Department of Navy v. Egan, No. 86-1552

• Court: United States Supreme Court
• Writing for the Court: BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, and SCALIA, JJ., joined. WHITE
• Citation: 108 S.Ct. 818,98 L.Ed.2d 918,484 U.S. 518
• Parties: DEPARTMENT OF the NAVY, Petitioner, v. Thomas E. EGAN
• Docket Number: No. 86-1552
• Decision Date: 23 February 1988

484 U.S. 518 108 S.Ct. 818 98 L.Ed.2d 918 DEPARTMENT OF the NAVY, Petitioner,

v.

Thomas E. EGAN.

No. 86-1552. Argued Dec. 2, 1987. Decided Feb. 23, 1988. Syllabus

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 (Board), § 7513(d), that includes a hearing. The Board 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 Board, but the employee has certain specified procedural rights, including a hearing by an agency authority. § 7532. Respondent was removed from his laborer's job at a submarine facility after the Navy denied him a required security clearance. Without a security clearance, respondent was not eligible for any job at the facility. Upon respondent's appeal of his removal under § 7513(d), the Board's presiding official reversed the Navy's decision, holding that the Board 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 Board reversed and sustained the Navy's removal action, but the Court of Appeals reversed and remanded, holding that, since the Navy had chosen to remove respondent under § 7512 rather than § 7532, review under § 7513 applied, including review of the merits of the underlying security-clearance determination.

Held: In an appeal pursuant to § 7513, the Board does not have authority to review the substance of an underlying security-clearance determination in the course of reviewing an adverse action. Pp. 526-534.

(a) The grant or denial of security clearance to a particular employee is a sensitive and inherently discretionary judgment call that is committed by law to the appropriate Executive Branch agency having the necessary expertise in protecting classified information. It is not reasonably possible for an outside, nonexpert body to review the substance of such a judgment, and such review cannot be presumed merely because the statute does not expressly preclude it. Pp. 526-530.

(b) The statute's express language and structure confirm that it does not confer broad authority on the Board to review security-clearance determinations. A clearance denial is not one of the enumerated "adverse actions" that are subject to Board review, and nothing in the

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Act directs or empowers the Board to go beyond determining whether "cause" for a denial existed, whether in fact clearance was denied, and whether transfer to a nonsensitive position was feasible. The application of § 7701's preponderance of the evidence standard to security-clearance determinations would inevitably alter the "clearly consistent with the interests of the national security" standard normally applied in making such determinations and would involve the Board in second-guessing an agency's national security determinations, a result that it is extremely unlikely Congress intended. Respondent's argument that the availability of the alternative § 7532 summary removal procedure compels a conclusion of reviewability, since an anomalous situation would otherwise exist whereby the more "drastic" § 7532 remedy would actually entitle a removed employee to greater procedural protections—particularly to a preremoval trial-type hearing—than would § 7513, is unpersuasive. Section 7532 provides a procedure that is harsh and drastic both for the employee and for the agency head, who must act personally in suspending and removing the employee, and removal thereunder, even as envisioned by respondent, would not have amounted to "more" procedural protection than respondent received under § 7513. The procedures under the two sections are not anomalous, but merely different. Pp. 530—534.

802 F.2d 1563, reversed.

BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, and SCALIA, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. ___. KENNEDY, J., took no part in the consideration or decision of the case.

Louis R. Cohen, Washington, D.C., for petitioner.

William J. Nold, Louisville, Ky., for respondent.

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Justice BLACKMUN delivered the opinion of the Court.

Respondent Thomas M. Egan lost his laborer's job at the Trident Naval Refit Facility in Bremerton, Wash., when he was denied a required security clearance. The narrow question presented by this case is whether the Merit Systems Protection Board (Board) has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action. The Board ruled that it had no such authority. The Court of Appeals for the Federal Circuit, by a divided vote, reversed. We granted certiorari because of the importance of the issue in its relation to national security concerns. 481 U.S. 1068, 107 S.Ct. 2459, 95 L.Ed.2d 868 (1987).

I

Respondent Egan was a new hire and began his work at the facility on November 29, 1981. He served as a veteran's-preference-eligible civilian employee of the Navy subject to the provisions of the Civil Service Reform Act of 1978 (Act), 5 U.S.C. § 1201 et seq.

The mission of the Refit Facility is to provide quick-turn-around repair, replenishment, and systems check-out of the Trident submarine over its extended operating cycle. The Trident is nuclear-powered and carries nuclear weapons. It has been described as the most sophisticated and sensitive weapon in the Navy's arsenal and as playing a crucial part in our Nation's defense system. See Concerned About Trident v. Schlesinger, 400 F.Supp. 454, 462-466 (DC 1975), aff'd in part and rev'd in part, 180 U.S.App.D.C. 345, 555 F.2d 817 (1977). As a consequence, all employee positions at the Refit Facility are classified as sensitive. Thus, as shown on his Standard Form, a condition precedent to Egan's retention of his employment was "satisfactory completion of security and medical reports."

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In April 1982, respondent gained the "noncritical-sensitive" position of laborer leader.¹ Pending the outcome of his security investigation, however, he performed only limited duties and was not permitted to board any submarine.

On February 16, 1983,² the Director of the Naval Civilian Personnel Command issued a letter of intent to deny respondent a security clearance. This was based upon California and Washington state criminal records reflecting respondent's convictions for assault and for being a felon in possession of a gun, and further based upon his failure to disclose on his application for federal employment two earlier convictions for carrying a loaded firearm. The Navy also referred to respondent's own statements that he had had drinking problems in the past and had served the final 28 days of a sentence in an alcohol rehabilitation program.

Respondent was informed that he had a right to respond to the proposed security-clearance denial. On May 6, he answered the Navy's letter of intent, asserting that he had paid his debt to society for his convictions, that he had not listed convictions older than seven years because he did not interpret the employment form as requiring that information, and that alcohol had not been a problem for him for three years preceding the clearance determination. He also provided favorable material from supervisors as to his background and character.

Page 522

The Director, after reviewing this response, concluded that the information provided did not sufficiently explain, mitigate, or refute the reasons on which the proposed denial was based. Accordingly, respondent's security clearance was denied.

Respondent took an appeal to the Personnel Security Appeals Board, but his removal was effected before that Board acted (which it eventually did by affirming the denial of clearance).

Without a security clearance, respondent was not eligible for the job for which he had been hired. Reassignment to a nonsensitive position at the facility was not possible because there was no nonsensitive position there. Accordingly, the Navy issued a notice of proposed removal, and respondent was placed on administrative leave pending final decision. Respondent did not reply to the notice. On July 15, 1983, he was informed that his removal was effective July 22.

Respondent, pursuant to 5 U.S.C. § 7513(d), sought review by the Merit Systems Protection Board.³ Under § 7513(a), an agency may remove an employee "only for such cause as will promote the efficiency of the service." The statute, together with § 7701 to which § 7513(d) specifically refers, provides the employee with a number of procedural protections, including notice, an opportunity to respond and be represented by counsel, and a decision in writing. The employee, unless he is a nonveteran in the excepted service, may appeal the agency's decision to the Board, as respondent did, which is to sustain the action if it is "supported by a preponderance of the evidence." § 7701(c)(1)(B).⁴ The

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stated "cause" for respondent's removal was his failure to meet the requirements for his position due to the denial of security clearance. Before the Board, the Government argued that the Board's review power was limited to determining whether the required removal procedures had been followed and whether a security clearance was a condition for respondent's position. It contended that the Board did not have the authority to judge the merits of the underlying security-clearance determination.

The Board's presiding official reversed the agency's decision, ruling that the Board did have authority to review the merits. She further ruled that the agency...