No Security Clearance May Equal No Job

By on September 12, 2007 in Current Events with 2 Comments

The Federal Circuit has affirmed the indefinite suspension resulting from revocation of a security clearance due to the employee’s long history of financial irresponsibility. (Moody v. Department of Defense, C.A.F.C. No. 2007-3177 (nonprecedential), 8/14/07)

Ms. Moody worked for Defense Finance & Accounting Service (DFAS) in Pensacola, Florida. She was required by her job as an accounting systems administrator to have a security clearance. Following revocation of her clearance, the agency put her in a non-sensitive position. Eleven months later the agency proposed to indefinitely suspend her based on the fact that she was no longer qualified for her regular position. (Opinion p. 2)

Eventually the agency made a final decision to indefinitely suspend Ms. Moody. She unsuccessfully appealed to the Merit Systems Protection Board. (Moody v. Dep’t of Defense, No. AT0752060812-I-1 (Aug. 23, 2006 and Jan. 31, 2007)). (p. 2)

Basically, Moody made two arguments to the Board and the appeals court. First, she argued that waiting 11 months to propose her suspension was improper, citing 5. C.F.R. Pt. 752 and DFAS 1426.1. The court finds that argument to be without merit, pointing out that “nothing in those regulations sets a rigid timetable for the government to initiate an adverse action.” While the DFAS regulation requires that disciplinary actions be taken promptly, Moody’s indefinite suspension “although an adverse action, was not disciplinary in nature.” (p. 3)

The court also did not buy Moody’s second argument that by allowing her to work for almost a year in a non-sensitive position, the agency could not then turn around and suspend her indefinitely. The reassignment does not prevent the subsequent suspension and does not create a “vested interest in her interim duties.” The court cites Skees v. Dep’t of Navy, 864 F.2d 1576, 1578-79 (Fed. Cir. 1989): “We do not subscribe to the view that when [an agency], whether through benevolence or self-interest, tries to keep an employee who loses his security clearance aboard in another capacity, it thereby opens itself up to administrative and judicial second-guessing.” (p. 4)

This case once again underscores the near futility of challenging adverse actions that are keyed to revocation of a clearance. You lose your required security clearance and you put your job in serious jeopardy.

© 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.