Missing a Required Security Clearance Is Valid Basis for Removal

By on August 31, 2007 in Current Events with 0 Comments

The Federal Circuit has upheld the removal of an employee based on his required security clearance being revoked. (Robinson v. Department of Homeland Security, C.A.F.C. No. 2006-3123, 8/30/07)

In doing so, the court apparently felt the need to clarify the standards for reviewing a revocation of a security clearance: "For the reasons explained below, we conclude that the MSPB’s decision should be affirmed. We explain these reasons in some detail in hopes that the MSPB and litigants before the MSPB will better understand the applicable law." (p. 2)

Robinson was employed as a special agent by the Secret Service in its Little Rock Field Office. This position required that he have a top secret security clearance. The agency suspended his clearance and launched an investigation. (The court’s opinion vaguely references his work hours and "questions about his personal and possible criminal conduct.") (p. 2)

The agency sent Robinson a Notice of Determination that his clearance should be revoked and explained the specific reasons. The notice also identified the deciding official in his case and informed him of his rights, which included a right to appear personally before the deciding official. Robinson’s attorney made a written reply, which declined the opportunity to appear before this official since he believed the outcome "appears to be predetermined." (pp. 2-3)

Eventually the decision was made to revoke Robinson’s clearance. He exercised his right to appeal the decision to the USSS Security Appeals Board. The Board endorsed the decision to revoke his clearance. At this point the agency took action to remove Robinson. (p. 4)

Robinson appealed to the MSPB. He requested a witness he claimed would testify that the decision to revoke his clearance has been predetermined by the agency. The Administrative Judge denied this witness request since the only issue was whether Robinson had received minimum due process protection. (pp. 4-5)

The Board concluded that Robinson had received the minimum due process and his removal was affirmed.

Robinson argued to the court that the Board erred in not considering the evidence relating to his "predetermination" argument. He insisted that this predetermination meant that he did not receive minimum due process and therefore his removal should be overturned. (p. 6)

The court disagrees with Robinson. Also, it apparently feels the need to set the MSPB straight on the standard of review in these cases: "As the Government notes,, and contrary to Mr. Robinson’s argument and what appears to be the MSPB’s view, security clearance decisions are not reviewable for ‘minimum due process protection.’ We consistently have held that a federal employee does not have a liberty or property interest in access to classified information." (p. 7, citations omitted)

The court goes on to say that in Robinson’s case the clearance was revoked in a process in which he fully participated. The fact that he did not have a clearance and hence could be removed as a result was therefore "a matter of record before the MSPB on which the MSPB could rely." (p. 8)

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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.