Broadening the Scope of Egan, Again
Doe v. Department of Justice,
2012 MSPB 95 (August 9, 2012)
by Natania Davis
In Doe v. Department of Justice, 2012 MSPB 95 (August 9, 2012), the Board held that its review of an adverse action is limited by Egan in cases where employees are required to be "eligible" for access to classified information. This is true even where the employee does not actually hold a security clearance.
As an Assistant United States Attorney, Doe did not hold a security clearance or have authority to review classified materials. The Department of Justice did require that those employees occupying Special-Sensitive, Level 4 positions (such as AUSAs) "have ready access to security clearances should the need to secure one on short notice become necessary." When Doe advised, through a letter from his doctor, that he suffered from an anxiety disorder that noted his "potential to decompensate into a depression with paranoid features", the agency determined he "was no longer eligible to hold a Special-Sensitive Level 4 position and that his assignment as an AUSA posed an unnecessary and unacceptable operational security risk." The agency subsequently removed Doe. On appeal, the AJ relied on Egan v. Department of Navy, 484 U.S. 518 (1988), wherein the Supreme Court held that the Board may not review an agency's decision to deny or revoke an employee's security clearance, to limit his review of and uphold the removal.
On petition for review, Doe argued that Egan only applies where an employee actually held a security clearance. The Board disagreed and noted:
We find that the limited scope of review set forth in Egan applies in adjudicating the charge. The administrative judge correctly found that Employee 3 explained that the agency limits the number of actual security clearances it issues but that employees occupying Special-Sensitive, Level 4 positions "have ready access to security clearances should the need to secure one on short notice become necessary." ID at 4 n.1; HT at 26-27. The administrative judge also correctly found that Employee 3 further stated that "only employees who actually hold a security clearance have authority to review classified material." ID at 4 n.1; HT at 27. In its response, citing Exec. Order No. 12,968, the agency noted that AUSAs do not ordinarily maintain active security clearances because of government policy requiring that such clearances be limited, but explained that all AUSAs are subjected to the same background check as individuals with security clearances and must be able to be quickly authorized to handle classified information, thus making activation of security clearances "simply an administrative matter." PFR File, Tab 5, Agency Resp. at 5 n.5; see also HT at 25-27. The appellant has cited nothing to contest this representation. Thus, we find that the appellant's position required eligibility for access to classified information, and the limited scope of review set forth in Egan applies.
The Board agreed with the AJ's determination that "the requirement to maintain eligibility to hold a Special-Sensitive, Level 4 position was functionally equivalent to a security clearance determination."
The Board ultimately remanded Doe's removal back to the agency for review of the decision in accordance with an agency regulation that allowed employee's the right to an intra-agency review of terminations of an employee's eligibility access to classified information.
While the Board's jurisdiction to review an agency's denial of access to secure information continues to narrow, agencies are well advised when making such decisions to adhere to their own regulations.
For more on this topic, see Security Clearance Law and Procedure by Elizabeth Newman on SALE NOW, A Guide to MSPB Law and Practice by Peter Broida, and MSPB Summaries by Peter Broida and Natania Davis.