Security Clearances and “Sensitive” Positions: The Overlap Between Clearance Law and Employment Law

When Your Job Depends on Trust — and Your Future Depends on a Clearance

For many federal employees and contractors, the difference between a thriving career and a sudden termination comes down to one word: trust.

That trust is tested not only through your security clearance but also through your employment status. And in today’s federal workplace, the two are deeply intertwined.

At National Security Law Firm (NSLF), our attorneys have spent their careers on both sides of that divide — advising, defending, and adjudicating cases involving security clearances, “sensitive” positions, and adverse personnel actions.

We understand the complexity: when clearance law collides with federal employment law, jurisdiction, procedure, and outcome all change. And if you don’t understand those distinctions, you risk losing both your clearance and your career.

This guide explains how the clearance process overlaps with federal employment law, what “sensitive” really means, and how NSLF helps employees and contractors navigate both.

The Legal Framework: Two Systems That Collide

Security clearances and employment law operate under different legal systems — but they often apply to the same people at the same time.

1. Security Clearance Law

Rooted in Executive Order 12968, EO 10865, and DoD Directive 5220.6.
Determines whether an individual may access classified information.
Decisions are governed by the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, commonly known as the “13 Guidelines.”
Clearance determinations are national security decisions, not disciplinary actions.

2. Federal Employment Law

Governed by statutes such as 5 U.S.C. Chapter 75 (Adverse Actions) and Chapter 43 (Performance-Based Actions).
Provides due process protections for federal employees (notice, response rights, appeal rights).
Enforced primarily by the Merit Systems Protection Board (MSPB) and EEOC.

The friction arises when an employee in a clearance-required or “sensitive” position loses eligibility for that access — and the agency moves to remove them from employment.

The Landmark Case: Department of the Navy v. Egan (1988)

In Egan, the Supreme Court held that:

“The grant or denial of a security clearance is a discretionary function of the Executive Branch… the MSPB does not have authority to review the substance of such determinations.”

That means:

The MSPB cannot second-guess the merits of a clearance denial or revocation.
However, the Board can review whether the agency followed proper procedures when removing the employee.
Employees can still challenge the action through EEO or whistleblower channels if retaliation or discrimination is alleged.

Egan established the dividing line between clearance law (national security domain) and employment law (civil service domain).

The Expansion: Kaplan v. Conyers and Northover v. Archuleta

In 2013, the Federal Circuit expanded Egan in Kaplan v. Conyers and Northover v. Archuleta, holding that employees in “sensitive” positions — even if non-classified — are also outside MSPB jurisdiction for the underlying eligibility decision.

In short:

The logic of Egan now covers “non-critical sensitive” positions (e.g., IT, finance, logistics) whose loss of eligibility can result in removal.
Employees may appeal procedural errors, but not the security or suitability rationale for ineligibility.

This line of cases effectively fused security clearance law and employment law for thousands of positions.

What Is a “Sensitive” Position?

“Sensitive” doesn’t always mean “classified.”

A sensitive position is one where the occupant could, by virtue of their duties, materially impact national security or agency integrity. These include:

Positions with access to critical IT systems or PII.
Financial management or contracting roles.
Law enforcement or adjudicative functions.
Positions requiring access to restricted facilities or data systems.

All national security positions are sensitive, but not all sensitive positions involve classified information.

Losing eligibility for a sensitive position — even without a formal clearance — can still lead to termination under Egan and Conyers.

The Real-World Impact

When an agency suspends or revokes your clearance or deems you ineligible for a sensitive position, you can face:

Indefinite suspension without pay pending adjudication.
Removal once the denial or revocation is finalized.
Loss of appeal rights to challenge the underlying security rationale.
Career interruption across federal service and the cleared contractor community.

And because clearance and suitability databases are interlinked, that decision can follow you to every future application.

Where Clearance Law and Employment Law Overlap

Situation	What Applies	Who Decides	Review Rights
Denial or revocation of clearance	Security clearance law	DoDCAF, DOHA, or agency adjudicator	Appeal under EO 10865 / agency rules
Ineligibility for “sensitive” position	Egan / Conyers	Agency HR / Security Office	Limited MSPB review (procedural only)
Removal for clearance loss	5 U.S.C. Ch. 75 + Egan	Agency Deciding Official	MSPB review of procedures only
Discrimination or retaliation tied to clearance action	Title VII / WPA	EEOC / OSC / MSPB (mixed case)	Review of pretext or retaliation, not merits
Contractor clearance denial	DoD Directive 5220.6 (DOHA)	DOHA Administrative Judge	Appeal to DOHA Appeal Board

This interplay means your rights — and your strategy — depend on who took the action and why.

The Procedural Rights You Still Have

Even under Egan, you retain significant rights:

Due Process in Employment:
- Written notice of proposed action;
- Opportunity to respond;
- Final decision by an impartial official.
Equal Employment Opportunity Protections:
- You can still file an EEO complaint if you believe the clearance or removal was a pretext for discrimination.
- The EEOC can review whether discrimination motivated the decision, even if it cannot review the clearance merits.
Whistleblower Protections:
- Disclosures of wrongdoing remain protected.
- The Office of Special Counsel (OSC) can investigate retaliation for protected whistleblowing activity tied to clearance actions.
Agency or DOHA Appeal Rights:
- Most clearance denials and revocations include written appeal instructions (e.g., DOHA hearings or agency-level panels).

Common Overlap Scenarios We Handle

Federal employee removed after clearance revocation.
→ We challenge procedural flaws, pretext, or retaliation while preserving reapplication eligibility.
Public Trust (non-cleared) employee found ineligible for “sensitive” position.
→ We appeal through agency channels and protect future suitability eligibility.
Contractor clearance denial at DOHA.
→ We represent clients before DOHA judges under the 13 Adjudicative Guidelines.
Indefinite suspension pending clearance adjudication.
→ We negotiate reinstatement or administrative resolution when delays exceed reasonableness.

The 13 Adjudicative Guidelines — The Common Thread

Whether you’re a civilian, contractor, or military member, clearance adjudicators use the 13 Adjudicative Guidelines, covering:

A – Allegiance to the U.S.
B – Foreign Influence
C – Foreign Preference
D – Sexual Behavior
E – Personal Conduct
F – Financial Considerations
G – Alcohol Consumption
H – Drug Involvement and Substance Misuse
I – Psychological Conditions
J – Criminal Conduct
K – Handling Protected Information
L – Outside Activities
M – Use of Information Technology

Many employment-based adverse actions under Part 731 or Chapter 75 mirror these same concerns — particularly Personal Conduct, Financial, and Alcohol/Drug issues.

That overlap often means the same evidence can trigger both a clearance revocation and an employment removal.

Why These Cases Require a Dual-Track Strategy

Clearance and employment cases must be fought on two fronts simultaneously:

Security Adjudication Defense — Addressing the Guideline issues, demonstrating mitigation, and arguing for eligibility restoration.
Employment Law Defense — Preserving due process rights, challenging procedural defects, and protecting whistleblower/EEO claims.

NSLF’s clearance attorneys coordinate both tracks, ensuring that statements or evidence in one venue don’t harm you in the other.

Why Choose National Security Law Firm

When your clearance and your career are both on the line, you need lawyers who have been inside the agencies making these decisions.

At National Security Law Firm, our attorneys bring an unmatched combination of clearance, security, and federal employment experience:

Jeff Velasco — Former Supervisory Attorney-Advisor at the Transportation Security Administration (TSA), where he oversaw both security-clearance adjudications and MSPB litigation.
Danielle Moora — Former Senior Counsel at DHS and CBP, handling high-stakes national security employment matters and classified evidence issues.
Karen Hickey — Former counsel with the FTC and DHS, experienced in cross-agency suitability and security clearance adjudication standards.

Together, our team has over 60 years of insider government experience defending and advising federal agencies on clearance and employment actions.

We understand the internal review boards, clearance panels, and human capital offices because we’ve sat on their side of the table. Now, we use that insight to protect your job, your clearance, and your reputation.

Protecting Your Clearance — and Your Career

If your clearance, Public Trust, or “sensitive position” eligibility has been suspended, revoked, or questioned, time is critical.
You have rights — but every day that passes narrows your options.

At National Security Law Firm, we defend both your access and your employment. We know the policies, the procedures, and the people who decide them.

Book your free consultation.

National Security Law Firm: It’s Our Turn to Fight for You.