Court Limits Federal Employee Appeal Rights in Security Cases

By on August 21, 2013 in Court Cases, Current Events with 2 Comments

The Federal Circuit Court of Appeals issued an important decision limiting review of federal agency decisions on an employee’s eligibility to hold a sensitive position even when it does not involve access to classified information. In Kaplan v. Conyers and Northover (C.A.F.C. No. 2011-3207, 8/20/13)

The U.S. Supreme Court decided Egan v. Department of the Navy in 1986, which held the Merit Systems Protection Board cannot review the denial of a security clearance as part of its authority to review federal adverse action appeals. Instead the MSPB can only consider whether there was a determination a security clearance was required for an employee’s position, whether that clearance was revoked, whether in doing so limited procedural protections were followed, and whether the agency transferred the employee to a nonsensitive position if one was available for which the employee qualified. (Eagan 484 U.S. 518)

In the latest case, the MSPB seeks to limit Eagan to positions requiring security clearances only. The Board asserted authority to provide full adverse action appeal review to the merits of cases involving removal of an employee who was in a “noncritical sensitive” position.

Ms. Conyers was a GS-05 Accounting Technician with Defense Finance Agency Headquarters. She was denied eligibility to occupy a sensitive position and as a result was suspended indefinitely.  Mr. Northover was a GS-07 Commissary Management Specialist who also had his eligibility to occupy a sensitive position revoked resulting in reassignment to a GS-04 part-time Store Associate position.

Both appealed to the MSPB. The Board ruled that it had jurisdiction to consider these appeals because Eagan applied only if the agency action involves denial, revocation, or suspension of access to classified information. (Opinion p. 7)

The Office of Personnel Management disagreed and took its case to the appeals court. A 3-judge panel issued a divided opinion reversing the MSPB, holding that Egan precluded Board review in these cases. The Board asked the full appeals court (hearing en banc) to consider the issue.

The full court issued its decision on August 20th. In this significant decision the court held that Eagan does indeed apply to curtail Board review in matters involving sensitive positions: “Thus applying Egan here, the DoD’s discretion to control the selection and retention of employees whose positions present risks to national security, whether or not they involve access to ‘information,’ need not be second-guessed.” (p. 28)

The court goes on to state, “It is naïve to suppose that employees without direct access to already classified information cannot affect national security.” (p. 28) Deciding whether an individual can impact national security in his/her position “is the type of predictive judgment that must be made by those with necessary expertise.” (p. 29) In other words, agencies, and not the MSPB, are in the best position to make these judgments.

Kaplan v. Conyers

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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