.-TOSEPH F. HENDERSON IN THE ?upreme Qilnurt of the Gtiniteb ?tates DEVON HAUGHTON NORTHOVER, Petitioner, V. KATHERINE ARCHULETA, Director, U.S. Office of Personnel Management, Resp0'nden.t. On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit PETITION FOR WRIT OF CERTIORARI ANDRES M. Deputy Gene-ra.l. Counsel American Federation Of Government Employees, Ge-n.e-ml 80 Street, N.W. Washington, D.C. 20001 Grajaa@afge.org (202) 639-6426 DAVID A. BORER Comzsel Counsel of Record I1r\ Acnn QUESTION PRESENTED In Department of the Navy Egcm, 484 U.S. 518 (1988), ("Egan") this Court held that, when adj udicat- ing an appeal pursuant to 5 U.S.C. 7701, the United States Merit Systems Protection Board may not review the merits of a federal agency's decision to deny or revoke an employee's security clearance to access classified information. The question presented by this case is whether the United States Court of Appeals for the Federal Circuit erred by reversing the MSPB's interpretation of its en- abling statute and extending Egan, Without Congres- sional authorization, to restrict the MSPB's statutory scope of review in employee appeals arising from an agency decision that does not involve a security clear: ance or access to classified information. (1) ii PARTIES The petitioner before this Court is Devon Haughton Northover. The petitioner is an individual and, con- sequently, no corporate disclosure statement is re- quired by Rule 29.6. The respondent before this Court is the Director of the United States Office of Person- nel Management Katherine Archuleta.' The petitioner in the United States Court of Appeals TABLE OF CONTENTS the Circuit, the court whose Judgment is sought to be reviewed, was the Director of OPM. The respondents below were Devon Haughton Northover, Rhonda K. Conyers, and the MSPB. The following amici, appeared below in support of the respondents: the United States Office of Special Counsel, the National Treasury Employees Union, the American Civil Liberties Union of the Nation's Capi- tal, the National Whistleblower Center, and the Gov- ernment Accountability Project. 1 Director Archuleta assumed office on November 4, 2013. Pursuant to Supreme Court Rule 35.3, she is automatically sub- stituted for former Acting Director Elaine Kaplan. . Page QUESTION PRESENTED .. PARTIES .. ii TABLE OF CONTENTS .7 .. TABLE OF AUTHORITIES .. OPINIONS BELOW .. i JURISDICTION. .. 2 STATUTES .. 2 STATEMENT OF THE CASE .. 2 A. Factual Background .. 2 B. MSPB Proceedings .. 5 C. Federal Circuit Proceedings .. 8 1. Proceedings Before the Panel .. 9 2. Proceedings En Banc. .. ll REASONS FOR GRANTING THE PETITION .. 14 A. The Federal Circuit Erred On An Important Question Of Federal Law By Reversing The MSPB's Interpretation Of The CSRA And Extending Egan to Non--security Clearance Cases .. 16 B. 'The Decision Below Warrants This Court's Review Because It Conflicts With The Application of Egcm By Every Other Court of Appeals .. 24 CONCLUSION .. 27 TABLE OF 1 IN THE [items Qlluurt of the Giniteh $tate5 Page 5 U.S.C. 7703(d) .. 9, ll 28 U.S.C. 1254(1) .. 2 DEVON HAUGHTON NORTHOVER, 28 U.S.C. 1295(a)(9) .. 9 - Petitioner, V. 29 U.S.C. 158(b)(4) .. 21 KATHERINE ARCHULETA, Director, 50 U.S.C. 435 .. 13, 14 Us" Office Of PerS?""e1Ma"agem?""' Respondent. REGULATIONS: Petition For Writ Of Certiorari To 5 C.F.R., part 732 .. 3 (3 United States Court Of Appeals For 32 C.F.R. 154.3(d) 23 The Federal Circuit 32 C.F.R. 154.3(t) .. 6 ETITION FOR WRIT OF CERTIORARI EXECUTIVE ORDERS: Executive Order NO 10>450 evon Haughton Northover ("Northover") petitions 17, .. 2, 3, 13, WI-it of Certiorari to review the judgment of the - d- States Court of Appeals for the Federal Circuit Executive Order No. 12,968, 60 Fed. Reg. 40245 (August 7, 1995) .. 10, 13 ml Olrcult Executive Order No. 13,526, 77 Fed. OPINIONS BELOW Reg. 707 (January 5, 2010) .. 23 divided en banc Opinion and Order of the 1'-al Circuit that is the subj ect of this petition has 'et_been officially reported but may be found at 'n 1). Conyers, 2013 WL 4417583 (Fed. Cir. 2013), also set forth at the Appendix (App.) la - 63a. ider granting NorthoVer's petition for rehearing is available at Berry Conyers, 497 px. 64, 2013 WL 262509 (Fed. Cir. Jan. 24, 1 ;-and is set forth at App. 64a-67a. The Vacated _l.opiI1i0n and order of the court of appeals is fense, 115 M.S.P.R. 572, 2010 M.S.P.B. 247 (2010), at -. .. . 2 available at Berry 2). Conyers, 692 F.3d 1223 (Fed. Cir. 2012), and is set forth at App. 69a--120a. The underlying opinion and order of the MSPB may be found at N0rth,0'uer 2). Department of Defense, 115 M.S.P.R. 451, 2010 MSPB 247 (2010), ("Northover") and is set forth at App. 121a-148a. The opinion and order of the MSPB in the related case of Rhonda K. Conyers is available at Conyers Department of De- )9 JURISDICTION The judgment of the court of appeals sought to be reviewed was entered August 20, 2013. App. la. Re- hearing en. banc was granted on January 24, 2013. App. 64a. The jurisdiction of this court is invoked pur- suant to 28 U.S.C. 1254(1). STATUTES This case arises under the Civil Service Reform Act of 1978, 5 U.S.C. 1101 et seq. The statutory provisions of the CSRA directly involved in this case are 5 U.S.C. 7512, 5 U.S.C. 7513, 5 U.S.C. 7532, and 5 U.S.C. 7701. These statutory provisions are set forth, in relevant part, in the appendix begin- ning at page 19321. The text of Executive Order 10,450, also involved in this case, is set forth in the appendix at App. 1993. STATEMENT OF THE CASE A. Factual Background Northover is one of approximately 200,000 civilian employees within the United States Department of De- fense who occupy a position that does not re- 3 quire a security clearance or access to classified information but which has been designated as "non- critical sensitive." App. 59a. He is a long term employee of the Defense Commissary Agency with a federal service computation date of September 8, 2002. App. 122a. DECA is an agency of the that is responsible for providing groceries to military personnel, retirees, and their families. See last vis- ited November 10 20l3arose, orthover was employed by DECA as a Com- missary Management Specialist at General Schedule salary grade seven App. 122a. His position was not a supervisory management position, but in- stead was responsible for, inter alia, maintaining in- ventory at the Gunter Air Force Commissary. App. 95a. The Gunter Air Force Base Commissary is lo- cated in Alabama. See last visited November 10, 2013. Northover did not possess a security clearance, nor was he required to possess a security clearance at any time relevant to this case. App. 129a. He also did not access classified information, nor was he required to be eligible to access classified information. App. 1293. DECA, however, designated his position as non--criti- cal sensitive pursuant to 5 C.F.R., part 732 and Exec- utive Order 10,450. App.124a. following a background investigation, DECA, in 2009, reduced the appellant in grade from a GS-7 to a General Schedule salary grade four Store As- sociate. App.122a. This GS-4 position was also lo- cated at the Gunter Commissary. DECA reduced Northover in grade based on a determination that he 4 was ineligible to occupy a sensitive position. That de- termination was made by the Department of Defense, Washington Headquarters Service -- Central Adjudica- tion Facility App. 122a. DECA reduced Northover in grade pursuant to 5 U.S.C. 75l3(a), which made DECA's demotion action appealable to the MSPB under 5 U.S.C. 75l3(d). See also 5 U.S.C. 7512(3). Northover thereafter timely appealed his demotion to the MSPB under 5 U.S.C. 0 a. u' - c' demote him, Northover raised an affirmative defense of discrimination, as allowed by 5 U.S.C. 7 702(a). App. 98a. The MSPB referred his appeal, character- ized by the MSPB as a mixed--case appeal because of the discrimination claim, to an administrative judge. DECA argued before the administrative judge that this Court's ruling in Egcm limited the scope of the MSPB's review in Northover's appeal, even though orthover never held a security clearance or accessed classified information. App.l23a. The administrative judge ruled that Ego/n applied but also immediately certified his ruling for interlocutory appeal to the full MSPB. App.123a. While that interlocutory appeal was pending, DECA moved, more than once, to dismiss Northover's appeal as moot. App. 125a. DECA moved to dismiss orthover's appeal as moot because it had reinstated Northover to his GS-7 position, retroactive to the date of his demotion. App. 146a. DECA reinstated Northover after reversing its initial eligibility deter- rnination. DECA found Northover eligible to occupy his GS-7 Commissary Management Specialist position. DECA 5 conceded before the MSPB that it had found Northover eligible based on the existence of pending litigation, i.e. orthover's MSPB appeal, and because his GS-7 position did not require or permit access to classified information. App. 146a-147a. The MSPB de- nied DECA's motions to dismiss because, although DECA had rescinded Northover's demotion and re- versed the negative eligibility determination initially made by the WT-IS-CAF, DECA's actions had not rention moot. B. MSPB Proceedings The MSPB held that this Court's narrow holding in Egcm could not be read so expansively as to diminish the MSPB's statutorily-granted scope of review in cases that do not involve security clearance determi- nations or access to classified information. App. 131a. Before reaching its final decision, the MSPB con- solidated Northerner with Conyers, which was another interlocutory appeal that also raised the question of whether Egan should be allowed to intrude on the MSPB's scope of review in non--security clearance cases. App. 123a. Prior to ruling, the MSPB heard oral argument, considered multiple briefs filed by the par- ties, considered briefs filed by amici curiae, consid- ered an advisory opinion provided by 0PM, and denied multiple motions to dismiss filed by the em- ploying agencies below, DECA and the Defense Fi- nance and Accounting Service. App. 123a--l25a. The MSPB began its analysis by examining its en- abling statute, the CSRA. App. 127a. The CSRA, the MSPB found, directs that the MSPB shall hear, adju- dicate and take final action on all matters within the 6 MSPB's jurisdiction under title of the U.S. Code. 5 U.S.C. 1204(a)(1). The MSPB, relying on sections 7511, 7512, 7513 and 7701 of title 5, then noted that the CSRA specifically gives the MSPB jurisdiction over an appeal filed by a federal employee who challenges his reduction in grade by an agency. App. 127a. The MSPB thus found that Northover's appeal of his de- motion fell squarely within its statutory jurisdiction. App. 128a. I - . -c MSPB's scope of review notwithstanding its jurisdic- tion over Northover's appeal, the MSPB next turned to the question of whether Egan applied in the un- contested absence of a security clearance deterrnina-- tion. The MSPB found that it did not. "Security clearance," the MSPB found, is fairly described as a term of art referring to access to classified informa- tion because, mter alia, regulation 32 C.F.R. l54.3(t) specifically defines "security clearance" as a determination that a person is eligible for access to classified information. App. 133a. The MSPB also held that although Egan relied on the premise that the President has inherent authority to "control and classify information bearing on na- tional security," that inherent authority does not ex- tend to "any matter in which the government asserts a national security interest." App. 131a. Put another way, the MSPB interpreted its own statutory authority under the comprehensive scheme established by the CSRA and then weighed that authority against the nar- row exception which this Court created in Egan based on separation of powers principles. The MSPB noted also that the presence of 5 U.S.C. 7532 within the fabric of the CSRA provided further evidence that 7 Egan should be read narrowly because section 7532 explicitly "gave to the heads of certain government de- partments and agencies summary suspension and un- reviewable dismissal powers over civilian employees when deemed necessary 'in the interest of the national security of the United States." App. 138a. The pres- ence of section 7532, an express statutory exception to the MSPB's jurisdiction, led the MSPB to conclude that ere 1S no evience a ongress in ene a the President could unilaterally and broadly expand these [statutory] exceptions so as to effectively eliminate Board and judicial review of the reasons underlying adverse actions taken against federal employees . . . whose positions do not require ac- cess, or eligibility for access, to classified informa- tion. App. 1383. The MSPB discussed two cases in further support of its conclusion that Egan was and should be con- fined to security clearance cases. The first case was Jacobs Dep't of the Army, 62 M.S.P.R. 688 (1994) ("Jacobs"). The second was Adams Dept: of the Army, 105 M.S.P.R. 50 (2007), afl"d 273 Fed. Appx. 947 (Fed. Cir. 2008) ("Adams"). The appellant in Jacobs was a security guard employed 'by the Department of the Army ("Army") who had been disqualified from a Chemical Personnel Reliability Program. The appel- lant in Adams was a human resources assistant who the Army had removed for loss of access to a sensi- tive computer system. The MSPB reviewed the mer- its of the underlying agency determinations in each case, even though the Army had argued in those cases 8 that Egan applied. The MSPB reiterated, in its dis- cussion of Jacobs and Adams, that it had "long con- sidered" Egcm. as limited to security clearance determinations and that: The Supreme Court's decision in Egan was narrow in scope and specifically applied only to security clearance revocations. As the protector of the gov- ernments merit systems, the Board is not eager to expand the scope of the rationale in Egan to divest -.9-. -.-security clearance of basic protections against non--meritorious agency actions. App. l34a--135a. The MSPB also saw extending Egan to cover non- security clearance cases as effectively eliminating MSPB and court review of many constitutional and statutory violations, such as whistleblower and dis- crimination claims. App. 140a. Consequently, the MSPB ruled, with one member dissenting, that the CSRA gave the MSPB the power to review the merits of an appeal arising from an agency determination that an employee was ineligible to occupy a sensitive position when the agency's determination did not in- volve a security clearance. The MSPB found that this Court's focused decision in Egan did not take that power away. App. 147 a. The MSPB then re- manded both interlocutory appeals to their respective administrative judges for final adjudication. C. Federal Circuit Proceedings The Director of OPM petitioned the Federal Circuit to review the MSPB's decisions in Conyers and Northover after first unsuccessfully petitioning the 9 MSPB for reconsideration. App. 73a. The court of ap- peals granted OPM's petition and the matter was heard first by a three--judge panel and later, following petitions for rehearing filed by the respondents, en banc. 9 1. Proceedings Before The Panel The three--judge panel issued a divided decision on August 17, 2012. The panels two--judge majority found I. I.l II I I-. I'll If 9' - U.S.C. 7703(d) and 28 U.S.C. 1295(a)(9). App. 73a. The majority then reversed the MSPB. App. 69a. The majority drew no distinction, for the purpose of MSPB review, between security clearance determinations and "determinations concerning eligibility of an indi- vidual to occupy a sensitive position, which may not involve access to classified information." App. 76a. Notwithstanding the narrow question answered by Egan or that 5 U.S.C. 7532 provides a specific, statu- toIily--sanctioned mechanism for shielding national se- curity suspensions and removals from MSPB review, the panel majority read Egan broadly as addressing general national security concerns. App. 79a-82a. The majority viewed section 7532 and 5 U.S.C. 7513 as complementary provisions through which an agency could take an adverse action against an employee, but held that neither provision affects the discretion of agencies to determine an employee's eligibility to oc- cupy a sensitive position which does not require a se- curity clearance? App. 81a--82a. The majority reasoned 5 U.S.C. 7513(a) allows agencies to take an action covered by 5 U.S.C. 7512 for such cause as will promote the efficiency of the service. App. 193a. 10 that eligibility to occupy a sensitive position that does not involve access to classified information is a dis- cretionary agency determination that is parallel to an agency determination whether to grant a security clearance, a determination which does involve access to classified information. App. 84a. Althoughthe ma- jority found that "sensitive positions" and "access to classified information" are not necessarily the same concepts, it found the two concepts indistinguishable when assessing the MSPB's scope of review under an C) Id. The dissent, by Judge Dyk, attacked the majority opinion as erroneously departing from Egan and sound principles of statutory interpretation. With respect to Egan, the dissent understood Egan as holding that where access to classified information is a neces- sary 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 out- side the Board's jurisdiction. App. 95a. In other words, the dissent read Egcm as "turning solely" on the President's authority to clas- sify information and to control access to that classi- fiedinformation. App. 118a. Accordingly, the dissent would have held that Egan did not apply because orthover's demotion did not rest on a security clear- ance determination. Looking next to the CSRA, the dissent considered the structure, text and history of the CSRA. The dis- sent opined that by establishing specific national se- 11 curity exceptions to the CSRA and by not extending those exceptions to the positions o(Ii' issue here, Congress "Clearly mien 9 3 9 exercise its full scope of review in this case. 103' 104a. In the dissent's words: The governing principle is SimP1e eT10118h- Where Congress has crafted some exceptions f0I' Iletleflal security and not others, employees are entitled to Board review of the merits of adverse employment actions, regardless of the Department of Defense or the majority's views that additional exceptions for national security exceptions would be desirable. Significantly too, in enacting 5 U.S.C. 7532, gress provided an alternative mechanism to bypass the Board for national security purposes -- an alter- native not invoked here. App. 105a (footnote omitted). Thus, the dissent cluded that it was not for the court of appeals, 0 or OPM to second guess Congress. App. 1203. Following the panel decision, the respondents timely petitioned the court of appeals for rehearing en bone. The court of appeals granted the Pet1l310n5 for rehearing en banc on January 24, 2013. APP- 543- 2. Proceedings En Bane The court of appeals issued a divided en deci- sion on August 20, 2013. App. la. The court of appeals dismissed the case as to Conyers as moot. 73- The inajority held that it had jurisdiction as to Northover under 5 U.S.C. 770301) and the collateral order doctrine. App. .831. The 383111 F9Ve1f:l':d the MSPB, repeating in large Part the arguments 0 9 panel majority. A1911 343- 12 The crux of the majority's opinion was that it found no meaningful difference in substance between a des- ignatlon that a position is 'sensitive' and a designation that a position requires 'access to classified inforrna-- tion.'" App. 20a. What mattered, in the majority's view, is that both designations concern national security. App. 20a. The majority did not refer to DECA's deci- sion to reinstate orthover based on "pending litiga- tion" and because he did not access classified information. Instead, the majority found that the un- derlying agency determination involved a predictive judgment that should be reserved to agency person- nel. App. 29a. The majority held that the need for def- erence to agency personnel "stems from our constitutional principle of separation of powers among the branches of App. 13a (ci- tations omitted). Judges Dyk, Newman and Reyna dissented. The dissent disagreed with the majority and began by ob- serving that the majority both allowed and engaged in a violation of separation of powers principles by "rest- ing its decision on its own assessment of national se- curity requirements." App. 35a. The majority opinion, the dissent argued, was not supported by Egan, was contrary to the CSRA, and failed to afford the MSPB the deference it is due under Chevron U.S.A., Inc. Natural Res. Def 1920., 467 U.S. 837 (1984) App. 56a. The dissent also criticized the majority for making a policy judgment that should have been left to Congress, and for doing so in a way that will have profound consequences for "at least 200,000 non-critical sensitive civilian employees whose positions do not require security App. 5393. - - . 13 The dissent found first that holding was lim- ited to answering the "narrow question" of whether the MSPB had authority to review the substance of a security clearance determination. App. 36a, citing Egan, 484 US. at 520. Next, the dissent observed that security clearance determinations are distinguishable from determinations concerning an employee's eligi- bility to occupy a sensitive position that does not re- quire access to classified information. In the case of access to classified information, the dis- sent explained that agencies have a specific delegation of authority from Congress and the President to make final security clearance determinations. App. 38a--39a, citing 50 U.S.C. 435 and Executive Order 12, 968 That is, pertinent executive orders and statutes treat access to classified information differently from generic sensitive position eligibility determinations that do not bear on access to classified information. The dissent contrasted the treatment of classified in- formation with Executive Order 10,450, which, the dis- sent found, gives agencies the power to designate positions as sensitive but neither renders determina- tions arising from such designations unreviewable of its own accord nor delegates to agencies the power to withhold MSPB review. App. 40a. The dissent further recognized that, the extent that Executive Order 10,450 deals with removal at all, the executive order does no more than provide for removal pursuant to a specific Qongressional statute authorizing such removal on national security grounds, 5 U.S.C. 7532, a provi- sion not invoked here." App. 40a Put differently, the dissent viewed the comprehen- sive nature of the CSRA combined with the number of 14 express exceptions to MSPB review crafted by Con- gress over time as strongly supporting MSPB review in this ADD. 54a. The dissent reasoned that Con. gressionally enacted exceptions to MSPB review Such as 1) 50 U.S.C. 43521; 2) 5 U.S.C. 7532. 3) the Na_ tional Security Act of 1947; 4) 5 U.S.C. (ex- cluding- from MSPB coverage, inter alia emplo ee of "an intelligence component of the Departmer3i/It 0: iffigiekzisfiafil 3) the National Defense Authorization ear 2004, which provided for the cre- ajtmn the S11bS9fi'tiEURfi?iy eiiminated National Secu- rity Personnel System all demonstrate that Congress knows how to limit the MSPB's scope of re- View when it so chooses. App, 54a_ The dissent thus concluded that "Congre~sS'S Care ful . . . 1" elimination of na- the majofit ;VelX_Cept;lons1s directly inconsistent with aim at the possesses inherent authority apart from the CSRA to discharge emplo - ees on national security grounds without MSPB ry 7) EUR- :1eW- 55a. The dissent reasoned from this onclusion that, even if the CSRA's grant of authority is ambiguous, the MSPB's interpretation is entitled to Oh . Apgiigrgg. deference and should have been affirmed REASONS FOR GRANTING THE PETITION Th - - . fthfiuld 81" ant tlus. petition because the as declded 3" lmpoltant question of 1. 15 swer to which will have a widespread impact on the Federal workforce. The Federal Circuit decided, wrongly, that Egan may be extended to prevent the MSPB from reviewing the merits of agency determinations concerning an em- ployee's eligibility to occupy a sensitive position even when that position does not require a security clear- ance. The Federal Circuit claimed to rely on separation of powers principles to reach this decision, but the court of appeals went too far. The majority ignored two crit- ical facts: 1) the MSPB's interpretation of the CSRA is not only reasonable, it is also fully supported by the text and structure of the and 2) Egan is limited, on its face, to security clearance determinations out of re- spect for the same separation of powers principles upon which the majority purported to rely. The question presented should thus be settled by this Court because it concerns the proper application of this Court's decision in Egan and because it raises important questions of constitutional and statutory in- terpretation. The question of Whether separation of powers principles, standing alone, justify intruding further into the CSRA's statutory scheme, when that scheme was designed by Congress to be comprehen- sive and when Congress has not acted to restrict the MSPB's scope of review over the determinations at issue, is a question that this Court should resolve. The decision of the court of appeals, moreover, con- flicts with all other courts of appeals that have applied Egan. No court of appeals, save now the Federal Cir- cuit, has read Egan as extending beyond the province of classified information. The Federal Circuiifs ex- clusive power among the courts of appeals to bind the MSPB's Reasonable CSRA And Extendjn Clearance Cases lnterpretation Of The 3 Egan to Non--security Fausto, 484 U.S. 439 455 See US. U-3 357 (1983 . Th . Lucas>> 452 preempts, for bxailfpi-Slilfils exclusivity completely National Fade US. 527, 531 (198g?t ion of Fe Among the man th' that the CSRA does is Create 17 7 701(k) (appeals). Conversely, among the limited num- ber of relevant things that the CSRA does not do, the CSRA does not preclude the MSPB from fully review- ing the merits of an appeal brought by an employee pur- suant to 5 U.S.C. 7701, regardless of whether the underlying agency determination pertains to the em- ployee's eligibility to occupy a sensitive position that does not require access to classified information. The CSRA contains no language even approaching such a 9.-.9: - *5 peals heard under section 7701. The CSRA instead cr -- ates a separate procedure for effecting suspensions and removals necessary in the interests of national security. That procedure is housed in 5 U.S.C. 7532 and that pro cedure explicitly forecloses MSPB review of cases brought under section 7532. Thus, even assuming for the sake of argument that the extent of the MSPB's authority under the elabo- rate statutory scheme established by Congress in the CSRA is ambiguous, the court of appeals erred when it reversed the MSPB's reading of the statute. The MSPB did not act cavalierly or casually, nor did it transgress any identifiable provision of the CSRA. It carefully examined the text, structure and intent of the CSRA, as required by Elgin, and reviewed dozens of pertinent cases, most especially Egan, before reaching its decision. Judge Dyk's citation to City of Arlington, Texas 1). Federcw Communications Commission, 133 1863 (2013) ("City of Arlington"), is thus entirely on point. City ofA'rlington makes clear that the thresh- old question for determining whether Chevron defer- ence applies is "whether the statutory text forecloses the agency's assertion of authority or not." 133 18 at 1871. If 't - agency to tleavis a gap for the 0 re rain from sub- stituting their own int t't'al an agency", Id. at 13?/3ers 1 1 awmaking for that of ,th dos: She tlice CEIEA does not fore- . - 0 3" 0I'ity- The text Of merit cl - through Is afcountable to the public passed the CSRA mt:1z:h:rS' Put Simply>> Congress Pufllose of protecting fed- amsm for merit SYSUBII1 princi les 1204 1 - Satigig-6 95-969, repnnted an 1978 Board is charged with( M'em System? Protection protecting the merit system. It All th . gress the dissent, Con- Cer 31" employees from ..- . 19 CSRA's coverage. See 5 U.S.C. 75ll(b) (excluding from CSRA coverage, inter alia, employees of the Foreign Service, the CIA, the GAO, the FBI, an intelli- gence component of the Department of Defense, and an intelligence component of a military department). Most relevant here, these excluded employees include employees of intelligence components of the They do not include employees of other compo- nents, such as DECA. Congress placed employees of the non--intelligence components of the DOD Within the MSPB's sphere of statutory power. Congress also guaranteed that cov- ered employees who are the subject of agency action under 5 U.S.C. 7513 and who file appeals to the MSPB must receive "a hearing for which a transcript will be kept" that will be "processed in accordance with regulations prescribed by the Board." 5 U.S.C. 75l3(d), 7701(a)(2). This right to a hearing has, without contradiction, been interpreted as the right to a meaningful hearing. See Frampton 2). Dept of the Interior, 811 F.2d 1486, 1489 (Fed. Cir. 1987) fair hearing for employees who appeal to the MSPB from agency decisions is the basic cornerstone of employee rights"); see also Morgan United States, 304 U.S. 1, 18 (1938) ("The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet them"); and Adams, 105 M.S.P.R. at 54-55. Congress, in enacting the CSRA, also established a specific, separate procedure for national security- based suspensions and removals. 5 U.S.C. 7532(a). Congress, in other words, made a deliberate policy de- termination to remove actions brought by an agency 20 under section 7532 - . 5 U.S.C. mm the MSPB 'mew authority. Th CSRA - servige in tfle Federal Civil against ar itrary govern- the MSPB the power to hear and adyud - 2 3l1Ject to an express exception for Sion suspen- t1.0naS1:n 11999533137 In the interests of na- ecurity. 5 U.S.C. 7532 I I I .. -II an Consequentlyence to 'In th1S.regard' that defer' On raise serious constitutional Oubts 15 merit App. 13a-14a. The court of appeals offered nothing to explain wh re tion 7532 would be inadequate to addriss to tion of - Separa' Concerns 1-I1 cases that do not rest on clearance determinations. The majority also 0 - . X13 3111 Why section 7532 would be insuffi- crent for an agency that wishes to make um . bl reviewa H, 'mm 21 a particular decision concerning a national security- based suspension or removal. The majority merely ar- gued that Egan disposed of the 7532 argument and that, in any event, section 7532 is a permissive avenue under the CSRA. App. 25a-26a. Egan, however, examined section 7532'through the lens of access to classified information. Egan did not hold that section 7532 should have no weight in as- sessing the MSPB's scope of review in non--security - .1 . es. arumen a sec 1on IS permissive is also a non--sequitur. The permissive na- ture of section 7532, i.e. that an agency is not required to use it, does not speak at all to the MSPB's scope of review in actions pursued by an agency under 5 U.S.C. 7513. Cf. Lisiccki Merit Systems Protection Bd., 769 F.2d 1558, 1567 (Fed. Cir. 1985) (agency may choose to proceed under Chapter 43 or Chapter 75 but is bound by the substantive standards and procedural requirements of its choice). The majority's citation to Edward J. DeBa'rtolo Corp. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568 (1988), ("DeBart0lo") is, thus, inapposite. DeBa'r- tolo, a pre--City of Arlington decision, is easily distin- guishable from this case. In DeBartolo, Justice White, who had dissented two months earlier in Egan, held for the. Court that the Na- tional Labor Relations Board had erred in its application of section of the National Labor Relations Act 29 U.S.C. 158(b)(4). The NLRB erred, the Court found, because the NLRB's in- terpretation of section would have converted the peaceful distribution of truthful handbills by a union involved in a labor dispute into an unfair labor practice under the NLRA. The Court held that such a 11 - - . Sections 1204, 7511, .7512, 7513 If' mor e0V913 Congress left - it left the job of filling it to the Rleap to fill in the CSRA, SPB. It was thus error 23 for the court of appeals to find an unspoken excep- tion to the MSPB's review when Congress chose to speak so clearly and comprehensively in favor of MSPB review. App. 54a--55a, citing U.S. 2). Brockamp, 519 U.S. 347, 352 (1997). This is particularly so because, unlike in Egan, there is no delegation of authority, either through statute or executive order, which grants agencies unreviewable power over position eligibility determinations that do not involve access to classified information. App. 39a. Put another way, classified information enjoys a special legal status and it was this special legal status that the Court relied on in Egcm to restrict the MSPB's review of security clearance determinations. Egan, 484 U.S. at 529 protection of classified information must be committed to the broad discretion of the agency re- sponsible, and this must include broad discretion to de- termine who may have access to This special legal status is absent here. Classified information is subject to an extensive ap- paratus that controls its designation and distribution. See Exec. Order 13,526, 75 Fed. Reg. 707 (December 29, 2009). This apparatus defines classified informa- tion and provides a clear process for classifying in- formation. Id. see also 32 C.F.R. 154.3(d) (defining classified information as "[o]fficial informa- tion or material that requires protection in the inter- ests of national security and that is classified for such purpose by appropriate classifying authority in ac- cordance with the provisions of Executive Order 12,356 [now Executive Order 13,526] The apparatus created by Executive Order 13,526 is so complete that it also provides a process whereby the classification status of information may be challenged. 24 There is, however, no analogous special legal status or extensive procedural apparatus for agency eligibil- ity determinations that do not involve classified in- The only removal power present in Executive Order 10,450 is, in fact, section 7532. See Carlucci 2). Doe, 488 U.S. 93, 95 (1988). Both the CSRA and Egcm therefore contradict the Federal Circuit's formation. ruling. Consequently, the Federal Circuit erred on an important question of federal law when it reversed the MSPB and chose to extend Egan based grant this petition. B. The Decision Below Warrants This Court's Review Because It Conflicts With The Ap- plication of Egan By Every Other Court of Appeals No other court of appeals has extended Egan beyond the arena of classified information. App. 37a ("The ma- jority's extension of Egcm marks a departure from our own prior reading of Egan and makes it unique among federal courts of appeals") (Dyk, J., dissenting). The other federal courts of appeals have, as the dissent below correctly observed, confined Egcm to security clearance I determinations. App. 37a, citing Toy 2). Holder, 714 F.3d 881, 885 (5th Cir. 2013); Ramigan Holder, 689 F.3d 764, 768 (D.C. Cir. 2012); Zeinali 1). Raytheon 00., 636 F.3d 544, 549-50 (9th Cir. 2011); and Duane US. Dept of Def, 275 F.3d 988, 993 (10th Cir. 2002). Consequently, the Court should grant this petition to resolve the Fed- eral C'ircuit's split from its sister circuits. The Court should also grant review because the Federal Circuit enjoys exclusive power among the courts of appeals to bind the MSPB. Section 7703(b), of title of the U.S. Code, makes the Federal Circuit .. -- .. --.- . . . - 1- -- 25 1 decisions are binding Zierfift?it" as M.S.P.R. 33, 39 (1987), aff'd 844 F.2d 775 (Fed. Cir. 1987) This unitary path to precedential appellate review is notably different from that similar to the MSPB, Such Hie E1 e_ The Au_ eral Labor Relations Auth0r1'Cy( Or"? the CSRA thority, like the MSPB, is a crea ion . al |v.IIl"' ter 5 chapter 71, than that which governs the MSPB. The statutory provision of Authority decisions 111 1'9 hi erson' seeking judicial review of a final Aut ority arlfjer may "institute an action for judicial review Of She Authority's order in the United States court of ap- eals in the circuit in which the person resides or Eransacts business of in the United States Court of Ap- peais for the District of Columbia." 5 .S.C. 7123(a)- The Authority'S statute likewise PT0"id'33 that "[t]he . . . - 1: court of appeals for the enforcemen 0 any the Authority and for approprlate tempo?" rellef restraining order." 5 U.S.C. 712300) al 't's role asthe MSPB's exclusive lbyu?ontrast means that, even if this 2 . . - Court were to find the conflict to be d1' rect, there is no meaningful asfuelfilfg conflict to develop am0f18 the Clrcults 111;: djcial the MSPB's of refnewi For Jive the review provisions applicable to the u_ . 8 Authority the choice of engaging in inter--circuit 26 nonacquiescence. See Johnson v. US. Railroad Re- tirement Board, 969 F.2d 1082, 1093 (DC. Cir. 1992) ("When the Board's position is rejected in one circuit, after all, it should have a reasonable opportunity to persuade other circuits to reach a contrary conclu- sion"). The MSPB's statute does not give the MSPB this option of engaging in' inter-circuit nonacquies- cence in order to continue to argue or refine its hold- ings in Conyers and Northover. The MSPB is limited to following the rulings of its single reviewing court; in this case a ruling that wili adversely aflect hundreds of thousands of federal employees, none of whom is re- quired to possess a security clearance or access clas- sified information. Thus, even assuming that the Federal Circuit's soli- tary departure from the weight of decisions in other circuits limiting Egan to security clearance. cases does not present a direct conflict among the circuits, the fact that the Federal Circuit is the only court of ap- peals capable of binding the MSPB provides another reason why this Court's review is warranted. On the one hand, the Federal Circuit is the only circuit to ex- tend Egan beyond security clearances. On the other hand, no other circuit will ever be in a position to re- view the MSPB's determination that its own enabling act plainly grants it the power to review the merits of an agency action that does not rest on a security clear- ance decision. Fairall and 5 U.S.C. 7 703(b) show that the Federal Circuit is the single court of appeals with the authority to bind the MSPB. While the importance of the question presented alone Warrants review by this Court, the unusual pos- ture of the MSPB and the Federal Circuit thus pro- vides another st.rong reason Why the Court should . 4' 27 review the conflict created by the decision of the rt court of appeals. below. should grant certiorari. The Federal ircul an important question of federal law, raising of separation of powers and statutory when it reversed the MSPB in this case. the dr- Circuit's error also created a conflict ainoflg cuits that this Court should resolve. CONCLUSION For the foregoing reasons, the petition for writ of certiorari should be granted. Respectfully submitted, ANDRES M. Deputy General Counsel American Federation Of Government Employees, AFLCIO 80 Street, .W. Washington, D.C. 20001 Grajaa@afge.org (202) 639-6426 DAVID A. BORER General Counsel JOSEPH F. HENDERSON 6 Deputy General Counsel Counsel of Record November 2013