Recently, the Office of Personnel Management (“OPM”) sought review of the Merit Systems Protection Board (MSPB or “the Board”) decision seeking to expand its jurisdiction in cases involving security clearance determinations. The board held that the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988) limits Board review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. The Court found that “Egan prohibits Board review of agency determinations concerning eligibility of an employee to occupy a “sensitive” position, regardless of whether the position requires access to classified information.”
Judging from the appearance list at the beginning of the decision, just about every attorney at the Board was involved in arguing this case. Also involved and supporting the Board, to the surprise of none, were the American Federation of Government Employment and the ACLU.
The case involved two different employees who worked for the Defense Department and had positions determined by the Agency to be “noncritical sensitive”.
The Army is covered by the same rules as DoD and according to it’s website:
Certain civilian positions within the Army entail sensitive duties including access to classified information. Misconduct, illegal action or even inaction on the part of an employee in a designated sensitive position could directly compromise the national security. In the interests of national security, care must be exercised in selecting individuals to fill sensitive positions.
There are four types of sensitivity designations:
- Nonsensitive – All other positions not identified below. Requires National Agency Check investigation.
- Noncritical Sensitive – Position involves access to CONFIDENTIAL or SECRET information, IT-II/CAT II ADP duties, duties in chemical/biological PRP. Requires an advanced National Agency Check with inquiries/National Agency Check with local and credit check investigation.
- Critical Sensitive – Position involves access to TOP SECRET information, IT-I/CAT I ADP duties, or requires enrollment in Nuclear PRP programs. Requires a single scope background investigation (SSBI).
- Special Sensitive – Position involves sensitive information related to National Security, intelligence, or strategic technologies requiring access to TOP SECRET/SENSITIVE COMPARTMENTED information (SCI). Requires a single scope background investigation (SSBI).
In both cases, following an investigation, the Agency discovered information about the employees that raised security concerns. As a result the Agency indefinitely suspended the first employee from her position because she was denied eligibility to occupy a sensitive position by the Agency’s security adjudication staff. The Agency reasoned that the noncritical sensitive “position required the employee to have access to sensitive information,” and because of the access denial, “she did not meet a qualification requirement of her position.” The employee was later removed for this reason. The second employee was reduced in grade from a position that was critical sensitive to one that wasn’t.
The gist of the Board’s theory was that unless an employee had access to classified information, Egan didn’t apply.
The Court gave the Board a lecture on the differences between adverse actions under Subchapter II of Title 5 in which MSPB has jurisdiction and Subchapter IV relating to removals for national security reasons in which the Board’s review is severely limited. The Court, apparently concerned about something not apparently important to MSPB, said “Courts thus must tread lightly when faced with the potential of second-guessing discretionary agency determinations concerning national security.”
It went on to say:
“The Board and Respondents conflate “classified in-formation” with “national security information,” but Egan does not imply those terms have the same meaning.11 In fact, Egan’s core focus is on “national security information,” not just “classified information.” 484 U.S. at 527 (recognizing the government’s “compelling interest in withholding national security information”) (emphasis added). As Egan noted, the absence of a statutory provision in § 7512 precluding appellate review of determinations concerning national security creates a presumption in favor of review. Id. The Court, nevertheless, held that this “proposition is not without limit, and it runs aground when it encounters concerns of national security, as in this case, where the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch.””
BTW, Websters uses the synonyms confuse, confound, mistake, mix (up) for “conflate”, just in case the lawyers involved didn’t get it and thought they won the case.
The Court found the Board’s and friends’ logic “flawed”. It said:
“The Board and Respondents’ focus on one factor, eligibility of access to classified information, is misplaced.16 Government positions may require different types and levels of clearance, depending upon the sensitivity of the position sought.”
The Court understood what the Board didn’t:
“Some rights of government employees are certainly abrogated in national security cases. The Board and Respondents must recognize that those instances are the result of balancing competing interests as was the case in Egan and as is the case here.
Let’s not lose sight of the fact that this was a political decision by the Board using government resources to advance an ideological view. The current Board disagrees with Egan and sought to weaken it with no regard for the consequences on national security as intimated in the decision of the court. Go back to your union jobs, MSPB staff where you can legitimately advance your political agenda before the Congress not use our money to do it before the courts. Many in the business hoped MSPB would chart a different path than the Federal Labor Relations Authority’s majority members whose politically driven decisions have divested it of any semblance of neutrality or even handedness. Apparently, the same attitude infecting FLRA has arrived at the Board.
As always, the opinions expressed here are my responsibility.