United States Court of Appeals 

for the Federal Circuit ______________________ 

ELAINE D. KAPLAN, Acting Director, Office of 

Personnel Management,

Petitioner,

v.

RHONDA K. CONYERS AND DEVON HAUGHTON 

NORTHOVER,

Respondents,

AND

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2011-3207

______________________ 

Petition for review of the Merit Systems Protection 

Board in Nos. CH0752090925-R-1 and AT0752100184-R1.

______________________ 

Decided: August 20, 2013

______________________ 

ABBY C. WRIGHT, Attorney, Appellate Staff, Commercial Litigation Branch, United States Department of 

Justice, of Washington, DC, argued for petitioner on 

rehearing en banc. With her on the brief were STEWART 

F. DELERY, Acting Assistant Attorney General, BETH S.

BRINKMANN, Deputy Assistant Attorney General, JEANNE 
2 KAPLAN v. CONYERS

E. DAVIDSON, Director, TODD M. HUGHES, Deputy Director, DOUGLAS N. LETTER and MARLEIGH D. DOVER, Attorneys. Of counsel on the brief were SHARON M. MCGOWAN, 

Acting General Counsel, KATHIE ANN WHIPPLE, Deputy 

General Counsel, STEVEN E. ABOW, Assistant General 

Counsel, and ROBERT J. GIROUARD, Senior Counsel, Office 

of the General Counsel, Office of Personnel Management, 

of Washington, DC. Of counsel was ALLISON KIDDMILLER, Senior Trial Counsel, United States Department 

of Justice, of Washington, DC. 

ANDRES M. GRAJALES, American Federation of Government Employees, of Washington, DC, argued for 

respondents Rhonda K. Conyers, et al. on rehearing en 

banc. With him on the brief were DAVID A. BORER, General Counsel, and JOSEPH F. HENDERSON, Deputy General 

Counsel. 

JEFFREY A. GAUGER, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, argued for respondent Merit Systems Protection 

Board on rehearing en banc. With him on the brief were 

BRYAN G. POLISUK, General Counsel, and KEISHA DAWN 

BELL, Deputy General Counsel.

THOMAS DEVINE, Legal Director, Government Accountability Project, of Washington, DC, for amicus curiae 

Government Accountability Project on rehearing en banc. 

ELISABETH R. BROWN, Attorney, United States Office 

of Special Counsel, of Washington, DC, for amicus curiae 

The United States Office of Special Counsel on rehearing 

en banc. 

 

ARTHUR B. SPITZER, American Civil Liberties Union of 

the Nation’s Capital, of Washington, DC, for amici curiae 

National Treasury Employee Union, et al. on rehearing en 

banc. With him on the brief were GREGORY O’DUDEN, 
KAPLAN v. CONYERS 3

General Counsel, LARRY J. ADKINS, Deputy General 

Counsel, JULIE M. WILSON, Associate General Counsel, 

and PARAS N. SHAH, Assistant Counsel, National Treasury 

Employees Union, of Washington, DC.

______________________ 

Before RADER, Chief Judge, NEWMAN, LOURIE, DYK,

PROST, MOORE, O’MALLEY, REYNA, WALLACH, and 

TARANTO, Circuit Judges.1

Opinion for the court filed by Circuit Judge WALLACH, in 

which RADER, Chief Judge, LOURIE, PROST, MOORE, 

O’MALLEY, and TARANTO, Circuit Judges, join.

Dissenting opinion filed by Circuit Judge DYK, in which

NEWMAN and REYNA, Circuit Judges, join.

WALLACH, Circuit Judge.

In this federal employment case implicating national 

security, the Director of the Office of Personnel Management2 (“OPM”) seeks review of the decision by the Merit 

Systems Protection Board (“Board”) holding that the 

Supreme Court’s decision in Department of the Navy v. 

Egan, 484 U.S. 518 (1988), limits Board review only to 

actions involving security clearance determinations, i.e., 

determinations concerning eligibility of access to classified information. Egan, however, is not so limited. 

Egan’s principles prohibit Board review of the Department of Defense’s (“DoD” or the “Agency”) determinations 

concerning eligibility of an employee to occupy a “sensi1 Circuit Judge Chen did not participate in this decision.

2 Elaine D. Kaplan took office as the Director of the 

Office of Personnel Management during the pendency of 

this case, replacing John Berry. Pursuant to Federal Rule

of Appellate Procedure 43(c)(2), Director Kaplan is automatically substituted as Petitioner in this case. 

 
4 KAPLAN v. CONYERS

tive” position, regardless of whether the position requires 

access to classified information.3 As to the Respondents, 

we hold that Rhonda K. Conyers (“Conyers”) no longer 

maintains a cognizable interest in the outcome of this 

case. Ms. Conyers is therefore dismissed from this appeal. With respect to Devon Haughton Northover 

(“Northover”), we reverse and remand for further proceedings. 

I. BACKGROUND

Ms. Conyers and Mr. Northover4 were indefinitely 

suspended and demoted, respectively, from their positions 

with the Agency after they were found ineligible to occupy 

“noncritical sensitive” positions.5 Ms. Conyers and Mr. 

3 Ms. Conyers and Mr. Northover are DoD employees. DoD regulations define “sensitive” positions as those 

that may have an effect on national security. See 32 

C.F.R. § 154.13. We do not have before us the regulations 

of other agencies. Accordingly, we do not consider nonDoD “sensitive” positions. 

4 The Board, Ms. Conyers, and Mr. Northover were 

all Respondents in this case. This court will refer to the 

Board as the “Board,” Mr. Northover as “Northover,” and 

Ms. Conyers as “Conyers,” where discussion is appropriate given her dismissal. 

5 Departments and agencies of the Government 

classify jobs in three categories: “critical sensitive,” “noncritical sensitive,” and “nonsensitive.” Egan, 484 U.S. at 

528. The underlying cases involve “noncritical sensitive” 

positions, which are defined as: “Positions with potential 

to cause damage to . . . national security, up to and including damage at the significant or serious level. These 

positions include: (1) Access to Secret, “L,” Confidential 

classified information[;] (2) Any other positions with 

potential to cause harm to national security to a moderate 

degree . . . .” J.A. 326 (emphases added).

 
KAPLAN v. CONYERS 5

Northover independently appealed the Agency’s actions to 

the Board. In both appeals, the Agency argued that, 

because these positions were designated “noncritical 

sensitive,” the Board could not review the merits of the 

Agency’s eligibility determinations under Egan’s precedent.

A. The Egan Holding

In Egan, the Supreme Court held that the Board 

plays a limited role in adverse action cases involving

national security concerns. The respondent in Egan lost 

his laborer’s job at a naval facility when he was denied a 

required security clearance. 484 U.S. at 520. Reversing 

our decision in Egan v. Department of the Navy, 802 F.2d 

1563 (Fed. Cir. 1986), rev’d, 484 U.S. 518 (1988), the 

Court held that the Board does not have authority to 

review the substance of the security clearance determination, contrary to what is required generally in other 

adverse action appeals. 484 U.S. at 530–31. Rather, the 

Court held that the Board has authority to review only: 

(1) whether an Executive Branch employer determined 

the employee’s position required a security clearance; (2) 

whether the clearance was denied or revoked; (3) whether 

the employee was provided with the procedural protections specified in 5 U.S.C. § 7513; and (4) whether transfer to a nonsensitive position was feasible. Id. at 530.

B. Ms. Conyers’s Initial Proceedings

Ms. Conyers occupied a competitive service position of 

GS–525–05 Accounting Technician at the Defense Finance and Accounting Service. Conyers v. Dep’t of Def., 

115 M.S.P.R. 572, 574 (2010). Following an investigation, 

the Agency’s Washington Headquarters Services (“WHS”) 

Consolidated Adjudications Facility (“CAF”) discovered 

information about Ms. Conyers that raised security concerns. J.A. 149–52. Effective September 11, 2009, the 

Agency indefinitely suspended Ms. Conyers from her 

position because she was denied eligibility to occupy a 

sensitive position by WHS/CAF. Conyers, 115 M.S.P.R. at 
6 KAPLAN v. CONYERS

574. The Agency reasoned that Ms. Conyers’s noncritical 

sensitive “position required her to have access to sensitive 

information,” and because WHS/CAF denied her such 

access, “she did not meet a qualification requirement of 

her position.” Id. 

Ms. Conyers appealed her indefinite suspension to the 

Board. Id. In response, the Agency argued that Egan

prohibited Board review of the merits of WHS/CAF’s 

decision to deny Ms. Conyers eligibility for access “to 

sensitive or classified information and/or occupancy of a 

sensitive position.” Id. (internal citation and quotation 

marks omitted). On February 17, 2010, the administrative judge issued an order certifying the case for an interlocutory appeal and staying all proceedings pending 

resolution by the full Board. Id. at 575. In her ruling, the 

administrative judge declined to apply Egan and “informed the parties that [she] would decide the case under 

the broader standard applied in . . . other [5 U.S.C.] 

Chapter 75 cases which do not involve security clearances 

. . . .” Id. (brackets in original).

C. Mr. Northover’s Initial Proceedings

Mr. Northover occupied a competitive service position 

of GS–1144–07 Commissary Management Specialist at 

the Defense Commissary Agency. Northover v. Dep’t of 

Def., 115 M.S.P.R. 451, 452 (2010). Effective December 6, 

2009, the Agency reduced Mr. Northover’s grade level to 

part-time GS–1101–04 Store Associate due to revocation/denial of his DoD eligibility to occupy a sensitive 

position. Id. at 453. In its Notice of Proposed Demotion, 

the Agency stated that Mr. Northover was in a position 

that was “designated as a sensitive position” and that 

WHS/CAF had denied him “eligibility for access to classified information and/or occupancy of a sensitive position.” 

Id. (internal citation and quotation marks omitted). 

Mr. Northover subsequently appealed the Agency’s 

decision to the Board. Id. In response, the Agency argued 

it had designated the Commissary Management Special-
KAPLAN v. CONYERS 7

ist position a “moderate risk” national security position 

with a sensitivity level of “noncritical sensitive,” and 

under Egan, the Board is barred from reviewing the 

merits of the Agency’s “security-clearance/eligibility 

determination.” Id.

On April 2, 2010, contrary to the ruling in Conyers, 

the presiding chief administrative judge ruled that Egan

applied and that the merits of the Agency’s determination 

were unreviewable. Id. The chief administrative judge 

subsequently certified his ruling to the full Board. Id. All 

proceedings were stayed pending resolution of the certified issue. Id.

D. The Full Board’s Interlocutory Review of 

Conyers and Northover

On December 22, 2010, the full Board affirmed the 

administrative judge’s decision in Conyers and reversed 

the chief administrative judge’s decision in Northover, 

concluding that Egan did not apply in cases where security clearance determinations are not at issue. Conyers, 

115 M.S.P.R. at 590; Northover, 115 M.S.P.R. at 467–68. 

The Board held that Egan limits the Board’s 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.6 Conyers, 115 

M.S.P.R. at 589–90; Northover, 115 M.S.P.R. at 467–68. 

Because Ms. Conyers and Mr. Northover did not occupy 

positions that required access to classified information, 

the Board concluded that Egan did not preclude Board 

review of the underlying Agency determinations. Conyers, 

115 M.S.P.R. at 585; Northover, 115 M.S.P.R. at 464.

6 The Board considered “security clearance” to be 

synonymous with “access to classified information.” 

Conyers, 115 M.S.P.R. at 580.

 
8 KAPLAN v. CONYERS

OPM moved for reconsideration of the Board’s decisions, which the Board denied. Berry v. Conyers, 435 F. 

App’x 943, 944 (Fed. Cir. 2011) (order granting OPM’s 

petition for review). OPM petitioned for review to this 

court, and the petition was granted on August 17, 2011.

Id. at 945. On August 17, 2012, a divided panel reversed 

the Board, holding that Egan applied to this case and 

concluding that determinations pertaining to eligibility to 

occupy a “sensitive” position were unreviewable. Berry v. 

Conyers, 692 F.3d. 1223 (Fed. Cir. 2012). We granted 

rehearing en banc and vacated the panel decision on 

January 24, 2013. Berry v. Conyers, 497 F. App’x 64 (Fed. 

Cir. 2013). Oral arguments were held on May 24, 2013. 

II. JURISDICTION

The underlying cases in Conyers and Northover were 

respectively dismissed by the Board as moot, Conyers v. 

Dep’t of Def., No. CH–0752–09–0925–I–3, 2011 WL 

6939837 (M.S.P.B. Sept. 29, 2011), and dismissed without 

prejudice pending the outcome of this appeal, see J.A. 

1765–67; 1821. The parties do not dispute that the case is 

moot as to Ms. Conyers. Because the parties agree that 

Ms. Conyers has no cognizable interest in the outcome of 

this appeal, her case is dismissed. Cooper v. Dep’t of the 

Navy, 108 F.3d 324, 326 (Fed. Cir. 1997) (“If an appealable action is canceled or rescinded by an agency, any 

appeal from that action becomes moot.”). Conversely, the 

parties do not dispute that Mr. Northover maintains a 

cognizable interest in the outcome of this appeal, in part, 

because the Defense Commissary Agency’s rescission of 

its action does not dispose of Mr. Northover’s discrimination claims. See J.A. 1765–67; 1821. Hence, Northover

remains in this appeal. 

We have jurisdiction under 5 U.S.C. § 7703(d)(1), 

which provides that OPM may seek review of a final 

Board order or decision when it determines the Board 

erred in interpreting a civil service law, rule or regulation, 

and that the decision will have a substantial impact on 

the administration of the civil service. The granting of 
KAPLAN v. CONYERS 9

OPM’s petition for judicial review is at the discretion of 

this court. Id. 

While we may grant such petitions, the decision for 

review must be final, since this court lacks jurisdiction to 

review non-final Board decisions. See Weed v. Social Sec. 

Admin., 571 F.3d 1359, 1362–63 (Fed. Cir. 2009) (Board’s 

remand order was not final order subject to immediate 

review). A motions panel and the prior merits panel held 

that the Board’s decisions in Conyers and Northover were 

appealable under the collateral order doctrine as articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 

541, 546 (1949). We agree that jurisdiction is proper to 

address OPM’s petition for review. 

Cohen held that final decisions by district courts, pursuant to 28 U.S.C. § 1291, encompass not only judgments 

that “terminate an action,” but also a “small class” of 

collateral rulings that, although they do not end the 

litigation, are appropriately deemed “final.” 337 U.S at 

545–46. “That small category includes only decisions that 

are conclusive, that resolve important questions separate 

from the merits, and that are effectively unreviewable on 

appeal from the final judgment in the underlying action.” 

Id. at 546. This “practical” approach applies to administrative actions. Mathews v. Eldridge, 424 U.S. 319, 330–

31 (1976) (allowing judicial review of administrative 

action on collateral issue). Although recognizing the 

differing policy considerations between appeals from 

district courts and administrative actions, Mathews

emphasized the “core principle that statutorily created 

finality requirements should, if possible, be construed so 

as not to cause crucial collateral claims to be lost and 

potentially irreparable injuries to be suffered remains 

applicable.” Id. at 331 n.11.

We find that the Board decision before this court is 

sufficiently conclusive to require resolution of Egan’s 

application to “sensitive” position determinations. Await-
10 KAPLAN v. CONYERS

ing a final judgment in such cases would require Executive Branch agencies to litigate the merits and to potentially disclose matters concerning national security. 

Hence, this matter has the requisite “substantial impact 

on a civil service law,” § 7703(d)(1), and in turn, qualifies 

as one of those “small class” of collateral rulings that, 

although they do not end the litigation, are appropriately 

deemed “final,” Cohen, 337 U.S at 545–46.

The Board asserts that under Kloeckner v. Solis, 133 

S. Ct. 596 (2012), this court lacks jurisdiction because, in 

part, Mr. Northover’s appeal is a “mixed” case involving a 

removal action in addition to a discrimination case 

properly before a federal district court. Kloeckner, however, interpreted 5 U.S.C. § 7703(b) and not § 7703(d), which 

is applicable here. As we reasoned in Horner: 

There are sound reasons for Congress to establish 

in sections 7701 and 7703 different standards for 

the Director’s participation. Under section 7701, 

the Director’s participation before the board is in 

addition to the respondent agency’s participation. 

Under section 7703(d), the Director has sole authority to seek judicial review of a board decision 

that is unfavorable to an agency. The Director 

acts under section 7703 to protect the interests of 

the respondent agency or to protect the interests 

of the civil service as a whole. 

Horner v. Schuck, 843 F.2d 1368, 1373 (Fed. Cir. 1988). 

Accordingly, Northover is subject to immediate review 

under § 7703(d). 

III. STATUTORY GROUNDS FOR NATIONAL SECURITY

BASED REMOVAL OF GOVERNMENT EMPLOYEES

The statutes provide a two-track system for removal 

of employees based on national security concerns. Egan, 

484 U.S. at 526. In particular, relevant provisions of the 

Civil Service Reform Act of 1978 (“CSRA”), Chapter 75 of 

Title 5 of the United States Code entitled, “Adverse 

Actions,” provide two subchapters related to removals. 
KAPLAN v. CONYERS 11

The first, subchapter II (§§ 7511–7514), relates to removals for “cause.” Under § 7512, a reduction in grade of an 

employee, as here, may qualify as an “adverse action.” 5 

U.S.C. § 7512(3). An employee subject to an adverse 

action is entitled to the protections of § 7513, which 

include written notice of the specific reasons for the 

proposed action, an opportunity to respond to the charges, 

and the requirement that the agency’s action is taken to 

promote the efficiency of the service. An employee removed for “cause” has the right, under § 7513(d), to appeal to the Board. On review of the action by the Board 

under § 7701,7 the agency must show that its decision is 

supported by a preponderance of the evidence. 5 U.S.C. § 

7701(c)(1)(B). The appeal here proceeded pursuant to 5 

U.S.C. § 7513(d). 

The second, subchapter IV (§§ 7531–7533), relates to 

suspensions and removals based upon national security 

concerns. An employee suspended under § 7532(a) is not 

entitled to appeal to the Board. Nonetheless, the statute 

provides for a summary removal process that entitles the 

employee to specified pre-removal procedural rights, 

7 5 U.S.C. § 7701 provides, in relevant part: “An 

employee, or applicant for employment, may submit an 

appeal to the Merit Systems Protection Board from any 

action which is appealable to the Board under any law, 

rule, or regulation.” 5 U.S.C. § 7701(a). It is undisputed 

that Northover is an “employee” as defined in the applicable statutes in this case. See 5 U.S.C. § 7511(a)(1)(A)(i), 

(ii) (“[E]mployee means . . . an individual in the competitive service . . . who is not serving a probationary or trial 

period under an initial appointment; or . . . who has 

completed 1 year of current continuous service under 

other than a temporary appointment limited to 1 year or 

less.”).

 
12 KAPLAN v. CONYERS

including a hearing by an agency authority. 5 U.S.C. § 

7532(c).

IV. EGAN’S APPLICATION TO THIS CASE

The Board and Northover urge this court to limit 

Egan’s application to security clearance determinations, 

reasoning that national security concerns articulated in 

that case pertain to access to classified information only. 

Egan cannot be so confined. Its principles instead require 

that courts refrain from second-guessing DoD national 

security determinations concerning eligibility of an individual to occupy a sensitive position, which may not 

necessarily involve access to classified information. For 

the following reasons, Egan must apply.

A. Egan Addressed Broad National Security Concerns 

That Are Traditionally the Responsibility of the 

Executive Branch

Egan, at its core, explained that it is essential for the 

President and the DoD to have broad discretion in making 

determinations concerning national security. In particular, Egan noted the absence of a statutory provision in § 

7512 precluding appellate review of determinations 

concerning national security created a presumption in 

favor of judicial review. 484 U.S. at 526–27. The Court, 

nevertheless, held that “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.” Id. at 527 (emphasis added). Affording such 

discretion to agencies, according to Egan, “flows primarily 

from [the Commander in Chief Clause] and exists quite 

apart from any explicit congressional grant.” 484 U.S. at 

527. The Court has consistently articulated that matters 

touching upon foreign policy and national security fall 

within “an area of executive action ‘in which courts have 

long been hesitant to intrude’” absent congressional 
KAPLAN v. CONYERS 13

authorization. Lincoln v. Vigil, 508 U.S. 182, 192 (1993) 

(quoting Franklin v. Massachusetts, 505 U.S. 788, 819 

(1992) (Stevens, J., concurring in part and concurring in 

the judgment)); see also Egan, 484 U.S. at 529 (Foreign 

policy is the “province and responsibility of the Executive . 

. . . [C]ourts traditionally have been reluctant to intrude 

upon the authority of the Executive in military and national security affairs.”) (citation omitted). 

The deference owed to the Executive Branch in these 

matters stems from our constitutional principle of separation of powers among the branches of government, see

United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 

320 (1936) (recognizing the “plenary and exclusive power 

of the President as the sole organ of the federal government in the field of international relations”), and the longrecognized convention that the judiciary’s institutional 

expertise is limited under these circumstances, 

Boumediene v. Bush, 553 U.S. 723, 797 (2008) (“Unlike 

the President and some designated Members of Congress, 

neither the Members of this Court nor most federal judges 

begin the day with briefings that may describe new and 

serious threats to our Nation and its people. The law 

must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our 

security.”). Indeed, Egan applied that same reasoning in 

the context of this case:

[I]t is not reasonably possible for an outside nonexpert body to review the substance of such a 

judgment and to decide whether the agency 

should have been able to make the necessary affirmative prediction with confidence. Nor can 

such a body determine what constitutes an acceptable margin of error in assessing the potential 

risk.

484 U.S. at 529. This rationale applies to all prediction of 

risk regarding national security. Thus, absent congres-
14 KAPLAN v. CONYERS

sional action, judicial review of national security matters 

is generally prohibited.8

The Board and Northover’s focus on only one factor, 

eligibility of access to classified information, is misplaced. 

The centerpiece of the Egan analysis, Executive Order No. 

10,450, makes no mention of “classified information.”9

8 The Dissent argues that we should afford Chevron

deference to the Board’s interpretation of its own jurisdiction under the CSRA. Dissent 21. Although Chevron

would normally apply to the Board’s interpretation of the 

CSRA, where the agency’s interpretation raises serious 

constitutional doubts, courts are required to inquire 

whether there exists another permissible interpretation. 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and 

Const. Trades Council, 485 U.S. 568, 575–76 (1988). The 

principle of separation of powers dictates here and we do 

not read the CSRA to “assum[e] that Congress . . . casually authorize administrative agencies to interpret a statute 

to push the limit of congressional authority.” Solid Waste 

Agency of N. Cook Cnty., 531 U.S. 159, 172–73 (2001). 

The President has the primary responsibility along with 

the necessary power to protect the national security. The 

Board cannot usurp that power by asserting Chevron. 

9 The Dissent contends no Presidential Order here 

authorizes the DoD to make judgments whether an employee is a risk to national security. Dissent 4. Executive 

Order No. 10,450 directs agencies, such as the DoD, to 

establish programs “to insure that the employment and 

retention . . . of any civilian . . . employee . . . is clearly 

consistent with the interests of the national security.” 

That Presidential Order applied in Egan. It applies here. 

The Dissent nevertheless claims support in Cole v. Young, 

351 U.S. 536 (1956), but the Dissent’s reliance on Cole is 

erroneous. The question in Cole was whether the Civil 

Service Commission could review Mr. Cole’s discharge 

from the military. The government conceded the review 

 
KAPLAN v. CONYERS 15

Exec. Order No. 10,450, § 3, 3 C.F.R. 937 (1949–1953 

Comp.) (“The head of any department or agency shall 

designate, or cause to be designated, any position within 

his 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 as a 

sensitive position.”). In addition, other relevant statutes 

and regulations define “sensitive” position in the broadest 

sense by referring to “national security” generally. See 10 

U.S.C. § 1564 (“Security clearance investigations . . . . (e) 

Sensitive duties. -- For the purposes of this section, it is 

not necessary for the performance of duties to involve 

classified activities or classified matters in order for the 

duties to be considered sensitive and critical to the national security.”) (emphasis added); see also 5 C.F.R. § 

732.102 (“(a) For purposes of this part, the term national 

security position includes: (1) Those positions that involve 

activities of the Government that are concerned with the 

protection of the nation from foreign aggression or espionage . . . .”). The Board and Northover also conflate 

“classified information” with “national security information,” but Egan does not imply those terms have the 

same meaning. In fact, Egan’s core focus is not on “information,” but rather on the Executive’s discretion to act on 

threats—information-based or not—to national security 

generally. 484 U.S. at 527 (recognizing the government’s 

“‘compelling’ interest in withholding national security 

information”) (emphasis added). 

was expressly authorized by the Veterans’ Preference Act 

of 1944 (“VPA”), but argued express authorization in the 

VPA can be overridden by Executive action pursuant to 

Executive Order No. 10,450. Thus, the issue presented 

was whether the Executive could override express Congressional authority to take action. In this case, as in 

Egan, there is no such express Congressional authority.

 
16 KAPLAN v. CONYERS

As explained in Egan, government positions may require different types and levels of security protection, 

depending upon the sensitivity of the position sought. 484 

U.S. at 528. A government appointment is expressly 

made subject to a background investigation that varies in 

scope according to the degree of adverse effect the applicant could have on national security. Id. (citing Exec. 

Order No. 10,450, § 3, 3 C.F.R. 937 (1949–1953 Comp.)). 

As OPM states: “An agency’s national security calculus

will vary widely depending upon, inter alia, the agency’s 

mission, the particular project in question, and the degree 

of harm that would be caused if the project is compromised.” OPM’s Br. 33. As a result, an agency’s determination concerning national security entails consideration 

of multiple factors.

For example, categorizing a sensitive position is undertaken without regard to access to classified information, but rather with regard to the effect the position 

may have on national security. See Exec. Order No. 

10,450 § 3, 3 C.F.R. 937 (1949–1953 Comp.). Similarly, 

agencies make predictive judgments about an individual 

as:

an attempt to predict his [or her] possible future 

behavior and to assess whether, under compulsion 

of circumstances or for other reasons, he [or she] 

might compromise sensitive information. It may 

be based, to be sure, upon past or present conduct, 

but it also may be based upon concerns completely 

unrelated to conduct such as having close relatives residing in a country hostile to the United 

States. 

Egan, 484 U.S. at 528–29. These predictive judgments 

are predicated on an individual’s potential to compromise 

national security, which may entail classified or unclassified information. Consequently, the inquiry in these 

Agency determinations concerning national security is not 

contingent upon access to “information.”
KAPLAN v. CONYERS 17

Even if the focus is placed on “information,” the Board 

and Northover fail to appreciate that the compelling 

interest of withholding both classified and unclassified 

information is not new. Courts have long recognized that 

sensitive but unclassified material can be vital to national 

security. See, e.g., Snepp v. United States, 444 U.S. 507, 

511–12 (1980) (per curiam) (“[F]ormer intelligence agent’s 

publication of . . . material relating to intelligence activities can be detrimental to vital national interests even if 

the published information is unclassified.”). The Court 

provides us with an illustrative example: 

A foreign government can learn a great deal about 

the [CIA’s] activities by knowing the public 

sources of information that interest the Agency. 

The inquiries pursued by the Agency can often tell 

our adversaries something that is of value to 

them. For example, disclosure of the fact that the 

Agency subscribes to an obscure but publicly 

available Eastern European technical journal 

could thwart the Agency’s efforts to exploit its 

value as a source of intelligence information. Similarly, had foreign governments learned the Agency was using certain public journals and ongoing 

open research projects in its MKULTRA research 

of “brainwashing” and possible countermeasures, 

they might have been able to infer both the general nature of the project and the general scope 

that the Agency’s inquiry was taking.

CIA v. Sims, 471 U.S. 159, 177 (1985) (internal citation 

omitted). 

Certainly, unclassified information can have detrimental effects on national security the same way as 

classified information. That is acknowledged by Executive Order No. 13,526, which states, in part: “Compilations of items of information that are individually 

unclassified may be classified if the compiled information 

reveals an additional association or relationship that . . . 

meets the standards for classification under this or-
18 KAPLAN v. CONYERS

der . . . .” Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 

29, 2009); 32 C.F.R. § 2001.13(c). In addition, courts have 

recognized the same. See Kiareldeen v. Ashcroft, 273 F.3d 

542, 551 n.2 (3d Cir. 2001) (“Certain information which 

would otherwise be unclassified when standing 

alone . . . may require classification when combined with 

or associated with other unclassified or classified information. Additionally, when presented in a context that 

would reveal the FBI’s investigative interest in certain 

individuals, organizations, or countries, information 

which would normally be unclassified may be properly 

classified.”); see also Kasza v. Browner, 133 F.3d 1159, 

1168–69 (9th Cir. 1998) (recognizing the “mosaic” or 

“compilation theory” of classifying information based on a 

combination of unclassified items of information).

The Board nevertheless cites Cole v. Young, 351 U.S. 

536 (1956), and references the Court’s discussion of the 

legislative history of the Act of August 26, 195010 (“the 

Act”) in support of its proposition that national security 

concerns relate strictly to access to classified information. 

The Board’s analysis is flawed. Cole held that a sensitive 

position is one that implicates national security, and in 

defining “national security” as used in the Act, the Court 

concluded that the term “was intended to comprehend 

only those activities of the Government that are directly 

concerned with the protection of the Nation from internal 

subversion or foreign aggression, and not those which 

10 The Act of August 26, 1950, Pub. L. No. 81–733, 

ch. 803, 64 Stat. 476 (1950), gave heads of certain departments and agencies of the Government summary 

suspension and unreviewable dismissal powers over their 

civilian employees, when deemed necessary in the interest 

of the national security of the United States. Conyers, 115 

M.S.P.R. at 583 n.17. The Act was the precursor to 5 

U.S.C. § 7532. Id. 

 
KAPLAN v. CONYERS 19

contribute to the strength of the Nation only through 

their impact on the general welfare.” 351 U.S. at 544 

(emphasis added).11 Thus, even in Cole, sensitive positions were defined as those that involve national security 

generally and not necessarily those that involve classified 

information only. 

Furthermore, “sensitive positions” that can affect national security and “access to classified information” are 

parallel concepts that are not necessarily the same. As 

the Court reasoned:

Where applicable, the Act authorizes the agency 

head summarily to suspend an employee pending 

investigation and, after charges and a hearing, finally to terminate his employment, such termination not being subject to appeal. There is an 

obvious justification for the summary suspension 

power where the employee occupies a “sensitive” 

position in which he could cause serious damage 

to the national security during the delay incident 

to an investigation and the preparation of charges. Likewise, there is a reasonable basis for the 

view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the 

11 “It follows that an employee can be dismissed ‘in 

the interest of the national security’ under the Act only if 

he occupies a ‘sensitive’ position, and thus that a condition 

precedent to the exercise of the dismissal authority is a 

determination by the agency head that the position occupied is one affected with the ‘national security.’” Cole, 351 

U.S. at 551 (emphasis added). Accordingly, the Court in 

Cole remanded the case to determine whether the petitioner’s position was one in which he could adversely 

affect national security. Id. at 557.

 
20 KAPLAN v. CONYERS

final say in deciding whether to repose his trust in 

an employee who has access to such information.

Id. at 546 (emphasis added).12 DoD regulations support 

this conclusion. 

32 C.F.R. § 154.13(a) states “[c]ertain civilian positions” that “entail duties of such a sensitive nature, 

including access to classified information” are referred to 

as “sensitive positions.” Hence, the regulations define 

“sensitive positions” as a position that may include but 

that is not limited to access to classified information. For 

example, DoD categorizes a position as “noncritical sensitive” position by considering one or more of the following 

criteria: 

(A) Access to Secret or Confidential information.

(B) Security police/provost marshal-type duties 

involving the enforcement of law and security duties involving the protection and safeguarding of 

DoD personnel and property.

(C) Category II automated data processing positions.

(D) Duties involving education and orientation of 

DoD personnel.

(E) Duties involving the design, operation, or 

maintenance of intrusion detection systems deployed to safeguard DoD personnel and property.

(F) Any other position so designated by the head 

of the Component or designee.

12 By using the word, “likewise,” the Court compares 

the two concepts, “sensitive positions” and “access to 

classified information.” In doing so, it makes clear that 

they are parallel but not identical concepts. 

 
KAPLAN v. CONYERS 21

32 C.F.R. § 154.13(b)(ii). A position entailing any one or 

more of these instructive examples and “the misconduct, 

malfeasance, or nonfeasance of an incumbent in any such 

position” would potentially have “an unacceptably adverse 

impact upon national security.” 32 C.F.R. § 154.13(a). 

The regulations contemplate the fact that a “noncritical 

sensitive” position requiring access to classified information is of the same substance as a “noncritical sensitive” position involving, inter alia, security police-type 

duties involving enforcement of law and protection and 

safeguarding of DoD personal property. Regardless of 

“access to classified information,” these positions might be 

sensitive. 

Accordingly, there is no meaningful difference in substance between a designation that a position is “sensitive” 

and a designation that a position requires “access to 

classified information.” Rather, what matters is that both 

designations concern national security. As a result, Egan

prohibits review of DoD national security determinations 

concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to 

classified information. Consequently, Egan’s pronouncements regarding national security must apply to this case 

absent contrary congressional action.

B. The CSRA Does Not Grant Broad Authority to the 

Board in This National Security Context

Despite the undisputed role of the Executive within 

this realm, Northover argues applying Egan to these 

cases “may deprive either the Congress or the Judiciary of 

all freedom of action merely by invoking national security.” Northover’s Br. 23. Certainly, under the Constitution, Congress has a substantial role in both foreign 

affairs and national security. Subject to Constitutional 

constraints, Congress has the power to guide and limit 

the Executive’s application of its powers. Neither the 

CSRA nor any other legislative action provides a basis for 

limiting the Executive’s role in these cases.
22 KAPLAN v. CONYERS

As Egan explained: 

An employee who is removed for cause under § 

7513, when his required clearance is denied, is entitled to the several procedural protections specified in that statute. The Board then may 

determine whether such cause existed, whether in 

fact clearance was denied, and whether transfer to 

a nonsensitive position was feasible. Nothing in 

the Act, however, directs or empowers the Board 

to go further. 

484 U.S. at 530–31. As a result, Congress presumably 

has left the President and Executive Branch agencies 

broad discretion to exercise their powers in this area. See 

Dames & Moore v. Regan, 453 U.S. 654, 678 (1981) (“Congress cannot anticipate and legislate with regard to every 

possible action the President may find it necessary to take 

or every possible situation in which he might act,” and 

“[s]uch failure of Congress . . . does not, ‘especially . . . in

the areas of foreign policy and national security,’ imply 

‘congressional disapproval’ of action taken by the Executive.”) (citation omitted). Accordingly, when “the President acts pursuant to an express or implied authorization 

from Congress,” his actions should be “‘supported by the 

strongest of presumptions and the widest latitude of 

judicial interpretation, and the burden of persuasion . . . 

rest[s] heavily upon any who might attack it.’” Id. at 668 

(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 

U.S. 579, 637 (1952) (Jackson, J., concurring)). Nothing 

in the CSRA directs otherwise. 

The CSRA was amended in 1990 after United States 

v. Fausto, 484 U.S. 439 (1988). Fausto held the CSRA’s 

silence regarding appeal rights reflected congressional 

intent to preclude any review under chapter 75 for nonpreference eligible members of the excepted service. Id. at 

448. In response, Congress passed the Civil Service Due 

Process Amendments (“1990 Amendments”) expanding 

the Board’s jurisdiction to some, but not all, non-
KAPLAN v. CONYERS 23

preference eligible excepted service employees. Pub. L. 

No. 101–376, 104 Stat. 461 (1990). 

Northover construes the 1990 Amendments as extending by implication Board review of agency determinations 

concerning sensitive positions. Because certain agencies 

relating to national security, such as the FBI, CIA, and 

the NSA, were expressly exempted, Northover posits that 

Board review must extend to all other positions not expressly excluded. However, certain employees of the 

General Accounting Office, the Veterans Health Sciences 

and Research Administration, the Postal Service, the 

Postal Rate Commission, and the Tennessee Valley Authority were also excluded. See Pub. L. No. 101–376, 104 

Stat. 461 (1990). The exclusion of these varying agencies 

negates Northover’s contention that there was a congressional directive for the Board to review security decisions 

affecting all employees of particular intelligence agencies. 

The argument that Congress crafted some exceptions for 

national security and not others is flawed; national security was not a categorical factor in these exclusions. 

Similarly, the Board and Northover point to the creation of the National Security Personnel System (“NSPS”) 

in 2003 to support their argument that Congress spoke on 

the issue before this court. This position is supported 

neither by statutory language nor legislative history. 

NSPS was established to overhaul the then-existing 

personnel management system and polices of the DoD.

See National Defense Authorization Act, Pub. L. 108–136, 

117 Stat. 1392 (2003). The Board and Northover’s focus 

on the provisions relating to appellate procedures, which 

replaced Board review and provided that: “[t]he Secretary 

. . . may establish an appeals process that provides employees of the [DoD] organizational and functional units 

that are included in the [NSPS] fair treatment in any 

appeals that they bring in decision relating to their employment . . . .” Id. But the NSPS also provided for several other modifications to the DoD’s personnel system, 

including a pay for performance system and modifications 
24 KAPLAN v. CONYERS

to certain collective bargaining rights. Id.; see Am. Federation of Gov’t Emps., AFL-CIO v. Gates, 486 F.3d 1316, 

1330 (D.C. Cir. 2007). 

In 2009, NSPS was repealed largely due to strong opposition from labor organizations regarding collective 

bargaining issues. H.R. Rep. No. 110–146 at 394 (2007) 

(“The committee is concerned that the implementing 

regulations, issued in November, 2005, exceeded congressional intent, especially with respect to limitations on 

employee bargaining rights.”); S. Rep. No. 110–77 at 11 

(2007) (“Repealing the existing authority of the [DoD] to 

establish a new labor relations system under the [NSPS]. 

This would guarantee the rights of DoD employees to 

union representation in NSPS.”); see also S. Rep. No. 111–

35 at 185 (2009) (“[T]he committee has received many 

complaints from DoD employees during the 5 years during which the D[oD] has sought to implement NSPS, to 

the detriment of needed human capital planning and 

workforce management initiatives.”); Department of 

Defense Human Resources Management and Labor 

Relations Systems, 70 Fed. Reg. 66,116, 66,123 (November 1, 2005) (“Significant differences with many of the 

labor organizations remain . . . .”). The statute creating 

the NSPS, the subsequent repeal of certain regulations 

concerning the DoD appeals process, and the ultimate 

repeal of the statute creating the NSPS itself in 2009, do 

not prove congressional intent to preclude DoD from 

insulating employment decisions concerning national 

security from Board review. 

The Board and Northover nevertheless claim support 

in the enactment and subsequent repeal of the NSPS. In 

particular, Northover contends that Congress created the 

NSPS to give DoD power to foreclose Board review in nonsecurity clearance cases because it recognized that Egan

was confined to security clearances; Congress’ repeal of 

NSPS thereby returned to the full scope of Board review 

that had existed prior to the creation of the NSPS. These 

assertions are also speculative. 
KAPLAN v. CONYERS 25

There is nothing in Congress’ enactment or repeal of 

NSPS indicating that Congress was concerned with the 

application of Egan. Indeed, changes proposed to the 

appeals process in the NSPS applied to all DoD employees, and therefore, they made no particular exceptions to 

security clearance determinations. In addition, the Board 

and Northover’s emphasis on the NSPS’s appellate process is misplaced because the NSPS did far more than 

attempt to replace the Board’s review of DoD employment 

cases, it fundamentally altered labor-management relations and pay structures. As discussed above, the NSPS 

faced strong opposition from labor organizations due to 

unpopular limitations on bargaining rights. That Congress chose to ultimately repeal the NSPS has no bearing 

on the issue in this case. 

The Board and Northover further argue that Congress 

has spoken directly on the issue of removal for national 

security concerns by enacting § 7532. This argument has 

already been rejected by Egan. 484 U.S. at 533 (“The 

argument is that the availability of the § 7532 procedure 

is a ‘compelling’ factor in favor of Board review of a security-clearance denial in a case under § 7513. We are not 

persuaded.”). 

In Egan, the Court observed the alternative availability of § 7513 and § 7532. Id. at 532. Specifically, the 

Court acknowledged that § 7532 does not preempt § 7513 

and that the two statutory provisions stand separately 

and provide alternative routes for administrative action. 

Id. In addition, the Court held that the two sections were 

not anomalous, but rather, different. Id. at 533. The 

Court also held that one section did not necessarily provide greater procedural protections than the other. Id. at 

533–34.

The Court in Carlucci v. Doe, 488 U.S. 93 (1988), further articulated and clarified § 7532’s applicability. In 

that case, the Court determined that the summary re-
26 KAPLAN v. CONYERS

moval mechanism(s) set out in § 7532 and 50 U.S.C. § 

83313 were discretionary mechanisms in cases involving 

dismissals for national security reasons. Id. at 100. The 

Court found that § 7532 was not mandatory, but permissive: “‘[n]otwithstanding other statutes,’ the head of an 

agency ‘may’ suspend and remove employees ‘in the 

interests of national security.’” Id. at 100–01 (finding 

nothing in § 7532 or its legislative history indicating that 

the statute’s procedures are the exclusive means for 

removals on national security grounds or that § 7532 

displaces the otherwise applicable removal provisions of 

the agencies covered by the section). Therefore, it was 

held that the National Security Agency was not required 

to apply either § 7532 or § 833 and was entitled to act 

13 Section 833 was a summary removal provision in 

the 1964 National Security Agency Personnel Security 

Procedures Act, 50 U.S.C. §§ 831–35 (repealed October 1, 

1996).

 
KAPLAN v. CONYERS 27

under its ordinary dismissal procedure if it so wished.14

Id. at 99–100. 

Moreover, Carlucci held that Congress enacted § 7532 

to “supplement, not narrow, ordinary agency removal 

procedures.” Id. at 102. The Court reasoned that because 

of its summary nature, “Congress intended § 7532 to be 

invoked only where there is an immediate threat of harm 

to the national security in the sense that the delay from 

invoking normal dismissal procedures could ‘cause serious 

damage to the national security.’” Id. (internal quotation 

marks omitted) (citing Cole v. Young, 351 U.S. 536, 546 

(1956)). Consequently, should § 7532 be mandatory as 

the Board and Northover effectively argue, it would 

become the exclusive procedure in this case and similar 

cases, and “no national security termination would be 

permissible without an initial suspension and adherence 

to the Cole v. Young standard.” Id. Given Carlucci’s 

teaching, we are unconvinced that Congress intended any 

14 The Carlucci Court also affirmed Egan’s conclusion regarding §§ 7513 and 7532: 

We thus agree with the conclusion of the Merit Systems Protection Board in a similar case that 

“section 7532 is not the exclusive basis for removals based upon security clearance revocations,” 

Egan v. Department of the Navy, 28 M.S.P.R. 509, 

521 (1985), and with the Court of Appeals for the 

Federal Circuit that “[t]here is nothing in the text 

of section 7532 or in its legislative history to suggest that its procedures were intended to preempt 

section 7513 procedures whenever the removal 

could be taken under section 7532. The language 

of section 7532 is permissive.” Egan v. Department 

of the Navy, 802 F.2d 1563, 1568 (Fed. Cir. 1986), 

rev’d, 488 U.S. 518 (1988).

Carlucci, 488 U.S. at 95. 

 
28 KAPLAN v. CONYERS

such result when it enacted § 7532. Id. No congressional 

act exists curtailing the Executive’s inherent powers in 

these matters to make the underlying eligibility determination concerning national security. 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. 

C. Predictive Judgments Must be Committed to 

Agency Discretion

National security concerns render the Board and 

Northover’s positions untenable. It is naive to suppose 

that employees without direct access to already classified 

information cannot affect national security. The Board 

and Northover’s narrow focus on access to classified 

information ignores the impact employees without security clearances, but in sensitive positions, can have.15 

15 There are certainly numerous government positions with potential to adversely affect national security. 

The Board goes too far by comparing a government position at a military base commissary to one in a “Seven 

Eleven across the street.” Oral Argument at 28:10–15, 

Berry v. Conyers, 2011–3207 (May 11, 2012), available at 

http://www.cafc.uscourts.gov/oral-argumentrecordings/search/audio.html. Commissary employees do 

not merely observe “[g]rocery store stock levels” or otherwise publicly observable information. Northover’s Br. 20. 

In fact, commissary stock levels of a particular unclassified item—sunglasses, for example, with shatterproof 

lenses, or rehydration backpacks—might well hint at 

deployment orders to a particular region for an identifiable unit. Such troop movements are inherently secret. Cf. 

Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 716 

(1931) (“‘When a nation is at war many things that might 

be said in time of peace are such a hindrance to its effort 

that their utterance will not be endured so long as men 

 
KAPLAN v. CONYERS 29

Defining the impact an individual may have on national security is the type of predictive judgment that 

must be made by those with necessary expertise. See 

Egan, 484 U.S. at 529 (“The attempt to define not only the 

individual’s future actions, but those of outside and 

unknown influences renders the ‘grant or denial of security clearances . . . an inexact science at best.’”) (citation 

omitted). When evaluating an individual for employment, 

it is those with such expertise who effectively can apply 

the Agency’s “clearly consistent with the interests of 

fight and that no Court could regard them as protected by 

any constitutional right . . . .’ No one would question but 

that a government might prevent actual obstruction to its 

recruiting service or the publication of the sailing dates of 

transports or the number and location of troops.”) (quoting 

Schenck v. United States, 249 U.S. 47, 52 (1919)) (emphasis added). This is not mere speculation, because, as OPM 

contends, numbers and locations could very well be derived by a skilled intelligence analyst from military 

commissary stock levels. See Oral Argument at 13:19–

14:03, Berry v. Conyers, 2011–3207 (May 11, 2012), available at http://www.cafc.uscourts.gov/oral-argumentrecordings/search/audio.html (Q: “Can a position be 

sensitive simply because it provides observability? That 

is, one of these examples that was given was someone 

working at a commissary; it seems to me that someone 

working at a commissary has an opportunity, without 

access to classified information, to observe troop levels, 

potential for where someone is going, from what they are 

buying, that sort of thing.” A: “I think that is right your 

honor. We agree with that, and I think in Egan, he, Mr. 

Egan worked on a nuclear submarine. And so, part of it 

was simply from what he was observing by coming and 

going of a nuclear submarine. And so, sensitivity can be 

the place where the employee works, what are they able 

to observe, what could they infer from, what you say, from 

the purchases and shipments . . . .”).

 
30 KAPLAN v. CONYERS

national security” standard, which otherwise would 

conflict with the Board’s “preponderance of the evidence” 

standard. While in certain circumstances courts can 

certainly consider the merits of a decision concerning 

national security, Egan held that scenario unworkable 

here: 

As noted above, security clearance normally will 

be granted only if it is “clearly consistent with the 

interests of the national security.” The Board, 

however, reviews adverse actions under a preponderance of the evidence standard. § 7701(c)(1)(B). 

These two standards seem inconsistent. It is difficult to see how the Board would be able to review 

security-clearance determinations under a preponderance of the evidence standard without departing from the “clearly consistent with the 

interests of the national security” test. The clearly consistent standard indicates that securityclearance determinations should err, if they must, 

on the side of denials. Placing the burden on the 

Government to support the denial by a preponderance of the evidence would inevitably shift this 

emphasis and involve the Board in secondguessing the agency’s national security determinations.

Id. at 531. DoD regulations require that the determination of an employee’s ineligibility to hold a sensitive 

position must be “consistent with the interests of national 

security.” See 32 C.F.R. § 154.6(b) (“The personnel security standard that must be applied to determine whether a 

person is eligible for access to classified information or 

assignment to sensitive duties is whether, based on all 

available information, the person's loyalty, reliability, and 

trustworthiness are such that entrusting the person with 

classified information or assigning the person to sensitive 

duties is clearly consistent with the interests of national 

security.”) (emphasis added); see also Exec. Order No. 

10,450, § 3, 3 C.F.R. § 937 (1949–1953 Comp.). Thus, 
KAPLAN v. CONYERS 31

such Agency determinations cannot be reviewable by the 

Board because it would improperly place an inconsistent 

burden of proof upon the government. 

Further, the sources upon which intelligence is based 

are often open and publically available. Sometimes, 

intelligence is obtained from sources in a fashion the 

source’s government would find improper. Occasionally, 

those means of obtention are coercive and/or subversive. 

For example, the intelligence community may view certain disparaging information concerning an employee as a 

vulnerability which can be used to blackmail or coerce 

information out of the individual. See Egan, 484 U.S. at 

528 (recognizing that the government has a compelling 

interest in protecting truly sensitive information from 

those who, “under compulsion of circumstances or for 

other reasons . . . might compromise sensitive information”). The type of information that can be coerced 

may vary depending on the employee’s position. 

In this case, Mr. Northover was a Commissary Management Specialist for the Defense Commissary Agency. 

This position is not the type of position that involves mere 

stocking of items on shelves. It is a management position 

that entails carrying out a range of computer assisted 

ordering tasks. The work is described to include generating and utilizing a wide variety of system reports as 

inventory and merchandising management tools. The 

incumbent is responsible for training, overseeing, and 

monitoring the work of lower-grade employees. A Commissary Management Specialist may work uncommon 

tours of duty as required. At bottom, this position does 

not merely involve a “low-level” employee whose duties 

and exposure are inconsequential.

This area of National Security Law is largely about 

preventing human source intelligence gathering in a 

manner which does not, in an open society, unnecessarily 

limit the public’s right to access information about its 

government’s activities. Still, there clearly is a need for 

such prevention. Within the sphere of national security 
32 KAPLAN v. CONYERS

limitations on government employment, our society has 

determined that courts should defer to the agencies’ 

threat limiting expertise. See Egan, 484 U.S. at 528–30.

While threats may change with time, Egan’s analysis 

remains valid. The advent of electronic records management, computer analysis, and cyber-warfare have made 

potential espionage targets containing means to access 

matters concerning national security vastly more susceptible to harm by people without security clearances. The 

mechanics of planting within a computer system a means 

of intelligence gathering are beyond the ken of the judiciary; what matters is that there are today more sensitive 

areas of access than there were when Egan was authored. 

Its underlying analysis, nevertheless, is completely applicable—the President, as Commander-in-Chief, has the 

right and the obligation, within the law, to protect the 

nation against potential threats. Id. at 527.

The potential for arbitrary application of this right 

under the guise of national security is a point of contention for Northover and the Board. These concerns however do not require a different result. Specifically, 

Northover and the Board raise concerns of the likely 

preclusion of judicial review of any alleged constitutional 

and statutory violations (e.g., whistleblower retaliation) 

for federal employees.16 Egan rejected similar concerns of 

16 Petitioners and several amici discuss the terms 

and purposes behind the Whistleblower Protection Act, 

Pub. L. No. 101–12, 103 Stat. 16 (1989) (“WPA”), at great 

length in their briefs. They contend that the WPA limits 

the Executive’s discretion with respect to the termination 

or suspension of individuals in sensitive positions where 

those employment determinations are tied to retaliation 

for the disclosure of certain classes of information. Petitioners and amici contend that Congress exercised its own 

authority to protect national security when it passed the 

WPA because it recognized that disclosures of certain 

 
KAPLAN v. CONYERS 33

arbitrary designations and pretextual removal of federal 

employees, and there is no basis for a different conclusion 

in this case. Indeed, these concerns can no more justify 

review of an eligibility determination than of a clearance

determination. Former Chief Judge Markey’s analysis is 

worth noting:

The . . . underlying rationale is a felt necessity to 

“protect” civilian employees against “arbitrary” 

denials of security clearances. Amicus and the 

majority see the boogy-men of “specious, arbitrary, discriminatory” clearance denials . . . . 

Whence the fear of arbitrary denials? Whence the 

automatic refusal of even a modicum of at least initial trust in Navy officials? Whence the disregard 

of the process (denial response denial appeal final 

denial) conducted by the Navy . . . before denying 

a clearance? . . . . The conjecture that Navy officials might act arbitrarily is not only unwarranted, it is far too weak a reed on which to rest a 

determination that MSPB must decide which employees of the armed forces should be granted security clearances. Given that the responsibility is 

the Navy’s, and given the system of high level, objective, impersonal, decisionmaking employed by 

the Navy in carrying out that responsibility, including the employee’s chance to respond and to 

appeal to higher authority within the agency, I 

can see no reason why, under those circumstances, the Navy should not be allowed to exercise its 

improprieties may actually advance the interests of 

national security. Whether Congress intended to limit 

the authority of the Executive in making employment 

decisions when passing the WPA is not before us, however. There are no whistleblower claims or defenses asserted here. We address only those issues presented by Mr. 

Northover’s case. 

 
34 KAPLAN v. CONYERS

judgment in exercising its authority to grant or 

deny security clearances.

Egan v. Dep’t of Navy, 802 F.2d 1563, 1576–77 (Fed. Cir. 

1986) (Markey, C.J. dissenting), rev’d, 484 U.S. 518 (1988) 

(emphasis in original). Moreover, DoD maintains an 

internal review process of eligibility determinations, 

which undermines the concerns Northover and the Board 

raise. See 32 C.F.R. § 154.56; see also Romero v. Dep’t of 

Def., 658 F.3d 1372, 1374 (Fed. Cir. 2011) (articulating 

the general organizational framework and review process 

used by the DoD when making security clearance determinations). Accordingly, the merits of the Agency determination before us are not reviewable by the Board.

V. CONCLUSION

For the foregoing reasons, the Board cannot review 

the merits of DoD national security determinations concerning eligibility of an employee to occupy a sensitive 

position that implicates national security. There is nothing talismanic about eligibility for access to classified 

information. The core question is whether the Agency

determination concerns eligibility of an employee to 

occupy a sensitive position that implicates national security. When the answer to that question is in the affirmative, Egan applies and the Board plays a limited role in 

its review of the determination. Thus, the Board’s decision with respect to Mr. Northover is reversed and remanded for further proceedings consistent with this 

decision. Ms. Conyers’s appeal is dismissed for lack of 

jurisdiction.

DISMISSED IN PART, REVERSED, AND 

REMANDED
United States Court of Appeals 

for the Federal Circuit ______________________ 

ELAINE D. KAPLAN, Acting Director, Office of 

Personnel Management,

Petitioner,

v.

RHONDA K. CONYERS AND DEVON HAUGHTON 

NORTHOVER,

Respondents,

AND

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2011-3207

______________________ 

Petition for review of the Merit Systems Protection 

Board in Nos. CH0752090925-R-1 and AT0752100184-R1. 

______________________ 

Decided: August 20, 2013

______________________ 

DYK, Circuit Judge, with whom Circuit Judges NEWMAN 

and REYNA join, dissenting. 

The majority opinion upholds sweeping claims by the 

Department of Defense (“DoD”) that it may take adverse 

actions against non-critical sensitive employees without 
2 KAPLAN v. CONYERS

review by the Merit Systems Protection Board (“MSPB” or 

“Board”). The effect is to effectively deny MSPB review for 

hundreds of thousands of federal employees—a number 

that is likely to increase as more positions are designated 

as non-critical sensitive. In my view, the DoD has acted 

without authority from either the President or Congress, 

and contrary to the Civil Service Reform Act of 1978 

(“CSRA”), 5 U.S.C. § 1101 et seq. 

In essence, the majority’s decision rests on the flawed 

premise that the DoD, acting on its own—without either 

Congressional or Presidential authority—has “inherent 

authority” to discharge employees on national security 

grounds. No decision of the Supreme Court or any other 

court supports this proposition. Whatever the policy 

justifications for precluding MSPB review, this is a matter for Congress (and the President), not the DoD, to 

determine. Ironically, the majority rests its decision on 

grounds of separation of powers. But the majority decision 

both blesses and itself engages in a violation of separation 

of powers principles—sustaining agency action without 

either Presidential or Congressional authorization, and 

resting its decision on its own assessment of national 

security requirements. I respectfully dissent.

I 

As an initial matter, the majority’s decision is not 

mandated by, or even supported by, the Supreme Court’s 

decision in Department of the Navy v. Egan, 484 U.S. 518 

(1988). The majority extends Egan to create an implied 

exception to MSPB review of the merits of suitability 

determinations for non-critical sensitive employees—here, 

a commissary employee (Northover) whose job required 

neither a security clearance nor access to classified information.1 

1 As noted in my original panel dissent, see Berry v. 

Conyers, 692 F.3d 1223, 1238 n.1 (Fed. Cir. 2012) (Dyk, J., 

 
KAPLAN v. CONYERS 3

In Egan, the Supreme Court held that the MSPB 

could not review the merits of an agency decision to deny 

an employee a security clearance where that employee 

was required to access classified information as a condition of his employment. See 484 U.S. at 520, 529. The 

majority extends Egan to bar the MSPB from reviewing 

the merits of agency determinations that employees are 

not suitable to hold sensitive positions. In other words, 

the majority extends Egan’s prohibition of MSPB merits 

review of the DoD’s security clearance determinations to 

its suitability determinations (i.e., whether an employee is 

eligible to hold a non-critical sensitive position). 

The majority’s extension of Egan is not supported by 

the language of Egan itself. The Egan opinion emphasizes 

that it decided the “narrow question” of “whether the 

[MSPB] ha[d] authority by statute to review the substance of an underlying decision to deny or revoke a 

security clearance in the course of reviewing an adverse 

action.” 484 U.S. at 520. The majority’s extension of Egan 

marks a departure from our own prior reading of Egan 

and makes it unique among federal courts of appeals. We 

have explained that Egan “held that the [MSPB] has no 

authority to review the merits of a security clearance 

determination.” Cheney v. Dep’t of Justice, 479 F.3d 1343, 

1349-50 (Fed. Cir. 2007) (emphasis added) (citing Egan, 

484 U.S. at 529). Other circuits have similarly characterized Egan as limited to security clearances.2 Indeed, the 

dissenting), the case as to Conyers is moot. The en banc 

majority agrees. See Maj. Op. at 8. While the case as to 

Conyers is moot, that case provides important context as 

to the breadth of the DoD’s claim of authority. I agree 

with the majority that we have jurisdiction over 

Northover’s appeal.

2 See, e.g., Rattigan v. Holder, 689 F.3d 764, 768 

(D.C. Cir. 2012) (noting that Egan “covers only security 

clearance-related decisions”); Zeinali v. Raytheon Co., 636 

 
4 KAPLAN v. CONYERS

Fifth Circuit recently confirmed that “[n]o court has 

extended Egan beyond security clearances.” Toy v. Holder, 

714 F.3d 881, 885 (5th Cir. 2013). 

While the majority appears not to dispute that the actual holding in Egan does not support the DoD’s action 

here, the majority finds in the “principles” of Egan DoD 

authority to remove employees on national security 

grounds. See Maj. Op. at 3, 12. The majority concludes 

that there is no distinction between security clearance 

determinations and suitability determinations when those 

determinations implicate national security. In the majority’s view, because Congressional legislation does not 

forbid the exercise of such authority, the DoD is assumed 

to possess inherent authority. But neither Egan nor any 

other decision of the Supreme Court, this court, or any 

other appeals court supports this remarkable claim of 

inherent authority. Rather, these decisions have rejected 

such claims of independent agency authority.

A 

First, in the Egan case, Egan did not contend that the 

President had failed to delegate authority to the agencies, 

and notably the agencies were specifically authorized by 

Executive Order to make “final” access determinations. 

There is no similar Presidential Order here. The President has not delegated any authority to the DoD to make 

F.3d 544, 549-50 (9th Cir. 2011) (noting that the “core 

holding” of Egan is that “federal courts may not review 

the merits of the executive’s decision to grant or deny a 

security clearance”) ; Duane v. U.S. Dep’t of Def., 275 F.3d 

988, 993 (10th Cir. 2002) (“Egan held that the Navy’s 

substantive decision to revoke or deny a security clearance . . . was not subject to review on the merits by the 

[MSPB].”). 

 
KAPLAN v. CONYERS 5

“final” decisions with respect to suitability determinations. 

The President has traditionally had special authority 

in safeguarding classified information, and has delegated 

that authority—which includes the authority to deny or 

revoke such access—to agencies employing such individuals. Egan recognized and relied on the President’s unique 

authority over classified information. The Egan court 

noted that the President’s “authority to classify and 

control access to information bearing on national security 

. . . exists quite apart from any explicit congressional 

grant.” 484 U.S. at 527. 

While the delegation issue was not raised in Egan, the 

Presidential authority was specifically delegated to the 

relevant agencies. Executive Orders, both at the time of 

Egan and later, prescribed procedures for granting and 

revoking access to classified information, and the agency 

decisions in those respects were explicitly deemed to be 

“final,” unreviewable decisions. See Exec. Order No. 

12,968, § 5.2(a)(6), 3 C.F.R. 391 (1995 Comp.) (appeals 

panel within the agency makes the “final” decision), 

reprinted as amended in 50 U.S.C. § 435; Exec. Order No. 

10,865, § 3, 3 C.F.R. 398 (1959-1963 Comp.) (allowing “an 

authorization for access to a specific classification category” granted by an agency to be “finally denied or revoked”), reprinted as amended in 50 U.S.C. § 435. Thus, 

the President unambiguously delegated to agencies 

determinations as to whether an employee was entitled to 

access classified information. The President here has 

claimed no such executive authority over removal of 

employees on national security grounds, and there is no 

delegation of removal authority to agencies. The majority 

points to no Executive Order delegating removal authority to the DoD.

While the Office of Personnel Management (“OPM”)

suggests that authority can be found in Executive Order 

10,450, that Executive Order confers no authority to 

agencies to make either final classified access or suitabil-
6 KAPLAN v. CONYERS

ity determinations. In Egan the Supreme Court relied on 

Executive Order 10,450 for only two propositions: (1) that 

access to classified information could be granted only 

after a background investigation and (2) the standard for 

such access was that the access was “clearly consistent 

with the interests of the national security.” See Egan, 484 

U.S. at 528 (citing Exec. Order No. 10,450, § 3, 3 C.F.R. 

936 (1949-1953 Comp.), reprinted as amended in 5 U.S.C. 

§ 7311). The Egan court did not rely on the Executive 

Order for the proposition that agencies have “final,” 

unreviewable authority with respect to the necessary 

suitability determinations at issue here—a matter that 

was addressed in the security clearance context by Executive Order 10,865, as referenced above. Notably, a later 

Executive Order specifically distinguished between 10,450 

and 10,865, noting that “denial and revocation procedures” were governed by Executive Order 10,865, as 

amended, and not by Executive Order 10,450. See Exec. 

Order No. 12,968, § 7.2(c), 3 C.F.R. 391 (1995 Comp.). 

Just as Executive Order 10,450 did not render determinations regarding access to classified information 

unreviewable, it also does not render suitability determinations unreviewable, and unlike the situation in Egan, 

there is no other executive order that does so. In other 

words, Executive Order 10,450 does not delegate to agencies either the authority to terminate access to classified 

information (a matter addressed in another executive 

order) or general removal authority where the employee is 

not suitable for a national security position. 

To the extent that Executive Order 10,450 deals with 

removal at all, the executive order does no more than 

provide for removal pursuant to a specific Congressional 

statute authorizing such removal on national security 

grounds, 5 U.S.C. § 7532, a provision not invoked here. 

See Exec. Order No. 10,450 §§ 4-6. This is confirmed by 

the Supreme Court’s decision in Cole v. Young, which 

concluded that
KAPLAN v. CONYERS 7

it is clear from the face of . . . Executive Order 

[10,450] that the President did not intend to override statutory limitations on the dismissal of employees, and promulgated the Order solely as an 

implementation of the 1950 Act [i.e., § 7532]. Thus 

§ 6 of the Order purports to authorize dismissals 

only ‘in accordance with the said Act of August 26, 

1950,’ [§ 7532] and similar references are made in 

§§ 4, 5, and 7 . . . .

351 U.S. 536, 557 n.20 (1956) (emphasis added). At oral 

argument here, OPM conceded that, to the extent that 

Executive Order 10,450 addresses the President’s removal 

authority over employees, it does no more than implement 

§ 7532.3 As the Court in Cole further noted: 

When the President expressly confines his action 

to the limits of statutory authority, the validity of 

the action must be determined solely by the congressional limitations which the President sought 

to respect, whatever might be the result were the 

President ever to assert his independent power 

against that of Congress.

351 U.S. at 557 n.20. Unsurprisingly, then, OPM conceded before the MSPB that its Part 732 regulations, which 

“have their genesis in Executive Order 10[,]450,” did not 

authorize removal procedures and “are silent on the scope 

of an employee’s rights to Board review when an agency 

3 The following exchange occurred:

The Court: [T]he Supreme Court in Cole says 

10,450, insofar as it deals with the removal power, 

is only implementing § 7532, and it is very explicit 

about that.

OPM: That’s correct.

Oral Argument at 5:10-5:30.

 
8 KAPLAN v. CONYERS

deems the employee ineligible to occupy a sensitive position.” J.A. 288. 

In short, Executive Order 10,450 does not authorize 

the DoD’s actions. In contrast to the situation existing at 

the time of Egan, OPM can point to no other Executive 

Order that renders final agency decisions with respect to 

suitability. The lack of delegated authority with respect to 

suitability determinations, as opposed to security clearance determinations, is fatal to OPM’s position. The lack 

of such delegated authority here makes Egan inapposite, 

and the DoD’s actions without authority. 

B 

Second, the few national security and foreign affairs 

cases (other than Egan) on which the majority relies all 

involve situations in which the authority asserted was 

authorized by Congressional legislation or an Executive 

Order of the President. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (“[T]he President was 

authorized to suspend pending claims pursuant to Executive Order No. 12294.” (emphasis added)); United States v. 

Curtiss-Wright Exp. Corp., 299 U.S. 304, 325-28 (1936) 

(various statutes and joint resolutions passed by Congress 

authorized the President to prohibit certain exports from 

the United States).4 None of those cases remotely sup4 See also Boumediene v. Bush, 553 U.S. 723, 732-

33 (2008) (declining to address the question of whether 

the President has authority hold detainees at Guantanamo Bay but holding that the statutes giving the President 

authority to suspend habeas corpus “operate[d] as an 

unconstitutional suspension of the writ”); Lincoln v. Vigil, 

508 U.S. 182, 194 (1993) (holding that an agency decision 

to discontinue a program was authorized by law because 

the action “f[ell] within the [Indian Health] Service’s 

statutory mandate to provide health care to Indian people”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 

579, 585, 588-89 (1952) (rejecting the President’s asser-

 
KAPLAN v. CONYERS 9

ports agency action on national security grounds without 

Congressional or Presidential authority. 

C 

Third, as a general matter, agencies only have such 

removal authority as is conferred by Congressional statute. We are dealing with the DoD’s authority to remove 

employees for national security reasons—either by removing them from a position by demotion as here (in 

Northover’s case) or by discharging them from DoD employment entirely.5 Employees such as Northover who are 

appointed by members of the Executive Branch other 

than the President can only be removed as authorized by 

Congressional legislation. In United States v. Perkins, 116 

U.S. 483, 485 (1886), the Supreme Court made this clear 

in holding that Executive Branch employees not appointed by the President cannot be removed without Congressional authority: 

[W]hen Congress, by law, vests the appointment 

of inferior officers [or civil service employees] in 

the heads of [agencies] it may limit and restrict 

the power of removal as it deems best for the public 

interest. The constitutional authority in Congress 

to thus vest the appointment implies authority to 

limit, restrict, and regulate the removal by such 

laws as Congress may enact in relation to the officers so appointed. The head of a[n] [agency] has 

no constitutional prerogative of appointment to offices independently of the legislation of Congress, 

tion of authority to seize steel mills because “[t]he President’s power, if any, to issue [an] order must stem either 

from an act of Congress or from the Constitution itself”).

5 In the case of Conyers, she was removed from her 

position by an indefinite suspension. 

 
10 KAPLAN v. CONYERS

and by such legislation he must be governed, not 

only in making appointments, but in all that is incident thereto [i.e., removals].

Id. (emphases added). There is no claim here that the 

DoD’s actions bypassing MSPB review were authorized by 

Congress.6 Perkins is directly inconsistent with the DoD’s 

claim of inherent authority to discharge employees appointed by the agency without MSPB review. 

This limitation on agency authority in the removal 

context is a manifestation of the general principle that 

agencies do not have independent authority apart from 

Congressional statute. Agencies may not act “in excess of 

statutory jurisdiction, authority, or limitations, or short of 

statutory right.” 5 U.S.C. § 706. And while the majority 

relies on a variety of DoD regulations to support its 

position, the Supreme Court has held that “[t]he rulemaking power granted to an administrative agency charged 

with the administration of a federal statute is not the 

6 The only statute that the majority cites that appears remotely relevant is 10 U.S.C. § 1564, which states 

that, “[f]or the purposes of” a statutory provision providing for expedited processing of background investigations 

for DoD security clearances, “it is not necessary for the 

performance of duties [of investigated employees] to 

involve classified activities or classified matters in order 

for the duties to be considered sensitive and critical to the 

national security.” See Maj. Op. at 15. This provision was 

merely meant to prioritize some DoD background investigations for positions that require investigations, see H.R. 

Rep. No. 106-945, at 853 (2000) (Conf. Rep.), and does not 

provide any indication that Congress intended to grant 

authority to agencies to take adverse actions, without 

MSPB review, against DoD employees who do not require 

access to classified information.

 
KAPLAN v. CONYERS 11

power to make law. Rather, it is the power to adopt regulations to carry into effect the will of Congress as expressed 

by the statute.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 

213-14 (1976) (emphasis added) (quotation marks omitted). 

D 

Fourth, the Supreme Court has held that agencies 

have no authority, apart from the President and Congress, to take action on grounds of national security. The 

leading decision is Greene v. McElroy, 360 U.S. 474 

(1959). In that case, the petitioner was removed from his 

job in the private sector after his required security clearance was revoked by the Secretary of the Navy, and that 

revocation was affirmed by the Eastern Industrial Personnel Security Board (“EIPSB”). Id. at 481-83, 489-90. 

The court of appeals there determined “that the Executive 

Department alone [wa]s competent to evaluate the competing considerations which exist in determining the 

persons who are to be afforded security clearances,” id. at 

491, much like the majority does here. However, the 

Supreme Court found that the removal procedures established by the agency and the EIPSB “were established by 

. . . the Secretary of Defense or the Secretaries of the 

Army, Navy and Air Force,” and that “[n]one [of the 

procedures] was the creature of statute or of an Executive 

Order issued by the President.” Id. at 495. Accordingly, 

the majority reversed the administrative determination, 

concluding that,

[i]n the context of security clearance cases, . . . it 

must be made clear that the President or Congress, 

within their respective constitutional powers, specifically has decided that the imposed procedures 

are necessary and warranted and has authorized 

their use. Such decisions cannot be assumed by 

acquiescence or nonaction. They must be made

explicitly not only to assure that individuals are 

not deprived of cherished rights under procedures 

not actually authorized, but also because explicit 
12 KAPLAN v. CONYERS

action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and 

implementing our laws. Without explicit action by 

lawmakers, decisions of great constitutional import and effect would be relegated by default to 

administrators who, under our system of government, are not endowed with authority to decide 

them.

Id. at 507 (emphasis added) (internal citations omitted); 

see also Cafeteria & Restaurant Workers Union v. 

McElroy, 367 U.S. 886, 889, 893 (1961) (upholding a 

commanding officer’s decision to deny a cafeteria worker 

access to a military installation where it was “well settled 

that a Post Commander c[ould], under the authority 

conferred on him by statutes and regulations, . . . exclude 

private persons and property therefrom” (emphasis added)). Nothing in Egan purports to overrule Greene (cited 

by the Egan dissent, see 484 U.S. at 536 (White, J., dissenting)), or suggests that agencies can exercise removal 

powers without Presidential or Congressional authorization. Rather, as noted earlier, Egan relies on the existence of Presidential—not agency—authority to determine 

access to classified information.

II

Quite apart from the DoD’s lack of Presidential or 

Congressional authority, the DoD action here is directly 

contrary to the CSRA, which broadly provides for review 

of adverse actions. Congress, by adopting specific national 

security exemptions from MSPB review that do not apply 

to Northover, has confirmed that the statutory MSPB 

review procedures are applicable in other circumstances. 

This determination is binding on both the DoD and the 

President.

When it enacted the CSRA, Congress created a broad 

statutory scheme that was designed to confer upon the 

MSPB extensive review authority over adverse actions 
KAPLAN v. CONYERS 13

affecting government employees. Subchapter II of Chapter 75 of the CSRA gives every “employee” the right to 

seek MSPB review of adverse actions, see 5 U.S.C. 

§ 7513(d), and “employee” includes most government 

employees who have served in either the competitive or 

excepted service for at least one year. See id. § 7511(a)(1). 

Beyond the CSRA’s broad coverage of government employees, the act also provides the MSPB with review 

authority over a broad array of adverse actions, including 

“removals,” “suspension[s] for more than 14 days,” “reduction[s] in grade,” “reduction[s] in pay,” and “furlough[s] of 

30 days or less.” See id. § 7512. Congress made clear when 

it passed the CSRA that “[t]hese provisions [were to] 

govern any [adverse] action where the basis of the agency 

action is misconduct or any other cause besides unacceptable performance.” S. Rep. No. 95-969, at 46 (1978) 

(emphases added). The agency concedes that Northover 

received a demotion, which is among the enumerated 

adverse actions covered by the statute. See 5 U.S.C. 

§ 7512.

Congress granted this broad authority for a reason: by 

providing for MSPB review, civil service employees would 

be “protected against arbitrary action, personal favoritism, and . . . partisan political coercion” that may occur 

within government agencies. S. Rep. No. 95-969, at 19 

(1978). The MSPB was designed as a check on both agency and OPM actions, as “[e]stablishment of a strong and 

independent Board” was designed to “discourage subversions of merit principles.” Id. at 7. In fact, Congress made 

clear that, “[a]bsent . . . [the] mandate for independence 

[of] the Merit Board, it is unlikely that [Congress] would 

have granted [OPM] the power it has or the latitude to 

delegate personnel authority to the agencies.” Id. 

Congress has been notably aware of national security 

issues in the context of government employment. Congress has not created a general national security exception that places limitations on MSPB review or given 

agencies the authority to create such an exception. In-
14 KAPLAN v. CONYERS

stead, Congress created specific exceptions to deal with 

national security issues, balancing the needs of national 

security with the right to MSPB review. None of those 

exceptions is applicable here, and the very existence of 

these numerous exceptions refutes the existence of agency 

authority to create others. 

First, implementing the decision in Egan, Congress 

has authorized agencies to deny access to classified information and has exempted such determinations from 

MSPB review. Congress, in 1994, added Title VIII to the 

National Security Act of 1947, granting the President 

authority to “establish procedures to govern access to 

classified information.” Intelligence Authorization Act for 

Fiscal Year 1995, Title VIII, § 802(a), 108 Stat. 3423, 3435 

(1994) (codified as amended at 50 U.S.C. § 435(a)). The 

statute authorizes the President to establish “uniform 

minimum standards” of procedures for “employees in the 

executive branch . . . whose access to classified information is . . . denied or terminated,” see 50 U.S.C. 

§ 435(a)(5), and makes those standards “binding upon all 

departments, agencies, and offices of the executive branch 

of Government,” id. § 435(a); see also id. § 435(a)(2) (noting that the standards govern Executive Branch employees “who require access to classified information as part of 

their official responsibilities”); id. § 435(a)(3) (same); id. 

§ 435(a)(4) (referring to employees “requir[ing] access to 

particularly sensitive classified information”).7 Consistent 

with Egan, the goal of the statute was to provide minimal 

procedural protections to employees in connection with 

security clearance procedures. See H.R. Rep. No. 103-753, 

7 The executive order implementing this provision 

was Executive Order 12,958, which governed classified 

national security information. See Exec. Order 12,958, 3 

C.F.R. 333 (1995 Comp.). That executive order has since 

been superseded and replaced by Executive Order 13,526, 

3 C.F.R. 298 (2010 Comp.). 

 
KAPLAN v. CONYERS 15

at 54 (1994) (Conf. Rep.). The statute conferred no authority to terminate employees in non-critical sensitive positions that did not require access to classified information. 

Id.8 

Second, Congress, in § 7532, conferred general authority on the heads of government agencies to remove employees where the removal “is necessary or advisable in 

the interests of national security.” 5 U.S.C. § 7532(b). 

While Egan concluded that § 7532 did not provide the sole 

means of ordering the review of security clearances—a 

view confirmed by Carlucci v. Doe, 488 U.S. 93 (1988)9—

8 Along the same lines, Congress amended Title 

VIII in 2004 to require the President to designate an 

agency (ultimately, OPM) that would “conduct . . . security clearance investigations of [government] employees . . . 

who require access to classified information . . . .” Intelligence Reform and Terrorism Prevention Act of 2004, 

§ 3001(c)(1), 118 Stat. 3638, 3707 (emphasis added) 

(codified as amended at 50 U.S.C. § 435b(c)(1)). 

9 In Carlucci, an employee of the National Security 

Agency (“NSA”) was terminated after the employee disclosed to the NSA that he had engaged in homosexual 

relationships with foreign nationals. 488 U.S. at 97-98.

Though Carlucci explained (and the majority emphasizes) 

that the summary removal procedures of 5 U.S.C. § 7532 

and 50 U.S.C. § 833 did not furnish the exclusive basis for 

agency removals on national security grounds, it emphasized that, apart from the summary suspension authority, 

the NSA had a general authority to remove employees for 

national security reasons under 50 U.S.C. § 831. Carlucci, 

488 U.S. at 102-03; see also 50 U.S.C. § 831 (permitting 

the Secretary of Defense to prescribe regulations “to 

assure . . . that no person shall be employed in, or detailed 

or assigned to, the National Security Agency . . . , or 

continue to be so employed . . . unless such employment . . 

 
16 KAPLAN v. CONYERS

the Supreme Court in Egan had no occasion to address 

national security suitability determinations or the impact 

of this exception on the scope of the Civil Service Reform 

Act as to national security suitability determinations. See 

484 U.S. at 532-34. 

Third, before Egan, Congress granted the director of 

the Central Intelligence Agency (“CIA”) plenary authority 

to “terminate the employment of any officer or employee 

of the [CIA] whenever he shall deem such termination 

necessary or advisable in the interests of the United 

States.” National Security Act of 1947, Pub. L. No. 80-253, 

§ 102(c), 61 Stat. 495, 498 (1947) (codified at 50 U.S.C. 

§ 403-4a(e)(1)). In 1964, similarly, Congress exempted 

employees of the National Security Agency (“NSA”) from 

MSPB review. See Act of Mar. 26, 1964, Pub. L. No. 88-

290, § 303(a), 78 Stat. 168, 169. These exemptions covered 

employees of these agencies whether or not their positions 

required access to classified information, and were designed to enable heads of agencies to discharge employees 

based on national security concerns. 

Fourth, after Egan, in 1990, when Congress expanded 

MSPB review to the excepted service, see Pub. L. No. 101-

376, 104 Stat. 461 (1990), it provided that employees of 

the Federal Bureau of Investigation (“FBI”) as well as the 

CIA and NSA were exempted from MSPB review “because 

of their sensitive missions.” H.R. Rep. No. 101-328, at 5.

In 1996, Congress expanded the exemptions from MSPB 

. is clearly consistent with the national security” (emphasis added)). 

Thus, in contrast to this case, a specific statute conferred removal authority on the NSA, and exempted the 

NSA from the CSRA. See 50 U.S.C. § 831; see also Carlucci, 488 U.S. at 96-97 (noting that 50 U.S.C. § 831 was part 

of the NSA Personnel Security Procedures Act, which 

adopted separate removal procedures from the CSRA). 

 
KAPLAN v. CONYERS 17

review even further to include all “intelligence component[s] of the Department of Defense.” 5 U.S.C. § 7511(b); 

see also Department of Defense Civilian Personnel Policy 

Act of 1996, Pub. L. No. 104-201, § 1634(B), 110 Stat. 

2745, 2752 (1996). DoD did not seek, and Congress did not 

grant, such authority over employees in non-intelligence 

components of the DoD. 

Then, also in 1996, Congress granted the Secretary of 

Defense the authority to “terminate . . . any employee in a 

defense intelligence position,” regardless of whether the 

employee was part of an intelligence component, where he 

“determine[d] that the procedures prescribed in other 

provisions of law that authorize the termination of the 

employment of such employee [e.g., § 7513] cannot be 

invoked in a manner consistent with the national security.” 10 U.S.C. § 1609(a)-(b) (emphasis added); see Department of Defense Civilian Personnel Policy Act of 1996, 

Pub. L. 104-201, sec. 1632(a), 110 Stat. 2745, 2748 (1996) 

(relevant portion codified as amended at 10 U.S.C. 

§ 1609). These terminations are “final and may not be 

appealed or reviewed outside the [DoD].” 10 U.S.C. 

§ 1609(b). Unlike § 7532, the provision “does not affect the 

right of the employee involved to seek or accept employment with any other department or agency of the United 

States if that employee is declared eligible for such employment by the Director of [OPM].” 10 U.S.C. § 1609(d).

Fifth, in 2003, Congress took further action to limit 

MSPB merits review of certain national security employees under Chapter 75 of the CSRA. See National Defense 

Authorization Act for Fiscal Year 2004, Pub. L. No. 108-

136, § 1101, 117 Stat. 1392, 1621-33 (2003). The legislation empowered the Director of OPM to establish a National Security Personnel System (“NSPS”). Id. § 1101(a) 

(codified at 5 U.S.C. § 9902(a) (2006)). It allowed OPM to 

establish appeal procedures separate from the MSPB’s 

procedures. See id. (codified at 5 U.S.C. § 9902(h)(1)(A) 

(2006)). Though the MSPB review standards were to 

apply by default in the NSPS, Congress made clear that 
18 KAPLAN v. CONYERS

the standards were not to apply where “such standards 

and precedents [we]re inconsistent with legal standards 

established [by the Secretary].” Id. (codified at 5 U.S.C. 

§ 9902(h)(3) (2006)) (emphasis added). By creating this 

exception, then, Congress allowed the Secretary of Defense to bypass the independent MSPB review process—

and to do so with respect to any employee, including those 

who did not require security clearances. And that is 

exactly what the Secretary did.10 However, on January 

10 After obtaining the statutory authorization described above, the Secretary of Defense promulgated 

regulations in 2005 that limited the MSPB’s authority 

and independence in cases that implicated national 

security. See Department of Defense Human Resources 

Management and Labor Relations Systems, 70 Fed. Reg.

66,116 (Nov. 1, 2005). Though the regulations maintained 

MSPB review in some form, to the extent that the MSPB 

retained review over adverse action appeals it was bound 

to interpret the implementing regulations “in a way that 

recognize[d] the critical national security mission of the 

Department.” Id. at 66,192 (codified at 5 C.F.R. 

§ 9901.107(a)(2) (2006)); see also id. at 66,208 (codified at 

5 C.F.R. § 9901.802 (2006)) (noting that the MSPB would 

be bound by the legal standard set forth in 

§ 9901.107(a)(2)). 

The regulations, moreover, expressly waived and superseded MSPB appellate procedures to the extent those 

procedures were inconsistent with other regulations. Id. 

at 66,208 (codified at 5 C.F.R. § 9901.803 (2006)). MSPB 

AJ decisions could be modified or reversed by the DoD 

“[w]here it [was] determined that the initial AJ decision 

ha[d] a direct and substantial adverse impact on the 

Department’s national security mission.” Id. at 66,210 

(codified at 5 C.F.R. §9901.807(g)(2)(ii)(B) (2006)). The 

Secretary of Defense could also designate offenses as 

mandatory removal offenses “in his or her sole, exclusive, 

and unreviewable discretion” where he or she determined 

 
KAPLAN v. CONYERS 19

28, 2008, Congress eliminated the DoD’s authority to 

create a separate appeals process and invalidated those 

regulations that would have restricted the MSPB’s review 

authority. See National Defense Authorization Act for 

Fiscal Year 2008, Pub. L. No. 110-181, § 1106(a),(b)(3), 

122 Stat. 3, 349, 356-57.11 

The evolution of these numerous exceptions to MSPB 

review in the national security context confirm that 

Congress did not create or authorize a general national 

security exemption from MSPB review. This extensive 

Congressional action is quite inconsistent with the majority’s view that the DoD has inherent authority to remove 

employees on national security grounds without MSPB 

review. If the DoD had such inherent authority there 

would have been no need for these detailed and specific 

Congressional actions. There is also not the slightest 

suggestion in the long series of Congressional actions that 

it viewed the DoD as having inherent authority to remove 

employees on national security grounds without MSPB 

review. The majority’s contrary view is inconsistent with 

established authority holding that “‘[w]here Congress 

that the offense “has a direct and substantial adverse 

impact on the Department’s national security mission.” 

Id. at 66,190 (codified at 5 C.F.R. § 9901.103 (2006)) 

(emphasis added) (definition of “Mandatory removal 

offense”). 

11 The remaining statutory provisions creating the 

NSPS were ultimately repealed on October 28, 2009. See 

National Defense Authorization Act for Fiscal Year 2010, 

Pub. L. No. 111-84, § 1113(b)-(c), 123 Stat. 2190, 2498 

(2009) (repealing the NSPS and invalidating all regulations implementing the NSPS, noting that such regulations “shall cease to be effective as of January 1, 2012”); 

see also National Security Personnel System, 76 Fed. Reg. 

81,359 (Dec. 28, 2011) (repealing regulations implementing the NSPS effective January 1, 2012).

 
20 KAPLAN v. CONYERS

explicitly enumerates certain exceptions to a general 

prohibition, additional exceptions are not to be implied, in 

the absence of evidence of a contrary legislative intent.’” 

Hillman v. Maretta, 569 U.S. ___, ___, 133 S. Ct. 1943, 

1953 (2013) (quoting Andrus v. Glover Constr. Co., 446 

U.S. 608, 616-17 (1980)); see also TRW Inc. v. Andrews, 

534 U.S. 19, 28 (2001) (same); United States v. Brockamp, 

519 U.S. 347, 352 (1997) (noting that an “explicit listing of 

exceptions . . . indicate[s] to us that Congress did not 

intend courts to read other unmentioned . . . exceptions 

into the statute”). Congress’s careful creation and, in one 

case, elimination of national security exceptions is directly inconsistent with the majority’s claim that the DoD 

possesses inherent authority apart from the CSRA to 

discharge employees on national security grounds without 

MSPB review. 

The majority makes a specious attempt to suggest 

that some of these numerous Congressional actions were 

not motivated by national security concerns. No objective 

reading of these Congressional actions can avoid the 

conclusion that national security and employment was a 

matter of intense Congressional concern and that Congress legislated repeatedly in this area to accommodate 

these national security concerns. Neither the existence of 

non-security related exemptions for other agencies promulgated in the 1990 amendments to the CSRA nor Congressional concern with employee bargaining rights in 

repealing the NSPS should indicate that these Congressional actions were not the product of a Congressional 

decision to strike an appropriate balance between national security concerns and the right to MSPB review, a 

balance that is deeply undermined by today’s decision.12 

12 With regard to the majority’s suggestion that collective bargaining was the motivation for repealing the 

NSPS, the 2008 amendment to the collective bargaining 

provisions had nothing to do with the repeal of the Chap-

 
KAPLAN v. CONYERS 21

III

Finally, even if the CSRA were ambiguous (which it is 

not), the Board (and not the DoD or OPM) is charged with 

administering the pertinent adverse action provisions of 

Chapter 75 of the CSRA. See 5 U.S.C. §§ 1204, 7701. The 

Board has concluded that it has jurisdiction over national 

security removals (not involving access to classified information), and Chevron requires that we defer to the 

MSPB’s interpretation of its own jurisdiction. See Chevron 

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 

837 (1984).

In Egan, the MSPB held that it lacked jurisdiction 

over “underlying security clearance determination[s].” 

Egan v. Dep’t of the Navy, 28 M.S.P.R. 509, 514-15, 519-20 

(1985). Here, in contrast, the Board, interpreting the 

pertinent sections of the CSRA, concluded that its jurisdiction to review adverse actions extended to review of the 

underlying suitability determination. Conyers v. Dep’t of 

Defense, 115 M.S.P.R. 572, 577, 585-86 (2010); Northover 

v. Dep’t of Defense, 115 M.S.P.R. 451, 456, 464 (2010). 

The Board reasoned that 5 U.S.C. § 1204 directs the 

Board to “adjudicate . . . all matters within [its] jurisdiction,” and that employees subjected to adverse actions, as 

ter 75 exemption authority or the repeal of the regulations restricting adverse action appeal rights. As the 

Department of Defense itself noted, the restoration of 

adverse action appeal rights to its employees was designed to “[b]ring[] NSPS under Governmentwide rules 

for disciplinary actions and employee appeals of adverse 

actions.” National Security Personnel System, 73 Fed. 

Reg. 56,344, 56,346 (Sept. 26, 2008). The provisions of the 

NSPS concerning collective bargaining were contained in 

subsection (m) of 5 U.S.C. § 9902, whereas the provisions 

relating to adverse action appeal rights were contained in 

subsection (h), and had nothing to do with collective 

bargaining.

 
22 KAPLAN v. CONYERS

defined in §§ 7511 and 7512, are “entitled to appeal to the 

[Board] under section 7701.” See Conyers, 115 M.S.P.R. 

at 577; see also 5 U.S.C. §§ 1204, 7511, 7512. The Board 

considered and rejected OPM’s argument that it could not 

review the merits of national security determinations 

underlying adverse actions. Conyers, 115 M.S.P.R. at 

578–86. 

In City of Arlington, Texas v. Federal Communications 

Commission, which was decided after briefing in this case, 

the Supreme Court made clear that Chevron deference 

extends to an agency’s interpretation of its own jurisdictional statutes, 569 U.S. ___, ___, 133 S. Ct. 1863, 1868 

(2013), holding that “no exception exists to the normal 

[deferential] standard of review for jurisdictional or legal 

question[s] concerning the coverage of an Act.” Id. at 1871 

(quoting NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 

830 n.7 (1984)) (internal quotation marks omitted). In 

other cases, both our court and the Supreme Court have 

afforded Chevron deference to Board interpretations of 

the CSRA. See Cornelius v. Nutt, 472 U.S. 648, 659 

(1985); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 

1338 (Fed. Cir. 2006) (en banc); Tunik v. Merit Sys. Prot. 

Bd., 407 F.3d 1326, 1336 (Fed. Cir. 2005); see also Lovshin 

v. Dep’t of the Navy, 767 F.2d 826, 840 (Fed. Cir. 1985) 

(acknowledging that “deference is appropriately given to 

the MSPB’s interpretation of the CSRA”). Here, the 

Board resolved the statutory ambiguity in a formal adjudication. See Conyers, 115 M.S.P.R. 572; Northover, 115 

M.S.P.R. 451. Formal adjudications are entitled to deference. See, e.g., Fed’n of Fed. Emps., Local 1309 v. Dep’t of 

the Interior, 526 U.S. 86, 89-90, 98-99 (1999). Thus, deference is due to the Board’s interpretation of its authority, 

just as deference would have been due to the MSPB’s 

interpretation that it lacked merits review jurisdiction in 

Egan. 

IV

Ultimately, the majority decision rests on its policy 

judgment that the MSPB should not review suitability 
KAPLAN v. CONYERS 23

determinations based on national security. For example, 

the majority urges that the Board is unable to make 

judgments about national security issues and that the 

“efficiency of the service” standard implemented by the 

Board does not leave room for the assessment of predictive judgments as to national security. As the Board 

points out, while the Board cannot make judgments about 

security clearances, the Board is required to make judgments in a wide variety of areas as to the suitability of 

employees. Indeed, in several cases the MSPB has made 

predictive judgments as to whether an employee is suitable to hold a position, even positions that have an apparent nexus with national security and have striking 

similarities to the positions at issue here.13 As with 

Northover, whose adverse action was taken against him 

on the basis of delinquent finances, the MSPB has made 

predictive judgments under the efficiency of the service 

standard on the basis of delinquent finances.14

13 See, e.g., Adams v. Dep’t of the Army, 105 M.S.P.R. 

50, 55 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008) 

(upholding the Army’s removal of an employee deemed 

unsuitable to access a computer system that “provide[d] 

employees with access to sensitive information” that was

“not classified” and did not require a security clearance); 

Jacobs v. Dep’t of the Army, 62 M.S.P.R. 688, 694-95

(1994) (affirming an AJ’s decision to uphold a 30-day 

suspension for a security officer who protected a facility 

containing chemical weapons).

14 See Adams, 105 M.S.P.R. at 56-57; see also James 

v. Dale, 355 F.3d 1375, 1379 (Fed. Cir. 2004) (“The Board 

routinely evaluates such factors as loyalty, trustworthiness, and judgment in determining whether an employee’s discharge will promote the efficiency of the service.”

(quotation marks omitted)); Cornish v. Dep’t of Commerce, 

10 M.S.P.R. 382, 383-85 (1982) (assessing an employee’s 

bad debt and its impact on the efficiency of the service).

 
24 KAPLAN v. CONYERS

At the end of the day, there may be good policy reasons to cabin MSPB review of adverse actions based on 

national security suitability determinations. But Congress has made a judgment to restrict, rather than eliminate, MSPB review in the area of national security. If 

broader authority is necessary, the affected agencies must 

seek such authority from Congress or the President, as 

they have done in the past. What agencies cannot do is 

claim authority when that authority has not been delegated by either Congress or the President.

V 

The consequences of the majority’s decision will be 

profound. In the DoD alone, it will affect at least 200,000 

non-critical sensitive civilian employees whose positions 

do not require access to security clearances, as OPM 

conceded at oral argument. Numerous employees in other 

agencies will be affected as well, as agencies other than 

DoD designate positions as non-critical sensitive. For 

example, agencies under the umbrellas of the Department 

of Homeland Security (such as the Transportation Security Administration), the Department of Energy, the Department of State, and the Justice Department designate 

positions as non-critical sensitive.15 There are dozens of 

15 U.S. Gov’t Accountability Office, GAO-12-800, 

Agencies Need Clearly Defined Policy for Determining 

Civilian Position Requirements 31-32 (2012); National 

Security Position Handbook, 440-7-H, App. A (2004),

available at http://www.usgs.gov/usgsmanual/handbook/hb/440-7-h/440-7-h-appa.html; 3 U.S. 

Department of State Foreign Affairs Manual (2012),

available at 

http://www.state.gov/documents/organization/84853.pdf; 

Department of Justice, Report No. I-97-06, Oversight of 

Background Investigations by the Security and Emergency 

Planning Staff (1997), available at

http://www.justice.gov/oig/reports/OBD/e9706.htm. 

 
KAPLAN v. CONYERS 25

pending appeals before the MSPB involving individuals 

who suffered an adverse action based on their purported 

ineligibility to hold a sensitive position that await our 

court’s disposition in this case.16 MSPB review of these 

16 These cases have generally been dismissed without prejudice and will be reopened when this en banc 

decision is issued. See Anderson v. Dep’t of Def., No. CH0752-12-0425-I-2, 2012 MSPB LEXIS 5193 (M.S.P.B. 

Sept. 11, 2012) (accounting technician, removal); Brown v. 

Dep’t of Def., No. CH-0752-12-0405-I-2, 2012 MSPB 

LEXIS 6373 (M.S.P.B. Oct. 26, 2012) (accountant, removal); Cobb v. Dep’t of Def., No. CH-0752-12-0412-I-2, 2012 

MSPB LEXIS 6379 (M.S.P.B Oct. 26, 2012) (accounting 

technician, removal); Ebrahimi v. Dep’t of the Air Force, 

No. AT-0752-12-0763-I-1, 2012 MSPB LEXIS 5507 

(M.S.P.B. Sept. 21, 2012) (electronics engineer, removal); 

Goodwin v. Dep’t of Def., No. CH-0752-13-0402-I-1, 2013 

MSPB LEXIS 2006 (M.S.P.B. Apr. 15, 2013) (military pay 

technician, suspension without pay); Grimes v. Dep’t of 

Def., No. AT-0752-12-0334-I-2, 2012 MSPB LEXIS 5394 

(M.S.P.B Sept. 17, 2012) (supervisory store associate, 

demotion); Hall v. Dep’t of Energy, No. AT-0752-12-0134-

I-1, 2012 MSPB LEXIS 107 (M.S.P.B. Jan. 10, 2012) 

(courier, removal); Harris v. Dep’t of Def., No. CH-0752-

12-0479-I-2, 2012 MSPB LEXIS 5232 (M.S.P.B Sept. 11, 

2012) (military pay technician, removal); Ingram v. Dep’t 

of Def., No. DC-0752-10-0264-B-1, 2012 MSPB LEXIS 

4999 (M.S.P.B. Aug. 28, 2012) (supervisory commissary 

store associate, demotion); Kennedy v. Dep’t of Def., No. 

CH-0752-13-0499-I-1, 2013 MSPB LEXIS 2953 (M.S.P.B. 

June 4, 2013) (management and program analyst, removal); Leclerc v. Dep’t of Def., 2013 MSPB LEXIS 316 

(M.S.P.B. Jan. 18, 2013) (accounting technician, suspension without pay and removal); Lewis v. Dep’t of Def., No. 

CH-0752-12-0542-I-2, 2012 MSPB LEXIS 5248 (M.S.P.B. 

Sept. 11, 2012) (accounting technician, removal); 

Mastrogiovanni v. Dep’t of Def., No. NY-0752-11-0130-I-2, 

 
26 KAPLAN v. CONYERS

and many more such appeals will inevitably be foreclosed 

by the majority’s holding, even though the majority purports to limit its holding to the DoD. These appeals will 

involve a wide range of positions, including accounting 

technician and commissary positions (like those held by 

Conyers and Northover), as well as secretarial, human 

resources, contract specialist, engineering, and other 

positions. See supra note 16. These appeals will not just 

2012 MSPB LEXIS 5361 (M.S.P.B. Sept. 18, 2012) (accounting technician, removal); McFarland v. Dep’t of Def., 

No. CH-0752-11-0648-I-2, 2012 MSPB LEXIS 5261 

(M.S.P.B. Sept. 10, 2012) (financial management analyst, 

removal); McFarland v. Dep’t of the Navy, No. AT-0752-

11-0431-I-1, 2011 MSPB LEXIS 6527 (M.S.P.B. Oct. 17, 

2011) (medical records technician, removal); Medley v. 

Dep’t of Def., No. DC-0752-13-0167-I-1, 2013 MSPB 

LEXIS 831 (Feb. 13, 2013) (human resources specialist, 

demotion); Morgan v. Dep’t of Def., No. PH-0752-12-0343-

I-3, 2013 MSPB LEXIS 793 (Feb. 12, 2013) (accounting 

technician, removal); Quarles v. Dep’t of Def., No. CH0752-12-0451-I-2, 2012 MSPB LEXIS 5251 (M.S.P.B Sept. 

11, 2012) (contact representative, removal); Sawyer v. 

Dep’t of the Air Force, No. AT-0752-12-0249-I-1, 2012 

MSPB LEXIS 5298 (M.S.P.B. Sept. 10, 2012) (contract 

specialist, removal); Scott v. Dep’t of Def., No. CH-0752-

12-0579-I-2, 2012 MSPB LEXIS 6376 (M.S.P.B. Oct. 26, 

2012) (secretary, removal); Sohn v. Dep’t of the Navy, No. 

SH-0752-12-0639-I-1, 2012 MSPB LEXIS 6610 (M.S.P.B. 

Nov. 6, 2012) (electronics engineer, indefinite suspension); 

Spivey v. Dep’t of Def., No. CH-0752-13-0361-I-1, 2013 

MSPB LEXIS 1846 (M.S.P.B. Apr. 4, 2013) (military pay 

technician, removal); Warner v. Dep’t of Def., No. CH0752-13-0228-I-1, 2013 MSPB LEXIS 629 (M.S.P.B. Feb. 

1, 2013) (accounting technician, removal); Williams v. 

Dep’t of Def., No. CH-0752-12-0416-I-2, 2012 MSPB 

LEXIS 5327 (M.S.P.B. Sept. 11, 2012) (military pay 

technician, removal).

 
KAPLAN v. CONYERS 27

apply to removals, but will also apply to suspensions, 

demotions, reductions in grade or pay, and numerous 

other adverse actions that effectively remove employees 

from national security positions. See id. Meanwhile, the 

number of employees affected is likely to increase, as a 

new rule proposed by OPM would allow agencies to designate as non-critical sensitive any “[p]ositions not requiring eligibility for access to classified information, but 

having the potential to cause significant or serious damage to the national security.” Designation of National 

Security Positions in the Competitive Service, and Related 

Matters, 78 Fed. Reg. 31,847, 31,849 (May 28, 2013) (to be 

codified at 5 C.F.R. § 1400.201(a)(1)(ii)). If positions of 

grocery store clerk and accounting secretary are deemed 

to be sensitive, it is difficult to see which positions in the 

DoD or other executive agencies would not be deemed 

sensitive.

Finally, while the majority purports to reserve the issue, the rights of these employees under Title VII and the 

Whistleblower Protection Act will be affected as well, as 

the Board has made clear that extending Egan would 

“preclude Board and judicial review of alleged unlawful 

discrimination, whistleblower retaliation, and a whole 

host of other constitutional and statutory violations.” 

Conyers, 115 M.S.P.R. at 585. This is in accord with 

numerous decisions holding that such claims are precluded where the basis for agency action is the denial of a 

security clearance.17 

17 See El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d 

176, 184-86 (3d Cir. 2011) (holding that a plaintiff could 

not prevail on his First Amendment and Fifth Amendment claims where he alleged his security clearance had 

been revoked in retaliation for constitutionally protected 

speech or based on his religion or national origin); Bennett 

v. Chertoff, 425 F.3d 999, 1003 (D.C. Cir. 2005) (“While 

[the plaintiff] claims that [the agency’s] security clearance 

 
28 KAPLAN v. CONYERS

I respectfully dissent.

explanation is pretextual, . . . a court cannot adjudicate 

the credibility of that claim.”); Hesse v. Dep’t of State, 217 

F.3d 1372, 1377-80 (Fed. Cir. 2000) (holding that the 

MSPB lacks jurisdiction where a petitioner alleges that 

his security clearance had been revoked in retaliation for 

whistleblowing); Perez v. FBI, 71 F.3d 513, 514-15 (5th 

Cir. 1995) (“Because the court would have to examine the 

legitimacy and the possibly pretextual nature of the 

[agency’s] proffered reasons for revoking the employee’s 

security clearance, any Title VII challenge to the revocation would of necessity require some judicial scrutiny of 

the merits of the revocation decision.” (footnote omitted));

Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 196 (9th Cir. 

1995) (noting that “a Title VII analysis necessarily requires the court to perform some review of the merits of 

the security clearance decision”).