Two Years of Back Pay and Now Confusion in Security Clearance Suspensions

By on March 4, 2007 in Current Events with 0 Comments

The Federal Circuit Court of Appeals has just issued a 2-1 decision that overturns the Merit Systems Protection Board and the Department of Justice in an indefinite suspension case and orders that the employee be retroactively reinstated.

This could amount to more than two years back pay for this GS-14 Resident Agent in Charge of the Cleveland office of the Drug Enforcement Administration. (Cheney v. Department of Justice, C.A.F.C. No. 06-3124, 3/2/07) The facts are taken from the court’s majority and dissenting opinions.

In mid-2004, Reginald Cheney was an 18-year employee with DEA. His position—indeed all positions within DEA—required a security clearance. The Department of Justice Office of Professional Responsibility (OPR) opened an investigation of Cheney centering on allegations that he had abused his authority. As a consequence of the ongoing OPR investigation, Cheney’s security clearance was suspended until the investigation was complete. The suspended clearance resulted in the agency indefinitely suspending Cheney from employment.

The issue before the Board and the court was whether Cheney was afforded that due process required by 5 U.S.C. §7513 in his indefinite suspension. In the back and forth leading up to his suspension, Cheney sought and obtained extensions while he made several different requests for more details on the basis for suspending his security clearance and received more and more details from the agency in the process. The question was whether the agency had provided enough specificity for the security clearance suspension, which was the basis for the indefinite employment suspension.

Here is what the agency eventually told Cheney before making the final decision to suspend him:

“The decision to suspend your security clearance is based upon allegations that you inappropriately queried or caused to be queried Law Enforcement Data Bases and abused the Administrative Subpoena process. Additionally, it is believed that you are in violation of the confidentiality agreement you entered into with the Office of Professional Responsibility during their investigation into these issues.” (Opinion p. 5)

In his dissent, Chief Judge McKinney summarized the issue succinctly: “This case illustrates the tension that exists between security clearance determinations, which are not reviewable by the Board or the court, and adverse employment actions governed by 5 U.S.C. §7513, a situation that implicates due process concerns. The issue before the court is whether Cheney received the statutory procedural protections….specifically whether Cheney received sufficient notice of the reasons for his proposed employment suspension so that he had a meaningful opportunity to respond to the proposal.” (Dissent p. 1)

The 2-judge majority concluded that the answer to this question was “no.” Judge McKinney disagreed but did not prevail. Therefore, agencies now face the dilemma in security clearance suspension cases as to just how much information is enough to meet the due process requirement if an adverse action is taken based on the clearance suspension.

For those readers who are interested in a detailed discussion of the facts of this case as well as the pertinent case law, you should read both the majority and dissenting opinions.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.