Merit Systems Protection Board to Conduct First Oral Argument in 27 Years


The Merit Systems Protection Board is slated to hold its first oral argument in 27 years.  The announcement of the oral argument was made last week in the Federal Register.  The argument before the Merit Systems Protection Board will take place at the Court of Appeals for the Federal Circuit.

The MSPB announcement reads as follows:


On Tuesday, September 21, 2010, the MSPB will hear oral argument in the matters of Rhonda K. Conyers v. Department of Defense, MSPB Docket No. CH–0752–09–0925–I–1, and Devon H. Northover v. Department of Defense, MSPB Docket No. AT–0752–10–0184–I–1. The proceedings will take place at 10:00 a.m. at the United States Court of Appeals for the Federal Circuit, Room 201, 717 Madison Place, N.W., Washington, D.C. See 75 FR 56146, Sept. 15, 2010.


Conyers and Northover raise the question of whether, pursuant to 5 CFR part 732, the rule in Department of the Navy v. Egan, 484 U.S. 518, 530–31 (1988), limiting the scope of MSPB review of an adverse action based on the revocation of a security clearance, also applies to an adverse action involving an employee in a ‘‘non-critical sensitive’’ position due to the employee having been denied continued eligibility for employment in a sensitive position. The Board requested and received an advisory opinion from the Office of Personnel Management (OPM) in this matter. See 5 U.S.C. § 1204(e)(1)(A). The Board also invited and received amicus curiae briefs. See 75 FR 6728, Feb. 10, 2010.


The parties and the amici curiae will be allotted time at the hearing to present oral argument in this matter. The briefs submitted by the parties and the amici curiae, as well as OPM’s advisory opinion, are available for viewing on the MSPB’s website at The MSPB also will make a recording of the oral argument available on its website. The public is welcome to attend this hearing for the sole purpose of observation. Any person attending this oral argument who requires special accessibility features, such as sign language interpretation, must inform MSPB of those needs in advance.


This is the first time the MSPB has conducted an oral argument in 27 years. Chairman Susan Tsui Grundmann, Vice Chairman Anne Wagner, and Member Mary Rose will utilize oral argument in cases like Conyers and Northover that present issues of special significance because of their broad potential impact on the Federal civil service and merit systems. Chairman Grundmann stated, “In an era of unprecedented Government transparency and openness, it is incumbent upon the Board to exercise its existing abilities to request amicus briefs and conduct oral argument in order to shed light on the issues, the debate, and the process. Doing so should result in the best decisions for Federal employees and agencies, and the American people.”


The U.S. Merit System Protection Board (MSPB) is an independent, quasi-judicial agency that protects Federal merit systems and the rights of individuals within those systems. The MSPB also conducts studies of the civil service and other merit systems in the Executive Branch.


The Federal Register announcement is available here: [Read].

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