Kaplan v. Conyers

United States Court of Appeals
for the Federal Circuit
______________________
ELAINE D. KAPLAN, Acting Director, Office of
Personnel Management,
Petitioner,
v.
RHONDA K. CONYERS AND DEVON HAUGHTON
NORTHOVER,
Respondents,
AND
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2011-3207
______________________
Petition for review of the Merit Systems Protection
Board in Nos. CH0752090925-R-1 and AT0752100184-R-
1.
______________________
Decided: August 20, 2013
______________________
ABBY C. WRIGHT, Attorney, Appellate Staff, Commer-
cial Litigation Branch, United States Department of
Justice, of Washington, DC, argued for petitioner on
rehearing en banc. With her on the brief were STEWART
F. DELERY, Acting Assistant Attorney General, BETH S.
BRINKMANN, Deputy Assistant Attorney General, JEANNE
2 KAPLAN v. CONYERS
E. DAVIDSON, Director, TODD M. HUGHES, Deputy Direc-
tor, DOUGLAS N. LETTER and MARLEIGH D. DOVER, Attor-
neys. Of counsel on the brief were SHARON M. MCGOWAN,
Acting General Counsel, KATHIE ANN WHIPPLE, Deputy
General Counsel, STEVEN E. ABOW, Assistant General
Counsel, and ROBERT J. GIROUARD, Senior Counsel, Office
of the General Counsel, Office of Personnel Management,
of Washington, DC. Of counsel was ALLISON KIDD-
MILLER, Senior Trial Counsel, United States Department
of Justice, of Washington, DC.
ANDRES M. GRAJALES, American Federation of Gov-
ernment Employees, of Washington, DC, argued for
respondents Rhonda K. Conyers, et al. on rehearing en
banc. With him on the brief were DAVID A. BORER, Gen-
eral Counsel, and JOSEPH F. HENDERSON, Deputy General
Counsel.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent Merit Systems Protection
Board on rehearing en banc. With him on the brief were
BRYAN G. POLISUK, General Counsel, and KEISHA DAWN
BELL, Deputy General Counsel.
THOMAS DEVINE, Legal Director, Government Ac-
countability Project, of Washington, DC, for amicus curiae
Government Accountability Project on rehearing en banc.
ELISABETH R. BROWN, Attorney, United States Office
of Special Counsel, of Washington, DC, for amicus curiae
The United States Office of Special Counsel on rehearing
en banc.
ARTHUR B. SPITZER, American Civil Liberties Union of
the Nation’s Capital, of Washington, DC, for amici curiae
National Treasury Employee Union, et al. on rehearing en
banc. With him on the brief were GREGORY O’DUDEN,
KAPLAN v. CONYERS 3
General Counsel, LARRY J. ADKINS, Deputy General
Counsel, JULIE M. WILSON, Associate General Counsel,
and PARAS N. SHAH, Assistant Counsel, National Treasury
Employees Union, of Washington, DC.
______________________
Before RADER, Chief Judge, NEWMAN, LOURIE, DYK,
PROST, MOORE, O’MALLEY, REYNA, WALLACH, and
TARANTO, Circuit Judges. 1
Opinion for the court filed by Circuit Judge WALLACH, in
which RADER, Chief Judge, LOURIE, PROST, MOORE,
O’MALLEY, and TARANTO, Circuit Judges, join.
Dissenting opinion filed by Circuit Judge DYK, in which
NEWMAN and REYNA, Circuit Judges, join.
WALLACH, Circuit Judge.
In this federal employment case implicating national
security, the Director of the Office of Personnel Manage-
ment 2 (“OPM”) seeks review of the decision by the Merit
Systems Protection Board (“Board”) holding that the
Supreme Court’s decision in Department of the Navy v.
Egan, 484 U.S. 518 (1988), limits Board review only to
actions involving security clearance determinations, i.e.,
determinations concerning eligibility of access to classi-
fied information. Egan, however, is not so limited.
Egan’s principles prohibit Board review of the Depart-
ment of Defense’s (“DoD” or the “Agency”) determinations
concerning eligibility of an employee to occupy a “sensi-
1 Circuit Judge Chen did not participate in this de-
cision.
2 Elaine D. Kaplan took office as the Director of the
Office of Personnel Management during the pendency of
this case, replacing John Berry. Pursuant to Federal Rule
of Appellate Procedure 43(c)(2), Director Kaplan is auto-
matically substituted as Petitioner in this case.
4 KAPLAN v. CONYERS
tive” position, regardless of whether the position requires
access to classified information. 3 As to the Respondents,
we hold that Rhonda K. Conyers (“Conyers”) no longer
maintains a cognizable interest in the outcome of this
case. Ms. Conyers is therefore dismissed from this ap-
peal. With respect to Devon Haughton Northover
(“Northover”), we reverse and remand for further proceed-
ings.
I. BACKGROUND
Ms. Conyers and Mr. Northover 4 were indefinitely
suspended and demoted, respectively, from their positions
with the Agency after they were found ineligible to occupy
“noncritical sensitive” positions. 5 Ms. Conyers and Mr.
3 Ms. Conyers and Mr. Northover are DoD employ-
ees. DoD regulations define “sensitive” positions as those
that may have an effect on national security. See 32
C.F.R. § 154.13. We do not have before us the regulations
of other agencies. Accordingly, we do not consider non-
DoD “sensitive” positions.
4 The Board, Ms. Conyers, and Mr. Northover were
all Respondents in this case. This court will refer to the
Board as the “Board,” Mr. Northover as “Northover,” and
Ms. Conyers as “Conyers,” where discussion is appropri-
ate given her dismissal.
5 Departments and agencies of the Government
classify jobs in three categories: “critical sensitive,” “non-
critical sensitive,” and “nonsensitive.” Egan, 484 U.S. at
528. The underlying cases involve “noncritical sensitive”
positions, which are defined as: “Positions with potential
to cause damage to . . . national security, up to and includ-
ing damage at the significant or serious level. These
positions include: (1) Access to Secret, “L,” Confidential
classified information[;] (2) Any other positions with
potential to cause harm to national security to a moderate
degree . . . .” J.A. 326 (emphases added).
KAPLAN v. CONYERS 5
Northover independently appealed the Agency’s actions to
the Board. In both appeals, the Agency argued that,
because these positions were designated “noncritical
sensitive,” the Board could not review the merits of the
Agency’s eligibility determinations under Egan’s prece-
dent.
A. The Egan Holding
In Egan, the Supreme Court held that the Board
plays a limited role in adverse action cases involving
national security concerns. The respondent in Egan lost
his laborer’s job at a naval facility when he was denied a
required security clearance. 484 U.S. at 520. Reversing
our decision in Egan v. Department of the Navy, 802 F.2d
1563 (Fed. Cir. 1986), rev’d, 484 U.S. 518 (1988), the
Court held that the Board does not have authority to
review the substance of the security clearance determina-
tion, contrary to what is required generally in other
adverse action appeals. 484 U.S. at 530–31. Rather, the
Court held that the Board has authority to review only:
(1) whether an Executive Branch employer determined
the employee’s position required a security clearance; (2)
whether the clearance was denied or revoked; (3) whether
the employee was provided with the procedural protec-
tions specified in 5 U.S.C. § 7513; and (4) whether trans-
fer to a nonsensitive position was feasible. Id. at 530.
B. Ms. Conyers’s Initial Proceedings
Ms. Conyers occupied a competitive service position of
GS–525–05 Accounting Technician at the Defense Fi-
nance and Accounting Service. Conyers v. Dep’t of Def.,
115 M.S.P.R. 572, 574 (2010). Following an investigation,
the Agency’s Washington Headquarters Services (“WHS”)
Consolidated Adjudications Facility (“CAF”) discovered
information about Ms. Conyers that raised security con-
cerns. J.A. 149–52. Effective September 11, 2009, the
Agency indefinitely suspended Ms. Conyers from her
position because she was denied eligibility to occupy a
sensitive position by WHS/CAF. Conyers, 115 M.S.P.R. at
6 KAPLAN v. CONYERS
574. The Agency reasoned that Ms. Conyers’s noncritical
sensitive “position required her to have access to sensitive
information,” and because WHS/CAF denied her such
access, “she did not meet a qualification requirement of
her position.” Id.
Ms. Conyers appealed her indefinite suspension to the
Board. Id. In response, the Agency argued that Egan
prohibited Board review of the merits of WHS/CAF’s
decision to deny Ms. Conyers eligibility for access “to
sensitive or classified information and/or occupancy of a
sensitive position.” Id. (internal citation and quotation
marks omitted). On February 17, 2010, the administra-
tive judge issued an order certifying the case for an inter-
locutory appeal and staying all proceedings pending
resolution by the full Board. Id. at 575. In her ruling, the
administrative judge declined to apply Egan and “in-
formed the parties that [she] would decide the case under
the broader standard applied in . . . other [5 U.S.C.]
Chapter 75 cases which do not involve security clearances
. . . .” Id. (brackets in original).
C. Mr. Northover’s Initial Proceedings
Mr. Northover occupied a competitive service position
of GS–1144–07 Commissary Management Specialist at
the Defense Commissary Agency. Northover v. Dep’t of
Def., 115 M.S.P.R. 451, 452 (2010). Effective December 6,
2009, the Agency reduced Mr. Northover’s grade level to
part-time GS–1101–04 Store Associate due to revoca-
tion/denial of his DoD eligibility to occupy a sensitive
position. Id. at 453. In its Notice of Proposed Demotion,
the Agency stated that Mr. Northover was in a position
that was “designated as a sensitive position” and that
WHS/CAF had denied him “eligibility for access to classi-
fied information and/or occupancy of a sensitive position.”
Id. (internal citation and quotation marks omitted).
Mr. Northover subsequently appealed the Agency’s
decision to the Board. Id. In response, the Agency argued
it had designated the Commissary Management Special-
KAPLAN v. CONYERS 7
ist position a “moderate risk” national security position
with a sensitivity level of “noncritical sensitive,” and
under Egan, the Board is barred from reviewing the
merits of the Agency’s “security-clearance/eligibility
determination.” Id.On April 2, 2010, contrary to the ruling in Conyers,
the presiding chief administrative judge ruled that Egan
applied and that the merits of the Agency’s determination
were unreviewable. Id. The chief administrative judge
subsequently certified his ruling to the full Board. Id. All
proceedings were stayed pending resolution of the certi-
fied issue. Id.D. The Full Board’s Interlocutory Review of
Conyers and Northover
On December 22, 2010, the full Board affirmed the
administrative judge’s decision in Conyers and reversed
the chief administrative judge’s decision in Northover,
concluding that Egan did not apply in cases where securi-
ty clearance determinations are not at issue. Conyers,
115 M.S.P.R. at 590; Northover, 115 M.S.P.R. at 467–68.
The Board held that Egan limits the Board’s review of an
otherwise appealable adverse action only if that action is
based upon eligibility for or a denial, revocation, or sus-
pension of access to classified information. 6 Conyers, 115
M.S.P.R. at 589–90; Northover, 115 M.S.P.R. at 467–68.
Because Ms. Conyers and Mr. Northover did not occupy
positions that required access to classified information,
the Board concluded that Egan did not preclude Board
review of the underlying Agency determinations. Conyers,
115 M.S.P.R. at 585; Northover, 115 M.S.P.R. at 464.
6 The Board considered “security clearance” to be
synonymous with “access to classified information.”
Conyers, 115 M.S.P.R. at 580.
8 KAPLAN v. CONYERS
OPM moved for reconsideration of the Board’s deci-
sions, which the Board denied. Berry v. Conyers, 435 F.
App’x 943, 944 (Fed. Cir. 2011) (order granting OPM’s
petition for review). OPM petitioned for review to this
court, and the petition was granted on August 17, 2011.
Id. at 945. On August 17, 2012, a divided panel reversed
the Board, holding that Egan applied to this case and
concluding that determinations pertaining to eligibility to
occupy a “sensitive” position were unreviewable. Berry v.
Conyers, 692 F.3d. 1223 (Fed. Cir. 2012). We granted
rehearing en banc and vacated the panel decision on
January 24, 2013. Berry v. Conyers, 497 F. App’x 64 (Fed.
Cir. 2013). Oral arguments were held on May 24, 2013.
II. JURISDICTION
The underlying cases in Conyers and Northover were
respectively dismissed by the Board as moot, Conyers v.
Dep’t of Def., No. CH–0752–09–0925–I–3, 2011 WL
6939837 (M.S.P.B. Sept. 29, 2011), and dismissed without
prejudice pending the outcome of this appeal, see J.A.
1765–67; 1821. The parties do not dispute that the case is
moot as to Ms. Conyers. Because the parties agree that
Ms. Conyers has no cognizable interest in the outcome of
this appeal, her case is dismissed. Cooper v. Dep’t of the
Navy, 108 F.3d 324, 326 (Fed. Cir. 1997) (“If an appeala-
ble action is canceled or rescinded by an agency, any
appeal from that action becomes moot.”). Conversely, the
parties do not dispute that Mr. Northover maintains a
cognizable interest in the outcome of this appeal, in part,
because the Defense Commissary Agency’s rescission of
its action does not dispose of Mr. Northover’s discrimina-
tion claims. See J.A. 1765–67; 1821. Hence, Northover
remains in this appeal.
We have jurisdiction under 5 U.S.C. § 7703(d)(1),
which provides that OPM may seek review of a final
Board order or decision when it determines the Board
erred in interpreting a civil service law, rule or regulation,
and that the decision will have a substantial impact on
the administration of the civil service. The granting of
KAPLAN v. CONYERS 9
OPM’s petition for judicial review is at the discretion of
this court. Id.While we may grant such petitions, the decision for
review must be final, since this court lacks jurisdiction to
review non-final Board decisions. See Weed v. Social Sec.
Admin., 571 F.3d 1359, 1362–63 (Fed. Cir. 2009) (Board’s
remand order was not final order subject to immediate
review). A motions panel and the prior merits panel held
that the Board’s decisions in Conyers and Northover were
appealable under the collateral order doctrine as articu-
lated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949). We agree that jurisdiction is proper to
address OPM’s petition for review.
Cohen held that final decisions by district courts, pur-
suant to 28 U.S.C. § 1291, encompass not only judgments
that “terminate an action,” but also a “small class” of
collateral rulings that, although they do not end the
litigation, are appropriately deemed “final.” 337 U.S at
545–46. “That small category includes only decisions that
are conclusive, that resolve important questions separate
from the merits, and that are effectively unreviewable on
appeal from the final judgment in the underlying action.”
Id. at 546. This “practical” approach applies to adminis-
trative actions. Mathews v. Eldridge, 424 U.S. 319, 330–
31 (1976) (allowing judicial review of administrative
action on collateral issue). Although recognizing the
differing policy considerations between appeals from
district courts and administrative actions, Mathews
emphasized the “core principle that statutorily created
finality requirements should, if possible, be construed so
as not to cause crucial collateral claims to be lost and
potentially irreparable injuries to be suffered remains
applicable.” Id. at 331 n.11.
We find that the Board decision before this court is
sufficiently conclusive to require resolution of Egan’s
application to “sensitive” position determinations. Await-
10 KAPLAN v. CONYERS
ing a final judgment in such cases would require Execu-
tive Branch agencies to litigate the merits and to poten-
tially disclose matters concerning national security.
Hence, this matter has the requisite “substantial impact
on a civil service law,” § 7703(d)(1), and in turn, qualifies
as one of those “small class” of collateral rulings that,
although they do not end the litigation, are appropriately
deemed “final,” Cohen, 337 U.S at 545–46.
The Board asserts that under Kloeckner v. Solis, 133
S. Ct. 596 (2012), this court lacks jurisdiction because, in
part, Mr. Northover’s appeal is a “mixed” case involving a
removal action in addition to a discrimination case
properly before a federal district court. Kloeckner, howev-
er, interpreted 5 U.S.C. § 7703(b) and not § 7703(d), which
is applicable here. As we reasoned in Horner:
There are sound reasons for Congress to establish
in sections 7701 and 7703 different standards for
the Director’s participation. Under section 7701,
the Director’s participation before the board is in
addition to the respondent agency’s participation.
Under section 7703(d), the Director has sole au-
thority to seek judicial review of a board decision
that is unfavorable to an agency. The Director
acts under section 7703 to protect the interests of
the respondent agency or to protect the interests
of the civil service as a whole.
Horner v. Schuck, 843 F.2d 1368, 1373 (Fed. Cir. 1988).
Accordingly, Northover is subject to immediate review
under § 7703(d).
III. STATUTORY GROUNDS FOR NATIONAL SECURITY
BASED REMOVAL OF GOVERNMENT EMPLOYEES
The statutes provide a two-track system for removal
of employees based on national security concerns. Egan,
484 U.S. at 526. In particular, relevant provisions of the
Civil Service Reform Act of 1978 (“CSRA”), Chapter 75 of
Title 5 of the United States Code entitled, “Adverse
Actions,” provide two subchapters related to removals.
KAPLAN v. CONYERS 11
The first, subchapter II (§§ 7511–7514), relates to remov-
als for “cause.” Under § 7512, a reduction in grade of an
employee, as here, may qualify as an “adverse action.” 5
U.S.C. § 7512(3). An employee subject to an adverse
action is entitled to the protections of § 7513, which
include written notice of the specific reasons for the
proposed action, an opportunity to respond to the charges,
and the requirement that the agency’s action is taken to
promote the efficiency of the service. An employee re-
moved for “cause” has the right, under § 7513(d), to ap-
peal to the Board. On review of the action by the Board
under § 7701, 7 the agency must show that its decision is
supported by a preponderance of the evidence. 5 U.S.C. §
7701(c)(1)(B). The appeal here proceeded pursuant to 5
U.S.C. § 7513(d).
The second, subchapter IV (§§ 7531–7533), relates to
suspensions and removals based upon national security
concerns. An employee suspended under § 7532(a) is not
entitled to appeal to the Board. Nonetheless, the statute
provides for a summary removal process that entitles the
employee to specified pre-removal procedural rights,
7 5 U.S.C. § 7701 provides, in relevant part: “An
employee, or applicant for employment, may submit an
appeal to the Merit Systems Protection Board from any
action which is appealable to the Board under any law,
rule, or regulation.” 5 U.S.C. § 7701(a). It is undisputed
that Northover is an “employee” as defined in the applica-
ble statutes in this case. See 5 U.S.C. § 7511(a)(1)(A)(i),
(ii) (“[E]mployee means . . . an individual in the competi-
tive service . . . who is not serving a probationary or trial
period under an initial appointment; or . . . who has
completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or
less.”).
12 KAPLAN v. CONYERS
including a hearing by an agency authority. 5 U.S.C. §
7532(c).
IV. EGAN’S APPLICATION TO THIS CASE
The Board and Northover urge this court to limit
Egan’s application to security clearance determinations,
reasoning that national security concerns articulated in
that case pertain to access to classified information only.
Egan cannot be so confined. Its principles instead require
that courts refrain from second-guessing DoD national
security determinations concerning eligibility of an indi-
vidual to occupy a sensitive position, which may not
necessarily involve access to classified information. For
the following reasons, Egan must apply.
A. Egan Addressed Broad National Security Concerns
That Are Traditionally the Responsibility of the
Executive Branch
Egan, at its core, explained that it is essential for the
President and the DoD to have broad discretion in making
determinations concerning national security. In particu-
lar, Egan noted the absence of a statutory provision in §
7512 precluding appellate review of determinations
concerning national security created a presumption in
favor of judicial review. 484 U.S. at 526–27. The Court,
nevertheless, held that “proposition is not without limit,
and it runs aground when it encounters concerns of
national security, as in this case, where the grant of
security clearance to a particular employee, a sensitive
and inherently discretionary judgment call, is committed
by law to the appropriate agency of the Executive
Branch.” Id. at 527 (emphasis added). Affording such
discretion to agencies, according to Egan, “flows primarily
from [the Commander in Chief Clause] and exists quite
apart from any explicit congressional grant.” 484 U.S. at
527. The Court has consistently articulated that matters
touching upon foreign policy and national security fall
within “an area of executive action ‘in which courts have
long been hesitant to intrude’” absent congressional
KAPLAN v. CONYERS 13
authorization. Lincoln v. Vigil, 508 U.S. 182, 192 (1993)
(quoting Franklin v. Massachusetts, 505 U.S. 788, 819
(1992) (Stevens, J., concurring in part and concurring in
the judgment)); see also Egan, 484 U.S. at 529 (Foreign
policy is the “province and responsibility of the Executive .
. . . [C]ourts traditionally have been reluctant to intrude
upon the authority of the Executive in military and na-
tional security affairs.”) (citation omitted).
The deference owed to the Executive Branch in these
matters stems from our constitutional principle of separa-
tion of powers among the branches of government, see
United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304,
320 (1936) (recognizing the “plenary and exclusive power
of the President as the sole organ of the federal govern-
ment in the field of international relations”), and the long-
recognized convention that the judiciary’s institutional
expertise is limited under these circumstances,
Boumediene v. Bush, 553 U.S. 723, 797 (2008) (“Unlike
the President and some designated Members of Congress,
neither the Members of this Court nor most federal judges
begin the day with briefings that may describe new and
serious threats to our Nation and its people. The law
must accord the Executive substantial authority to ap-
prehend and detain those who pose a real danger to our
security.”). Indeed, Egan applied that same reasoning in
the context of this case:
[I]t is not reasonably possible for an outside non-
expert body to review the substance of such a
judgment and to decide whether the agency
should have been able to make the necessary af-
firmative prediction with confidence. Nor can
such a body determine what constitutes an ac-
ceptable margin of error in assessing the potential
risk.
484 U.S. at 529. This rationale applies to all prediction of
risk regarding national security. Thus, absent congres-
14 KAPLAN v. CONYERS
sional action, judicial review of national security matters
is generally prohibited. 8
The Board and Northover’s focus on only one factor,
eligibility of access to classified information, is misplaced.
The centerpiece of the Egan analysis, Executive Order No.
10,450, makes no mention of “classified information.” 9
8 The Dissent argues that we should afford Chevron
deference to the Board’s interpretation of its own jurisdic-
tion under the CSRA. Dissent 21. Although Chevron
would normally apply to the Board’s interpretation of the
CSRA, where the agency’s interpretation raises serious
constitutional doubts, courts are required to inquire
whether there exists another permissible interpretation.
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and
Const. Trades Council, 485 U.S. 568, 575–76 (1988). The
principle of separation of powers dictates here and we do
not read the CSRA to “assum[e] that Congress . . . casual-
ly authorize administrative agencies to interpret a statute
to push the limit of congressional authority.” Solid Waste
Agency of N. Cook Cnty., 531 U.S. 159, 172–73 (2001).
The President has the primary responsibility along with
the necessary power to protect the national security. The
Board cannot usurp that power by asserting Chevron.
9 The Dissent contends no Presidential Order here
authorizes the DoD to make judgments whether an em-
ployee is a risk to national security. Dissent 4. Executive
Order No. 10,450 directs agencies, such as the DoD, to
establish programs “to insure that the employment and
retention . . . of any civilian . . . employee . . . is clearly
consistent with the interests of the national security.”
That Presidential Order applied in Egan. It applies here.
The Dissent nevertheless claims support in Cole v. Young,
351 U.S. 536 (1956), but the Dissent’s reliance on Cole is
erroneous. The question in Cole was whether the Civil
Service Commission could review Mr. Cole’s discharge
from the military. The government conceded the review
KAPLAN v. CONYERS 15
Exec. Order No. 10,450, § 3, 3 C.F.R. 937 (1949–1953
Comp.) (“The head of any department or agency shall
designate, or cause to be designated, any position within
his department or agency the occupant of which could
bring about, by virtue of the nature of the position, a
material adverse effect on the national security as a
sensitive position.”). In addition, other relevant statutes
and regulations define “sensitive” position in the broadest
sense by referring to “national security” generally. See 10
U.S.C. § 1564 (“Security clearance investigations . . . . (e)
Sensitive duties. -- For the purposes of this section, it is
not necessary for the performance of duties to involve
classified activities or classified matters in order for the
duties to be considered sensitive and critical to the na-
tional security.”) (emphasis added); see also 5 C.F.R. §
732.102 (“(a) For purposes of this part, the term national
security position includes: (1) Those positions that involve
activities of the Government that are concerned with the
protection of the nation from foreign aggression or espio-
nage . . . .”). The Board and Northover also conflate
“classified information” with “national security infor-
mation,” but Egan does not imply those terms have the
same meaning. In fact, Egan’s core focus is not on “infor-
mation,” but rather on the Executive’s discretion to act on
threats—information-based or not—to national security
generally. 484 U.S. at 527 (recognizing the government’s
“‘compelling’ interest in withholding national security
information”) (emphasis added).
was expressly authorized by the Veterans’ Preference Act
of 1944 (“VPA”), but argued express authorization in the
VPA can be overridden by Executive action pursuant to
Executive Order No. 10,450. Thus, the issue presented
was whether the Executive could override express Con-
gressional authority to take action. In this case, as in
Egan, there is no such express Congressional authority.
16 KAPLAN v. CONYERS
As explained in Egan, government positions may re-
quire different types and levels of security protection,
depending upon the sensitivity of the position sought. 484
U.S. at 528. A government appointment is expressly
made subject to a background investigation that varies in
scope according to the degree of adverse effect the appli-
cant could have on national security. Id. (citing Exec.
Order No. 10,450, § 3, 3 C.F.R. 937 (1949–1953 Comp.)).
As OPM states: “An agency’s national security calculus
will vary widely depending upon, inter alia, the agency’s
mission, the particular project in question, and the degree
of harm that would be caused if the project is compro-
mised.” OPM’s Br. 33. As a result, an agency’s determi-
nation concerning national security entails consideration
of multiple factors.
For example, categorizing a sensitive position is un-
dertaken without regard to access to classified infor-
mation, but rather with regard to the effect the position
may have on national security. See Exec. Order No.
10,450 § 3, 3 C.F.R. 937 (1949–1953 Comp.). Similarly,
agencies make predictive judgments about an individual
as:
an attempt to predict his [or her] possible future
behavior and to assess whether, under compulsion
of circumstances or for other reasons, he [or she]
might compromise sensitive information. It may
be based, to be sure, upon past or present conduct,
but it also may be based upon concerns completely
unrelated to conduct such as having close rela-
tives residing in a country hostile to the United
States.
Egan, 484 U.S. at 528–29. These predictive judgments
are predicated on an individual’s potential to compromise
national security, which may entail classified or unclassi-
fied information. Consequently, the inquiry in these
Agency determinations concerning national security is not
contingent upon access to “information.”
KAPLAN v. CONYERS 17
Even if the focus is placed on “information,” the Board
and Northover fail to appreciate that the compelling
interest of withholding both classified and unclassified
information is not new. Courts have long recognized that
sensitive but unclassified material can be vital to national
security. See, e.g., Snepp v. United States, 444 U.S. 507,
511–12 (1980) (per curiam) (“[F]ormer intelligence agent’s
publication of . . . material relating to intelligence activi-
ties can be detrimental to vital national interests even if
the published information is unclassified.”). The Court
provides us with an illustrative example:
A foreign government can learn a great deal about
the [CIA’s] activities by knowing the public
sources of information that interest the Agency.
The inquiries pursued by the Agency can often tell
our adversaries something that is of value to
them. For example, disclosure of the fact that the
Agency subscribes to an obscure but publicly
available Eastern European technical journal
could thwart the Agency’s efforts to exploit its
value as a source of intelligence information. Sim-
ilarly, had foreign governments learned the Agen-
cy was using certain public journals and ongoing
open research projects in its MKULTRA research
of “brainwashing” and possible countermeasures,
they might have been able to infer both the gen-
eral nature of the project and the general scope
that the Agency’s inquiry was taking.
CIA v. Sims, 471 U.S. 159, 177 (1985) (internal citation
omitted).
Certainly, unclassified information can have detri-
mental effects on national security the same way as
classified information. That is acknowledged by Execu-
tive Order No. 13,526, which states, in part: “Compila-
tions of items of information that are individually
unclassified may be classified if the compiled information
reveals an additional association or relationship that . . .
meets the standards for classification under this or-
18 KAPLAN v. CONYERS
der . . . .” Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec.
29, 2009); 32 C.F.R. § 2001.13(c). In addition, courts have
recognized the same. See Kiareldeen v. Ashcroft, 273 F.3d
542, 551 n.2 (3d Cir. 2001) (“Certain information which
would otherwise be unclassified when standing
alone . . . may require classification when combined with
or associated with other unclassified or classified infor-
mation. Additionally, when presented in a context that
would reveal the FBI’s investigative interest in certain
individuals, organizations, or countries, information
which would normally be unclassified may be properly
classified.”); see also Kasza v. Browner, 133 F.3d 1159,
1168–69 (9th Cir. 1998) (recognizing the “mosaic” or
“compilation theory” of classifying information based on a
combination of unclassified items of information).
The Board nevertheless cites Cole v. Young, 351 U.S.
536 (1956), and references the Court’s discussion of the
legislative history of the Act of August 26, 1950 10 (“the
Act”) in support of its proposition that national security
concerns relate strictly to access to classified information.
The Board’s analysis is flawed. Cole held that a sensitive
position is one that implicates national security, and in
defining “national security” as used in the Act, the Court
concluded that the term “was intended to comprehend
only those activities of the Government that are directly
concerned with the protection of the Nation from internal
subversion or foreign aggression, and not those which
10 The Act of August 26, 1950, Pub. L. No. 81–733,
ch. 803, 64 Stat. 476 (1950), gave heads of certain de-
partments and agencies of the Government summary
suspension and unreviewable dismissal powers over their
civilian employees, when deemed necessary in the interest
of the national security of the United States. Conyers, 115
M.S.P.R. at 583 n.17. The Act was the precursor to 5
U.S.C. § 7532. Id.KAPLAN v. CONYERS 19
contribute to the strength of the Nation only through
their impact on the general welfare.” 351 U.S. at 544(emphasis added). 11 Thus, even in Cole, sensitive posi-
tions were defined as those that involve national security
generally and not necessarily those that involve classified
information only.
Furthermore, “sensitive positions” that can affect na-
tional security and “access to classified information” are
parallel concepts that are not necessarily the same. As
the Court reasoned:
Where applicable, the Act authorizes the agency
head summarily to suspend an employee pending
investigation and, after charges and a hearing, fi-
nally to terminate his employment, such termina-
tion not being subject to appeal. There is an
obvious justification for the summary suspension
power where the employee occupies a “sensitive”
position in which he could cause serious damage
to the national security during the delay incident
to an investigation and the preparation of charg-
es. Likewise, there is a reasonable basis for the
view that an agency head who must bear the re-
sponsibility for the protection of classified infor-
mation committed to his custody should have the
11 “It follows that an employee can be dismissed ‘in
the interest of the national security’ under the Act only if
he occupies a ‘sensitive’ position, and thus that a condition
precedent to the exercise of the dismissal authority is a
determination by the agency head that the position occu-
pied is one affected with the ‘national security.’” Cole, 351
U.S. at 551 (emphasis added). Accordingly, the Court in
Cole remanded the case to determine whether the peti-
tioner’s position was one in which he could adversely
affect national security. Id. at 557.
20 KAPLAN v. CONYERS
final say in deciding whether to repose his trust in
an employee who has access to such information.
Id. at 546 (emphasis added). 12 DoD regulations support
this conclusion.
32 C.F.R. § 154.13(a) states “[c]ertain civilian posi-
tions” that “entail duties of such a sensitive nature,
including access to classified information” are referred to
as “sensitive positions.” Hence, the regulations define
“sensitive positions” as a position that may include but
that is not limited to access to classified information. For
example, DoD categorizes a position as “noncritical sensi-
tive” position by considering one or more of the following
criteria:
(A) Access to Secret or Confidential information.
(B) Security police/provost marshal-type duties
involving the enforcement of law and security du-
ties involving the protection and safeguarding of
DoD personnel and property.
(C) Category II automated data processing posi-
tions.
(D) Duties involving education and orientation of
DoD personnel.
(E) Duties involving the design, operation, or
maintenance of intrusion detection systems de-
ployed to safeguard DoD personnel and property.
(F) Any other position so designated by the head
of the Component or designee.
12 By using the word, “likewise,” the Court compares
the two concepts, “sensitive positions” and “access to
classified information.” In doing so, it makes clear that
they are parallel but not identical concepts.
KAPLAN v. CONYERS 21
32 C.F.R. § 154.13(b)(ii). A position entailing any one or
more of these instructive examples and “the misconduct,
malfeasance, or nonfeasance of an incumbent in any such
position” would potentially have “an unacceptably adverse
impact upon national security.” 32 C.F.R. § 154.13(a).
The regulations contemplate the fact that a “noncritical
sensitive” position requiring access to classified infor-
mation is of the same substance as a “noncritical sensi-
tive” position involving, inter alia, security police-type
duties involving enforcement of law and protection and
safeguarding of DoD personal property. Regardless of
“access to classified information,” these positions might be
sensitive.
Accordingly, there is no meaningful difference in sub-
stance 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 sensi-
tive position, which may not necessarily involve access to
classified information. Consequently, Egan’s pronounce-
ments regarding national security must apply to this case
absent contrary congressional action.
B. The CSRA Does Not Grant Broad Authority to the
Board in This National Security Context
Despite the undisputed role of the Executive within
this realm, Northover argues applying Egan to these
cases “may deprive either the Congress or the Judiciary of
all freedom of action merely by invoking national securi-
ty.” Northover’s Br. 23. Certainly, under the Constitu-
tion, Congress has a substantial role in both foreign
affairs and national security. Subject to Constitutional
constraints, Congress has the power to guide and limit
the Executive’s application of its powers. Neither the
CSRA nor any other legislative action provides a basis for
limiting the Executive’s role in these cases.
22 KAPLAN v. CONYERS
As Egan explained:
An employee who is removed for cause under §
7513, when his required clearance is denied, is en-
titled to the several procedural protections speci-
fied in that statute. The Board then may
determine whether such cause existed, whether in
fact clearance was denied, and whether transfer to
a nonsensitive position was feasible. Nothing in
the Act, however, directs or empowers the Board
to go further.
484 U.S. at 530–31. As a result, Congress presumably
has left the President and Executive Branch agencies
broad discretion to exercise their powers in this area. See
Dames & Moore v. Regan, 453 U.S. 654, 678 (1981) (“Con-
gress cannot anticipate and legislate with regard to every
possible action the President may find it necessary to take
or every possible situation in which he might act,” and
“[s]uch failure of Congress . . . does not, ‘especially . . . in
the areas of foreign policy and national security,’ imply
‘congressional disapproval’ of action taken by the Execu-
tive.”) (citation omitted). Accordingly, when “the Presi-
dent acts pursuant to an express or implied authorization
from Congress,” his actions should be “‘supported by the
strongest of presumptions and the widest latitude of
judicial interpretation, and the burden of persuasion . . .
rest[s] heavily upon any who might attack it.’” Id. at 668(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 637 (1952) (Jackson, J., concurring)). Nothing
in the CSRA directs otherwise.
The CSRA was amended in 1990 after United States
v. Fausto, 484 U.S. 439 (1988). Fausto held the CSRA’s
silence regarding appeal rights reflected congressional
intent to preclude any review under chapter 75 for non-
preference eligible members of the excepted service. Id. at
448. In response, Congress passed the Civil Service Due
Process Amendments (“1990 Amendments”) expanding
the Board’s jurisdiction to some, but not all, non-
KAPLAN v. CONYERS 23
preference eligible excepted service employees. Pub. L.
No. 101–376, 104 Stat. 461 (1990).
Northover construes the 1990 Amendments as extend-
ing by implication Board review of agency determinations
concerning sensitive positions. Because certain agencies
relating to national security, such as the FBI, CIA, and
the NSA, were expressly exempted, Northover posits that
Board review must extend to all other positions not ex-
pressly excluded. However, certain employees of the
General Accounting Office, the Veterans Health Sciences
and Research Administration, the Postal Service, the
Postal Rate Commission, and the Tennessee Valley Au-
thority were also excluded. See Pub. L. No. 101–376, 104
Stat. 461 (1990). The exclusion of these varying agencies
negates Northover’s contention that there was a congres-
sional directive for the Board to review security decisions
affecting all employees of particular intelligence agencies.
The argument that Congress crafted some exceptions for
national security and not others is flawed; national secu-
rity was not a categorical factor in these exclusions.
Similarly, the Board and Northover point to the crea-
tion of the National Security Personnel System (“NSPS”)
in 2003 to support their argument that Congress spoke on
the issue before this court. This position is supported
neither by statutory language nor legislative history.
NSPS was established to overhaul the then-existing
personnel management system and polices of the DoD.
See National Defense Authorization Act, Pub. L. 108–136,
117 Stat. 1392 (2003). The Board and Northover’s focus
on the provisions relating to appellate procedures, which
replaced Board review and provided that: “[t]he Secretary
. . . may establish an appeals process that provides em-
ployees of the [DoD] organizational and functional units
that are included in the [NSPS] fair treatment in any
appeals that they bring in decision relating to their em-
ployment . . . .” Id. But the NSPS also provided for sever-
al other modifications to the DoD’s personnel system,
including a pay for performance system and modifications
24 KAPLAN v. CONYERS
to certain collective bargaining rights. Id.; see Am. Feder-
ation of Gov’t Emps., AFL-CIO v. Gates, 486 F.3d 1316,
1330 (D.C. Cir. 2007).
In 2009, NSPS was repealed largely due to strong op-
position from labor organizations regarding collective
bargaining issues. H.R. Rep. No. 110–146 at 394 (2007)
(“The committee is concerned that the implementing
regulations, issued in November, 2005, exceeded congres-
sional intent, especially with respect to limitations on
employee bargaining rights.”); S. Rep. No. 110–77 at 11
(2007) (“Repealing the existing authority of the [DoD] to
establish a new labor relations system under the [NSPS].
This would guarantee the rights of DoD employees to
union representation in NSPS.”); see also S. Rep. No. 111–
35 at 185 (2009) (“[T]he committee has received many
complaints from DoD employees during the 5 years dur-
ing which the D[oD] has sought to implement NSPS, to
the detriment of needed human capital planning and
workforce management initiatives.”); Department of
Defense Human Resources Management and Labor
Relations Systems, 70 Fed. Reg. 66,116, 66,123 (Novem-
ber 1, 2005) (“Significant differences with many of the
labor organizations remain . . . .”). The statute creating
the NSPS, the subsequent repeal of certain regulations
concerning the DoD appeals process, and the ultimate
repeal of the statute creating the NSPS itself in 2009, do
not prove congressional intent to preclude DoD from
insulating employment decisions concerning national
security from Board review.
The Board and Northover nevertheless claim support
in the enactment and subsequent repeal of the NSPS. In
particular, Northover contends that Congress created the
NSPS to give DoD power to foreclose Board review in non-
security clearance cases because it recognized that Egan
was confined to security clearances; Congress’ repeal of
NSPS thereby returned to the full scope of Board review
that had existed prior to the creation of the NSPS. These
assertions are also speculative.
KAPLAN v. CONYERS 25
There is nothing in Congress’ enactment or repeal of
NSPS indicating that Congress was concerned with the
application of Egan. Indeed, changes proposed to the
appeals process in the NSPS applied to all DoD employ-
ees, and therefore, they made no particular exceptions to
security clearance determinations. In addition, the Board
and Northover’s emphasis on the NSPS’s appellate pro-
cess is misplaced because the NSPS did far more than
attempt to replace the Board’s review of DoD employment
cases, it fundamentally altered labor-management rela-
tions and pay structures. As discussed above, the NSPS
faced strong opposition from labor organizations due to
unpopular limitations on bargaining rights. That Con-
gress chose to ultimately repeal the NSPS has no bearing
on the issue in this case.
The Board and Northover further argue that Congress
has spoken directly on the issue of removal for national
security concerns by enacting § 7532. This argument has
already been rejected by Egan. 484 U.S. at 533 (“The
argument is that the availability of the § 7532 procedure
is a ‘compelling’ factor in favor of Board review of a secu-
rity-clearance denial in a case under § 7513. We are not
persuaded.”).
In Egan, the Court observed the alternative availabil-
ity of § 7513 and § 7532. Id. at 532. Specifically, the
Court acknowledged that § 7532 does not preempt § 7513
and that the two statutory provisions stand separately
and provide alternative routes for administrative action.
Id. In addition, the Court held that the two sections were
not anomalous, but rather, different. Id. at 533. The
Court also held that one section did not necessarily pro-
vide greater procedural protections than the other. Id. at
533–34.
The Court in Carlucci v. Doe, 488 U.S. 93 (1988), fur-
ther articulated and clarified § 7532’s applicability. In
that case, the Court determined that the summary re-
26 KAPLAN v. CONYERS
moval mechanism(s) set out in § 7532 and 50 U.S.C. §
833 13 were discretionary mechanisms in cases involving
dismissals for national security reasons. Id. at 100. The
Court found that § 7532 was not mandatory, but permis-
sive: “‘[n]otwithstanding other statutes,’ the head of an
agency ‘may’ suspend and remove employees ‘in the
interests of national security.’” Id. at 100–01 (finding
nothing in § 7532 or its legislative history indicating that
the statute’s procedures are the exclusive means for
removals on national security grounds or that § 7532
displaces the otherwise applicable removal provisions of
the agencies covered by the section). Therefore, it was
held that the National Security Agency was not required
to apply either § 7532 or § 833 and was entitled to act
13Section 833 was a summary removal provision in
the 1964 National Security Agency Personnel Security
Procedures Act, 50 U.S.C. §§ 831–35 (repealed October 1,
1996).
KAPLAN v. CONYERS 27
under its ordinary dismissal procedure if it so wished. 14
Id. at 99–100.
Moreover, Carlucci held that Congress enacted § 7532
to “supplement, not narrow, ordinary agency removal
procedures.” Id. at 102. The Court reasoned that because
of its summary nature, “Congress intended § 7532 to be
invoked only where there is an immediate threat of harm
to the national security in the sense that the delay from
invoking normal dismissal procedures could ‘cause serious
damage to the national security.’” Id. (internal quotation
marks omitted) (citing Cole v. Young, 351 U.S. 536, 546
(1956)). Consequently, should § 7532 be mandatory as
the Board and Northover effectively argue, it would
become the exclusive procedure in this case and similar
cases, and “no national security termination would be
permissible without an initial suspension and adherence
to the Cole v. Young standard.” Id. Given Carlucci’s
teaching, we are unconvinced that Congress intended any
14 The Carlucci Court also affirmed Egan’s conclu-
sion regarding §§ 7513 and 7532:
We thus agree with the conclusion of the Mer-
it Systems Protection Board in a similar case that
“section 7532 is not the exclusive basis for remov-
als based upon security clearance revocations,”
Egan v. Department of the Navy, 28 M.S.P.R. 509,
521 (1985), and with the Court of Appeals for the
Federal Circuit that “[t]here is nothing in the text
of section 7532 or in its legislative history to sug-
gest that its procedures were intended to preempt
section 7513 procedures whenever the removal
could be taken under section 7532. The language
of section 7532 is permissive.” Egan v. Department
of the Navy, 802 F.2d 1563, 1568 (Fed. Cir. 1986),
rev’d, 488 U.S. 518 (1988).
Carlucci, 488 U.S. at 95.
28 KAPLAN v. CONYERS
such result when it enacted § 7532. Id. No congressional
act exists curtailing the Executive’s inherent powers in
these matters to make the underlying eligibility determi-
nation concerning national security. Thus applying Egan
here, the DoD’s discretion to control the selection and
retention of employees whose positions present risks to
national security, whether or not they involve access to
“information,” need not be second-guessed.
C. Predictive Judgments Must be Committed to
Agency Discretion
National security concerns render the Board and
Northover’s positions untenable. It is naive to suppose
that employees without direct access to already classified
information cannot affect national security. The Board
and Northover’s narrow focus on access to classified
information ignores the impact employees without securi-
ty clearances, but in sensitive positions, can have. 15
15 There are certainly numerous government posi-
tions with potential to adversely affect national security.
The Board goes too far by comparing a government posi-
tion at a military base commissary to one in a “Seven
Eleven across the street.” Oral Argument at 28:10–15,
Berry v. Conyers, 2011–3207 (May 11, 2012), available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/search/audio.html. Commissary employees do
not merely observe “[g]rocery store stock levels” or other-
wise publicly observable information. Northover’s Br. 20.
In fact, commissary stock levels of a particular unclassi-
fied item—sunglasses, for example, with shatterproof
lenses, or rehydration backpacks—might well hint at
deployment orders to a particular region for an identifia-
ble unit. Such troop movements are inherently secret. Cf.
Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 716
(1931) (“‘When a nation is at war many things that might
be said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as men
KAPLAN v. CONYERS 29
Defining the impact an individual may have on na-
tional security is the type of predictive judgment that
must be made by those with necessary expertise. See
Egan, 484 U.S. at 529 (“The attempt to define not only the
individual’s future actions, but those of outside and
unknown influences renders the ‘grant or denial of securi-
ty clearances . . . an inexact science at best.’”) (citation
omitted). When evaluating an individual for employment,
it is those with such expertise who effectively can apply
the Agency’s “clearly consistent with the interests of
fight and that no Court could regard them as protected by
any constitutional right . . . .’ No one would question but
that a government might prevent actual obstruction to its
recruiting service or the publication of the sailing dates of
transports or the number and location of troops.”) (quoting
Schenck v. United States, 249 U.S. 47, 52 (1919)) (empha-
sis added). This is not mere speculation, because, as OPM
contends, numbers and locations could very well be de-
rived by a skilled intelligence analyst from military
commissary stock levels. See Oral Argument at 13:19–
14:03, Berry v. Conyers, 2011–3207 (May 11, 2012), avail-
able at http://www.cafc.uscourts.gov/oral-argument-
recordings/search/audio.html (Q: “Can a position be
sensitive simply because it provides observability? That
is, one of these examples that was given was someone
working at a commissary; it seems to me that someone
working at a commissary has an opportunity, without
access to classified information, to observe troop levels,
potential for where someone is going, from what they are
buying, that sort of thing.” A: “I think that is right your
honor. We agree with that, and I think in Egan, he, Mr.
Egan worked on a nuclear submarine. And so, part of it
was simply from what he was observing by coming and
going of a nuclear submarine. And so, sensitivity can be
the place where the employee works, what are they able
to observe, what could they infer from, what you say, from
the purchases and shipments . . . .”).
30 KAPLAN v. CONYERS
national security” standard, which otherwise would
conflict with the Board’s “preponderance of the evidence”
standard. While in certain circumstances courts can
certainly consider the merits of a decision concerning
national security, Egan held that scenario unworkable
here:
As noted above, security clearance normally will
be granted only if it is “clearly consistent with the
interests of the national security.” The Board,
however, reviews adverse actions under a prepon-
derance of the evidence standard. § 7701(c)(1)(B).
These two standards seem inconsistent. It is diffi-
cult to see how the Board would be able to review
security-clearance determinations under a pre-
ponderance of the evidence standard without de-
parting from the “clearly consistent with the
interests of the national security” test. The clear-
ly consistent standard indicates that security-
clearance determinations should err, if they must,
on the side of denials. Placing the burden on the
Government to support the denial by a prepon-
derance of the evidence would inevitably shift this
emphasis and involve the Board in second-
guessing the agency’s national security determi-
nations.
Id. at 531. DoD regulations require that the determina-
tion 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 securi-
ty standard that must be applied to determine whether a
person is eligible for access to classified information or
assignment to sensitive duties is whether, based on all
available information, the person's loyalty, reliability, and
trustworthiness are such that entrusting the person with
classified information or assigning the person to sensitive
duties is clearly consistent with the interests of national
security.”) (emphasis added); see also Exec. Order No.
10,450, § 3, 3 C.F.R. § 937 (1949–1953 Comp.). Thus,
KAPLAN v. CONYERS 31
such Agency determinations cannot be reviewable by the
Board because it would improperly place an inconsistent
burden of proof upon the government.
Further, the sources upon which intelligence is based
are often open and publically available. Sometimes,
intelligence is obtained from sources in a fashion the
source’s government would find improper. Occasionally,
those means of obtention are coercive and/or subversive.
For example, the intelligence community may view cer-
tain disparaging information concerning an employee as a
vulnerability which can be used to blackmail or coerce
information out of the individual. See Egan, 484 U.S. at
528 (recognizing that the government has a compelling
interest in protecting truly sensitive information from
those who, “under compulsion of circumstances or for
other reasons . . . might compromise sensitive infor-
mation”). The type of information that can be coerced
may vary depending on the employee’s position.
In this case, Mr. Northover was a Commissary Man-
agement Specialist for the Defense Commissary Agency.
This position is not the type of position that involves mere
stocking of items on shelves. It is a management position
that entails carrying out a range of computer assisted
ordering tasks. The work is described to include generat-
ing and utilizing a wide variety of system reports as
inventory and merchandising management tools. The
incumbent is responsible for training, overseeing, and
monitoring the work of lower-grade employees. A Com-
missary Management Specialist may work uncommon
tours of duty as required. At bottom, this position does
not merely involve a “low-level” employee whose duties
and exposure are inconsequential.
This area of National Security Law is largely about
preventing human source intelligence gathering in a
manner which does not, in an open society, unnecessarily
limit the public’s right to access information about its
government’s activities. Still, there clearly is a need for
such prevention. Within the sphere of national security
32 KAPLAN v. CONYERS
limitations on government employment, our society has
determined that courts should defer to the agencies’
threat limiting expertise. See Egan, 484 U.S. at 528–30.
While threats may change with time, Egan’s analysis
remains valid. The advent of electronic records manage-
ment, computer analysis, and cyber-warfare have made
potential espionage targets containing means to access
matters concerning national security vastly more suscep-
tible to harm by people without security clearances. The
mechanics of planting within a computer system a means
of intelligence gathering are beyond the ken of the judici-
ary; what matters is that there are today more sensitive
areas of access than there were when Egan was authored.
Its underlying analysis, nevertheless, is completely appli-
cable—the President, as Commander-in-Chief, has the
right and the obligation, within the law, to protect the
nation against potential threats. Id. at 527.
The potential for arbitrary application of this right
under the guise of national security is a point of conten-
tion for Northover and the Board. These concerns howev-
er do not require a different result. Specifically,
Northover and the Board raise concerns of the likely
preclusion of judicial review of any alleged constitutional
and statutory violations (e.g., whistleblower retaliation)
for federal employees. 16 Egan rejected similar concerns of
16 Petitioners and several amici discuss the terms
and purposes behind the Whistleblower Protection Act,
Pub. L. No. 101–12, 103 Stat. 16 (1989) (“WPA”), at great
length in their briefs. They contend that the WPA limits
the Executive’s discretion with respect to the termination
or suspension of individuals in sensitive positions where
those employment determinations are tied to retaliation
for the disclosure of certain classes of information. Peti-
tioners and amici contend that Congress exercised its own
authority to protect national security when it passed the
WPA because it recognized that disclosures of certain
KAPLAN v. CONYERS 33
arbitrary designations and pretextual removal of federal
employees, and there is no basis for a different conclusion
in this case. Indeed, these concerns can no more justify
review of an eligibility determination than of a clearance
determination. Former Chief Judge Markey’s analysis is
worth noting:
The . . . underlying rationale is a felt necessity to
“protect” civilian employees against “arbitrary”
denials of security clearances. Amicus and the
majority see the boogy-men of “specious, arbi-
trary, discriminatory” clearance denials . . . .
Whence the fear of arbitrary denials? Whence the
automatic refusal of even a modicum of at least in-
itial trust in Navy officials? Whence the disregard
of the process (denial response denial appeal final
denial) conducted by the Navy . . . before denying
a clearance? . . . . The conjecture that Navy offi-
cials might act arbitrarily is not only unwarrant-
ed, it is far too weak a reed on which to rest a
determination that MSPB must decide which em-
ployees of the armed forces should be granted se-
curity clearances. Given that the responsibility is
the Navy’s, and given the system of high level, ob-
jective, impersonal, decisionmaking employed by
the Navy in carrying out that responsibility, in-
cluding the employee’s chance to respond and to
appeal to higher authority within the agency, I
can see no reason why, under those circumstanc-
es, the Navy should not be allowed to exercise its
improprieties may actually advance the interests of
national security. Whether Congress intended to limit
the authority of the Executive in making employment
decisions when passing the WPA is not before us, howev-
er. There are no whistleblower claims or defenses assert-
ed here. We address only those issues presented by Mr.
Northover’s case.
34 KAPLAN v. CONYERS
judgment in exercising its authority to grant or
deny security clearances.
Egan v. Dep’t of Navy, 802 F.2d 1563, 1576–77 (Fed. Cir.
1986) (Markey, C.J. dissenting), rev’d, 484 U.S. 518 (1988)
(emphasis in original). Moreover, DoD maintains an
internal review process of eligibility determinations,
which undermines the concerns Northover and the Board
raise. See 32 C.F.R. § 154.56; see also Romero v. Dep’t of
Def., 658 F.3d 1372, 1374 (Fed. Cir. 2011) (articulating
the general organizational framework and review process
used by the DoD when making security clearance deter-
minations). Accordingly, the merits of the Agency deter-
mination before us are not reviewable by the Board.
V. CONCLUSION
For the foregoing reasons, the Board cannot review
the merits of DoD national security determinations con-
cerning eligibility of an employee to occupy a sensitive
position that implicates national security. There is noth-
ing talismanic about eligibility for access to classified
information. The core question is whether the Agency
determination concerns eligibility of an employee to
occupy a sensitive position that implicates national secu-
rity. When the answer to that question is in the affirma-
tive, Egan applies and the Board plays a limited role in
its review of the determination. Thus, the Board’s deci-
sion with respect to Mr. Northover is reversed and re-
manded for further proceedings consistent with this
decision. Ms. Conyers’s appeal is dismissed for lack of
jurisdiction.
DISMISSED IN PART, REVERSED, AND
REMANDED
United States Court of Appeals
for the Federal Circuit
______________________
ELAINE D. KAPLAN, Acting Director, Office of
Personnel Management,
Petitioner,
v.
RHONDA K. CONYERS AND DEVON HAUGHTON
NORTHOVER,
Respondents,
AND
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2011-3207
______________________
Petition for review of the Merit Systems Protection
Board in Nos. CH0752090925-R-1 and AT0752100184-R-
1.
______________________
Decided: August 20, 2013
______________________
DYK, Circuit Judge, with whom Circuit Judges NEWMAN
and REYNA join, dissenting.
The majority opinion upholds sweeping claims by the
Department of Defense (“DoD”) that it may take adverse
actions against non-critical sensitive employees without
2 KAPLAN v. CONYERS
review by the Merit Systems Protection Board (“MSPB” or
“Board”). The effect is to effectively deny MSPB review for
hundreds of thousands of federal employees—a number
that is likely to increase as more positions are designated
as non-critical sensitive. In my view, the DoD has acted
without authority from either the President or Congress,
and contrary to the Civil Service Reform Act of 1978
(“CSRA”), 5 U.S.C. § 1101 et seq.
In essence, the majority’s decision rests on the flawed
premise that the DoD, acting on its own—without either
Congressional or Presidential authority—has “inherent
authority” to discharge employees on national security
grounds. No decision of the Supreme Court or any other
court supports this proposition. Whatever the policy
justifications for precluding MSPB review, this is a mat-
ter for Congress (and the President), not the DoD, to
determine. Ironically, the majority rests its decision on
grounds of separation of powers. But the majority decision
both blesses and itself engages in a violation of separation
of powers principles—sustaining agency action without
either Presidential or Congressional authorization, and
resting its decision on its own assessment of national
security requirements. I respectfully dissent.
I
As an initial matter, the majority’s decision is not
mandated by, or even supported by, the Supreme Court’s
decision in Department of the Navy v. Egan, 484 U.S. 518(1988). The majority extends Egan to create an implied
exception to MSPB review of the merits of suitability
determinations for non-critical sensitive employees—here,
a commissary employee (Northover) whose job required
neither a security clearance nor access to classified infor-
mation. 1
1 As noted in my original panel dissent, see Berry v.
Conyers, 692 F.3d 1223, 1238 n.1 (Fed. Cir. 2012) (Dyk, J.,
KAPLAN v. CONYERS 3
In Egan, the Supreme Court held that the MSPB
could not review the merits of an agency decision to deny
an employee a security clearance where that employee
was required to access classified information as a condi-
tion of his employment. See 484 U.S. at 520, 529. The
majority extends Egan to bar the MSPB from reviewing
the merits of agency determinations that employees are
not suitable to hold sensitive positions. In other words,
the majority extends Egan’s prohibition of MSPB merits
review of the DoD’s security clearance determinations to
its suitability determinations (i.e., whether an employee is
eligible to hold a non-critical sensitive position).
The majority’s extension of Egan is not supported by
the language of Egan itself. The Egan opinion emphasizes
that it decided the “narrow question” of “whether the
[MSPB] ha[d] authority by statute to review the sub-
stance of an underlying decision to deny or revoke a
security clearance in the course of reviewing an adverse
action.” 484 U.S. at 520. The majority’s extension of Egan
marks a departure from our own prior reading of Egan
and makes it unique among federal courts of appeals. We
have explained that Egan “held that the [MSPB] has no
authority to review the merits of a security clearance
determination.” Cheney v. Dep’t of Justice, 479 F.3d 1343,
1349-50 (Fed. Cir. 2007) (emphasis added) (citing Egan,
484 U.S. at 529). Other circuits have similarly character-
ized Egan as limited to security clearances. 2 Indeed, the
dissenting), the case as to Conyers is moot. The en banc
majority agrees. See Maj. Op. at 8. While the case as to
Conyers is moot, that case provides important context as
to the breadth of the DoD’s claim of authority. I agree
with the majority that we have jurisdiction over
Northover’s appeal.
2 See, e.g., Rattigan v. Holder, 689 F.3d 764, 768
(D.C. Cir. 2012) (noting that Egan “covers only security
clearance-related decisions”); Zeinali v. Raytheon Co., 636
4 KAPLAN v. CONYERS
Fifth Circuit recently confirmed that “[n]o court has
extended Egan beyond security clearances.” Toy v. Holder,
714 F.3d 881, 885 (5th Cir. 2013).
While the majority appears not to dispute that the ac-
tual holding in Egan does not support the DoD’s action
here, the majority finds in the “principles” of Egan DoD
authority to remove employees on national security
grounds. See Maj. Op. at 3, 12. The majority concludes
that there is no distinction between security clearance
determinations and suitability determinations when those
determinations implicate national security. In the majori-
ty’s view, because Congressional legislation does not
forbid the exercise of such authority, the DoD is assumed
to possess inherent authority. But neither Egan nor any
other decision of the Supreme Court, this court, or any
other appeals court supports this remarkable claim of
inherent authority. Rather, these decisions have rejected
such claims of independent agency authority.
A
First, in the Egan case, Egan did not contend that the
President had failed to delegate authority to the agencies,
and notably the agencies were specifically authorized by
Executive Order to make “final” access determinations.
There is no similar Presidential Order here. The Presi-
dent has not delegated any authority to the DoD to make
F.3d 544, 549-50 (9th Cir. 2011) (noting that the “core
holding” of Egan is that “federal courts may not review
the merits of the executive’s decision to grant or deny a
security clearance”) ; Duane v. U.S. Dep’t of Def., 275 F.3d
988, 993 (10th Cir. 2002) (“Egan held that the Navy’s
substantive decision to revoke or deny a security clear-
ance . . . was not subject to review on the merits by the
[MSPB].”).
KAPLAN v. CONYERS 5
“final” decisions with respect to suitability determina-
tions.
The President has traditionally had special authority
in safeguarding classified information, and has delegated
that authority—which includes the authority to deny or
revoke such access—to agencies employing such individu-
als. Egan recognized and relied on the President’s unique
authority over classified information. The Egan court
noted that the President’s “authority to classify and
control access to information bearing on national security
. . . exists quite apart from any explicit congressional
grant.” 484 U.S. at 527.
While the delegation issue was not raised in Egan, the
Presidential authority was specifically delegated to the
relevant agencies. Executive Orders, both at the time of
Egan and later, prescribed procedures for granting and
revoking access to classified information, and the agency
decisions in those respects were explicitly deemed to be
“final,” unreviewable decisions. See Exec. Order No.
12,968, § 5.2(a)(6), 3 C.F.R. 391 (1995 Comp.) (appeals
panel within the agency makes the “final” decision),
reprinted as amended in 50 U.S.C. § 435; Exec. Order No.
10,865, § 3, 3 C.F.R. 398 (1959-1963 Comp.) (allowing “an
authorization for access to a specific classification catego-
ry” granted by an agency to be “finally denied or re-
voked”), reprinted as amended in 50 U.S.C. § 435. Thus,
the President unambiguously delegated to agencies
determinations as to whether an employee was entitled to
access classified information. The President here has
claimed no such executive authority over removal of
employees on national security grounds, and there is no
delegation of removal authority to agencies. The majority
points to no Executive Order delegating removal authori-
ty to the DoD.
While the Office of Personnel Management (“OPM”)
suggests that authority can be found in Executive Order
10,450, that Executive Order confers no authority to
agencies to make either final classified access or suitabil-
6 KAPLAN v. CONYERS
ity determinations. In Egan the Supreme Court relied on
Executive Order 10,450 for only two propositions: (1) that
access to classified information could be granted only
after a background investigation and (2) the standard for
such access was that the access was “clearly consistent
with the interests of the national security.” See Egan, 484
U.S. at 528 (citing Exec. Order No. 10,450, § 3, 3 C.F.R.
936 (1949-1953 Comp.), reprinted as amended in 5 U.S.C.
§ 7311). The Egan court did not rely on the Executive
Order for the proposition that agencies have “final,”
unreviewable authority with respect to the necessary
suitability determinations at issue here—a matter that
was addressed in the security clearance context by Execu-
tive Order 10,865, as referenced above. Notably, a later
Executive Order specifically distinguished between 10,450
and 10,865, noting that “denial and revocation proce-
dures” were governed by Executive Order 10,865, as
amended, and not by Executive Order 10,450. See Exec.
Order No. 12,968, § 7.2(c), 3 C.F.R. 391 (1995 Comp.).
Just as Executive Order 10,450 did not render deter-
minations regarding access to classified information
unreviewable, it also does not render suitability determi-
nations unreviewable, and unlike the situation in Egan,
there is no other executive order that does so. In other
words, Executive Order 10,450 does not delegate to agen-
cies either the authority to terminate access to classified
information (a matter addressed in another executive
order) or general removal authority where the employee is
not suitable for a national security position.
To the extent that Executive Order 10,450 deals with
removal at all, the executive order does no more than
provide for removal pursuant to a specific Congressional
statute authorizing such removal on national security
grounds, 5 U.S.C. § 7532, a provision not invoked here.
See Exec. Order No. 10,450 §§ 4-6. This is confirmed by
the Supreme Court’s decision in Cole v. Young, which
concluded that
KAPLAN v. CONYERS 7
it is clear from the face of . . . Executive Order
[10,450] that the President did not intend to over-
ride statutory limitations on the dismissal of em-
ployees, and promulgated the Order solely as an
implementation of the 1950 Act [i.e., § 7532]. Thus
§ 6 of the Order purports to authorize dismissals
only ‘in accordance with the said Act of August 26,
1950,’ [§ 7532] and similar references are made in
§§ 4, 5, and 7 . . . .
351 U.S. 536, 557 n.20 (1956) (emphasis added). At oral
argument here, OPM conceded that, to the extent that
Executive Order 10,450 addresses the President’s removal
authority over employees, it does no more than implement
§ 7532. 3 As the Court in Cole further noted:
When the President expressly confines his action
to the limits of statutory authority, the validity of
the action must be determined solely by the con-
gressional limitations which the President sought
to respect, whatever might be the result were the
President ever to assert his independent power
against that of Congress.
351 U.S. at 557 n.20. Unsurprisingly, then, OPM conced-
ed before the MSPB that its Part 732 regulations, which
“have their genesis in Executive Order 10[,]450,” did not
authorize removal procedures and “are silent on the scope
of an employee’s rights to Board review when an agency
3 The following exchange occurred:
The Court: [T]he Supreme Court in Cole says
10,450, insofar as it deals with the removal power,
is only implementing § 7532, and it is very explicit
about that.
OPM: That’s correct.
Oral Argument at 5:10-5:30.
8 KAPLAN v. CONYERS
deems the employee ineligible to occupy a sensitive posi-
tion.” J.A. 288.
In short, Executive Order 10,450 does not authorize
the DoD’s actions. In contrast to the situation existing at
the time of Egan, OPM can point to no other Executive
Order that renders final agency decisions with respect to
suitability. The lack of delegated authority with respect to
suitability determinations, as opposed to security clear-
ance determinations, is fatal to OPM’s position. The lack
of such delegated authority here makes Egan inapposite,
and the DoD’s actions without authority.
B
Second, the few national security and foreign affairs
cases (other than Egan) on which the majority relies all
involve situations in which the authority asserted was
authorized by Congressional legislation or an Executive
Order of the President. See, e.g., Dames & Moore v. Re-
gan, 453 U.S. 654, 686 (1981) (“[T]he President was
authorized to suspend pending claims pursuant to Execu-
tive Order No. 12294.” (emphasis added)); United States v.
Curtiss-Wright Exp. Corp., 299 U.S. 304, 325-28 (1936)
(various statutes and joint resolutions passed by Congress
authorized the President to prohibit certain exports from
the United States). 4 None of those cases remotely sup-
4 See also Boumediene v. Bush, 553 U.S. 723, 732-
33 (2008) (declining to address the question of whether
the President has authority hold detainees at Guantana-
mo Bay but holding that the statutes giving the President
authority to suspend habeas corpus “operate[d] as an
unconstitutional suspension of the writ”); Lincoln v. Vigil,
508 U.S. 182, 194 (1993) (holding that an agency decision
to discontinue a program was authorized by law because
the action “f[ell] within the [Indian Health] Service’s
statutory mandate to provide health care to Indian peo-
ple”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 585, 588-89 (1952) (rejecting the President’s asser-
KAPLAN v. CONYERS 9
ports agency action on national security grounds without
Congressional or Presidential authority.
C
Third, as a general matter, agencies only have such
removal authority as is conferred by Congressional stat-
ute. We are dealing with the DoD’s authority to remove
employees for national security reasons—either by remov-
ing them from a position by demotion as here (in
Northover’s case) or by discharging them from DoD em-
ployment entirely. 5 Employees such as Northover who are
appointed by members of the Executive Branch other
than the President can only be removed as authorized by
Congressional legislation. In United States v. Perkins, 116
U.S. 483, 485 (1886), the Supreme Court made this clear
in holding that Executive Branch employees not appoint-
ed by the President cannot be removed without Congres-
sional authority:
[W]hen Congress, by law, vests the appointment
of inferior officers [or civil service employees] in
the heads of [agencies] it may limit and restrict
the power of removal as it deems best for the public
interest. The constitutional authority in Congress
to thus vest the appointment implies authority to
limit, restrict, and regulate the removal by such
laws as Congress may enact in relation to the of-
ficers so appointed. The head of a[n] [agency] has
no constitutional prerogative of appointment to of-
fices independently of the legislation of Congress,
tion of authority to seize steel mills because “[t]he Presi-
dent’s power, if any, to issue [an] order must stem either
from an act of Congress or from the Constitution itself”).
5 In the case of Conyers, she was removed from her
position by an indefinite suspension.
10 KAPLAN v. CONYERS
and by such legislation he must be governed, not
only in making appointments, but in all that is in-
cident thereto [i.e., removals].
Id. (emphases added). There is no claim here that the
DoD’s actions bypassing MSPB review were authorized by
Congress. 6 Perkins is directly inconsistent with the DoD’s
claim of inherent authority to discharge employees ap-
pointed by the agency without MSPB review.
This limitation on agency authority in the removal
context is a manifestation of the general principle that
agencies do not have independent authority apart from
Congressional statute. Agencies may not act “in excess of
statutory jurisdiction, authority, or limitations, or short of
statutory right.” 5 U.S.C. § 706. And while the majority
relies on a variety of DoD regulations to support its
position, the Supreme Court has held that “[t]he rulemak-
ing power granted to an administrative agency charged
with the administration of a federal statute is not the
6 The only statute that the majority cites that ap-
pears remotely relevant is 10 U.S.C. § 1564, which states
that, “[f]or the purposes of” a statutory provision provid-
ing for expedited processing of background investigations
for DoD security clearances, “it is not necessary for the
performance of duties [of investigated employees] to
involve classified activities or classified matters in order
for the duties to be considered sensitive and critical to the
national security.” See Maj. Op. at 15. This provision was
merely meant to prioritize some DoD background investi-
gations for positions that require investigations, see H.R.
Rep. No. 106-945, at 853 (2000) (Conf. Rep.), and does not
provide any indication that Congress intended to grant
authority to agencies to take adverse actions, without
MSPB review, against DoD employees who do not require
access to classified information.
KAPLAN v. CONYERS 11
power to make law. Rather, it is the power to adopt regu-
lations to carry into effect the will of Congress as expressed
by the statute.” Ernst & Ernst v. Hochfelder, 425 U.S. 185,
213-14 (1976) (emphasis added) (quotation marks omit-
ted).
D
Fourth, the Supreme Court has held that agencies
have no authority, apart from the President and Con-
gress, to take action on grounds of national security. The
leading decision is Greene v. McElroy, 360 U.S. 474(1959). In that case, the petitioner was removed from his
job in the private sector after his required security clear-
ance was revoked by the Secretary of the Navy, and that
revocation was affirmed by the Eastern Industrial Per-
sonnel Security Board (“EIPSB”). Id. at 481-83, 489-90.
The court of appeals there determined “that the Executive
Department alone [wa]s competent to evaluate the com-
peting considerations which exist in determining the
persons who are to be afforded security clearances,” id. at
491, much like the majority does here. However, the
Supreme Court found that the removal procedures estab-
lished by the agency and the EIPSB “were established by
. . . the Secretary of Defense or the Secretaries of the
Army, Navy and Air Force,” and that “[n]one [of the
procedures] was the creature of statute or of an Executive
Order issued by the President.” Id. at 495. Accordingly,
the majority reversed the administrative determination,
concluding that,
[i]n the context of security clearance cases, . . . it
must be made clear that the President or Congress,
within their respective constitutional powers, spe-
cifically has decided that the imposed procedures
are necessary and warranted and has authorized
their use. Such decisions cannot be assumed by
acquiescence or nonaction. They must be made
explicitly not only to assure that individuals are
not deprived of cherished rights under procedures
not actually authorized, but also because explicit
12 KAPLAN v. CONYERS
action, especially in areas of doubtful constitu-
tionality, requires careful and purposeful consid-
eration by those responsible for enacting and
implementing our laws. Without explicit action by
lawmakers, decisions of great constitutional im-
port and effect would be relegated by default to
administrators who, under our system of govern-
ment, are not endowed with authority to decide
them.
Id. at 507 (emphasis added) (internal citations omitted);
see also Cafeteria & Restaurant Workers Union v.
McElroy, 367 U.S. 886, 889, 893 (1961) (upholding a
commanding officer’s decision to deny a cafeteria worker
access to a military installation where it was “well settled
that a Post Commander c[ould], under the authority
conferred on him by statutes and regulations, . . . exclude
private persons and property therefrom” (emphasis add-
ed)). Nothing in Egan purports to overrule Greene (cited
by the Egan dissent, see 484 U.S. at 536 (White, J., dis-
senting)), or suggests that agencies can exercise removal
powers without Presidential or Congressional authoriza-
tion. Rather, as noted earlier, Egan relies on the exist-
ence of Presidential—not agency—authority to determine
access to classified information.
II
Quite apart from the DoD’s lack of Presidential or
Congressional authority, the DoD action here is directly
contrary to the CSRA, which broadly provides for review
of adverse actions. Congress, by adopting specific national
security exemptions from MSPB review that do not apply
to Northover, has confirmed that the statutory MSPB
review procedures are applicable in other circumstances.
This determination is binding on both the DoD and the
President.
When it enacted the CSRA, Congress created a broad
statutory scheme that was designed to confer upon the
MSPB extensive review authority over adverse actions
KAPLAN v. CONYERS 13
affecting government employees. Subchapter II of Chap-
ter 75 of the CSRA gives every “employee” the right to
seek MSPB review of adverse actions, see 5 U.S.C.
§ 7513(d), and “employee” includes most government
employees who have served in either the competitive or
excepted service for at least one year. See id. § 7511(a)(1).
Beyond the CSRA’s broad coverage of government em-
ployees, the act also provides the MSPB with review
authority over a broad array of adverse actions, including
“removals,” “suspension[s] for more than 14 days,” “reduc-
tion[s] in grade,” “reduction[s] in pay,” and “furlough[s] of
30 days or less.” See id. § 7512. Congress made clear when
it passed the CSRA that “[t]hese provisions [were to]
govern any [adverse] action where the basis of the agency
action is misconduct or any other cause besides unac-
ceptable performance.” S. Rep. No. 95-969, at 46 (1978)
(emphases added). The agency concedes that Northover
received a demotion, which is among the enumerated
adverse actions covered by the statute. See 5 U.S.C.
§ 7512.
Congress granted this broad authority for a reason: by
providing for MSPB review, civil service employees would
be “protected against arbitrary action, personal favorit-
ism, and . . . partisan political coercion” that may occur
within government agencies. S. Rep. No. 95-969, at 19
(1978). The MSPB was designed as a check on both agen-
cy and OPM actions, as “[e]stablishment of a strong and
independent Board” was designed to “discourage subver-
sions of merit principles.” Id. at 7. In fact, Congress made
clear that, “[a]bsent . . . [the] mandate for independence
[of] the Merit Board, it is unlikely that [Congress] would
have granted [OPM] the power it has or the latitude to
delegate personnel authority to the agencies.” Id.Congress has been notably aware of national security
issues in the context of government employment. Con-
gress has not created a general national security excep-
tion that places limitations on MSPB review or given
agencies the authority to create such an exception. In-
14 KAPLAN v. CONYERS
stead, Congress created specific exceptions to deal with
national security issues, balancing the needs of national
security with the right to MSPB review. None of those
exceptions is applicable here, and the very existence of
these numerous exceptions refutes the existence of agency
authority to create others.
First, implementing the decision in Egan, Congress
has authorized agencies to deny access to classified infor-
mation and has exempted such determinations from
MSPB review. Congress, in 1994, added Title VIII to the
National Security Act of 1947, granting the President
authority to “establish procedures to govern access to
classified information.” Intelligence Authorization Act for
Fiscal Year 1995, Title VIII, § 802(a), 108 Stat. 3423, 3435
(1994) (codified as amended at 50 U.S.C. § 435(a)). The
statute authorizes the President to establish “uniform
minimum standards” of procedures for “employees in the
executive branch . . . whose access to classified infor-
mation is . . . denied or terminated,” see 50 U.S.C.
§ 435(a)(5), and makes those standards “binding upon all
departments, agencies, and offices of the executive branch
of Government,” id. § 435(a); see also id. § 435(a)(2) (not-
ing that the standards govern Executive Branch employ-
ees “who require access to classified information as part of
their official responsibilities”); id. § 435(a)(3) (same); id.
§ 435(a)(4) (referring to employees “requir[ing] access to
particularly sensitive classified information”). 7 Consistent
with Egan, the goal of the statute was to provide minimal
procedural protections to employees in connection with
security clearance procedures. See H.R. Rep. No. 103-753,
7 The executive order implementing this provision
was Executive Order 12,958, which governed classified
national security information. See Exec. Order 12,958, 3
C.F.R. 333 (1995 Comp.). That executive order has since
been superseded and replaced by Executive Order 13,526,
3 C.F.R. 298 (2010 Comp.).
KAPLAN v. CONYERS 15
at 54 (1994) (Conf. Rep.). The statute conferred no author-
ity to terminate employees in non-critical sensitive posi-
tions that did not require access to classified information.
Id. 8
Second, Congress, in § 7532, conferred general author-
ity on the heads of government agencies to remove em-
ployees where the removal “is necessary or advisable in
the interests of national security.” 5 U.S.C. § 7532(b).
While Egan concluded that § 7532 did not provide the sole
means of ordering the review of security clearances—a
view confirmed by Carlucci v. Doe, 488 U.S. 93 (1988)9—
8 Along the same lines, Congress amended Title
VIII in 2004 to require the President to designate an
agency (ultimately, OPM) that would “conduct . . . securi-
ty clearance investigations of [government] employees . . .
who require access to classified information . . . .” Intelli-
gence Reform and Terrorism Prevention Act of 2004,
§ 3001(c)(1), 118 Stat. 3638, 3707 (emphasis added)
(codified as amended at 50 U.S.C. § 435b(c)(1)).
9 In Carlucci, an employee of the National Security
Agency (“NSA”) was terminated after the employee dis-
closed to the NSA that he had engaged in homosexual
relationships with foreign nationals. 488 U.S. at 97-98.
Though Carlucci explained (and the majority emphasizes)
that the summary removal procedures of 5 U.S.C. § 7532and 50 U.S.C. § 833 did not furnish the exclusive basis for
agency removals on national security grounds, it empha-
sized that, apart from the summary suspension authority,
the NSA had a general authority to remove employees for
national security reasons under 50 U.S.C. § 831. Carlucci,
488 U.S. at 102-03; see also 50 U.S.C. § 831 (permitting
the Secretary of Defense to prescribe regulations “to
assure . . . that no person shall be employed in, or detailed
or assigned to, the National Security Agency . . . , or
continue to be so employed . . . unless such employment . .
16 KAPLAN v. CONYERS
the Supreme Court in Egan had no occasion to address
national security suitability determinations or the impact
of this exception on the scope of the Civil Service Reform
Act as to national security suitability determinations. See
484 U.S. at 532-34.
Third, before Egan, Congress granted the director of
the Central Intelligence Agency (“CIA”) plenary authority
to “terminate the employment of any officer or employee
of the [CIA] whenever he shall deem such termination
necessary or advisable in the interests of the United
States.” National Security Act of 1947, Pub. L. No. 80-253,
§ 102(c), 61 Stat. 495, 498 (1947) (codified at 50 U.S.C.
§ 403-4a(e)(1)). In 1964, similarly, Congress exempted
employees of the National Security Agency (“NSA”) from
MSPB review. See Act of Mar. 26, 1964, Pub. L. No. 88-
290, § 303(a), 78 Stat. 168, 169. These exemptions covered
employees of these agencies whether or not their positions
required access to classified information, and were de-
signed to enable heads of agencies to discharge employees
based on national security concerns.
Fourth, after Egan, in 1990, when Congress expanded
MSPB review to the excepted service, see Pub. L. No. 101-
376, 104 Stat. 461 (1990), it provided that employees of
the Federal Bureau of Investigation (“FBI”) as well as the
CIA and NSA were exempted from MSPB review “because
of their sensitive missions.” H.R. Rep. No. 101-328, at 5.
In 1996, Congress expanded the exemptions from MSPB
. is clearly consistent with the national security” (empha-
sis added)).
Thus, in contrast to this case, a specific statute con-
ferred removal authority on the NSA, and exempted the
NSA from the CSRA. See 50 U.S.C. § 831; see also Carluc-
ci, 488 U.S. at 96-97 (noting that 50 U.S.C. § 831 was part
of the NSA Personnel Security Procedures Act, which
adopted separate removal procedures from the CSRA).
KAPLAN v. CONYERS 17
review even further to include all “intelligence compo-
nent[s] of the Department of Defense.” 5 U.S.C. § 7511(b);
see also Department of Defense Civilian Personnel Policy
Act of 1996, Pub. L. No. 104-201, § 1634(B), 110 Stat.
2745, 2752 (1996). DoD did not seek, and Congress did not
grant, such authority over employees in non-intelligence
components of the DoD.
Then, also in 1996, Congress granted the Secretary of
Defense the authority to “terminate . . . any employee in a
defense intelligence position,” regardless of whether the
employee was part of an intelligence component, where he
“determine[d] that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee [e.g., § 7513] cannot be
invoked in a manner consistent with the national securi-
ty.” 10 U.S.C. § 1609(a)-(b) (emphasis added); see Depart-
ment of Defense Civilian Personnel Policy Act of 1996,
Pub. L. 104-201, sec. 1632(a), 110 Stat. 2745, 2748 (1996)
(relevant portion codified as amended at 10 U.S.C.
§ 1609). These terminations are “final and may not be
appealed or reviewed outside the [DoD].” 10 U.S.C.
§ 1609(b). Unlike § 7532, the provision “does not affect the
right of the employee involved to seek or accept employ-
ment with any other department or agency of the United
States if that employee is declared eligible for such em-
ployment by the Director of [OPM].” 10 U.S.C. § 1609(d).
Fifth, in 2003, Congress took further action to limit
MSPB merits review of certain national security employ-
ees under Chapter 75 of the CSRA. See National Defense
Authorization Act for Fiscal Year 2004, Pub. L. No. 108-
136, § 1101, 117 Stat. 1392, 1621-33 (2003). The legisla-
tion empowered the Director of OPM to establish a Na-
tional Security Personnel System (“NSPS”). Id. § 1101(a)
(codified at 5 U.S.C. § 9902(a) (2006)). It allowed OPM to
establish appeal procedures separate from the MSPB’s
procedures. See id. (codified at 5 U.S.C. § 9902(h)(1)(A)
(2006)). Though the MSPB review standards were to
apply by default in the NSPS, Congress made clear that
18 KAPLAN v. CONYERS
the standards were not to apply where “such standards
and precedents [we]re inconsistent with legal standards
established [by the Secretary].” Id. (codified at 5 U.S.C.
§ 9902(h)(3) (2006)) (emphasis added). By creating this
exception, then, Congress allowed the Secretary of De-
fense to bypass the independent MSPB review process—
and to do so with respect to any employee, including those
who did not require security clearances. And that is
exactly what the Secretary did. 10 However, on January
10 After obtaining the statutory authorization de-
scribed above, the Secretary of Defense promulgated
regulations in 2005 that limited the MSPB’s authority
and independence in cases that implicated national
security. See Department of Defense Human Resources
Management and Labor Relations Systems, 70 Fed. Reg.
66,116 (Nov. 1, 2005). Though the regulations maintained
MSPB review in some form, to the extent that the MSPB
retained review over adverse action appeals it was bound
to interpret the implementing regulations “in a way that
recognize[d] the critical national security mission of the
Department.” Id. at 66,192 (codified at 5 C.F.R.
§ 9901.107(a)(2) (2006)); see also id. at 66,208 (codified at
5 C.F.R. § 9901.802 (2006)) (noting that the MSPB would
be bound by the legal standard set forth in
§ 9901.107(a)(2)).
The regulations, moreover, expressly waived and su-
perseded MSPB appellate procedures to the extent those
procedures were inconsistent with other regulations. Id.
at 66,208 (codified at 5 C.F.R. § 9901.803 (2006)). MSPB
AJ decisions could be modified or reversed by the DoD
“[w]here it [was] determined that the initial AJ decision
ha[d] a direct and substantial adverse impact on the
Department’s national security mission.” Id. at 66,210(codified at 5 C.F.R. §9901.807(g)(2)(ii)(B) (2006)). The
Secretary of Defense could also designate offenses as
mandatory removal offenses “in his or her sole, exclusive,
and unreviewable discretion” where he or she determined
KAPLAN v. CONYERS 19
28, 2008, Congress eliminated the DoD’s authority to
create a separate appeals process and invalidated those
regulations that would have restricted the MSPB’s review
authority. See National Defense Authorization Act for
Fiscal Year 2008, Pub. L. No. 110-181, § 1106(a),(b)(3),
122 Stat. 3, 349, 356-57. 11
The evolution of these numerous exceptions to MSPB
review in the national security context confirm that
Congress did not create or authorize a general national
security exemption from MSPB review. This extensive
Congressional action is quite inconsistent with the major-
ity’s view that the DoD has inherent authority to remove
employees on national security grounds without MSPB
review. If the DoD had such inherent authority there
would have been no need for these detailed and specific
Congressional actions. There is also not the slightest
suggestion in the long series of Congressional actions that
it viewed the DoD as having inherent authority to remove
employees on national security grounds without MSPB
review. The majority’s contrary view is inconsistent with
established authority holding that “‘[w]here Congress
that the offense “has a direct and substantial adverse
impact on the Department’s national security mission.”
Id. at 66,190 (codified at 5 C.F.R. § 9901.103 (2006))
(emphasis added) (definition of “Mandatory removal
offense”).
11 The remaining statutory provisions creating the
NSPS were ultimately repealed on October 28, 2009. See
National Defense Authorization Act for Fiscal Year 2010,
Pub. L. No. 111-84, § 1113(b)-(c), 123 Stat. 2190, 2498
(2009) (repealing the NSPS and invalidating all regula-
tions implementing the NSPS, noting that such regula-
tions “shall cease to be effective as of January 1, 2012”);
see also National Security Personnel System, 76 Fed. Reg.
81,359 (Dec. 28, 2011) (repealing regulations implement-
ing the NSPS effective January 1, 2012).
20 KAPLAN v. CONYERS
explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in
the absence of evidence of a contrary legislative intent.’”
Hillman v. Maretta, 569 U.S. ___, ___, 133 S. Ct. 1943,
1953 (2013) (quoting Andrus v. Glover Constr. Co., 446
U.S. 608, 616-17 (1980)); see also TRW Inc. v. Andrews,
534 U.S. 19, 28 (2001) (same); United States v. Brockamp,
519 U.S. 347, 352 (1997) (noting that an “explicit listing of
exceptions . . . indicate[s] to us that Congress did not
intend courts to read other unmentioned . . . exceptions
into the statute”). Congress’s careful creation and, in one
case, elimination of national security exceptions is direct-
ly inconsistent with the majority’s claim that the DoD
possesses inherent authority apart from the CSRA to
discharge employees on national security grounds without
MSPB review.
The majority makes a specious attempt to suggest
that some of these numerous Congressional actions were
not motivated by national security concerns. No objective
reading of these Congressional actions can avoid the
conclusion that national security and employment was a
matter of intense Congressional concern and that Con-
gress legislated repeatedly in this area to accommodate
these national security concerns. Neither the existence of
non-security related exemptions for other agencies prom-
ulgated in the 1990 amendments to the CSRA nor Con-
gressional concern with employee bargaining rights in
repealing the NSPS should indicate that these Congres-
sional actions were not the product of a Congressional
decision to strike an appropriate balance between nation-
al security concerns and the right to MSPB review, a
balance that is deeply undermined by today’s decision. 12
12 With regard to the majority’s suggestion that col-
lective bargaining was the motivation for repealing the
NSPS, the 2008 amendment to the collective bargaining
provisions had nothing to do with the repeal of the Chap-
KAPLAN v. CONYERS 21
III
Finally, even if the CSRA were ambiguous (which it is
not), the Board (and not the DoD or OPM) is charged with
administering the pertinent adverse action provisions of
Chapter 75 of the CSRA. See 5 U.S.C. §§ 1204, 7701. The
Board has concluded that it has jurisdiction over national
security removals (not involving access to classified in-
formation), and Chevron requires that we defer to the
MSPB’s interpretation of its own jurisdiction. See Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837 (1984).
In Egan, the MSPB held that it lacked jurisdiction
over “underlying security clearance determination[s].”
Egan v. Dep’t of the Navy, 28 M.S.P.R. 509, 514-15, 519-20
(1985). Here, in contrast, the Board, interpreting the
pertinent sections of the CSRA, concluded that its juris-
diction to review adverse actions extended to review of the
underlying suitability determination. Conyers v. Dep’t of
Defense, 115 M.S.P.R. 572, 577, 585-86 (2010); Northover
v. Dep’t of Defense, 115 M.S.P.R. 451, 456, 464 (2010).
The Board reasoned that 5 U.S.C. § 1204 directs the
Board to “adjudicate . . . all matters within [its] jurisdic-
tion,” and that employees subjected to adverse actions, as
ter 75 exemption authority or the repeal of the regula-
tions restricting adverse action appeal rights. As the
Department of Defense itself noted, the restoration of
adverse action appeal rights to its employees was de-
signed to “[b]ring[] NSPS under Governmentwide rules
for disciplinary actions and employee appeals of adverse
actions.” National Security Personnel System, 73 Fed.
Reg. 56,344, 56,346 (Sept. 26, 2008). The provisions of the
NSPS concerning collective bargaining were contained in
subsection (m) of 5 U.S.C. § 9902, whereas the provisions
relating to adverse action appeal rights were contained in
subsection (h), and had nothing to do with collective
bargaining.
22 KAPLAN v. CONYERS
defined in §§ 7511 and 7512, are “entitled to appeal to the
[Board] under section 7701.” See Conyers, 115 M.S.P.R.
at 577; see also 5 U.S.C. §§ 1204, 7511, 7512. The Board
considered and rejected OPM’s argument that it could not
review the merits of national security determinations
underlying adverse actions. Conyers, 115 M.S.P.R. at
578–86.
In City of Arlington, Texas v. Federal Communications
Commission, which was decided after briefing in this case,
the Supreme Court made clear that Chevron deference
extends to an agency’s interpretation of its own jurisdic-
tional statutes, 569 U.S. ___, ___, 133 S. Ct. 1863, 1868
(2013), holding that “no exception exists to the normal
[deferential] standard of review for jurisdictional or legal
question[s] concerning the coverage of an Act.” Id. at 1871(quoting NLRB v. City Disposal Sys., Inc., 465 U.S. 822,
830 n.7 (1984)) (internal quotation marks omitted). In
other cases, both our court and the Supreme Court have
afforded Chevron deference to Board interpretations of
the CSRA. See Cornelius v. Nutt, 472 U.S. 648, 659
(1985); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
1338 (Fed. Cir. 2006) (en banc); Tunik v. Merit Sys. Prot.
Bd., 407 F.3d 1326, 1336 (Fed. Cir. 2005); see also Lovshin
v. Dep’t of the Navy, 767 F.2d 826, 840 (Fed. Cir. 1985)
(acknowledging that “deference is appropriately given to
the MSPB’s interpretation of the CSRA”). Here, the
Board resolved the statutory ambiguity in a formal adju-
dication. See Conyers, 115 M.S.P.R. 572; Northover, 115
M.S.P.R. 451. Formal adjudications are entitled to defer-
ence. See, e.g., Fed’n of Fed. Emps., Local 1309 v. Dep’t of
the Interior, 526 U.S. 86, 89-90, 98-99 (1999). Thus, defer-
ence is due to the Board’s interpretation of its authority,
just as deference would have been due to the MSPB’s
interpretation that it lacked merits review jurisdiction in
Egan.
IV
Ultimately, the majority decision rests on its policy
judgment that the MSPB should not review suitability
KAPLAN v. CONYERS 23
determinations based on national security. For example,
the majority urges that the Board is unable to make
judgments about national security issues and that the
“efficiency of the service” standard implemented by the
Board does not leave room for the assessment of predic-
tive judgments as to national security. As the Board
points out, while the Board cannot make judgments about
security clearances, the Board is required to make judg-
ments in a wide variety of areas as to the suitability of
employees. Indeed, in several cases the MSPB has made
predictive judgments as to whether an employee is suita-
ble to hold a position, even positions that have an appar-
ent nexus with national security and have striking
similarities to the positions at issue here. 13 As with
Northover, whose adverse action was taken against him
on the basis of delinquent finances, the MSPB has made
predictive judgments under the efficiency of the service
standard on the basis of delinquent finances. 14
13 See, e.g., Adams v. Dep’t of the Army, 105 M.S.P.R.
50, 55 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008)
(upholding the Army’s removal of an employee deemed
unsuitable to access a computer system that “provide[d]
employees with access to sensitive information” that was
“not classified” and did not require a security clearance);
Jacobs v. Dep’t of the Army, 62 M.S.P.R. 688, 694-95
(1994) (affirming an AJ’s decision to uphold a 30-day
suspension for a security officer who protected a facility
containing chemical weapons).
14 See Adams, 105 M.S.P.R. at 56-57; see also James
v. Dale, 355 F.3d 1375, 1379 (Fed. Cir. 2004) (“The Board
routinely evaluates such factors as loyalty, trustworthi-
ness, and judgment in determining whether an employ-
ee’s discharge will promote the efficiency of the service.”
(quotation marks omitted)); Cornish v. Dep’t of Commerce,
10 M.S.P.R. 382, 383-85 (1982) (assessing an employee’s
bad debt and its impact on the efficiency of the service).
24 KAPLAN v. CONYERS
At the end of the day, there may be good policy rea-
sons to cabin MSPB review of adverse actions based on
national security suitability determinations. But Con-
gress has made a judgment to restrict, rather than elimi-
nate, MSPB review in the area of national security. If
broader authority is necessary, the affected agencies must
seek such authority from Congress or the President, as
they have done in the past. What agencies cannot do is
claim authority when that authority has not been dele-
gated by either Congress or the President.
V
The consequences of the majority’s decision will be
profound. In the DoD alone, it will affect at least 200,000
non-critical sensitive civilian employees whose positions
do not require access to security clearances, as OPM
conceded at oral argument. Numerous employees in other
agencies will be affected as well, as agencies other than
DoD designate positions as non-critical sensitive. For
example, agencies under the umbrellas of the Department
of Homeland Security (such as the Transportation Securi-
ty Administration), the Department of Energy, the De-
partment of State, and the Justice Department designate
positions as non-critical sensitive. 15 There are dozens of
15 U.S. Gov’t Accountability Office, GAO-12-800,
Agencies Need Clearly Defined Policy for Determining
Civilian Position Requirements 31-32 (2012); National
Security Position Handbook, 440-7-H, App. A (2004),
available at http://www.usgs.gov/usgs-
manual/handbook/hb/440-7-h/440-7-h-appa.html; 3 U.S.
Department of State Foreign Affairs Manual (2012),
available at
http://www.state.gov/documents/organization/84853.pdf;
Department of Justice, Report No. I-97-06, Oversight of
Background Investigations by the Security and Emergency
Planning Staff (1997), available at
http://www.justice.gov/oig/reports/OBD/e9706.htm.
KAPLAN v. CONYERS 25
pending appeals before the MSPB involving individuals
who suffered an adverse action based on their purported
ineligibility to hold a sensitive position that await our
court’s disposition in this case. 16 MSPB review of these
16 These cases have generally been dismissed with-
out prejudice and will be reopened when this en banc
decision is issued. See Anderson v. Dep’t of Def., No. CH-
0752-12-0425-I-2, 2012 MSPB LEXIS 5193 (M.S.P.B.
Sept. 11, 2012) (accounting technician, removal); Brown v.
Dep’t of Def., No. CH-0752-12-0405-I-2, 2012 MSPB
LEXIS 6373 (M.S.P.B. Oct. 26, 2012) (accountant, remov-
al); Cobb v. Dep’t of Def., No. CH-0752-12-0412-I-2, 2012
MSPB LEXIS 6379 (M.S.P.B Oct. 26, 2012) (accounting
technician, removal); Ebrahimi v. Dep’t of the Air Force,
No. AT-0752-12-0763-I-1, 2012 MSPB LEXIS 5507
(M.S.P.B. Sept. 21, 2012) (electronics engineer, removal);
Goodwin v. Dep’t of Def., No. CH-0752-13-0402-I-1, 2013
MSPB LEXIS 2006 (M.S.P.B. Apr. 15, 2013) (military pay
technician, suspension without pay); Grimes v. Dep’t of
Def., No. AT-0752-12-0334-I-2, 2012 MSPB LEXIS 5394
(M.S.P.B Sept. 17, 2012) (supervisory store associate,
demotion); Hall v. Dep’t of Energy, No. AT-0752-12-0134-
I-1, 2012 MSPB LEXIS 107 (M.S.P.B. Jan. 10, 2012)
(courier, removal); Harris v. Dep’t of Def., No. CH-0752-
12-0479-I-2, 2012 MSPB LEXIS 5232 (M.S.P.B Sept. 11,
2012) (military pay technician, removal); Ingram v. Dep’t
of Def., No. DC-0752-10-0264-B-1, 2012 MSPB LEXIS
4999 (M.S.P.B. Aug. 28, 2012) (supervisory commissary
store associate, demotion); Kennedy v. Dep’t of Def., No.
CH-0752-13-0499-I-1, 2013 MSPB LEXIS 2953 (M.S.P.B.
June 4, 2013) (management and program analyst, remov-
al); Leclerc v. Dep’t of Def., 2013 MSPB LEXIS 316
(M.S.P.B. Jan. 18, 2013) (accounting technician, suspen-
sion without pay and removal); Lewis v. Dep’t of Def., No.
CH-0752-12-0542-I-2, 2012 MSPB LEXIS 5248 (M.S.P.B.
Sept. 11, 2012) (accounting technician, removal);
Mastrogiovanni v. Dep’t of Def., No. NY-0752-11-0130-I-2,
26 KAPLAN v. CONYERS
and many more such appeals will inevitably be foreclosed
by the majority’s holding, even though the majority pur-
ports to limit its holding to the DoD. These appeals will
involve a wide range of positions, including accounting
technician and commissary positions (like those held by
Conyers and Northover), as well as secretarial, human
resources, contract specialist, engineering, and other
positions. See supra note 16. These appeals will not just
2012 MSPB LEXIS 5361 (M.S.P.B. Sept. 18, 2012) (ac-
counting technician, removal); McFarland v. Dep’t of Def.,
No. CH-0752-11-0648-I-2, 2012 MSPB LEXIS 5261
(M.S.P.B. Sept. 10, 2012) (financial management analyst,
removal); McFarland v. Dep’t of the Navy, No. AT-0752-
11-0431-I-1, 2011 MSPB LEXIS 6527 (M.S.P.B. Oct. 17,
2011) (medical records technician, removal); Medley v.
Dep’t of Def., No. DC-0752-13-0167-I-1, 2013 MSPB
LEXIS 831 (Feb. 13, 2013) (human resources specialist,
demotion); Morgan v. Dep’t of Def., No. PH-0752-12-0343-
I-3, 2013 MSPB LEXIS 793 (Feb. 12, 2013) (accounting
technician, removal); Quarles v. Dep’t of Def., No. CH-
0752-12-0451-I-2, 2012 MSPB LEXIS 5251 (M.S.P.B Sept.
11, 2012) (contact representative, removal); Sawyer v.
Dep’t of the Air Force, No. AT-0752-12-0249-I-1, 2012
MSPB LEXIS 5298 (M.S.P.B. Sept. 10, 2012) (contract
specialist, removal); Scott v. Dep’t of Def., No. CH-0752-
12-0579-I-2, 2012 MSPB LEXIS 6376 (M.S.P.B. Oct. 26,
2012) (secretary, removal); Sohn v. Dep’t of the Navy, No.
SH-0752-12-0639-I-1, 2012 MSPB LEXIS 6610 (M.S.P.B.
Nov. 6, 2012) (electronics engineer, indefinite suspension);
Spivey v. Dep’t of Def., No. CH-0752-13-0361-I-1, 2013
MSPB LEXIS 1846 (M.S.P.B. Apr. 4, 2013) (military pay
technician, removal); Warner v. Dep’t of Def., No. CH-
0752-13-0228-I-1, 2013 MSPB LEXIS 629 (M.S.P.B. Feb.
1, 2013) (accounting technician, removal); Williams v.
Dep’t of Def., No. CH-0752-12-0416-I-2, 2012 MSPB
LEXIS 5327 (M.S.P.B. Sept. 11, 2012) (military pay
technician, removal).
KAPLAN v. CONYERS 27
apply to removals, but will also apply to suspensions,
demotions, reductions in grade or pay, and numerous
other adverse actions that effectively remove employees
from national security positions. See id. Meanwhile, the
number of employees affected is likely to increase, as a
new rule proposed by OPM would allow agencies to desig-
nate as non-critical sensitive any “[p]ositions not requir-
ing eligibility for access to classified information, but
having the potential to cause significant or serious dam-
age to the national security.” Designation of National
Security Positions in the Competitive Service, and Related
Matters, 78 Fed. Reg. 31,847, 31,849 (May 28, 2013) (to be
codified at 5 C.F.R. § 1400.201(a)(1)(ii)). If positions of
grocery store clerk and accounting secretary are deemed
to be sensitive, it is difficult to see which positions in the
DoD or other executive agencies would not be deemed
sensitive.
Finally, while the majority purports to reserve the is-
sue, the rights of these employees under Title VII and the
Whistleblower Protection Act will be affected as well, as
the Board has made clear that extending Egan would
“preclude Board and judicial review of alleged unlawful
discrimination, whistleblower retaliation, and a whole
host of other constitutional and statutory violations.”
Conyers, 115 M.S.P.R. at 585. This is in accord with
numerous decisions holding that such claims are preclud-
ed where the basis for agency action is the denial of a
security clearance. 17
17 See El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d
176, 184-86 (3d Cir. 2011) (holding that a plaintiff could
not prevail on his First Amendment and Fifth Amend-
ment claims where he alleged his security clearance had
been revoked in retaliation for constitutionally protected
speech or based on his religion or national origin); Bennett
v. Chertoff, 425 F.3d 999, 1003 (D.C. Cir. 2005) (“While
[the plaintiff] claims that [the agency’s] security clearance
28 KAPLAN v. CONYERS
I respectfully dissent.
explanation is pretextual, . . . a court cannot adjudicate
the credibility of that claim.”); Hesse v. Dep’t of State, 217
F.3d 1372, 1377-80 (Fed. Cir. 2000) (holding that the
MSPB lacks jurisdiction where a petitioner alleges that
his security clearance had been revoked in retaliation for
whistleblowing); Perez v. FBI, 71 F.3d 513, 514-15 (5th
Cir. 1995) (“Because the court would have to examine the
legitimacy and the possibly pretextual nature of the
[agency’s] proffered reasons for revoking the employee’s
security clearance, any Title VII challenge to the revoca-
tion would of necessity require some judicial scrutiny of
the merits of the revocation decision.” (footnote omitted));
Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 196 (9th Cir.
1995) (noting that “a Title VII analysis necessarily re-
quires the court to perform some review of the merits of
the security clearance decision”).