By John V. Berry, Esq., www.berrylegal.com
There is a direction connection between federal employment and the holding of a security clearance. Specifically, the ability to obtain or keep a security clearance, for certain federal employees can be very important with respect to holding onto their federal employment. If a federal employee is required to have access to classified information in the course of their duties, then they must be eligible for a security clearance. In the course of federal employment, problems often arise when a previously cleared federal employee later runs into security clearance issues or when a new federal employee has trouble obtaining a security clearance. When these types of problems arise, it is very important to retain a federal security clearance lawyer as soon as possible.
When a federal employee has a potential security concern that has the ability to affect their security clearance, then the most important move to make is to retain an experienced attorney as quickly as possible. The earlier a federal employee retains an attorney to assist them with possible security clearance issues, the better chance one generally stands of keeping their clearance and their federal employment. To give federal employees a better understanding of the connection between one’s security clearance and their federal employment, we have outlined the connection between federal employment, a security clearance and the Merit Systems Protection Board (MSPB).
Federal Employee Access to Classified Information
If a federal employee is required to have access to classified information as part of their position, they will need to obtain a security clearance. The federal employee involved, unless they already possess such a clearance will have to complete undergo a security clearance investigation and complete a Standard Form 86 (SF-86), usually through the computerized Electronic Questionnaires for Investigations Processing (e-QIP) system.
Following the security clearance investigation, the employee is:
(1) granted access to classified information,
(2) further information is needed from the federal employee, or
(3) the federal employee’s access to information is denied.
If the federal employee’s security clearance is denied, there are options for appealing this determination depending on the federal agency that employs the federal employee. In most situations, it is very important that if a federal employee is required to hold a security clearance that he or she appeal an adverse decision against them and evaluate their options early. Often times, when a clearance is denied it can very well be the beginning of the removal process for the federal employee. I have outlined the potential process that can unfold in this instance.
Proposed Indefinite Suspension
When a federal employee’s security clearance is not granted or is suspended, the first issue that a federal employee can run into is the imposition of an indefinite suspension without pay. Often times, there will be a quick turnaround from the moment that a federal employee, who has a need for access to classified information, is denied a security clearance. In other cases, it can take federal agencies a longer of period of time to reach this stage.
Federal employers can propose an indefinite suspension (without pay) while the security clearance appeal process is ongoing. This can take some time, depending on the federal agency involved and be a significant drain on the federal employee’s financial resources. For example, if one is employed by the Department of Defense, they would generally appeal their security clearance denial to the Defense Office of Hearings and Appeals (DOHA) and then ultimately to their federal agency’s personnel security appeals board. During this period of time, if the federal employee has been placed in an indefinite suspension status, he or she would be in a no pay status. This can generally last between 5 and 12 months. Once the security clearance is returned (hopefully), then the suspension can be ended and the individual can return to a pay status.
Removal for Final Decision Denying Security Clearance
If the federal employee with security concerns ultimately loses their security clearance and exhausts the clearance appeal process, the next step generally for the federal agency involved is to proposal removal from their position. This underlines the importance of actively protecting one’s security clearance. It can be very difficult to maintain one’s federal employment following a final decision denying a security clearance. There are occasions where an individual can be placed in positions that do not require a security clearance, but that is not the usual case.
If a federal employee is removed from their employment for failure to maintain a security clearance it can be very difficult to appeal the removal decision to the Merit Systems Protection Board (MSPB). It has been held that the MSPB generally does not have authority to review the underlying merits of a security clearance/access determination. Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988); Cheney v. Department of Justice, 479 F.3d 1343, 1349-50 (Fed. Cir. 2007).
In addition, the MSPB has not been authorized to review the procedures followed in denying security access. As a result, the MSPB’s review is limited to determining whether procedural protections were provided in connection with the adverse action appeal. King v. Alston, 75 F.3d 657, 662 (Fed. Cir. 1996). While this hardline view has been somewhat changing as of late, as the MSPB has appeared to offer more leeway in evaluating federal agency decisions regarding security clearance issues, such review is still fairly limited. See Pistilli v. Treasury, 117 M.S.P.R. 221 (2011).
As in the recent case of Hornspeth v. Navy, 2017 MSPB 3877 (Sept. 2017), an MSPB Judge recently opined:
“[T]he Board lacks authority to review the merits of the decision to suspend access. Id. (citing Jones v. Department of the Navy, 48 M.S.P.R. 680, 690 (finding that the Board lacks authority to review the merits of an agency’s suspension of security access in an indefinite suspension appeal), aff’d as modified on recons., 51 M.S.P.R. 607 (1991), aff’d, 978 F.2d 1223 (Fed. Cir. 1992)). Rather, in an appeal of an adverse action based on the denial, revocation, or suspension of a security clearance/ access to classified information, the Board will generally only review whether: (1) the employee’s position required a security clearance/ access to classified information; (2) the clearance/access to classified information was denied, revoked, or suspended; and (3) the employee was provided with the procedural protections specified in 5 U.S.C. § 7513. Rogers, 122 M.S.P.R. 671, P 5 (citing Hesse v. Department of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000); Egan, 484 U.S. at 530-31); see also Ulep v. Department of the Army, 120 M.S.P.R. 579, P 4 (2014). Also, if a statute or regulation provides the employee a substantive right to reassignment, the Board may review whether transfer to a nonsensitive position was feasible; further, the Board may assess whether the agency complied with its own procedures in imposing the action. E.g., Schnedar v. Department of the Air Force, 120 M.S.P.R. 516, PP 7-8 & n.1 (2014). And, “[B]ecause a tenured Federal employee has a property interest in continued employment, the Board also may consider whether the agency provided minimum due process in taking [such] an indefinite suspension action.” Palafox v. Department of the Navy, 124 M.S.P.R. 54, P 8 (2016) (citing Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, PP 13-15 (2014)).”
Each case differs, and it is often the case that some MSPB appeals involving these issues can result in resolution before the hearing process concludes. As a result, it is very important to consult consult when evaluating these issues.
When a federal employee is facing a security clearance issue in your federal employment it is very important to take it seriously as soon as possible. The decision to proactively response to these security clearance issues will often times maximize one’s chance for maintaining their federal employment. Each of these types of situations can differ so it is important to contact an attorney experienced in these areas. Our law firm can be reached at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.