A federal appeals court has reaffirmed that outside review of agency decisions regarding security clearances is tightly restricted, saying that MSPB correctly held that it could not assess such a decision even though the employee argued that it was motivated by his military service.
The U.S. Court of Appeals for the Federal Circuit was reviewing a case in which an employee argued that his rights under the Uniformed Services Employment and Reemployment Rights Act were violated when the agency revoked his clearance and then removed him because a clearance was required for that position.
The court noted that it is well settled that neither MSPB nor the courts have authority to review the reasons for a security clearance determination. The employee argued that the MSPB can review the reasons for initiating a security clearance action without reaching the merits of the action. “The court, however, found this to be a distinction without a difference,” according to an MSPB summary of the case.
The court added that USERRA did not give him a right to reemployment in that situation, since USERRA re-employment rights apply only when employees are returning after a break in service for military duty.
