Two concurring opinions set out to clarify that the MSPB lacks jurisdiction to even review the security clearance removal process. One stated that the Supreme Court has made it clear that the MSPB lacks jurisdiction to review the security clearance removal process at all and only has jurisdiction over adverse actions.
An employee removed for "cause" when his clearance is denied, is entitled to several procedural protections, at which point the MSPB may determine whether such cause existed, whether the clearance was denied, and whether transfer to a non-sensitive position was feasible.
Another judge agreed with the result of the case but said the court’s opinion is an inadequate response to the employee’s main arguments.
He pointed out that the employee argued that he is entitled to have the MSPB review the manner in which his clearance was revoked, in this case, whether it was "predetermined."
Recently the court affirmed in other cases that there is some limited scope for judicial review of the procedure by which a security clearance is revoked, but the employee did not qualify.
The judge said those cases involved two related steps. First there is the determination by the agency whether the employee’s security clearance should be either suspended or revoked.
Second, if a security clearance is suspended or revoked, and the job description requires one, there is the subsequent action taken by the agency addressing the employee’s employment status, usually involving an indefinite suspension or removal, he said.
It said that although technically the appeal to the MSPB is based on step two, the determinative issue in these cases usually is the first step, the suspension or revocation of the security clearance that led to the adverse action.
