012 MSPB 46 (March 30, 2012).

    For more on Egan, Conyers, and determinations impacting security clearances, national security and the like, see Security Clearance Law and Procedure by Elizabeth Newman, A Guide to MSPB Law and Practice by Peter Broida, and MSPB Case Summaries by Peter Broida and Natania Davis.


    EEOC Publishes Final Rule Revising Federal Sector Complaint Process

    by Natania Davis

    The EEOC recently published its final rule revising the federal sector complaint process. The revisions:

  • Provide for the EEOC to issue notices to agencies for non-compliance with EEOC regulations, management directives and bulletins and to publicly identify the non-compliant agency.

  • Permit the EEOC to allow agencies to conduct pilot projects for processing complaints in ways other than those prescribed in part 1614. See Section 1614.102.

  • Require agencies to issue a notice of rights to complainants when the agency's investigation will not be completed in the 180-day time limit. This notice of rights must include the date by which the investigation will be completed and explain that the complainant has the right to request a hearing or file a lawsuit.

  • Clarify that complaints alleging discrimination in proposals to take personnel actions or other preliminary steps to taking personnel actions should be dismissed unless the complaint alleges that the proposal or preliminary step is retaliatory. With this revision, §1614.107(e)-Dismissals of complaints now reads: "The agency shall dismiss a complaint or a portion of a complaint: (e) That is moot or alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory, unless the complaint alleges that the proposal or preliminary step is retaliatory."

  • Require agencies to submit complaint files and appeal documents in digital formats to the Office of Federal Operations, absent a showing of good cause why the agency cannot do so. Complainants are encouraged, but not required, to do the same.

  • Make "an administrative judge's decision on the merits of a class complaint a final decision, which the agency can fully implement or appeal in its final action. ... If the agency does not fully implement the administrative judge's decision, it only has to appeal the parts of the decision that it wishes to contest. For example, if an administrative judge finds that the agency discriminated against the class and awards reinstatement and back pay, and if the agency disagrees with the award of reinstatement, the agency's appeal need only challenge the reinstatement award." Supplementary Information to Final Rule, Class Complaints (July 25, 2012).

  • For the full text of the Final Rule and Supplementary Comments, click here.

    For more information on the EEO complaints process, see A Federal EEO Counselor's Manual by Michael Corum, Federal Sector EEO Update by Vitaro, Goodfriend and Gilbert, and EEO Counselors' and Investigators' Manual by Ernie Hadley.

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