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Law School Case Brief

Dep't of the Navy v. Egan - 484 U.S. 518, 108 S. Ct. 818 (1988)


The Civil Service Reform Act of 1978 (Act), 5 U.S.C.S. § 1201 et seq., by its terms does not confer broad authority on the Merit Systems Protection Board (MSPB) to review a security-clearance determination. The MSPB does have jurisdiction to review adverse actions, a term, however, limited to a removal, a suspension for more than 14 days, a reduction in grade or pay, and a furlough of 30 days or less. 5 U.S.C.S. §§ 7513(d)7512. A denial of a security clearance is not such an adverse action, and by its own force is not subject to MSPB review. An employee who is removed for cause under 5 U.S.C.S. § 7513, when his required clearance is denied, is entitled to the several procedural protections specified in that statute. The MSPB 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 MSPB to go further.


Title 5 U.S.C., Ch. 75, provides a "two-track" system for undertaking "adverse actions" against certain Government employees. An employee removed for "cause," §§ 7511-7514, has a right of appeal to the Merit Systems Protection Board (MSPB), § 7513(d), that includes a hearing. The MSPB reviews such removals under a preponderance of the evidence standard. § 7701. An employee is also subject to summary removal based on national security concerns. Such a removal is not appealable to the MSPBBoard, but the employee has certain specified procedural rights, including a hearing by an agency authority. § 7532. Thomas M. Egan was removed from his laborer's job at a submarine facility after the Navy denied him a required security clearance. Without a security clearance, Egan was not eligible for any job at the facility. Upon Egan's appeal of his removal under § 7513(d), the MSPB's presiding official reversed the Navy's decision, holding that the MSPB had the authority to review the merits of the underlying security-clearance determination and that the Navy had failed to show that it reached a reasonable and warranted decision on this question. The full MSPB reversed and sustained the Navy's removal action, but the Court of Appeals for the Federal Circuit reversed and remanded, holding that, since the Navy had chosen to remove Egan under § 7512 rather than § 7532, review under § 7513 applied, including review of the merits of the underlying security-clearance determination. The United States Supreme Court granted the Navy's petition for certiorari review.


Did the MSRB have statutory authority to review underlying reasons for denial of security clearance, where federal civilian employee lost his job for based on national security concerns?




The United States Supreme Court that any employee removed for "cause" had right of appeal to the MSRB under 5 U.S.C.S. § 7513(d), but suspension and removal for national security grounds under § 5 U.S.C.S. 7532 was not entitled to such appeal. The Court held that because the substance of Egan’s removal was based upon national security concerns, Egan was not entitled to review by the MSRB. The grant of security clearance was a sensitive, discretionary call committed by law to Executive Branch. President, under U.S. Const. art. II, § 2, had authority to protect information bearing on national security decisions, for which courts had traditionally shown utmost deference. The court held that Egan received adequate procedural protection. Egan received notice, the right to inspect evidence, the right to respond, a written decision, and an opportunity to appeal to the Personnel Security Appeals Board.

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