UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2010 MSPB 248 

Docket No. AT-0752-10-0184-I-1 

Devon Haughton Northover, 

Appellant, 

v. 

Department of Defense, 

Agency. 

December 22, 2010 

Andres M. Grajales, Esquire, Washington, D.C., for the appellant. 

Stacey Turner Caldwell, Esquire, Fort Lee, Virginia, for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

Member Rose issues a dissenting opinion. 

OPINION AND ORDER

¶1 This appeal is before the Board on interlocutory appeal from the April 2, 

2010 order of the chief administrative judge (CAJ) of the Board’s Atlanta 

Regional Office. The CAJ stayed the proceedings and certified for Board review 

his ruling that he would apply the limited scope of Board review set forth in 

Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), in adjudicating the 

appellant’s reduction in grade. For the reasons discussed below, we REVERSE 

the CAJ’s ruling, VACATE the stay order, and RETURN the appeal to the CAJ 

for further adjudication consistent with this Opinion and Order. 
2

BACKGROUND1

¶2 Effective December 6, 2009, the agency reduced the appellant in grade 

from the competitive service position of GS-1144-07 Commissary Management 

Specialist (CAO) to part-time GS-1101-04 Store Associate at the Defense 

Commissary Agency (DCA). 2

 Interlocutory Appeal File (IAF), Tab 4, Subtabs 

4b, 4d, 4e. The agency took the action “due to revocation/denial of your 

Department of Defense eligibility to occupy a sensitive position.” Id., Subtab 4e 

at 1. In its notice of proposed demotion, the agency stated that the appellant was 

in a position which was “designated as a sensitive position,” and that its 

Washington Headquarters Services (WHS), Consolidated Adjudications Facility 

(CAF) had denied him “eligibility for access to classified information and/or 

occupancy of a sensitive position.” Id., Subtab 4h at 1. 

¶3 The appellant filed a Board appeal of his reduction in grade. IAF, Tab 1. 

In responding to the appeal, the agency asserted that: (1) Pursuant to Executive 

Order No. 10,450, as amended, and 5 C.F.R. Part 732, it had designated the 

Commissary Management Specialist (CAO) position a “moderate risk” national 

security position with a sensitivity level of “non-critical sensitive” (NCS); (2) 

under Egan, the Board is barred from reviewing the merits of an agency’s 

“security-clearance/eligibility determination;” and (3) the Egan limited scope of 

Board review applies to the decision to deny an individual eligibility to occupy a 

national security position. Id., Tab 4, Subtab 1 at 1, 4-5. 

 

1

 In deciding this interlocutory appeal, we have relied on the current evidentiary record, 

the undisputed allegations of the parties, and the parties’ stipulations. Because the 

record is not fully developed, the CAJ should reopen the record when deciding the 

appeal. Except for the parties’ stipulations, he may reexamine any factual matter 

mentioned in this Opinion and Order. See, e.g., Olson v. Department of Veterans 

Affairs, 92 M.S.P.R. 169, ¶ 2 n.1 (2002). 

2 The appellant was a permanent employee with a service computation date of 

September 8, 2002. Interlocutory Appeal File, Tab 4, Subtab 4b. 
3

¶4 On April 2, 2010, the CAJ issued a Ruling on Motions for Clarification of 

Burdens of Proof and Certification for Interlocutory. IAF, Tab 16. He noted that 

the agency contended the limited scope of Board review set forth in Egan applied 

to this appeal and that the appellant urged the Board not to apply or expand Egan. 

Id. at 1-2. The CAJ ruled that he was bound by the Egan limitations and certified 

his ruling to the Board on his own motion after finding that the regulatory 

requirement for certifying his ruling had been satisfied. He stayed the proceeding 

pending the Board’s resolution of the certified issue. Id. at 3. 

¶5 The Board found that this interlocutory appeal presented the same legal 

issue as that presented by the interlocutory appeal in Conyers v. Department of 

Defense, MSPB Docket Nos. CH-0752-09-0925-I-1 and CH-0752-09-0925–I-2. 

The Board determined that, before deciding these appeals, it was appropriate to 

permit the Office of Personnel Management (OPM) and interested amici to 

express their views on the issue. The Board therefore asked OPM to provide an 

advisory opinion interpreting its regulations in 5 C.F.R. Part 732, National 

Security Positions. IAF, Tab 6. In doing so, the Board stated that the appellant 

occupied a position that the agency had designated NCS pursuant to 5 C.F.R. 

§ 732.201(a), id. at 1, 3 and that the appeal “raise[d] the question of whether, 

pursuant to 5 C.F.R. Part 732, National Security Positions, the rule in Egan also 

applies to an adverse action concerning a [NCS] position due to the employee 

having been denied continued eligibility for employment in a sensitive position,” 

id. at 2. The Board also issued a notice of opportunity to file amicus briefs in 

these appeals. 75 Fed. Reg. 6728 (Feb. 10, 2010). OPM submitted an advisory 

 

3

 The CAJ found that the agency had classified the Commissary Management Specialist 

(CAO) position as NCS, IAF, Tab 16 at 2, and the Board repeated this in its request to 

OPM, id., Tab 6. The appellant asserted, however, that his position was not classified 

as NCS. See, e.g., IAF, Tab 14 at 1 n.1, Tab 22, Comments at 6 n.1. Because of the 

interlocutory appeal, the parties were not given an adequate opportunity to address this 

factual matter below. Therefore, if necessary, the CAJ should address the issue on 

return of this appeal. 
4

opinion and a supplementary letter, five amici submitted briefs,4

 and the parties 

submitted additional argument. IAF, Tabs 8-11, 13-15, 21-22. 

¶6 On September 21, 2010, the Board held oral argument in Conyers and 

Northover.

5

 The Board heard argument from the appellants’ representative, the 

agency’s representatives, and representatives for the amici from the Government 

Accountability Project and the National Treasury Employees Union.6

 The Board 

allowed the parties and amici to submit written closing arguments by October 5, 

2010. Tr. at 79; IAF, Tab 44. The parties, the National Treasury Employees 

Union, and the Government Accountability Project submitted closing arguments. 

IAF, Tabs 45-46, 48-49. In addition, on October 5, 2010, the Office of the 

Director of National Intelligence (ODNI), Office of General Counsel requested an 

opportunity to file an “advisory opinion,” id., Tab 47, and the Board granted 

ODNI an opportunity to submit a statement presenting its position, id., Tab 50. 

The Board also provided the parties and amici with an opportunity to reply to 

ODNI’s filing. Id. ODNI filed a statement and the appellant filed a response to 

the statement. Id., Tabs 51, 52. The record closed on October 25, 2010. Id., Tab 

50. The Board has considered the entire record in ruling on this interlocutory 

appeal. 

 

4

 The five amici are the American Federation of Government Employees, which also 

represents the appellant; the National Treasury Employees Union; the National 

Employment Lawyers Association/Metropolitan Washington Employment Lawyers 

Association; the Equal Employment Opportunity Commission; and the Government 

Accountability Project. IAF, Tab 8-11, 13. 

5

 The agency submitted several motions to dismiss the appeal as moot, which were 

opposed by the appellant. The Board denied these motions on the basis that the agency 

failed to meet the criteria for finding the appeal moot. IAF, Tabs 28-29, 35-36, 42-44. 

While continuing to so argue, id., Tab 46, Br. at 1 n.1, the agency has nevertheless 

failed to demonstrate that this appeal is moot for the reasons the Board explained in its 

previous orders. If necessary, the CAJ should address the mootness issue on return of 

this appeal. 

6 OPM declined the Board’s invitation to present oral argument. IAF, Tab 31, 

Transcript (Tr.) at 4. 
5

ANALYSIS

The CAJ properly certified his ruling for review on interlocutory appeal.

¶7 An interlocutory appeal is an appeal to the Board of a ruling made by an 

administrative judge during a proceeding. An administrative judge may certify an 

interlocutory appeal if he determines that the issue presented is of such 

importance to the proceeding that it requires the Board’s immediate attention. 

Either party may make a motion for certification of an interlocutory appeal, or the 

administrative judge may certify an interlocutory appeal on his own motion. If 

the appeal is certified, the Board will decide the issue and the administrative 

judge will act in accordance with the Board’s decision. See 5 C.F.R. § 1201.91. 

¶8 An administrative judge will certify a ruling for review if the record shows 

that the ruling involves an important question of law or policy about which there 

is substantial ground for difference of opinion; and an immediate ruling will 

materially advance the completion of the proceeding, or the denial of an 

immediate ruling will cause undue harm to a party or the public. See 5 C.F.R. 

§ 1201.92. An administrative judge has the authority to stay the hearing while an 

interlocutory appeal is pending with the Board. 5 C.F.R. § 1201.93(c). 

¶9 We find that the requirements for certifying a ruling on interlocutory 

appeal have been satisfied in this appeal. Previously, in Crumpler v. Department 

of Defense, 113 M.S.P.R. 94 (2009),7

 the Board recognized that the legal issue 

presented here would have potentially far-reaching implications across the federal 

civil service. Id., ¶ 6. Thus, the CAJ’s ruling involves an important question of 

law or policy. Moreover, we find that there is substantial ground for difference 

of opinion concerning the question of whether the limited scope of Board review 

set forth in Egan applies here and that an immediate ruling will materially 

advance the completion of the proceeding. Therefore, the CAJ properly certified 

 

7

 A settlement agreement was reached in Crumpler before the Board had the occasion to 

address the issue. 
6

his ruling for review on interlocutory appeal. See, e.g., Fitzgerald v. Department 

of the Air Force, 108 M.S.P.R. 620, ¶ 6 (2008). 

This appeal does not warrant application of the limited Board review prescribed 

in Egan. 

¶10 In creating the Merit Systems Protection Board, Congress expressly 

mandated that the Board adjudicate all matters within its jurisdiction. 5 U.S.C. 

§ 1204. Congress further provided that an employee, as defined in 5 U.S.C. 

§ 7511, against whom certain adverse actions are taken, has the right to invoke 

the Board’s jurisdiction under 5 U.S.C. § 7701. 5 U.S.C. § 7513(d). Such 

appealable adverse actions include reductions in grade. 5 U.S.C. § 7512(3). 

Congress also clearly delineated the scope of our review in non-performance 

adverse action appeals by requiring that the Board determine whether the 

agency’s decision is supported by preponderant evidence and promotes the 

efficiency of the service, and whether the agency-imposed penalty is reasonable. 

See 5 U.S.C. §§ 7513(a); 7701(b)(3) and (c)(1); 8 Gregory v. Department of 

Education, 16 M.S.P.R. 144, 146 (1983). More specifically, in appeals such as 

this, when the charge involves an agency’s withdrawal of its certification or 

approval of an employee’s fitness or other qualification for the position, the 

Board has consistently recognized that its adjudicatory authority extends to a 

review of the merits of that withdrawal. See Adams v. Department of the Army,

105 M.S.P.R. 50, ¶ 10 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008). 

¶11 The instant appeal falls squarely within our statutory jurisdiction. 

Specifically, at the time of the action giving rise to this matter, the appellant had 

been a permanent employee in the competitive service with a service computation 

date of September 8, 2002. IAF, Tab 4, Subtab 4b. He therefore comes within 

 

8

 The Board’s review may also include assessing whether, when taking the adverse 

action, an agency has engaged in a prohibited personnel practice such as, e.g., race 

discrimination, disability discrimination, or reprisal for protected whistleblowing. 

5 U.S.C. §§ 7701(c)(2)(B), 2302(b). 
7

the definition of “employee” in 5 U.S.C. §§ 7511(a)(1)(A)(ii), which the agency 

does not dispute. On December 6, 2009, DCA reduced him in grade from his 

position of GS-1144-07 Commissary Management Specialist (CAO) to part-time 

GS-1101-04 Store Associate. Id., Subtabs 4b, 4d, 4e. That reduction in grade 

constitutes an appealable action under 5 U.S.C. §§ 7512(3), 7513(b). 

¶12 The agency contends, however, that because this appeal involves the denial 

of eligibility to occupy an NCS position, it is subject only to the limited review 

prescribed by the Supreme Court in Egan. IAF, Tab 4, Subtab 1 at 4-5, Tab 5, 

Resp. at 1-2, Tab 46, Br. at 1-4, 7-10. In Egan, the Court limited the scope of 

Board review in an appeal of an adverse action based on the revocation or denial 

of a “security clearance.” There, the Court held that the Board lacks the authority 

to review the substance of the security clearance determination, or to require the 

agency to support the revocation or denial of the security clearance by 

preponderant evidence, as it would be required to do in other adverse action 

appeals. Rather, the Court found that the Board has authority to review only 

whether the employee’s position required a security clearance, whether the 

clearance was denied or revoked, whether the employee was provided with the 

procedural protections specified in 5 U.S.C. § 7513, and whether transfer to a 

nonsensitive position was feasible. 484 U.S. at 530-31; see also Hesse v. 

Department of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000). 

¶13 During the course of this interlocutory appeal, the parties stipulated9

 as 

follows concerning security clearances and access to classified information:

The parties agree that the positions held by appellants Conyers and 

Northover did not require the incumbents to have a confidential, 

secret or top secret clearance. The parties also agree that the 

positions held by appellants Conyers and Northover did not require 

the incumbents to have access to classified information. 

 

9

 Parties may stipulate to any matter of fact, and the stipulation will satisfy a party’s 

burden of proving the fact alleged. See 5 C.F.R. § 1201.63. 
8

IAF, Tab 27. In other words, the appellant is not required to have a security 

clearance and he is not required to have access to classified information. 

Therefore, we conclude that Egan does not limit the Board’s statutory authority 

to review the appellant’s reduction in grade appeal. We further conclude that 

Egan limits the Board’s review of an otherwise appealable adverse action only if 

that action is based upon a denial, revocation, or suspension of a “security 

clearance,” i.e., involves a denial of access to classified information or eligibility 

for such access, as we more fully explain below.

¶14 We therefore direct the CAJ, on return of this appeal, to conduct a hearing 

consistent with the Board’s statutory duty to determine whether the appellant’s 

reduction in grade is supported by a preponderance of the evidence, promotes the 

efficiency of the service and constitutes a reasonable penalty. See 5 U.S.C. 

§§ 7513(a), 7701(b)(3) and (c)(1). As contemplated by the Board’s statutory 

mandate and our precedent, this adjudicatory authority extends to a review of the 

merits of the agency’s denial of the appellant’s eligibility to occupy an NCS 

position. See Adams, 105 M.S.P.R. 50, ¶ 10. 

¶15 In Egan, the Court characterized its decision as addressing the “narrow 

question presented by this case [namely] whether the [Board] has 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 

(emphasis added). In holding that it did not, the Court relied primarily on the 

premise that the President, as Commander in Chief under the Constitution, had 

authority to classify and control access to information bearing on national 

security and that such authority exists apart from any explicit Congressional 

grant. It concluded therefore that “the grant of security clearance to a particular 

employee . . . is committed by law to the appropriate agency of the Executive 

Branch.” Id. at 527. The Court thus found that “‘an agency head who must bear 

the responsibility for the protection of classified information committed to his 

custody should have the final say in deciding whether to repose his trust in an 
9

employee who has access to such information.’” Id. (quoting Cole v. Young, 351 

U.S. 536, 546 (1956)). 

¶16 We believe that the Egan Court’s limitation of the Board’s statutory review 

authority must be viewed narrowly, most obviously because the Court itself so 

characterized its holding in that case. Moreover, the Court’s rationale rested first 

and foremost on the President’s constitutional authority to “classify and control 

access to information bearing on national security” and does not, on its face, 

support the agency’s effort here to expand the restriction on the Board’s statutory 

review to any matter in which the government asserts a national security interest. 

Egan, 484 U.S. at 527-528. In fact, although Mr. Egan held a position that was 

designated as NCS, Egan, 484 U.S. at 521, the Court’s limitation of Board review 

was based on the requirement that he hold a security clearance and on the 

government’s need to protect the classified information to which he had access. 

Id. at 527-30. Nothing in Egan indicates that the Court considered the NCS 

designation alone as sufficient to preclude Board review of the merits of the 

determination underlying Mr. Egan’s removal.10 

¶17 Nor is there any basis upon which to assume that the Court in Egan used 

the term “security clearance” to mean anything other than eligibility for access to, 

or access to, classified information. In that regard, we note that the words 

“security clearance” historically have been used as a term of art referring to 

access to classified information, and they are not synonymous with eligibility to 

occupy a sensitive position. See, e.g., Jones v. Department of the Navy, 978 F.2d 

 

10 In Egan, the Department of the Navy’s designation of a position as “noncriticalsensitive” was defined by the applicable Chief of Naval Operations Instruction to 

include “[a]ccess to Secret or Confidential information.” 484 U.S. at 521 n.1. By 

contrast, here, the agency’s designation of the appellant’s position as NCS pursuant to 

OPM regulations includes no such requirement for access to, or eligibility for access to, 

any classified information. Indeed, the parties stipulated that the appellant is not 

required to have a security clearance and he has no need for access to any classified 

information. 
10

1223, 1225 (Fed. Cir. 1992) (quoting Hill v. Department of the Air Force, 844 

F.2d 1407, 1411 (10th Cir. 1988) and describing a “security clearance [as] merely 

temporary permission by the Executive for access to national secrets”). The 

agency’s use of the term “security clearance” “in the vernacular” to refer to all 

background investigations, Tr. at 40-42, and its assertion that “security clearance 

decisions are but one variety of agency national security determinations,” IAF, 

Tab 46, Br. at 2, does not change the meaning of “security clearance” as 

determined by the Court in Egan. 

¶18 Executive Order No. 12,968 (Aug. 2, 1995) (“Access to Classified 

Information”), although failing to provide an explicit definition of “security 

clearance,” pertinently provides that “[n]o employee shall be granted access to 

classified information unless that employee has been determined to be eligible in 

accordance with this order and to possess a need-to-know.” Id., Section 1.2 (a). 

Executive Order No. 12,968 further provides that employees shall not be granted 

access to classified information unless they have: (1) Been determined “eligible” 

for access by “agency heads or designated officials” under Section 3.1 “based on 

a favorable adjudication of an appropriate investigation of the employee’s 

background;” (2) a demonstrated need-to-know; and (3) signed a nondisclosure 

agreement. Id., Section 1.2(c)(1)-(3). The Department of Defense Personnel 

Security Program Regulation, consistent with the above, defines “security 

clearance” as “[a] determination that a person is eligible under the standards of 

[32 C.F.R. Part 154] for access to classified information.” 32 C.F.R. § 154.3(t). 

We thus conclude that Egan limits the Board’s statutory review of an appealable 

adverse action only when such review would require the Board to review the 

substance of the “sensitive and inherently discretionary judgment call . . . 

committed by law to the . . . Executive Branch” when an agency has made a 

determination regarding an employee’s access to classified information, i.e., a 

decision to deny, revoke or suspend access, or eligibility for access to classified 
11

information. Egan, 484 U.S. at 527. Our use of the term “security clearance” in 

this Opinion and Order includes this specific understanding. 11

¶19 Furthermore, prior to the Board’s now vacated decision in Crumpler v. 

Department of Defense, 112 M.S.P.R. 636 (2009), vacated, 113 M.S.P.R. 94

(2009), the Board had long considered Egan’s restriction on its statutory review 

as confined to adverse actions based on security clearance revocation and refused 

to extend the restriction to non-security clearance appeals where the actions 

arguably implicated national security. See, e.g., Jacobs v. Department of the 

Army, 62 M.S.P.R. 688 (1994); Adams, 105 M.S.P.R. 50. In Jacobs, the Board 

held that it had the authority to review a security guard’s disqualification from 

the Chemical Personnel Reliability Program based on his alleged verbal assault of 

a security officer. 62 M.S.P.R. at 689-90, 694. The Board stated: 

The role of protecting that national chemical weapons program is, 

without doubt, a very important role. The importance of that role, 

however, should not divest civilian employees who work in that 

program of the basic employment protections guaranteed them under 

law. Neither should the ‘military’ nature of such employment, nor 

should the program’s requirements for the ability to react to 

changing situations with dependability, emotional stability, proper 

social adjustment, sound judgment, and a positive attitude toward 

program objectives and duly constituted authority. 

Id. at 694. The Board explicitly found as follows: 

The Supreme Court’s decision in Egan was narrow in scope and 

specifically applied only to security clearance revocations. As the 

 

11 Member Rose suggests in dissent that when the Egan Court used the term “security 

clearance,” it did not use it as a term of art limited to the grant of access to, or 

eligibility for access to, classified information. Rather, she suggests that Egan, “when 

read as a whole,” shows that the Court was more generally concerned with any 

“discretionary national security judgments committed to agency heads, regardless of 

whether the employee ... needed access to classified information as part of his job.” As 

we thoroughly explain in our opinion today, such an expansive reading of Egan ignores 

the facts and much of the analysis in Egan, numerous decisions of the Federal Circuit 

and Board interpreting Egan over the last 20 years, as well as the definition of security 

clearance found in the Department of Defense’s own regulations. 
12

protector of the government’s merit systems, the Board is not eager 

to expand the scope of the rationale in Egan to divest federal 

employees whose positions do not require a security clearance of 

basic protections against non-meritorious agency actions. 

Id. at 695. 

¶20 In Jacobs, the Board further addressed the agency’s concern, expressed 

also in this appeal, IAF, Tab 46, Br. at 3-4, 7, that, as an outside non-expert body, 

the Board should not second-guess its attempts to predict the appellant’s future 

behavior. The Board found that most of the removal actions taken by agencies 

are based at least in part on an attempt to predict an employee’s future behavior. 

It noted that, in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 

(1981), the Board set forth a range of factors that an agency should consider in 

making a penalty determination, which included an estimate of the employee’s 

rehabilitation potential. The Board found that the basis of progressive discipline 

is that an employee who has engaged in repeated misconduct will be likely to do 

so again in the future. Thus, when an agency acts based on such predictive 

judgments in imposing a penalty, the Board is required by its statutory mandate to 

evaluate the propriety of those agency judgments.12 Douglas and Jacobs are not 

isolated cases, as the Board’s case law is replete with decisions in which the 

Board has reviewed an agency’s predictions regarding an employee’s future 

conduct and potential for rehabilitation. Jacobs, 62 M.S.P.R. at 695. 

¶21 Similarly, in Adams, the Board found that Egan did not preclude its review 

of the propriety of the agency’s denial of access to sensitive personnel 

information in an appeal of a human resources assistant’s removal for “failure to 

maintain access to the Command computer system.” 105 M.S.P.R. 50, ¶¶ 6, 9-12. 

The Board acknowledged the agency’s argument, similar to that made in this 

appeal, IAF, Tab 46, Br. at 1-4, 7-10, that the suspension of computer access was 

 

12 The record before us lacks evidence of any “delicate national security judgments that 

are beyond [the Board’s] expertise” as suggested by the dissent. 
13

not an appealable adverse action, that the federal government had not waived its 

sovereign immunity from challenges to such actions, and that the Board’s 

authority to review those actions was barred under Egan. Adams, 105 M.S.P.R. 

50, ¶ 9. But the Board found no merit to those arguments. It noted that the 

agency did not deny that, in 5 U.S.C. § 7513, Congress has authorized the Board 

to adjudicate removals. As previously noted, it found that adjudication of such an 

appeal requires the Board to determine whether the agency has proven the charge 

or charges on which the removal is based; and, when the charge consists of the 

employing agency’s withdrawal or revocation of its certification or other 

approval of the employee’s fitness or other qualifications to hold his position, the 

Board’s authority generally extends to a review of the merits of that withdrawal 

or revocation. Id., ¶ 10. 

¶22 In Adams, the Board acknowledged “narrow exceptions” to the Board’s 

authority to review the merits of agency determinations underlying adverse 

actions, and found that one such exception was addressed in Egan. It 

distinguished Egan, however, as follows: 

The present appeal does not involve the national security 

considerations presented in Egan. While the agency’s computer 

system provides employees with access to sensitive information, the 

agency has acknowledged that the information is not classified and 

has indicated that it does not consider access to that information to 

be equivalent to possession of a security clearance. . . . The decision 

to suspend the appellant’s computer access is similar instead to 

determinations the Board has found it has the authority to review. 

Adams, 105 M.S.P.R. 50, ¶ 12. 13

 

13 In addition to Jacobs and Adams, the Board has held that, despite Egan, it has the 

authority to review the decision of an agency credentials committee to revoke an 

employee’s clinical privileges, when that revocation was the basis for the employee’s 

removal, Siegert v. Department of the Army, 38 M.S.P.R. 684, 687-91 (1988); and to 

review the validity of a medical determination underlying the removal of an air traffic 

control specialist, Cosby v. Federal Aviation Administration, 30 M.S.P.R. 16, 18-19 

(1986). 
14

¶23 In addition to our longstanding precedent, however, we are guided by the 

Supreme Court’s opinion in Cole v. Young, 351 U.S. 536 (1956), 14 cited with 

approval in Egan, 484 U.S. at 529, which provides persuasive and considerable 

support for viewing Egan as narrowly limited to appeals involving security 

clearances. There, the Court addressed whether the removal of a preferenceeligible veteran employee of the Department of Health, Education, and Welfare 

was authorized under the Act of August 26, 1950 (the Act). 15 In ruling that 

 

14 Member Rose sees little value in the Supreme Court’s Cole decision, in part because 

it was decided in 1956, “22 years before the Civil Service Reform Act.” As we note in 

our decision, though, Cole specifically addressed the “Act of August 26, 1950,” the 

predecessor to 5 U.S.C. § 7532. Further, Executive Order No. 10,450, significantly 

relied on by the dissent, was promulgated in 1953 to implement the 1950 Act. In 

addition, the relevant regulations issued by OPM, and relied on by Member Rose to find 

that the Board lacks authority to review the adverse action at issue, are based on 

Executive Order No. 10,450, and OPM has advised the Board that the regulations do not 

create or diminish any employee appeal rights. 

15 The Act was the precursor to 5 U.S.C. § 7532 and gave to the heads of certain 

government departments and agencies summary suspension and unreviewable dismissal 

powers over civilian employees when deemed necessary “in the interest of the national 

security of the United States.” This express provision within the Civil Service Reform 

Act (CSRA) for accommodating national security concerns further undermines the 

agency's claim that the President's constitutional authority as Commander in Chief 

preempts our statutory review. The argument is tenuous, at best, insofar as it rests upon 

the misguided premise that the President alone possesses power in the area of national 

security. Instead, the Constitution gives Congress the power “to declare war” (Art. 1, 

sec. 8, cl. 11), "to raise and support Armies" (Art. 1, sec. 8, cl. 12), "to provide and 

maintain a Navy" (Art. 1, sec. 8, cl. 13), and "to make Rules for the Government and 

Regulation of the land and naval Forces" (Art. 1, sec. 8, cl. 14), and, thus, plainly 

establishes that Congress also has authority with regard to ensuring national security. 

Cf. U.S. v. North, 708 F. Supp. 380, 382 (D.D.C. 1988) (in rejecting the plaintiff’s 

constitutional argument that “the asserted primacy of the White House in foreign 

affairs” precludes prosecution for false Congressional testimony, the court looked to 

various constitutional provisions in recognizing that “Congress surely has a role to play 

in aspects of foreign affairs....”) 

The CSRA is the comprehensive scheme created by Congress governing federal 

employment. See U.S. v. Fausto, 484 U.S. 439, 443 (1988). In 5 U.S.C. § 7532, 

Congress expressly delineated those areas where Board review is circumscribed due to 

national security concerns. There is no evidence that Congress intended that the 

President could unilaterally and broadly expand these exceptions so as to effectively 
15

Executive Order No. 10,45016 did not trump the employee’s statutory veterans’ 

preference rights, the Cole Court interpreted “national security” as used in the 

Act.17 Cole, 351 U.S. at 538. Significantly, in so doing, the Cole Court did not 

avoid review of the removal or identify any rule of limited review merely because 

the Executive Branch of the government alleged that matters of “national 

security” were at issue. 18 Moreover, although the Court determined that an 

employee may be dismissed using the summary procedures and unreviewable 

dismissal power authorized by the 1950 statute only if he occupied a “sensitive” 

position, the Court plainly equated having a “sensitive” position with having 

access to classified information. Id. at 551, 557 n.19. The Cole decision thus 

clearly supports the Board’s determination that its statutory jurisdiction over an 

 

eliminate Board and judicial review of the reasons underlying adverse actions taken 

against federal employees, such as the appellant, whose positions do not require access, 

or eligibility for access, to classified information. Absent any indication that Congress 

contemplated and ordained such a result, we believe that Egan’s exception to the 

Board’s statutory jurisdiction must be read narrowly. 

16 Executive Order No. 10,450 was promulgated in April 1953 to provide uniform 

standards and procedures for agency heads in exercising the suspension and dismissal 

powers under the 1950 Act. Cole, 351 U.S. at 551. It also extended the Act to other 

agencies. See id. at 542. 

17 The Supreme Court’s Cole decision and its decision in National Treasury Employees 

Union v. Von Raab, 489 U.S. 656 (1989), plainly contradict the dissent’s bold claim 

that an agency’s decision “that retaining an employee would be inconsistent with the 

interests of national security has never been subject to third-party review before today.” 

In both cases, the Court subjected agency claims regarding national security to judicial 

scrutiny. See also note 19 supra.

18 The Cole Court notably stated that it would not lightly assume that Congress intended 

to take away the normal dismissal procedures of employees “in the absence of some 

overriding necessity, such as exists in the case of employees handling defense secrets.” 

351 U.S. at 546-47. 
16

otherwise appealable action cannot be preempted by an agency’s generalized 

claim of “national security.”19

¶24 In this regard, we agree with the appellants that the potential impact of the 

agency’s argument that Egan precludes the Board from reviewing the merits of an 

agency’s adverse action, even when security clearances are not involved, is farreaching. Accepting the agency’s view could, without any Congressional 

mandate or imprimatur, preclude Board and judicial review of alleged unlawful 

discrimination, whistleblower retaliation, and a whole host of other constitutional 

and statutory violations for multitudes of federal employees subjected to 

otherwise appealable removals and other adverse actions. See El-Ganayni v. 

Department of Energy, 591 F.3d 176, 184-186 (3d Cir. 2010) (First Amendment 

claim and Fifth Amendment Equal Protection claim must be dismissed because 

legal framework would require consideration of the reasons a security clearance 

was revoked); Bennett v. Chertoff, 425 F.3d 999, 1003-04 (D.C. Cir. 2005) 

(adverse action based on denial or revocation of a security clearance not 

actionable under Title VII of the Civil Rights Act of 1964); Hesse, 217 F.3d at 

1377 (Egan precludes Board review of Whistleblower Protection Act 

whistleblower claims in indefinite suspension appeal); Ryan v. Reno, 168 F.3d 

520, 524 (D.C. Cir. 1999) (adverse action based on denial of a security clearance 

not actionable under Title VII of the Civil Rights Act of 1964); Jones, 978 F.2d at 

1225-26 (no employee has a “property” or “liberty” interest in a security 

 

19 In fact, even in cases where the Executive Branch has sought to defend its action on 

the grounds of protecting classified information, the Court has not abstained from 

subjecting such assertions to searching judicial scrutiny. See e.g., National Treasury 

Employees Union v. Von Raab, 489 U.S. 656 (1989). There, employees challenged the 

Customs Service decision to subject whole categories of employees to random drugtesting on the basis of their presumed access to classified information. Deeming the 

record insufficient to determine whether the agency overreached, the Court remanded to 

the Fifth Circuit with instructions to “examine the criteria used by the [Customs] 

Service in determining what materials are classified and in deciding whom to test under 

this rubric.” Id. at 678. 
17

clearance or access to classified information and thus no basis for a constitutional 

right); Pangarova v. Department of the Army, 42 M.S.P.R. 319, 322-24 (1989) 

(Egan precludes the Board from reviewing discrimination or reprisal allegations 

intertwined with the agency’s denial of a security clearance). 

¶25 Therefore, we find that the Supreme Court’s decision in Egan does not 

support the conclusion that the Board lacks the authority to review the 

determination underlying the agency’s reduction in grade here.20 The Board may 

exercise its full statutory review authority and review the agency’s determination 

that the appellant is no longer eligible to hold a “sensitive” position, because this 

appeal does not involve a discretionary agency decision regarding a security 

clearance.21

The agency’s decision to characterize the appellant’s position as a national 

security position and to designate it NCS is insufficient to limit the Board’s scope 

of review to that set forth in Egan.

¶26 In 5 C.F.R. Part 732, OPM set forth “certain requirements and procedures 

which each agency shall observe for determining national security positions 

pursuant to Executive Order No. 10450 – Security Requirements for Government 

Employment (April 27, 1953), 18 FR 2489, 3 CFR 1949-1953 Comp., p. 936, as 

 

20 We are not finding that the Board has the authority to determine whether the agency 

has properly designated the appellant’s position as NCS. See Skees v. Department of 

the Navy, 864 F.2d 1576, 1578 (Fed. Cir. 1989) (Board lacks the authority to review an 

agency’s determination that a position requires a security clearance); Brady v. 

Department of the Navy, 50 M.S.P.R. 133, 138 (1991) (Board lacks the authority to 

review an agency’s determination to designate a position as NCS). We are simply 

finding that the agency’s decision to designate a position as a “national security” 

position or as a “sensitive” one, standing alone, does not limit the Board’s statutory 

review authority over an appealable adverse action. 

21 We recognize that Congress has specifically excluded groups of employees from 

having Board appeal rights or from having protection against prohibited personnel 

practices, such as employees of the Central Intelligence Agency, the Federal Bureau of 

Investigation, and intelligence components of the Department of Defense. See 5 U.S.C.

§§ 2303(a)(2)(C), 7511(b)(7), (8). Congress has not similarly excluded the agency in 

the current appeal. 
18

amended.” 5 C.F.R. § 732.101. OPM’s regulations state that 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, including development of defense plans or policies, 

intelligence or counterintelligence activities, and related activities 

concerned with the preservation of the military strength of the United 

States; and 

(2) Positions that require regular use of, or access to, classified 

information. 

5 C.F.R. § 732.102(a). The regulations further provide: 

For purposes of this part, the head of each agency shall designate, or 

cause to be designated, any position within the 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 at one of three sensitivity levels: SpecialSensitive, Critical-Sensitive, or Noncritical-Sensitive. 

5 C.F.R. § 732.201(a). The agency argues that, although the appellant’s position 

did not require a security clearance, the Board is nevertheless precluded under 

Egan from reviewing whether he was improperly reduced in grade based upon the 

agency’s determination that he was ineligible to occupy a national security 

position. IAF, Tab 4, Subtab 1 at 4-5, Tab 5, Resp. at 1-2, Tab 46, Br. at 1-4, 7-

10. We disagree. 

¶27 OPM’s interpretation of its own regulations at 5 C.F.R. Part 732 supports 

the conclusion that our review of an adverse action is not limited by Egan solely 

based on the agency’s designation of the position as a national security position 

or as “sensitive.” In that regard, OPM has not interpreted its regulations to 

preclude the usual scope of Board review for adverse actions taken against 

employees based on ineligibility to occupy NCS positions. Rather, OPM 

concluded that the Board cannot determine the scope of its review by referring to 

5 C.F.R. Part 732. IAF, Tab 15, Advisory Op. at 3. OPM stated: 

OPM’s regulations in 5 C.F.R. Part 732 are silent on the scope of an 

employee’s rights to Board review when an agency deems the 
19

employee ineligible to occupy a sensitive position. The regulations 

do not independently confer any appeal right or affect any appeal 

right under law. 

Id. at 2. It similarly stated concerning its regulations: 

[T]hey do not address the scope of the Board’s review when an 

agency takes an adverse action against an employee under 5 U.S.C. 

§ 7513(a) following an unfavorable security determination. 

Likewise, OPM’s adverse action regulations in 5 C.F.R. Part 752 do 

not address any specific appellate procedure to be followed when an 

adverse action follows an agency’s determination that an employee is 

ineligible to occupy a sensitive position. 

Id. at 3. Thus, OPM has not interpreted its own regulations as precluding the 

Board’s usual scope of review in these appeals. 

¶28 In its October 18, 2010 statement, ODNI refers to Executive Order No. 

13,467 (June 30, 2008), in arguing that the limited scope of Board review set 

forth in Egan should apply in this appeal. IAF, Tab 51, Statement at 1. ODNI 

notes that Executive Order No. 13,467, which is entitled “Reforming Processes 

Related to Suitability for Government Employment, Fitness for Contractor 

Employees, and Eligibility for Access to Classified National Security 

Information,” designated the Director of National Intelligence (DNI) as the 

Security Executive Agent (SEA) for the federal government. Id. at 1. It further 

notes that, in setting forth the SEA’s responsibilities relating to overseeing 

investigations, developing policies and procedures, issuing guidelines and 

instructions, serving as a final authority, and ensuring reciprocal recognition 

among agencies, the Executive Order consistently referred to that authority as 

relating to both determinations of eligibility for access to classified information 

or eligibility to hold a sensitive position. Id. at 1-2. It thus argues that the 

President has given the DNI “oversight authority over eligibility determinations, 

whether they entail access to classified information or eligibility to occupy a 

sensitive position, regardless of sensitivity level.” Id. at 2. 

¶29 ODNI appears to be arguing, as does the agency, that because executive 

orders refer to both eligibility for access to classified information and eligibility 
20

to occupy a sensitive position -- or because the agency decided to adjudicate 

determinations involving access to classified information and eligibility to 

occupy a sensitive position through the same WHS/CAF process -- the same 

Board review authority must necessarily apply. Neither ODNI nor the agency has 

shown that such a circular argument provides a basis for limiting the statutory 

scope of our review in adverse action appeals. 

¶30 We therefore find that the Board has the authority to review the merits of 

the agency’s decision to find the appellant ineligible to occupy an NCS position, 

and that the Board’s authority to exercise its statutory review of the appellant’s 

reduction in grade is not limited by Egan. Applying the full scope of Board 

review in appeals such as this will not prevent agencies from taking conductbased adverse actions or suitability actions in appropriate cases. Likewise, 

agencies may respond to urgent national security issues, even for employees who 

do not have eligibility for access to, or access to, classified information, by 

exercising their statutory authority to impose indefinite suspensions and removals 

through the national security provisions in 5 U.S.C. § 7532. See, e.g., King v. 

Alston, 75 F.3d 657, 659 n.2 (Fed. Cir. 1996). Here, however, the agency did not 

choose to act under 5 U.S.C. § 7532, an option the dissent fails to mention. If the 

agency believed that a Board appeal would involve delicate national security 

matters beyond the Board’s expertise, or that a Board order might create a 

conflict with its national security obligations pursuant to Executive Order No. 

10,450, it could exercise its statutory authority pursuant to 5 U.S.C. § 7532. 

See id. 

¶31 Any agency argument that a Board decision to reverse its action would 

place it in an impossible position, because it must either violate an agency head’s 

decision and allow an employee who presents a national security risk to occupy a 

sensitive position or violate the Board’s order, does not warrant a different 

outcome. In its motions to dismiss, the agency indicated that it had reinstated the 

appellant to the Commissary Management Specialist (CAO) position retroactive 
21

to December 6, 2009. IAF, Tabs 28-29, 39, 42. When asked at oral argument 

why the agency now deemed the appellant eligible to occupy the NCS position, 

the agency representative stated, “[w]ell, for one thing, litigation.” Tr. at 46. 

The agency representative proceeded to state that the important point was that the 

head of the agency “determined to grant a waiver of the factors that were 

represented as risk factors,” and that that discretion and responsibility rested 

solely with him. Id. 

¶32 However, the record indicates that, in notifying the WHS/CAF Director of 

his decision overriding its unfavorable security determination and returning the 

appellant to his position, Acting Director Thomas Milks directed it to act 

“without delay” “[b]ecause of pending litigation.” IAF, Tab 28, Att. 1 at 1. In 

addition, his determination stated as its first finding that the questions raised 

concerning the appellant “relate to the grant of access to classified material,” and 

that “no access to classified material is required or permitted in the position to 

which he is being reassigned.” Id. at 2. In his second finding, Milks simply 

summarily stated that “it is unlikely that [the appellant’s] assignment to the 

subject position would result in a material adverse effect on national security.” 

Id. Therefore, the agency’s own actions do not support any fear of being put in 

an impossible position by the possibility that the Board might disagree with its 

decision and order reinstatement. 

The interlocutory appeal must be returned to the CAJ for further proceedings.

¶33 Because Egan’s limited scope of Board review does not apply in this 

appeal, Board review of the challenged reduction in grade includes consideration 

of the underlying merits of the agency’s reasons to deny the appellant eligibility 

to occupy an NCS position. The CAJ should thus adjudicate this appeal under the 

generally applicable standards the Board applies in adverse action appeals, 

including the legal principles governing off-duty or on-duty conduct as 

applicable. 
22

ORDER

¶34 Accordingly, we vacate the stay order issued in this proceeding and return 

the appeal to the CAJ for further processing and adjudication consistent with this 

Opinion and Order. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C. 
23

DISSENTING OPINION OF MARY M. ROSE

in 

Devon Haughton Northover v. Department of Defense 

MSPB Docket No. AT-0752-10-0184-I-1 

¶1 For the reasons fully set forth in my dissenting opinion in Conyers v. 

Department of Defense, MSPB Docket Nos. CH-0752-09-0925-I-1 & CH-0752-

09-0925-I-2 (December 22, 2010), I would hold that the Board lacks authority to 

review the reasons underlying the agency’s determination that the appellant is no 

longer eligible to hold his GS-1144-07 Commissary Management Specialist 

position, which the agency designated “sensitive” under Executive Order 

No. 10,450 and 5 C.F.R. § 732.201(a). 

______________________________ 

Mary M. Rose 

Member