When an employee’s security clearance is suspended, you can pretty much bet the agency is going to take action—if the clearance is required for an employee to work, then no clearance adds up to no work. This is illustrated yet again in a recent appeals court decision.
In Adams v. Department of Defense, CA.F.C. No. 2010-3041 (nonprecedential), 4/13/10, the agency indefinitely suspended Adams when he lost his clearance. The Merit System Protection Board sustained the suspension on appeal. Adams fared no better in court, as anyone familiar with case law would have predicted. The court wasted no time affirming, pointing out that “[s]ecurity clearance rulings of federal agencies are not reviewable by the Board, or by this court other than to ascertain whether the petitioner received due process of law.” (Opinion pp. 1-2)
This routine and all too predictable court disposition raises a question in my mind. Why doesn’t Congress fix the tangled web of federal personnel cases clogging up the courts? It’s been talked about on and off for years. Appeals channels are notoriously complex and cases take far too long to get to the final word. Some would call the fact that it takes years for an appeal to work through the system fairness or “due process.” Others would call it “justice delayed.” Others would call it a waste of judicial resources.
I would think that ideally the judicial review system for these cases would be one that affords due process, is quick so that parties don’t have to hang on for years to learn the end result, and preserves our judicial resources.
The administrative appeals process before the Merit Systems Protection Board is infused with due process requirements—an administrative hearing before a neutral law judge, presentation of evidence, cross examination, discovery, and review of the AJ’s decision by the full Board. The Board can agree with the AJ or disagree and overturn the decision or send the case back for more fact finding. Yes, sometimes in a very few cases under the current system the appeals court rules that the Board misread the law or made a decision not supported by the facts. In the vast majority of cases, the appeals court sustains the Board.
Admittedly, Mr. Adams’ case did not take that long I comparison to many others probably because it is virtually impossible to successfully challenge a job action based on loss of a security clearance. A majority of cases take months if not years. Just a personal opinion and many will disagree vociferously, but I honestly think it would be fairer to appellants and their agencies if there were a quicker way to get to and through the court for review.
Here’s one idea. In the Federal Circuit for personnel appeal cases, use a procedure similar to the petition for certiorari used for review by the U.S. Supreme Court.
When a party pushes a case all the way to the U.S. Supreme Court, review is not automatic. First the court is asked to take the case for review and the party has to convince the court there is a compelling reason to do so. The Supremes get probably thousands of these petitions a year and agree to review a handful in comparison. Those selected for review then get fully briefed by the parties and argued before the court, a process that takes up quite a bit of time and resources.
The Federal Circuit similarly should be enabled by Congress to issue a simple “cert denied” if a federal personnel appeals case has no merit, and that should be the end of it. If cert is granted, the case could then be briefed, argued and a decision issued by the appeals court.
And, while we are fixing the system, how about having just one administrative appeals agency for any and all federal employee complaints to replace the several now existing. Consolidate the appellate responsibilities of several agencies into the Federal Appeals Board (or some other suitable moniker for a new agency). This new agency should consolidate and replace complaints or appeals functions scattered throughout several existing agencies–MSPB, EEOC, Office of Special Counsel, the Federal Labor Relations Authority, to name the obvious ones– into one agency.
Do you have a gripe with your agency? Then you have two choices. File an appeal to the new FAB, or, if you are in a bargaining unit, file a grievance through the union, up to an including binding arbitration. If after the due process afforded to you through your appeal to the FAB you did not win your case, then try to convince the appeals court to grant a petition to take the case up for review. Otherwise, you are at the end of the road.
If one’s concept of due process is nothing more than lots of different places to appeal, lots of years that the appeal can be drawn out, and therefore lots of opportunity to wear the agency down, then, of course, these ideas are folly. But surely there is room for some improvement. How about a dialogue? Throw your ideas out there.
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.