By John V. Berry, Esq., www.berrylegal.com
The ability to obtain or maintain a security clearance, for certain federal employees can be critical with respect to keeping their positions. If a federal employee is required to have access to classified information, then they must be eligible for a security clearance. In the course of federal employment, difficulties often arise when a previously cleared federal employee later runs into security clearance issues or when a new federal employee has trouble obtaining a clearance. When this happens it is very important to retain counsel as soon as possible.
When a federal employee has a potential issue that has the ability to affect their security clearance, then the most important move to make is to retain counsel as quickly as possible. The earlier one retains an attorney to assist them with possible security clearance issues, the better chance one generally stands of keeping their clearance and their position. 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).
Access to Classified Information
If a federal employee is required to have access to classified information, they will need to qualify for 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 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 denied, there are options for appealing this determination depending on the federal agency that employs the individual. 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. 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.
The Indefinite Suspension
When a security clearance is not granted or is suspended, the first problem that a federal employee can run into is the imposition of an indefinite suspension. 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. Federal employers can then propose an indefinite suspension (usually without pay) while the 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 situation.
For instance, 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 agency's personnel security appeals board. During this period of time, if the federal employee was placed in an indefinite suspension status, he or she would be in a no pay status. This can generally last between 4 and 12 months. Once the clearance is returned (hopefully), then the suspension can be dissolved and the individual can return to a pay status.
Removal for Final Decision Denying Security Clearance
If the federal employee involved ultimately loses their security clearance, generally the next step for the federal agency involved is to remove them 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.
If one 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 established 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 procedures followed in denying security access; in this regard, 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 changing as of late, as the MSPB has appeared to offer more leeway in evaluating federal agency decisions regarding security clearance issues, such review can be limited. See Pistilli v. Treasury, 117 M.S.P.R. 221 (2011).
When 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.