U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Number 139                    February 2001

Rayburn F. Hesse v. Department of State, No. 99-3387 (Fed. Cir., July 6, 2000).

The Federal Circuit holds that the Merit Systems Protection Board lacks jurisdiction to review an agency's security clearance determination in cases where the employee claims that the determination and actions resulting from it were in reprisal for whistleblowing.

The agency suspended the appellant's Top Secret security clearance and then indefinitely suspended him from his GS-15 Foreign Affairs Officer position for failure to have and maintain the required clearance. He appealed the matter to the Merit Systems Protection Board claiming that the security clearance determination and the indefinite suspension were in reprisal for whistleblowing. The Board upheld the suspension based on the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988). Egan held that the Board lacked authority to review an agency's security clearance determination as a part of an appeal of an employee challenging an adverse action taken under Title 5 of the United States Code, Section 7513(d). The Board considered the appellant's case in conjunction with Roach v. Department of the Army, 82 M.S.P.R. 464 (1999). In Roach, the Board also applied Egan and determined that it lacked jurisdiction to review a security clearance determination raised as part of an individual right of action appeal under the Whistleblower Protection Act. The appellant in Hesse sought review of his case by the Court of Appeals for the Federal Circuit.

The Federal Circuit agreed with the legal conclusion reached in Weber v. United States, 209 F.3d 756 (D.C. Cir. 2000), a case involving a mandamus action directed at the Office of Special Counsel and the only other court having a similar security clearance issue. The Federal Circuit noted that the Supreme Court's decision in Egan stands for three principles: "(1) there is no presumption that security clearance determinations will be subject to administrative or judicial review, as those determinations are committed to the broad discretion of the responsible Executive Branch agency; (2) unless Congress specifically provides otherwise, the Merit Systems Protection Board is not authorized to review security clearance determinations or agency actions based on security clearance determinations; and (3) when an agency action is challenged under the provisions of chapter 75 of title 5, the Board may determine whether a security clearance was denied, whether the security clearance was a requirement of the appellant's position, and whether the procedures set forth in section 7513 were followed, but the Board may not examine the underlying merit of the security clearance determination." While stating that Egan is not directly controlling in the current case (it did not involve whistleblowing), the Federal Circuit concluded that the above principles are applicable to Hesse and support the Board's decision above that it lacked jurisdiction to review the security clear issue even when the appellant claimed reprisal under the Whistleblower Protection Act. The Federal Circuit noted that this conclusion is consistent with other courts that have found no right to judicial review of security clearances in connection with other laws such as Title VII of the Civil Rights Act of 1964, the Rehabilitation Action of 1973, and the Foreign Service Act.

The Federal Circuit reviewed the legislative history of the Whistleblower Protection Act and, in particular, Congress' actions to amend the Act in 1994. The court noted that some in Congress wanted the Board to be able to review security clearances but that the final language agreed to and signed into law did not include such a provision. In this regard, the court noted that the legislative history included strong remarks from one Congressman that security clearances should be covered but the court discounted those remarks, noting that the Supreme Court in 1981 talked about being "wary of relying on the remarks of a single legislator." Since the Act does not specifically authorize the Board to review security clearances, the court concluded that the Act could not serve as a basis for Board jurisdiction in this case.

The Federal Circuit rejected all of the appellant's arguments including those that his due process rights under the Constitution had been violated. Here, the court concluded that the agency had provided "ample information" about why it had taken the action it did and that "[d]ue process did not require a fuller explanation." In conclusion, the court affirmed the Board's decision that it lacked jurisdiction to review the agency's security clearance determination in this case and that the indefinite suspension taken against the appellant for failure to maintain the security clearance was proper.

The court's decision in Hesse continues a long, unbroken line of court cases upholding the Congressional mandate that Federal agencies have the right to make security clearance determinations free from administrative and judicial review. This line continues despite strong, but unsuccessful, arguments by many including the Office of Special Counsel. The Special Counsel argued in both Hesse and Roach above that the 1994 amendments to the Whistleblower Protection Act authorized the Board to review security clearance determinations.