John Berry, Director, Office of Personnel Management v. Rhonda K. Conyers

# NOTE: This order is nonprecedential United States Court of Appeals for the Federal Circuit

JOHN BERRY, DIRECTOR, OFFICE OF
PERSONNEL MANAGEMENT,
Petitioner,

V.
RHONDA K. CONYERS,
Respondent,
AND
DEVON HAUGHTON NORTHOVER,
Respondent,
AND
MERIT SYSTEMS PROTECTION BOARD,
Respondent.

Miscellaneous Docket No. 984

Petition for Review of the Merit Systems Protection
Board in consolidated case nos. CH0752090925-R-1 and
AT0752100184-R-1.

ON MOTION

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Before BRYSON, LINN, and PROST, Circuit Judges.
PROST, Circuit Judge.

## ORDER

The Director of the Office of Personnel Management
(OPM) petitions for review of an order of the Merit Sys-
tems Protection Board pursuant to 5 U.S.C. § 7703(d).
Rhonda K. Conyers, Devon Haughton Northover, and the
Board respond and move to dismiss the petition. OPM
replies.

Conyers and Northover were indefinitely suspended
and demoted, respectively, from their positions with the
Department of Defense after they were found ineligible to
occupy noncritical sensitive national security positions
because of national security concerns. Conyers and
Northover separately appealed the agency's actions. In
both appeals, the agency argued that, because the re-
spondents' positions were designated noncritical sensitive
by the agency, under the Supreme Court's decision in
Dep't of the Navy v. Egan, 484 U.S. 518 (1988), the Board
could not review the merits of the agency's decisions.

In Egan, the Supreme Court held that the Board does
not have the authority to review the substance of an
underlying decision to deny or revoke a security clearance
in the course of reviewing an adverse action. The admin-
istrative law judge in Conyers' case found that Egan did
not apply, but granted the agency's motion to certify the
issue for interlocutory appeal. The administrative law
judge in Northover's case found that Egan did apply, and
also certified the issue for interlocutory appeal.

On December 22, 2010, the Board affirmed the admin-
istrative law judge's decision in Conyers and reversed the
decision in Northover, concluding that Egan "limits the

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Board's review of an otherwise appealable adverse action
only if that action is based upon a denial, revocation, or
suspension of . . . access to classified information or
eligibility for such access." Because Conyers' and Nor-
thover's appeals did not specifically involve the denial of a
security clearance, the Board concluded it had authority
to review the merits of the agency's decisions. The Board
then remanded both cases and directed the administra-
tive law judges to adjudicate the cases under the general
applicable standard the Board applies in adverse action
appeals. OPM moved for reconsideration of the Board's
decisions, which the Board denied. This petition for
review followed.

Pursuant to 5 U.S.C. § 7703(d), OPM may seek review
of a final Board order or decision when it determines that
the Board erred in interpreting a civil service law, rule or
regulation, and that that Board's decision will have a
substantial impact on the administration of the civil
service. Generally, this court does not have jurisdiction to
review remand orders because such orders are not final.
See Weed v. Social Sec. Admin., 571 F.3d 1359, 1362-63
(2009) (Board's remand order was not final order subject
to immediate review); Cabot Corp. v. United States, 788
F.2d 1539, 1542-43 (Fed. Cir. 1986) ("[A]n order remand-
ing a matter to an administrative agency for further
findings and proceedings is not final.") OPM argues that
this court has jurisdiction to review the orders under
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949) because the orders resolve an issue conclusively,
resolve important questions separate from the merits, and
could be effectively unreviewable on appeal from the
Board's final decision in the case. See also Matthews v.
Eldridge, 424 U.S. 319, 330-31 (1976) (allowing judicial
review of administrative action on collateral issue). We
agree that the orders resolve the issue conclusively and
resolve a question separate from the merits, i.e., separate

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from the merits of whether the actions against the em-
ployees were proper. Regarding the third criterion,
whether the issue could be effectively reviewable on
appeal from a final decision, OPM argues that delay in
review of the issue would "imperil a substantial public
interest" or a "particular value of a high order" and thus
collateral review is proper. See e.g. Will v. Hallock, 546
U.S. 345, 350, 351-53 (2006). We agree that the issues in
the Board's orders raise an issue of such interest, i.e.,
whether the agency must disclose its determinations
regarding what it classifies as issues of national security
and must litigate the merits of such a determination, and
thus are subject to immediate review.

Upon consideration thereof,

IT IS ORDERED THAT:

(1) OPM's petition for review is granted. The revised
official caption is reflected above.

(2) The motions to dismiss are denied.

For The Court

AUG 1 7 2011

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Rhonda K. Conyers
Andres M. Grajales, Esq.
Abby C. Wright, Esq.
Jeffrey A. Gauger, Esq.

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

AUG 1 7 2011

s20

JAN HORBALY
CLERK