The Federal Circuit Court of Appeals issued a key decision Aug. 20 that places limits on reviewing federal agency decisions that affect an employee’s eligibility to hold a sensitive position.

This decision places review limits even in situations that don’t involve the employee’s access to classified information.

In the recently decided case of Kaplan v. Conyers and Northover (C.A.F.C. No. 2011-3207, 8/20/13), the Federal Court of Appeals clarified the role of the Merit Systems Protection Board with respect to the scope of its role in reviewing actions affecting government employees, says John Griffith, an attorney who specializes in helping clients obtain military security clearance, as well as those who have had security clearance denied.

“The Kaplan court made clear that it is not the role of the MSPB to make decisions related to national security,” Griffith says. “The role of the MSPB is to ensure that due process is given to government employees and that proper procedures are followed when government employees face adverse consequences related to employment.”

The MSPB is to only consider whether it was determined that security clearance should have been applied for and obtained for the employee to be placed in their position, whether that clearance was revoked, and whether in doing so, limited procedural protections were followed, according to an article on The MSPB also should consider whether the agency transferred the employee to a nonsensitive position if one was available and the employee was qualified for that position.

“It is not the role of the MSPB to decide whether an employee should hold a security clearance or whether a government employee’s job places him/her in a position that puts national security at risk,” says Griffith, adding that other agencies are responsible for making these decisions, such as the Defense Office of Hearings and Appeals, the Department of the Navy Central Adjudication Facility and the Air Force Central Adjudication Facility.

The Kaplan Court noted: “Deciding whether an individual can impact national security in his/her position is the type of predictive judgment that must be made by those with necessary expertise.” (p. 29) In other words, agencies and not the MSPB, are in the best position to make these judgments.”

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