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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:

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:

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.

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

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.