Where National Security Is Implicated, There Is No Meaningful Distinction Between Positions Requiring Access to Classified Information and Those That Are Designated "Sensitive"

Kaplan v. Conyers, 2011-3207 (Fed. Cir. August 20, 2013)

by Natania Davis

Over the last few years, we have kept our readers up to date on these cases. Here, we report the Federal Circuit's holding, sitting en banc, without a lot of factual or procedural history. For a more fullsome description of the facts related to these cases and their procedural history, readers should revisit our articles in News and Case Alert #5-3, 4-7, and 3-1.

Let's jump right in...

The Federal Circuit held that Egan cannot be confined to security clearance determinations. Egan, according to the court, stood for the principle that courts must "refrain from second-guessing DoD national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information." The President and DoD must be able to exercise their discretion to make decisions regarding issues of national security. Central to that discretion is Executive Order 10, 450, which empowers the heads of agencies to establish and maintain 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 national security," and the phrase "classified information" does not appear in the Order.

Sensitive information can be as vital and detrimental to national security as classified information, the Court noted. Delivering the majority opinion of the court, Judge Wallach, wrote:

There is no meaningful difference in substance between a designation that a position is "sensitive" and a designation that a position requires "access to classified information." Rather, what matters is that both designations concern national security. As a result, Egan prohibits review of DoD national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information. Consequently, Egan's pronouncements regarding national security must apply to this case absent contrary congressional action.

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It is naive to suppose that employees without direct access to already classified information cannot affect national security.

The court continued its analysis by noting the differences in burdens of proof between a DoD eligibility determation and the Board's review of an adverse action:

Defining the impact an individual may have on national security is the type of predictive judgment that must be made by those with necessary expertise. See Egan, 484 U.S. at 529....When evaluating an individual for employment, it is those with such expertise who effectively can apply the Agency's "clearly consistent with the interests of national security" standard, which otherwise would conflict with the Board's "preponderance of the evidence" standard.

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DoD regulations require that the determination of an employee's ineligibility to hold a sensitive position must be "consistent with the interests of national security." See 32 C.F.R. § 154.6(b) ("The personnel security standard that must be applied to determine whether a person is eligible for access to classified information or assignment to sensitive duties is whether, based on all available information, the person's loyalty, reliability, and trustworthiness are such that entrusting the person with classified information or assigning the person to sensitive duties is clearly consistent with the interests of national security."); see also Exec. Order No. 10,450, § 3, 3 C.F.R. § 937 (1949-1953 Comp.). Thus, such Agency determinations cannot be reviewable by the Board because it would improperly place an inconsistent burden of proof upon the government.

Summing it all up, the court wrote:

There is nothing talismanic about about eligibility for access to classified information. The core question is whether the Agency determination concerns eligibility of an employee to occupy a sensitive position that implicates national security. When the answer to that question is in the affirmative, Egan applies and the Board plays a limited role in its review of the determination.

Other interesting morsels from the majority opinion:

5 USC 7532 (suspensions and removals in the interests of national security) vs. 5 USC 7513: The court rejected argument that under this logic, the summary removal procedures set forth in 5 USC 7532 would become the exclusive procedure for cases involving national security terminations. Congress intended 7532 to supplement rather than replace or narrow the ususal adverse action procedures of 5 USC 7513, according to the court.

Mixed Cases/Applying Kloeckner: The court dispensed unceremoniously with the Board's argument that under Kloeckner v. Solis, 133 S. Ct. 596 (2012), the Federal Circuit lacked jurisdiction over Northover's appeal because it was a "mixed" case. Noting that the Northover case implicated 5 USC 7703(d) (review obtained by the Director of OPM), not 7703(b) (on PFR) and citing to Horner v. Schuck, 843 F.2d 1368 (Fed. Cir. 1988), the court held "that Northover is subject to immediate review under 7703(d)."

Judge Dyk, joined by Newman and Reyna, dissented. Likely to be often quoted, Judge Dyk wrote in his opening remarks:

The majority opinion upholds sweeping claims by the Department of Defense ("DoD") that it may take adverse actions against non-critical sensitive employees without review by the Merit Systems Protection Board ("MSPB" or "Board"). The effect is to effectively deny MSPB review for hundreds of thousands of federal employees--a number that is likely to increase as more positions are designated as non-critical sensitive. In my view, the DoD has acted without authority from either the President or Congress, and contrary to the Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. § 1101 et seq.

Quoting Egan, Judge Dyk noted that Egan decided the "narrow question" of "whether the MSPB had 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." The dissents arguments are compelling and worth a read since this is not likely the end of the matter. A petition for a writ of certiorari will likely be filed in the US Supreme Court.

For more on Conyers, Egan, security clearances and adverse actions, see Adverse Actions: A Guide for Federal Managers and Personnel Specialists by Corum; Adverse Actions and Performance-Based Actions: Process, Law and Cases, Guidance and Pitfalls by Fowler and Vitaro; MSPB Case Summaries by Broida and Davis, and A Guide to MSPB Law and Practice by Broida.