UNITED STATES SUPREME COURT DECISIONS ON-LINE

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. 484 U. S. 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. 484 U. S. 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 clubjuris

Page 484 U. S. 519

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. 484 U. S. 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. 484 U. S. 534. KENNEDY, J., took no part in the consideration or decision of the case. clubjuris

Page 484 U. S. 520