Thursday, August 17, 2017

Perry saves the “mixed case”

When Anthony Perry began working for the U.S. Census Bureau in Suitland, Maryland, in 1982, he never could have imagined that it would lead to a landmark victory for federal employees in the U.S. Supreme Court.

After thirty years of faithful service to the Bureau, Perry developed osteoarthritis. While his supervisor allowed him to take breaks during the day and make up the missed time after hours, Perry filed a series of Equal Employment Opportunity (EEO) complaints alleging discrimination based on race and age.

On June 7, 2011, Bureau managers gave Perry a Notice of Proposed Removal. The Notice alleged that Perry had been absent during regular working hours and paid for hours he had not worked. Perry contested the charges and pointed to the informal accommodation that his supervisor had provided and to his unblemished disciplinary record.

In August 2011, Perry and the Bureau entered into a settlement agreement that required him to serve a 30-day suspension, retire no later than September 4, 2012, and forfeit his discrimination claims against the agency.

After Perry served his 30-day suspension and his retirement took effect, he filed a pro se appeal with the Merit Systems Protection Board (MSPB). An administrative judge (AJ) ordered him to show cause why the challenge should not be dismissed for “lack of jurisdiction.” “Specifically, resignations and retirements are presumed to be voluntary, and voluntary actions are not appealable to the Board,” and “the Board cannot review the same claims over which you entered into a settlement agreement with the agency[.]” Perry responded that the settlement agreement had been coerced; therefore, the subsequent major adverse employment actions were involuntary and he could appeal them under the Civil Service Reform Act (CSRA).

Without holding a hearing, the AJ dismissed Perry’s appeal for “lack of jurisdiction.” In particular, the AJ decided that both the 30-day suspension and retirement were voluntary because they resulted from a voluntary settlement agreement. Perry petitioned the full MSPB for review.

The Board granted Perry’s petition and remanded the case back to the AJ. The Board concluded that Perry had “made a nonfrivolous allegation of involuntariness sufficient to warrant a jurisdictional hearing.”

On remand, the AJ held the required hearing and concluded that Perry “failed to prove that he was coerced or detrimentally relied on misinformation when he agreed to settle his appeals.” Accordingly, the AJ once again dismissed the appeal for “lack of jurisdiction.” This time the Board affirmed the dismissal.

The Board’s decision included a notice that stated in part: “You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit.” Perry, still without legal representation, filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit. That court promptly issued an order directing Perry to “show cause why this petition should not be dismissed for lack of jurisdiction or transferred to the United States Court of Appeals for the Federal Circuit.” The court also appointed a law firm to submit a brief as amicus curiae.

After receiving briefs, the D.C. Circuit decided in 2015 that since the MSPB found it lacked jurisdiction, and it never reached the merits of the discrimination claims, it would transfer the case to the Federal Circuit. Perry, now represented by an attorney, appealed to the Supreme Court.

In 2012, the Supreme Court held in Kloeckner v. Solis that when the MSPB dismissed a mixed case on procedural grounds, the employee could bring her case to the federal district court for both the discrimination and the civil service issues. In 2016, the Supreme Court agreed to hear Perry’s case to decide if the same rule should apply to “jurisdictional” dismissals by the MSPB.

The oral argument at the Supreme Court was notable in part because it was the first case heard by Justice Neil Gorsuch. He questioned Perry’s attorney about how unfair it was that employees could get “de novo” review of the civil service claims in district court, but not in the Federal Circuit. He asked Perry’s attorney to put “aside Kloeckner” suggesting that, following precedent would “just … continue to make it up.” He asked if Perry’s claims could be bifurcated so that the Federal Circuit could hear at least the civil service claim. Even the government’s attorney had to agree that the mixed case statute is “not elegantly drafted.”

Justice Alito provoked laughter by asking, “who wrote this statute? Somebody who … takes pleasure out of pulling the wings off flies?”

In June 2017, the Supreme Court issued its decision. Writing for the majority of seven justices, Justice Ginsberg explained that, “we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees, but to secure expeditious resolution of the claims employees present.” She noted how most federal employees make their appeals to the MSPB without representation by a lawyer.

“An appeal to the MSPB, however, may also complain of adverse action taken, in whole or in part, because of discrimination prohibited by another federal statute[.]” The Court cited the mixed case statute, but missed citing 5 USC § 7701(c)(2)(C) which says, “the agency’s decision may not be sustained ... if the employee … — (C) shows that the decision was not in accordance with law.” If an employee is fired (or suffers another adverse action directly appealable to the MSPB), that employee can prevail by showing that the action violates any law at all.

The Court recalled, as it did in the Kloeckner case, that, “the CSRA provides diverse procedural routes for an employee’s pursuit of a mixed case.” The employee “may first file a discrimination complaint with the agency itself,” in the agency’s equal employment opportunity (EEO) office. Indeed, this is one of the oft misunderstood aspects of the mixed case. If an employee chooses to raise a discrimination claim in a mixed case using any administrative route, that employee preserves all the available civil service and discrimination claims for de novo consideration by a district court.

In the end, the majority held that Congress made no distinction between MSPB dismissals on procedural grounds and those on the merits. The actual legal authorization to decide a case arises from the employee’s allegations, not from the MSPB’s finding of “jurisdiction.” Thus, the Supreme Court directed the D.C. Circuit to transfer Perry’s case to district court so that all of his claims could be considered together.

Justices Gorsuch and Thomas dissented. Writing his first Supreme Court dissent, Justice Gorsuch said that Perry must appeal his civil service claims to the Federal Circuit, and pursue his discrimination claims through the normal agency process and to district court if Perry so chooses. In essence, Perry’s claims would no longer be “mixed.” If the statute needs fixing, Justice Gorsuch says, only Congress can do that.

The majority opinion correctly responded that the statute does not provide for such claim splitting. To the contrary, Congress specifically directed that mixed cases can go to the district court. The district court’s jurisdiction arises from the allegations made to the MSPB, and the statute places no conditions on the employee’s ability to bring discrimination claims to district court.

The Supreme Court’s decision in Perry helpfully clarifies the law and simplifies the procedure for federal employees. It makes clear that the MSPB’s jurisdiction arises from the employee’s allegations and not from any findings by the AJ. The MSPB will need to re-write its boilerplate language for jurisdictional orders to reflect this law of the land.

However, the Perry decision does not resolve all the outstanding issues about mixed cases. Does a discrimination claim create a “mixed case” – appealable directly to district court – when the Civil Service Reform Act claim arises under the Whistleblower Protection Act (which is part of the CSRA)? The Tenth Circuit said yes in Wells v. Shalala. The Ninth Circuit thereafter said no in Kerr v. Jewell. Kerr appealed to the Supreme Court which earlier this year declined to hear her appeal.


By Richard Renner



This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Friday, August 11, 2017

If the Clearance Level of My Job Changes, Do I Have Any Rights?

You’re in a job that doesn’t require a clearance and, all of a sudden, you’re notified that your job has been reclassified and now you must either apply for a clearance or move to a non-sensitive position. You’re given a few weeks to finish the application. Do you have any rights?

Two years ago, the federal Office of Personnel Management issued new regulations to systematize the sensitivity designation of all positions in the federal government. These regulations fulfill presidential directions issued through Executive Order 10450.

Every new position in the federal government must have a sensitivity designation established by the “position designation” protocol set forth in these regulations and implemented by the Office of the Director of National Intelligence (ODNI) and the Office of Personnel Management (OPM). Significantly, the 2015 regulations also required that agencies reassess all current positions by July 6, 2017. Because a position’s sensitivity designation affects what sort of clearance the person holding the position must have, this reassessment has forced some federal employees to qualify for clearances or be removed from positions they have held for years.

Each federal agency decides whether a clearance is required for every position, whether the position is newly-created or has been on the books for decades. They do this by assigning a “sensitivity designation” to a position, using standards set forth in 5 C.F.R. § 1400 and implemented by OPM through a Position Designation Automated Tool.

Under E.O. 10450, Security Requirements for Government Employment, a national security position is defined as, “any position in a department or agency, the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security.” The mandated “position sensitivity designation” must reflect “the responsibilities and assignments of the position as they relate to the impact on the national security, including but not limited to eligibility for access to classified information.” 5 C.F.R. § 1400.101(b).

National security positions must be designated, based on the degree of potential damage to the national security, as either Noncritical Sensitive, Critical Sensitive, or Special Sensitive. 5 C.F.R. § 1400.201. The 2015 regulations set a consistent standard to be applied across the government for the way national security positions are designated.

To hold a Noncritical Sensitive position a person must be eligible for access to Secret, Confidential or “L” classified information or, alternatively, the position must simply have “the potential to cause significant or serious damage to the national security.” 5 C.F.R. § 1400.201(a)(1).

A Critical Sensitive position, most often requiring a Top Secret or “Q” clearance, is one that has “the potential to cause exceptionally grave damage to the national security.” 5 C.F.R. § 1400.201(a)(2) The regulations detail twenty types of positions that might qualify as Critical Sensitive, including those “involving development of war plans . . . military operations, or critical . . . items of war” (§ 1400.201(a)(2)(iii)), those “in which the occupants have unlimited access to or control of access to designated restricted areas” (xix), and those who investigate other Critical Sensitive positions (xxi).

Special Sensitive positions are positions that require eligibility for access to Sensitive Compartmented Information (SCI), or other intelligence-related Special Sensitive information, as in Top Secret Special Access Programs (SAP). 5 C.F.R. § 1400.201(a)(3).

Whether a position is designated as Noncritical Sensitive, Critical Sensitive, or Special Sensitive determines the clearance level required for a person to hold that position. If an existing national security position is now determined to require a higher level clearance, the agency is given only 14 days to initiate the new investigation of the incumbent to determine whether he or she may be granted the higher level access newly required for the position. The regulations make clear that the agency may require the incumbent to submit to the new investigation, providing updated information and releases. It is up to the agency to decide whether the incumbent may continue to hold the sensitive position pending the new investigation. An incumbent who is denied the higher-level access that is newly determined to be necessary is entitled to all of the procedural rights available to anyone denied a clearance, including notice of the specific reasons for the decision and an opportunity to respond. 5 C.F.R. § 1400.301(c)(1).

Nothing in these regulations, however, provides for the incumbent to challenge the re-designation of a national security position as requiring a higher (or lower) clearance. Indeed, the Federal Circuit in Kaplan v. Conyers, relying on the Supreme Court’s decision in Navy v. Egan, held that, “absent congressional action, judicial review of national security matters is generally prohibited.” In Kaplan, the court concluded that this prohibition extended to a challenge to the security designation of a position.

Nevertheless, an affected employee who believes that the security designation of a position has been changed in order to discriminate or retaliate for prior EEO activity may challenge the change through the Agency’s own internal EEO process. Alternatively, if the affected employee claims that a security designation is a reprisal for the employee’s protected disclosure, that employee could use the whistleblower protections established by the Intelligence Authorization Act. The time limit to initiate the federal-sector EEO complaint is 45 days. The Intelligence Authorization Act allows 90 days for a whistleblower complaint.



By Mary Kuntz


This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.