“[W]hether 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 Court of Appeals’ majority stated: ‘The absence of any statutory provision precluding appellate review of security clearance denials in [5 U.S.C. §] 7512 removals creates a strong presumption in favor of appellate review.’ One perhaps may accept this as a general proposition of administrative law, but the proposition is not without limit, and it runs aground when it encounters concerns of national security, as in this case, where the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch.”
