Today the National Whistleblowers Center (NWC) joined with the American Civil Liberties Union (ACLU) in an amicus brief filed by the National Treasury Employees Union (NTEU). The brief urges the Federal Circuit to reverse the holding of its panel decision in Berry v. Conyers.  There, the Court held that the Merit Systems Protection Board (MSPB) does not have jurisdiction over management determinations that certain federal employees are “ineligible” for certain jobs (even the employee’s current job) due to “sensitive” information, even when the information is not classified and the position does not require a security clearance.

The amicus brief notes that the text of the Civil Service Reform Act (CSRA) gives the MSPB jurisdiction under 5 U.S.C. § 7701.  The CSRA has no provision denying jurisdiction based on eligibility to handle “sensitive” information. In contrast, the Supreme Court was focused on the President’s statutory authority to make decisions on security clearances to handle classified information. See Department of the Navy v. Egan, 484 U.S. 518 (1988). Finally, the brief notes how federal managers could easily abuse authority to deny “eligibility” to “sensitive” information, particularly in whistleblower cases where the federal employee has used access to information to disclose waste, fraud or abuse. The brief urges the Court to rehear and redecide the case.

Rhonda K. Conyers and Devon Haughton Horthover are federal employees for whom the MSPB issued final decisions. They are represented by the American Federal of Government Employees (AFGE). John Berry, the Director of the Office of Personnel Management (OPM) appealed the decisions to the Federal Circuit and prevailed, 2-1, in the Court’s initial panel decision.

Thanks go to NTEU attorney Paras Shah for leading the writing and filing of this amicus brief.

UPDATE:  On October 16, 2012, the Federal Circuit granted leave to file the brief of amici curiae.