FEDweek

Federal Legal Corner: Eligibility for Sensitive Position

In Crumpler v. Department of Defense, 2009 MSPB 224 (November 2, 2009), the Merit Systems Protection Board (Board) found that the rule in Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), limiting the scope of Board review of a removal based on the revocation of a security clearance, also applies to a removal from a “non-critical sensitive” position based on the employee’s ineligibility to access classified information.

In Egan, the Supreme Court found that the Board lacks the authority to review the merits of an agency’s decision to deny a security clearance to an employee. The Egan case involved an employee who was hired for a position designated as “sensitive” by the agency and required the maintenance of a security clearance. Egan failed to maintain a security clearance, and as a result was no longer eligible for the position. The agency removed Egan from service. The Egan court rested its decision on the Constitutional authority invested in the President to classify what information bears on national security and to determine who is satisfactorily trustworthy to occupy an Executive Branch position giving access to such information. Egan established that the Board’s review was limited to determining whether the agency could meet its burden of proving that the employee’s position required a security clearance, the employee was not eligible for a security clearance, transfer to a non-sensitive position was not feasible, and the agency followed the statutory procedural requirements of processing a removal action.

Crumpler was a store associate at a commissary. The agency designated the store associate position as non-critical sensitive – the lowest of the three sensitivity levels. In order to occupy this position, the agency determined the employee had to be eligible for access to classified information. Subsequently, the agency removed the appellant from her position because of her ineligibility for access to classified information.

The Board found that the reasoning in Egan applies to any access eligibility standard that an agency chooses to impose. Although the Egan court clearly determined that the Board’s limited review required a determination that the employee’s position required a security clearance and that the employee’s security clearance was revoked or denied, the Crumpler decision found it irrelevant that the appellant’s position did not require a security clearance. Rather, it endorsed a broad definition of the term “security clearance” to include any investigation that an employee must undergo and satisfy in order to hold a position that is considered to be a national security risk.

The Crumpler decision stands for the proposition that, even when a security clearance is not required for a position, the Executive Branch of government has unreviewable authority to designate positions as sensitive and to decide whether employees are eligible for such positions. Thus, the Board can only review the legitimacy of the process, and not the reasons, by which an employee is removed for failure to maintain eligibility for a sensitive position.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

 

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