UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2010 MSPB 247 

 Docket Nos. CH-0752-09-0925-I-1 

 CH-0752-09-0925-I-2 

Rhonda K. Conyers, 

Appellant, 

v. 

Department of Defense, 

Agency. 

December 22, 2010 

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

Cynthia C. Cummings, Esquire, Columbus, Ohio, and Frank M. Yount, 

Esquire, Indianapolis, Indiana, 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 

administrative judge’s February 17, 2010 order. The administrative judge stayed 

the proceedings and certified for Board review her ruling that she would not 

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 indefinite 

suspension. For the reasons discussed below, we AFFIRM the administrative 

judge’s ruling AS MODIFIED by this Opinion and Order, VACATE the stay 
2

order, and RETURN the appeal to the administrative judge for further 

adjudication consistent with this Opinion and Order. 

BACKGROUND1

¶2 Effective September 11, 2009, the agency indefinitely suspended the 

appellant from the competitive service position of GS-525-05 Accounting 

Technician at the Defense Finance and Accounting Service (DFAS). 2 Initial 

Appeal File (IAF), Tab 5, Subtabs 4i, 4j. The agency took the action because the 

appellant had been “denied eligibility to occupy a sensitive position by [the 

agency’s] Washington Headquarters Services (WHS) Consolidated Adjudications 

Facility (CAF), and we are awaiting a decision on your appeal of the CAF’s 

denial from the Defense Office of Hearing and Appeals (DOHA) Administrative 

Judge.” 3

 Id., Subtab 4i at 1. The agency stated that the appellant’s position 

required her to have access to sensitive information, the WHS/CAF had denied 

her such access, and therefore she did not meet a qualification requirement of her 

position. Id. In its notice of proposed indefinite suspension, the agency stated 

that the reason for the proposal was the WHS/CAF’s decision to deny the 

 

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 administrative judge should reopen the record when 

deciding the appeal. Except for the parties’ stipulations, she 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 3, 1985. Initial Appeal File, Tab 5, Subtab 4j. 

3

 The record indicates that the DOHA administrative judge issued a recommendation in 

the appellant’s favor, but that on September 15, 2009, the Clearance Appeal Board did 

not accept the recommendation and denied her appeal. IAF, Tab 10, Ex. A. The agency 

subsequently removed the appellant effective February 19, 2010. Petition For Review 

(PFR) File, Tab 25, Ex. 1. The Board denied the appellant’s motion to incorporate her 

removal into this appeal. Id., Tab 32. 
3

appellant “eligibility for access to sensitive or classified information.” IAF, Tab 

5, Subtab 4g. 

¶3 The appellant filed an appeal of her indefinite suspension. IAF, Tab 1. In 

responding to the appeal, the agency stated that the appellant’s position had been 

designated non-critical sensitive (NCS) under the Department of Defense 

Personnel Security Program Regulation, that her position required her to access 

“sensitive or classified information,” and that, under Egan, the Board cannot 

review the merits of the WHS/CAF’s decision to deny her eligibility for access 

“to sensitive or classified information and/or occupancy of a sensitive position.”4

 

Id., Tab 5, Subtab 1 at 1-2, 5-6. 

¶4 On February 17, 2010, the administrative judge issued an Order Granting 

Motion for Certification of Interlocutory Appeal and Staying Proceeding. IAF 2, 

Tab 4 at 2. The administrative judge stated that she had “informed the parties 

that [she] would decide the case under the broader standard applied in Adams [v. 

Department of the Army, 105 M.S.P.R. 50 (2007), aff’d, 273 F. App’x 947 (Fed. 

Cir. 2008)] and other [5 U.S.C.] Chapter 75 cases which do not involve security 

clearances;” that the agency moved to certify this ruling for interlocutory appeal;5

and that the regulatory requirements for certifying her ruling had been satisfied. 

 

4

 The administrative judge subsequently issued a January 13, 2010 initial decision 

dismissing the appeal without prejudice. IAF, Tab 13. The appellant filed a petition 

for review of the initial decision, PFR File, Tab 2, but the administrative judge 

docketed her January 13, 2010 initial decision as the appellant’s refiled appeal, IAF 2, 

Tab 1, thereby mooting the petition for review. 

5

 For the first time at oral argument, and then again in its closing brief, the agency 

asserts that it did not request an interlocutory appeal. Transcript (Tr.) at 23; PFR File, 

Tab 43 at 3. However, the February 17, 2010 Order expressly noted that the 

administrative judge was granting the agency’s motion to certify the issue for 

interlocutory appeal. IAF 2, Tab 4 at 2. The agency did not dispute the administrative 

judge’s characterization of the origin of this interlocutory appeal until over seven 

months later at oral argument in this matter. In any event, as we explain below, we find 

that the administrative judge properly certified her ruling for interlocutory appeal. 
4

She therefore granted the agency’s motion and stayed proceedings pending the 

Board’s resolution of the certified ruling. Id. at 2. 

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

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

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

PFR File, Tab 1. 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, 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 opinion and a 

supplementary letter, five amici submitted briefs, 6 and the parties submitted 

additional argument. PFR File, Tabs 4-8, 10, 15-17. 

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

Northover.

7

 The Board heard argument from the appellants’ representative, the 

 

6

 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. PFR File, Tabs 4-8. 

7

 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. PFR File, Tabs 25, 31-32, 35-37. 

While continuing to so argue, id., Tab 43, 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 
5

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

Accountability Project and the National Treasury Employees Union.8

 The Board 

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

2010. Tr. at 79; PFR File, Tab 40. The parties, the National Treasury Employees 

Union, and the Government Accountability Project submitted closing arguments. 

PFR File, Tabs 41-43, 45-46. 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 44, and the Board granted 

ODNI an opportunity to submit a statement presenting its position, id., Tab 47. 

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 48, 49. The record closed on October 25, 2010. Id., Tab 

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

appeal. 

ANALYSIS

The administrative judge properly certified her 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 she 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 her own motion. If 

 

previous orders. If necessary, the administrative judge should address the mootness 

issue on return of this appeal. 

8

 OPM declined the Board’s invitation to present oral argument. PFR File, Tab 27; Tr. 

at 4. 
6

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),9

 the Board recognized that the legal issue 

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

civil service. Id., ¶ 6. Thus, the administrative judge’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 

administrative judge properly certified her 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. 

 

9

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

address the issue. 
7

§ 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 suspensions for more than 14 days. 5 U.S.C. 

§ 7512(2). Congress also clearly delineated the scope of our review in nonperformance 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); 10 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, 105 M.S.P.R. 

50, ¶ 10. 

¶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 3, 1985. IAF, Tab 5, Subtab 4j. She therefore comes within 

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

does not dispute. On September 11, 2009, DFAS indefinitely suspended her from 

her position of GS-525-05 Accounting Technician. Id., Subtabs 4i, 4j. That 

suspension extended beyond 14 days, and therefore, constitutes an appealable 

action under 5 U.S.C.§§ 7512(2); 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 

 

10 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). 
8

prescribed by the Supreme Court in Egan. IAF, Tab 5, Subtab 1 at 1-2, 5-6; PFR 

File, Tab 17, Resp. at 4-12, 14-15. 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 stipulated11

 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. 

PFR File, Tab 24. In other words, the appellant is not required to have a security 

clearance and she 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 indefinite suspension 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 

 

11 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. 
9

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 administrative judge, on return of this appeal, to 

conduct a hearing consistent with the Board’s statutory duty to determine whether 

the appellant’s indefinite suspension 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 a 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 

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 
10

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.12 

¶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 

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”). In 

addition, the agency in this appeal has conceded that “determinations whether to 

grant an individual a security clearance and whether an individual is eligible to 

 

12 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 she has no need for access to any classified 

information. 
11

occupy a national security sensitive position are separate inquiries.” PFR File, 

Tab 17, Agency Resp. at 5 n.5. 

¶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 

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

this Opinion and Order includes this specific understanding. 13

 

13 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 
12

¶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 

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, PFR File, Tab 17, Resp. at 6-7, that as an outside non-expert 

 

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 regulation. 
13

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. Jacobs, 62 M.S.P.R. at 

695. 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. 14 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. See 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, PFR File, Tab 17, Resp. at 7, that the suspension of computer access was 

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. See 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 

 

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

are beyond [the Board’s] expertise” as suggested by the dissent. 
14

Board to adjudicate removals. As previously noted, the Board 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, ¶ 12.15

¶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), 16 cited with 

 

15 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). 

16 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 
15

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). 17 In ruling that 

 

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. 

17 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) (rejecting 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 

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. 10,45018 did not trump the employee’s statutory veterans’ 

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

Act.19 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. 20 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 

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

claim of “national security.”21

 

18 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. 

19 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 21 supra. 

20 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. 

21 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 Von Raab, 489 U.S. 656. 

There, employees challenged the Customs Service decision to subject whole categories 

of employees to random drug-testing 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 
17

¶24 In this regard, we agree with the appellant 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 

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 

 

criteria used by the [Customs] Service in determining what materials are classified and 

in deciding whom to test under this rubric.” Id. at 678. 
18

determination underlying the agency’s indefinite suspension here.22 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.23

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 

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 

 

22 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. We note that the agency has not 

contested the appellant’s assertion that DFAS has designated 100% of its positions as 

sensitive. 

23 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. 
19

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 she was improperly suspended based upon the 

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

position. PFR File, Tab 43, Br. at 7. 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. PFR File, Tab 10, 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 

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 
20

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. PFR File, Tab 48, 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 

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 
21

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

scope of our review in adverse action appeals. 

¶30 For the first time at oral argument and in its closing brief, the agency 

apparently argues that, following Egan, Congress has imposed another limitation 

on the Board’s review authority by enacting 10 U.S.C. § 1564(e). Tr. at 31-32; 

PFR File, Tab 43, Br. at 5. Section (e) provides as follows: 

Sensitive Duties. - For the purpose 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 national security. 

¶31 We find that the agency has failed to show that 10 U.S.C. § 1564 imposes 

an additional Congressional limitation on the Board’s review authority. Section 

1564 is entitled “Security clearance investigations.” Subsection (a) sets outs the 

reason for the section as follows: 

Expedited Process. - The Secretary of Defense shall prescribe a 

process for expediting the completion of the background 

investigations necessary for granting security clearances for 

Department of Defense personnel and Department of Defense 

contractor personnel who are engaged in sensitive duties that are 

critical to the national security. 

Thus, the statutory section as a whole reveals that it is concerned with the process 

for granting security clearances, which are not at issue in this appeal.24 In any 

event, the statute does not limit the Board’s authority to adjudicate adverse action 

appeals. 

¶32 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, 

 

24 In that regard, we note that the statute does not explicitly define “security clearances” 

as anything other than eligibility for access to, or access to, classified information. We 

reject the agency’s attempt to equate “security clearances” with its decisions to 

designate positions as “sensitive” or to find that employees are no longer eligible for 

such sensitive positions. Absent a requirement that an employee have access to 

classified information, or be eligible for such access, Egan does not limit the Board’s 

review of an appealable adverse action taken against a covered employee. 
22

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

indefinite suspension 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 have exercised its authority pursuant to 5 U.S.C. § 7532. See id. 

¶33 The agency argues 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. PFR File, Tab 17, Resp. at 8-9. 

We note, however, that the agency’s own actions belie its concern. Although on 

June 27, 2007, the WHS/CAF issued the appellant its tentative decision to deny 

her eligibility to occupy her NCS position, the agency did not issue its decision to 

actually suspend her from the position until September 3, 2009. IAF, Tab 5, 

Subtabs 4b, 4i. Thus, the agency kept the appellant in her NCS position for over 

two years after making a tentative determination to deny her eligibility. Although 

the appellant was admittedly proceeding through the agency’s internal review 

process during part of this time, the record does not indicate that the agency took 

any action between the appellant’s September 22, 2007 response to its tentative 

determination to deny her eligibility and its February 18, 2009 decision to deny 

her eligibility, i.e., for over one year. Id., Subtabs 4d, 4e. Therefore, the 
23

agency’s own actions do not support its 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 for further proceedings.

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

appeal, Board review of the challenged indefinite suspension includes 

consideration of the underlying merits of the agency’s reasons to deny the 

appellant eligibility to occupy an NCS position. The administrative judge should 

thus adjudicate this appeal under the generally applicable standards the Board 

applies in adverse action appeals, including the legal principles governing offduty or on-duty conduct as applicable. 

ORDER

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

the appeal to the administrative judge for further processing and adjudication 

consistent with this Opinion and Order. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C. 
24

DISSENTING OPINION OF MARY M. ROSE

in 

Rhonda K. Conyers v. Department of Defense 

MSPB Docket Nos. CH-0752-09-0925-I-1 & CH-0752-09-0925-I-2 

¶1 As explained below, I would hold that the Board cannot review the reasons 

underlying the agency’s determination that the appellant is no longer eligible to 

occupy a sensitive position. When Congress created the Merit Systems 

Protection Board, it did not mean to limit (assuming it could have) the 

longstanding discretion vested in the President and agency heads over national 

security matters. The substance of 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, and I would hold that it is not 

subject to such review. 

BACKGROUND

¶2 The appellant was a GS-525-05 Accounting Technician with the Defense 

Finance & Accounting Service. By authority of Executive Order No. 10,450 and 

5 C.F.R. Part 732, the agency designated the appellant’s position as “non-critical 

sensitive,” based on its judgment that the incumbent “could bring about, by virtue 

of the nature of the position, a material adverse effect on the national security.” 

Initial Appeal File (IAF), Tab 5, Subtab 4A; see 5 C.F.R. § 732.201(a). Effective 

September 11, 2009, the agency suspended the appellant indefinitely because the 

agency’s Washington Headquarters Services (WHS) Consolidated Adjudications 

Facility (CAF) had denied her continued “eligibility to occupy a sensitive 

position.” Specifically, the agency stated that the appellant’s position required 

her to have access to sensitive information, that the WHS/CAF had denied her 

such access, and that as a result she did not meet a qualification requirement of 
25

her position. The suspension was imposed pending her appeal to the Defense 

Office of Hearings and Appeals. IAF, Tab 5, Subtabs 4G, 4I. 

¶3 The appellant filed this appeal. IAF, Tab 1. In response, the agency 

argued that the Board lacks authority to review the reasons underlying its 

determination that the appellant is no longer eligible to occupy a sensitive 

position or have access to sensitive information. IAF, Tab 5, Subtab 1 at 1-2, 5-

6. The administrative judge dismissed the appeal without prejudice pending the 

outcome of related litigation at Board headquarters, IAF, Tab 13, and the appeal 

was later refiled, IAF (I-2), Tab 1. Subsequently, the administrative judge ruled 

that the Board is not restricted in its authority to review the reasons underlying 

the agency’s determination to disqualify the appellant from a sensitive position. 

The administrative judge certified her ruling for interlocutory review by the full 

Board. IAF (I-2), Tab 4. In the ensuing proceeding at headquarters, the parties 

and amici filed numerous briefs, and the Board held oral argument on the legal 

issues presented. 

DISCUSSION

¶4 Executive Order No. 10,450, 18 Fed. Reg. 2489 (1953), provides in 

relevant part as follows: 

NOW, THEREFORE, by virtue of the authority vested in me by the 

Constitution and statutes of the United States . . ., and as President of 

the United States, and deeming such action necessary in the best 

interests of the national security, it is hereby ordered as follows: 

* * * 

Sec. 2. The head of each department and agency of the Government 

shall be responsible for establishing and maintaining within his 

department or agency an effective program to insure that the 

employment and retention in employment of any civilian officer or 

employee within the department or agency is clearly consistent with 

the interests of the national security. 

Sec. 3. (a) The appointment of each civilian officer or employee in 

any department or agency of the Government shall be made subject 

to investigation. The scope of the investigation shall be determined 
26

in the first instance according to the degree of adverse effect the 

occupant of the position sought to be filled could bring about, by 

virtue of the nature of the position, on the national security . . . . 

(b) 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. Any position so designated shall be filled or 

occupied only by a person with respect to whom a full field 

investigation has been conducted. 

¶5 Based on Executive Order No. 10,450, 5 U.S.C. § 3301, and other 

authorities, the Office of Personnel Management (OPM) has issued regulations at 

5 C.F.R. Part 732 governing “National Security Positions.” The regulations 

provide, at 5 C.F.R. § 732.101, as follows: 

This part sets forth certain requirements and procedures which each 

agency shall observe for determining national security positions 

pursuant to Executive Order 10450 . . . . 

The regulations further provide, at 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, 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. Procedures and guidance provided in OPM issuances 

apply. 

Additionally, the regulations provide at 5 C.F.R. § 732.201: 

(a) 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: 

Special-Sensitive, Critical-Sensitive, or Noncritical-Sensitive. 
27

¶6 The majority holds that although the Board lacks authority to review the 

reasons underlying an agency’s decision to deny an employee access to classified 

information, the Board is authorized to review the reasons underlying an agency’s 

determination that an employee is no longer eligible to occupy a sensitive 

position where classified information is not involved. I disagree. 

I. Supreme Court precedent precludes the Board from reviewing the reasons 

underlying an agency’s determination that an employee is no longer eligible to 

occupy a sensitive position.

¶7 In Department of the Navy v. Egan, 484 U.S. 518, 520-21 (1988), the 

Supreme Court considered the appeal of an individual appointed to a non-critical 

sensitive position on a military base, with his duties limited pending “satisfactory 

completion of security and medical reports.” The agency discovered unfavorable 

information about Mr. Egan during its background investigation that it believed 

made him a security risk, and notified him of his right to respond. In the 

meantime, however, Mr. Egan completed his probationary period, thereby gaining 

appeal rights under 5 U.S.C. §§ 7511-7513. Id. at 521-22. Ultimately the agency 

found Mr. Egan ineligible for his position and removed him. Id. at 522. On 

appeal, the Board held that it lacks authority to review the reasons underlying an 

agency’s determination that an individual poses an unacceptable threat to national 

security if allowed to remain in his position. Id. at 524; see Egan v. Department 

of the Navy, 28 M.S.P.R. 509 (1985). 

¶8 In a later phase of the appeal, the Supreme Court agreed with the Board. 

The Court framed the issue before it to be 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. 

I do not agree with the majority that the Court was using the term “security 

clearance” as a term of art to mean a grant of access to classified information or 

eligibility for such access. The Egan decision, when read as a whole, makes clear 

that the Court was concerned with the Board intruding on discretionary national 
28

security judgments committed to agency heads, regardless of whether the 

employee affected needed access to classified information as part of his job. One 

clear indication of the meaning of Egan is the Court’s statement that once 

Mr. Egan was denied a “security clearance,” his only possibility for continued 

employment was in a “nonsensitive position.” Id. at 522. In other words, the 

Court considered a “security clearance” to be a requirement for any sensitive 

position. 

¶9 In fact, the centerpiece of Egan’s discussion of the limits on Board review, 

Executive Order No. 10,450, makes no mention of classified information 

whatsoever. The Court discussed the requirements of Executive Order 

No. 10,450 in depth while using the terms “security clearance” and “clearance” in 

reference to “national security” positions generally, and did not confine its 

discussion to positions involving access to classified information. Id. at 528-29, 

531. “National security position” refers not just to positions that require access 

to classified information, 5 C.F.R. § 732.102(a)(2), but also to positions not 

requiring such access but 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,” 5 C.F.R. 

§ 732.102(a)(1). Accordingly, I interpret Egan as holding that the Board lacks 

authority to review the reasons underlying an agency’s determination that an 

employee is not eligible for a sensitive position, i.e., a “national security 

position” within the meaning of Executive Order No. 10,450 and 5 C.F.R. 

Part 732, regardless of whether the employee worked with classified information. 

484 U.S. at 529-30. As the Court explained, national security matters are 

traditionally the province of the President and, by delegation, the heads of the 

relevant agencies. Id. at 530. A non-expert outside body such as the Board is 

poorly-suited to making the necessary “predictive judgments” about the risk that 
29

an individual poses to national security. Id. at 529. Congress simply did not 

intend to “involve the Board in second-guessing [an] agency’s national security 

determinations.” Id. at 531-32.1

¶10 The case of Cole v. Young, 351 U.S. 536 (1956), discussed by the majority, 

does not alter my conclusion. Cole was decided 22 years before the passage of 

the Civil Service Reform Act, which created the Board and contained the version 

of 5 U.S.C. § 7513 addressed in Egan. As a consequence, Cole does not provide 

guidance on the scope of the Board’s review authority under section 7513. 

Moreover, Cole is distinguishable. In Cole, the Court held that an agency could 

not invoke a 1950 law authorizing summary removal of an employee who posed a 

threat to “national security” unless it had first made the “subsidiary 

determination” that the employee’s position actually implicated “national 

security.” 351 U.S. at 556. The Court found that Mr. Cole’s termination was not 

authorized by the 1950 law because his employing agency had never made the 

requisite “subsidiary determination.” Id. at 557. By contrast, in the present 

appeal, it is undisputed that the agency has formally determined, in accordance 

with Executive Order No. 10,450 and 5 C.F.R. Part 732, that the appellant’s 

Accounting Technician position is a “national security” position. IAF, Tab 5, 

Subtab 4A. 

 

1

 Title 10 U.S.C. § 1564, “Security Clearance Investigations,” provides further support 

for my view that the term “security clearance” does not have the fixed, limited meaning 

ascribed to it by the majority. Subsection (a), “Expedited Process,” charges the 

Secretary of Defense with improving the timeliness of completion of “background 

investigations necessary for granting security clearances.” Subsection (e), “Sensitive 

Duties,” provides that “[f]or the purpose 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.” I therefore 

disagree with footnote 20 of the majority opinion, which states that under section 1564 

the term “security clearance” relates only to employees who need access to classified 

information as part of their jobs. 
30

¶11 Additional cases cited by the majority also do not provide guidance on the 

issue at hand. In Adams v. Department of the Army, 105 M.S.P.R. 50 (2007), 

aff’d, 273 F. App’x 947 (Fed. Cir. 2008), the Board held that it had authority to 

review the reasons underlying the agency’s decision to suspend the appellant’s 

access to certain computer systems that he needed to use as part of his job. In 

Jacobs v. Department of the Army, 62 M.S.P.R. 688 (1994), the Board held that it 

had authority to review a security guard’s disqualification from the Army’s 

Chemical Personnel Reliability Program based on his alleged misconduct. In 

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

held that it had authority to review the agency’s reasons for revoking a Clinical 

Psychologist’s privileges, and in Cosby v. Federal Aviation Administration, 

30 M.S.P.R. 16, 18-19 (1986), the Board held that it had authority to review the 

agency’s determination that an Air Traffic Controller was medically disqualified 

from his position. Adams, Jacobs, Siegert, and Cosby stand for the proposition 

that agencies cannot evade Board review of the reasons for an adverse action 

merely by creating their own credentialing or fitness standards and then finding 

those standards unmet. Adams, Jacobs, Siegert, and Cosby do not discuss or even 

cite Executive Order No. 10,450 or 5 C.F.R. Part 732; as a result, they do not 

support a finding that the Board has authority to review an agency’s national 

security judgments made under delegation from the President. 

¶12 Finally, in National Treasury Employees Union v. Von Raab, 489 U.S. 656

(1989), the Court ruled that the Customs Service could institute a drug testing 

program for employees involved in drug interdiction and who carried firearms, 

notwithstanding the employees’ objection that such testing violated their 

constitutional right to be free from unreasonable searches; the Court remanded 

the cases for findings on the validity of the drug testing program as it related to 

employees who handled classified material. Van Raab said nothing about 

Executive Order No. 10,450 or Board review of adverse actions. 
31

II. Alternatively, even if Supreme Court precedent does not directly address the 

issue, the Board cannot review an agency’s determination that an employee is no 

longer eligible to occupy a sensitive position because doing so would involve the 

Board in sensitive national security judgments that are beyond its expertise and 

that it is not authorized to make.

¶13 The majority reads Egan as leaving open the question of the scope of Board 

review in adverse action appeals involving employees who occupied sensitive 

positions but did not need access to classified information as part of their jobs. I 

do not read Egan this narrowly. If I did, however, I nevertheless would hold that 

the Board cannot review the reasons underlying an agency’s decision that an 

employee is no longer eligible for a sensitive position, even when the employee 

did not work with classified information, because doing so would involve the 

Board in delicate national security judgments that are beyond its expertise and 

that it is not authorized to make. 

¶14 Regardless of whether an employee in a sensitive position handles 

classified information, for the Board to review the reasons underlying the 

agency’s decision that an individual’s continued employment poses a threat to 

national security requires the Board to make the “predictive judgments” that the 

Court said in Egan the Board is ill-equipped to make. 484 U.S. at 529. The 

majority likens these “predictive judgments” to matters that the Board routinely 

considers under Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). It is 

true that when reviewing an agency-imposed penalty for misconduct the Board 

may consider an employee’s rehabilitation potential, id. at 305, which is akin to 

predicting future behavior. Nevertheless, any such prediction within the Douglas

framework is fundamentally different from determining “what constitutes an 

acceptable margin of error in assessing the potential risk” that an employee poses 

to national security. Egan, 484 U.S. at 529. The latter judgment is an inherently 

military one where, as in this appeal, the employee worked for a component of 

the Department of Defense. In Egan, the Court explicitly found that the Board is 

not an expert in the methods for protecting classified information in the military’s 
32

custody, 484 U.S. at 529, and nothing in the structure or staffing of the Board 

makes it sufficiently expert in military affairs to review other military judgments 

not involving classified information. As agency counsel observed at oral 

argument, although an employee with access to classified information might pose 

a more obvious threat to national security than an employee in a sensitive 

position who does not work with classified information, the difference between 

the two employees is one of degree, not kind. 

¶15 Apart from the Board’s lack of expertise in national security matters, the 

Board is not authorized to decide whether an employee is eligible for retention in 

a sensitive position. When the Board reviews an adverse action, the standard the 

Board applies is whether the action “promote[s] the efficiency of the service.” 

5 U.S.C. § 7513(a). When an agency determines whether an individual may 

continue to occupy a sensitive position, the standard the agency applies is 

whether “retention in employment” is “clearly consistent with the interests of 

national security.” Executive Order No. 10,450, § 2. The Board does not apply 

the latter standard in adverse action appeals, nor is it permitted to do so under 

statute, Executive Order No. 10,450, or any other authority. Therefore, the 

distinction between an agency’s determination to deny an employee access to 

classified information, which the majority says the Board cannot review, and an 

agency’s determination to deny continued employment in a sensitive position 

where classified information is not involved, which the majority says the Board 

may review, is an artificial one. 

¶16 It bears emphasizing that Executive Order No. 10,450 was issued 25 years 

before Congress created the Board in the Civil Service Reform Act of 1978, Pub. 

L. No. 95-454, 92 Stat. 1111. As stated in the Preamble to Executive Order 

No. 10,450, the position sensitivity system is based on the President’s authority 

under the Constitution and related statutes which, as Egan explains, make the 

President the head of the Executive branch and the steward of national security. 

The President has delegated certain national security and management functions 
33

to agency heads in Executive Order No. 10,450. Assuming that Congress has the 

power to limit the authority of the President and agency heads over national 

security matters,2

 it did not do so when it authorized the Board to adjudicate 

adverse action appeals. If in 1978 Congress meant to alter longstanding 

arrangements and delegations by giving the Board the power to overrule an 

agency head’s judgment about the threat a particular employee poses to national 

security, one would expect a clear indication of such an intention. I find no such 

indication. In fact, given that Congress instructed the Board to review adverse 

actions under the “efficiency of the service” standard and not any standard related 

to national security, see 5 U.S.C. § 7513(a), it is reasonable to infer that Congress 

did not intend to allow the Board to review an agency head’s judgment on 

national security matters. 

III. The Board should not review the reasons underlying an agency’s 

determination that an employee is ineligible to occupy a sensitive position 

because doing so creates the possibility of an irreconcilable conflict between a 

Board order and an agency head’s authority under Executive Order No. 10,450.

¶17 In addition to the explanation above, there is a separate reason why the 

Board should not review the reasons underlying an agency’s determination that an 

employee is no longer eligible for a sensitive position. Executive 

Order No. 10,450, § 7, provides that -- 

Any person whose employment is suspended or terminated under the 

authority granted to heads of departments and agencies by or in 

 

2

 The majority observes that under the Constitution, Congress has the power “to declare 

war,” “to raise and support Armies,” “to provide and maintain a Navy,” and “to make 

Rules for the Government and Regulation of the land and naval Forces.” U.S. Const. 

Art. I, § 8, cl. 11-14. It does not appear that these broad powers pertain to the classic 

Executive functions of managing the civilian workforce at military installations and 

providing for the security of such installations. In any event, despite my doubts, I 

assume for purposes of this dissent that Congress could create an agency in the 

Executive branch to review an agency head’s determination that retaining a particular 

employee in a sensitive position would pose a risk to national security. I simply would 

find that Congress did not intend to do so. 
34

accordance with the said act of August 26, 1950, or pursuant to the 

said Executive Order No. 9835 or any other security or loyalty 

program relating to officers or employees of the Government, shall 

not be reinstated or restored to duty or reemployed in the same 

department or agency and shall not be reemployed in any other 

department or agency, unless the head of the department or agency 

concerned finds that such reinstatement, restoration, or 

reemployment is clearly consistent with the interests of the national 

security[.] 

This restriction on reinstatement also appears in Department of Defense 

regulations. See 32 C.F.R. § 154.57(a). 

¶18 If the Board reviewed the reasons underlying an agency’s determination 

that an employee is no longer eligible for a sensitive position, and if it found 

those reasons unproven, ostensibly it would order cancellation of the employee’s 

removal. As explained in Part II above, however, the Board’s decision would be 

based on application of the “efficiency of the service” standard and not on the 

relevant “interests of national security” standard under Executive Order 

No. 10,450. Thus, even after the Board’s decision, there would remain the 

undisturbed judgment of the agency that the individual’s continued employment 

would not be consistent with the interests of national security. Under such 

circumstances, the agency head would be derelict in his responsibility under 

Executive Order No. 10,450 if he allowed the individual’s reinstatement, yet he 

would be in violation of a Board order if he denied reinstatement. 

¶19 I see no way to resolve this conflict. If the Board undertakes a review of 

the reasons underlying an agency’s determination that an employee is no longer 

eligible for a sensitive position, it may be conducting empty process resulting in 

an unenforceable Board order. 

CONCLUSION

¶20 For the reasons given above, I would hold that the Board cannot review the 

reasons underlying an agency’s determination that an employee is no longer 
35

eligible to occupy a position that the agency has designated “sensitive” under 

Executive Order No. 10,450 and its implementing regulations at 5 C.F.R. 

§ 732.201(a). Before today those reasons have never been subject to third-party 

review, and I am unwilling to make this the first such case. Assuming for the 

sake of discussion that Congress could, consistent with the Constitution, 

empower the Board to review the reasons underlying an agency’s determination 

that an employee is no longer eligible to occupy a sensitive national security 

position, there is no indication that it gave the Board such authority. 

______________________________ 

Mary M. Rose 

Member