Michael G. Thorogood v. Department of the Navy

Department of the Navy v. Egan limits judicial review of the merits of a security-clearance determination. But even in clearance-related adverse actions, the Merit Systems Protection Board and the Federal Circuit retain authority to review whether the agency complied with the statutory adverse-action requirements of 5 U.S.C. § 7513. Petitioner did not ask the Federal Circuit to review the merits of the Navy’s security-clearance determination. Petitioner argued that the agency and the Board failed to comply with 5 U.S.C. § 7513(a), § 7513(b), and § 7513(e), including by acting on an incomplete adverse-action record, failing to include and consider the final written Personnel Security Appeals Board decision, conflating eligibility for access with actual access to classified information, and failing to address procedural prejudice. The Federal Circuit affirmed in a nonprecedential opinion after recasting Petitioner’s argument as a challenge to whether his position required a security clearance, and without addressing Petitioner’s preserved § 7513(a) and § 7513(e) arguments. The question presented is: Whether, in a security-clearance-based adverse action, a reviewing court may affirm without addressing preserved statutory challenges under 5 U.S.C. § 7513(a) and § 7513(e), where the petitioner does not challenge the merits of the clearance determination but argues that the agency acted on an incomplete record and failed to comply with mandatory adverse-action procedures.