By John V. Berry, Esq., www.berrylegal.com
For cleared federal employees, the ability to obtain or maintain a security clearance, for certain federal positions, can be critical with respect to maintaining their federal employment. If a federal employee is required to have access to classified information, then they must be eligible for a security clearance in order to keep their position. This article discusses the connection between security clearance and those employed by the federal government.
When Clearance Problems Arise, Seek Timely Legal Advice
During 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 security clearance based on potential security concerns. 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 (or at least speak to) counsel as quickly as possible. The earlier a federal employee retains an attorney to assist them with possible security clearance issues, the better the chance one generally stands of keeping or obtaining their clearance and their federal employment 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), the federal employee forum that generally hears employment appeals.
Access to Classified Information for Federal Employees
If a federal employee is required to have access to classified information, they will need to qualify for a security clearance, whether it is at the secret or top secret level. The federal employee involved, unless they already possess such a clearance will have to complete and 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. It is vitally important that such forms will filled out honestly and to the best of one's ability.
Following the clearance investigation, a number of possibilities develop, including the following: (1) the employee is granted access to classified information, (2) further information is needed from the federal employee to complete the investigation; (3) the matter is referred for additional investigation, or (4) 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. Each federal agency's process can vary. 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. It is often the case that when a security clearance is denied it can very well be the beginning of the potential removal process for the federal employee. I have outlined the potential process that can unfold in this instance.
Proposed Indefinite Suspensions Are Issued
When a security clearance is not granted or is suspended, the first problem that a federal employee who requires clearance access to perform their duties 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 and this process. Federal employers can and often do propose an indefinite suspension (without pay) while the clearance appeal process is ongoing. The options for challenging this type of indefinite suspension are somewhat limited, but some options are available. The clearance review process can take some time, depending on the federal agency involved and the federal employee can be in a non-paid status for a significant amount of time while the clearance matter is resolved.
For instance, if one is employed by the Department of Defense, they would generally appeal their security clearance denial through the Department of Defense Consolidated Adjudication Facility (DoD CAF) 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 is placed in an indefinite suspension status, he or she would be in a no pay status which can generally last between 2 and 12 months even though they remain officially employed by the federal agency. Once the clearance is returned (hopefully), then the suspension can be dissolved and the individual can return to a pay status.
Options during an indefinite suspension can include: (1) a request to perform unclassified duties; (2) a request for the use of leave; (3) the potential for seeking unemployment compensation; and (4) seeking permission to work outside employment during the period of time they are waiting a decision on the clearance.
Removal of Federal Employee for Final Decision Denying Security Clearance
If a federal employee involved ultimately loses their security clearance (and exhausts all appeals), generally the next step for the federal agency involved is to propose to remove them from their position unless another position or duties can be found for that individual. 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 unless other work is available.
If one is removed from their employment for failure to maintain a security clearance it can be very difficult to appeal this type of 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). With respect to a proposed indefinite suspension penalty, a federal employee's rights in connection with an adverse action based on the denial or revocation of a security clearanceallow the MSPB to consider only whether the agency has a formal policy requiring reassignment and, if so, whether a position to which the appellant could be reassigned exists. See Hinkle v. Dep't of the Air Force, 2017 MSPB LEXIS 4059 (M.S.P.B. Sept. 25, 2017)
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 open to further challenges in recent years, as the MSPB has appeared to offer more leeway in evaluating federal agency decisions regarding security clearance issues, such review is still very 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. Our Facebook page is provided here.