Security Clearance Actions
Security Clearance Actions: One of the Most Restricted Areas of Federal Employment Law
If your job requires a security clearance or eligibility for a sensitive position, and that clearance or eligibility is denied, suspended, or revoked, you face a genuinely different — and more limited — set of options than in an ordinary adverse action case. See our Federal Sector Employment Law overview and MSPB adverse action appeals page for how the ordinary process works, since this page focuses specifically on what’s different here.
In a 1988 decision, the U.S. Supreme Court held that the Merit Systems Protection Board has no authority to review the substance of an agency’s decision to deny or revoke a security clearance. The Court reasoned that protecting classified information is committed to the discretion of the executive branch, and that the MSPB — or a court — simply isn’t positioned to second-guess a national security judgment of that kind.
- Whether the position genuinely required a security clearance
- Whether the clearance was in fact denied or revoked
- Whether you were given the specific procedural protections the law requires (notice and an opportunity to respond)
- Whether transferring you to a non-sensitive position was feasible, if some other law or regulation gives you a substantive right to that kind of transfer
What’s explicitly off the table: the actual merits of why your clearance was denied or revoked — whether the agency’s underlying judgment was correct, fair, or well-supported — generally cannot be reviewed by the MSPB or a court at all.
A Significant 2013 Expansion: It's Not Just About Classified Information
For years after Egan, some argued the doctrine only applied to true security clearances involving access to classified information. That changed in 2013, when the full U.S. Court of Appeals for the Federal Circuit, in Kaplan v. Conyers, held that Egan’s limits apply to any agency determination about an employee’s eligibility to occupy a “sensitive” position implicating national security — even positions with no access to classified information at all. The court reasoned that employees without direct access to classified material can still affect national security, and that deciding who poses that kind of risk is a predictive judgment best left to the agencies with the relevant expertise, not the Board.
This is a meaningfully broader rule than many people expect: it means a low-level administrative position designated “noncritical sensitive” can trigger the same limited review as a true classified-access clearance case, if the agency’s determination concerns your eligibility to occupy that kind of position at all.
A Genuinely Important Limitation: Even Discrimination Claims Can Be Barred
This surprises many people, and it’s worth understanding clearly before assuming a discrimination or retaliation claim will get you around Egan’s limits. Courts have held that Egan bars review of claims — including claims that a clearance was revoked in retaliation for prior EEO activity, or that a decision was discriminatory — when resolving that claim would require the tribunal to second-guess the substance of the security clearance or sensitive-position determination itself. In other words, framing a challenge as discrimination or retaliation doesn’t automatically create a path around Egan if the claim still requires evaluating whether the underlying national security judgment was correct.
What You're Still Entitled To
Egan’s limits are narrow in one important respect: they apply to the clearance or sensitive-position determination itself, not necessarily to every aspect of what happens to your job as a result. If you’re otherwise a “covered employee” with civil service protections, you generally still have a property interest in your continued employment (separate from any interest in the clearance itself), which means:
- You’re still entitled to notice and a meaningful opportunity to respond before an adverse employment action is taken, even though the clearance decision itself isn’t reviewable
- The MSPB can still confirm that your position genuinely required the clearance or sensitive designation in question — an agency can’t simply assert a security basis for an action without that predicate actually being true
- If the agency could have reassigned you to a non-sensitive position for which you were qualified, and some other source of law gives you a right to that reassignment, that specific question remains reviewable
What This Means Practically
If your situation involves a security clearance or sensitive-position issue layered on top of another personnel action, it’s worth having both pieces evaluated separately and carefully: what genuinely falls within Egan’s limits (the substance of the clearance judgment) versus what doesn’t (whether you got the process you were owed, whether the position truly required the clearance at issue, and whether a feasible reassignment existed). Conflating the two can lead to a case being dismissed for lack of jurisdiction when a narrower, procedurally focused claim might have survived.
Talk to a Security Clearance Attorney
Security clearance cases require careful framing from the outset, given how narrow the reviewable questions actually are. Wilkenfeld Law Office can help you understand what’s genuinely available to challenge in your specific situation.
Or call 301.245.3035 · Intake@WilkenfeldLO.com