Federal Circuit Stresses Security Removal Options Over MSPB

By on August 28, 2012 in Court Cases, News with 6 Comments

Last week, we reported that the Office of Personnel Management (“OPM”) won review and reversal of the decision by the Merit Systems Protection Board (“Board”) holding that the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), limits Board review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. The court found that “Egan, prohibits Board review of agency determinations concerning eligibility of an employee to occupy a “sensitive” position, regardless of whether the position requires access to classified information.”

This means that the only basis to challenge an Agency position sensitivity determination to MSPB is that the employee was not provided “due process” in the making of the Agency decision.

What’s the Big Deal?

If a Federal employee holds a position rated non-critical sensitive, critical or special sensitive and loses the ability to maintain that rating, he or she has no right to the adverse action procedures under law and regulation nor any right to appeal a removal or change to lower grade to MSPB.

The law and OPM Regulations establish strict procedures for suspending, removing and demoting most Federal employees other than political, temporary or probationary appointments.   If you are eligible under these procedures, you have an automatic right to appeal such an action to MSPB.  Not so with position sensitivity determinations. 

If an Agency determines you no longer meet the requirements to hold a sensitive position, you are entitled to “due process” which means notice of the decision and an opportunity for review of the determination by the Agency office charged with making the final determination.  If a final determination is made that an employee cannot hold a sensitive position, the Agency is free to terminate their employment.  Some Agencies may have procedures under which they seek to place an individual in a non-sensitive position but there is no obligation to do so.

How Do You Find Out Your Position’s Sensitivity?

It’s likely stated on your position description (PD).  If your Agency, like many others, uses OPM’s Optional Form (OF-8).  Item 12 on the form will tell you whether your position is considered non-critical, non-critical sensitive, critical or special sensitive.  If Block 2, 3 or 4 is checked, you’re covered by the court decision.  If it’s not on your PD, your Human Resources Office can tell you.

What Standards Apply In Revoking a Clearance or Finding Someone Ineligible to Hold a Sensitive Position?

Each Agency has some discretion to set standards.  The Department of Defense, on its website, lists the following “Personnel Security Standards” that may provoke an adverse determination:

  1. Involvement in activities which, or sympathetic association with persons who, unlawfully practice or advocate the overthrow or alteration of the U.S. Government by unconstitutional means.
  2. Foreign influence concerns or close personal association with foreign nationals or countries.
  3. Foreign citizenship (dual citizenship) or foreign monetary interests.
  4. Sexual behavior that is criminal or reflects a lack of judgment or discretion.
  5. Conduct involving questionable judgment, untrustworthiness, unreliability or unwillingness to comply with rules and regulations, or unwillingness to cooperate with security process.
  6. Unexplained affluence or excessive indebtedness.
  7. Alcohol or Illegal drug abuse.
  8. Illegal or improper drug use/involvement.
  9. Apparent mental, emotional or personality disorders(s).
  10. Criminal conduct.
  11. Noncompliance with security requirements.
  • Engagement in outside activities which could cause a conflict of interest.
  • Misuse of Information Technology Systems.

What is the Court Telling Us?

The decision we got on the issue is extremely clear in the Court’s conclusion:

“For the foregoing reasons, the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security. As OPM notes, “there is nothing talismanic about eligibility for access to classified information.” (OPM’s Br. 27). The core question is whether an agency determination concerns eligibility of an employee to occupy a sensitive position that implicates national security. When the answer to that question is in the affirmative, Egan applies and the Board plays a limited role in its review of the determination.”

The unmistakable inference here is that Agencies are bringing many actions to MSPB that need not go there.   When an Agency determines that an employee is properly terminated for failure to maintain a clearance or a position sensitivity rating above non-critical, the law allows Agencies the freedom to act without regard to 5 USC Code 7501-7543. 

For Agency Executives, managers, lawyers and HR staff, the case raises significant issues.  Under the law and regulations currently addressing appealable adverse actions for cause, an Agency decision is subject to MSPB review which essentially is a second opinion.  The Board does not know Agency operations and therefore whether an Agency prevails is often decided by how well a case is documented, presented, and understood by both an administrative judge and the Board.  The Board was created to adjudicate cases under a complex and frequently changing standard of review not to make security determinations as so clearly said in Egan.  As the composition of the Board changes, so do its decisions particularly with regard to the case that started all this.  Assuming standards similar to those listed above, the court is obviously telling us that an Agency may unilaterally take an action if security is involved and if “due process” is afforded the person involved.  That “due process” according to the courts consists of providing the individual notice of the fact of and reason for the proposed adverse security determination and an opportunity to respond.

Berry V. Conyers upsets longstanding apple carts and rice bowls.  Agency adjudication staff are probably not sufficient to handle the potential increase in cases offered by this new development.  HR and legal staffs are likely to be conservative in the application of the case as it shifts the locus of control from them to the adjudication function.  Executives and managers should welcome this change and make needed organizational adjustments accordingly.  I, for one, don’t think the new case will shorten the existing process substantially but that’s not the biggest impact.  The major effect could be finality in the termination process previously unheard of in the Federal sector.

You know any case limiting employee appeal rights is a big deal because Federal employee advocates are all over it and similar cases.  No appeals means no attorney fees at taxpayer expense.  Of course, they could always offer pro bono services in the adjudication process to show their hearts are in the right place.

As always, any opinion you derive from the above is my responsibility.  It is nice to know, however, that the Federal Circuit may really understand the serious difficulty involved in dealing with Federal employee problems and is encouraging the use of all available tools.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.


About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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  1. Redbaron47 says:

    BeenThere58 is sadly misinformed.  It is not a low credit score that would cause a person to lose their eligibility for a security clearance.  The risk is when a person is so severely in debt and unable to meet their financial obligations that raises the security concern of compromise.  We all have debt and as long as we are able to satisfy our monthly payments, we will not get into trouble.  The Ethics in Government Act requires all federal employees to make good on their just debts.  If a person is so severely in debt, then yes their eligibility must be reviewed because of the potential compromise of national security information. 

  2. Redbaron47 says:

    An excellent article and what the Congress really needs to do is to abolish OPM, MSPB and bring “employment at will” to government.  Then and only then will we have “efficiency of the service”.  The next peice of legislation would be to have mandatory dues for anyone represented by a union, and any union official using more than 25 percent of their time on union business would have to draw their salary from the union and not the taxpayers. 

    • Dave A says:

      Hey, Red…
      Under, ” Foreign citizenship (dual citizenship) or foreign monetary interests.’, does having a Swiss bank count as a “foreign monetary interest?  Caymen Islands accounts?  So, we could elect someone to be the commander in Chief of the US Armend Forces, be leader of the free world, etc., but not trust him with “sensitive information” as he ma be tempted to comprimise national security.  Could we let him go on this basis?  shouldn’t we?

      As “absurd as this may sound to you, it happens every day and twice on sundays with some of the management types we deal with.  58 is right and simply seeks more open or transparent dealings with people being released for the cold war mentality reasons that are often available on the internet in the first place.  Uh, these folks usually NEED a job to get OUT of the debt in the first place.  Concluding they are “security risks” and firing them only serves incentivize errant behavior.

  3. BeenThere58 says:

    Bob Gilson can’t believe that DoD would ever abuse it’s authority to fire employees for “security” reasons, but it does happen and something needs to be done about it.

    Obviously DoD should fire any employee who intentionally sabotages DoD operations or is a spy for a foreign government.  But what about employees who might do these things?  Can DoD really predict who these people are?   

    One predictor that DoD likes to use is the employee’s “credit rating.”  DoD has used the “security” argument to fire employees with 20-30 yrs of excellent performance ratings merely because they have a low credit rating.  These low credit ratings are typically caused by underwater mortgages, medical bills, or care of elderly parents.  Employees may be handling their financial difficulties in a responsible manner, but that doesn’t matter to DoD.  If they want to get rid of the employee, they can claim that the employee is a “security risk” and don’t have to answer to anyone.  

    However, there is no scientific evidence that credit ratings provide a reliable and valid predictor of security violations.  (The fact that one spy had a bad credit rating doesn’t mean that everyone — or even 1% of everyone — who has a bad credit rating is going to be a spy.)  On top of that, credit ratings have an adverse impact by race because blacks have significantly lower credit ratings than whites.  Thus, the use of credit ratings to fire otherwise acceptable employees is not only without merit but also racially discriminatory.

    We need national security, but DoD shouldn’t be allowed to use phony claims of national security as a pretext for firing employees it doesn’t like.  Ironically, DoD undermines national security by doing this.  Therefore, Congress should establish an appeals board where employees can challenge the removal of security clearances on the merits of the case, not just procedure.  In any event, there is no “due process” unless DoD is required to prove the reliability and validity of their selection procedures for security clearances.

  4. Ross200 says:

    Does any rational person trust DOD to use this authority wisely ? The Congress needs to reform this provision of the law. This is the Agency that gave us the $800 toilet seat. DOD gave us the F-22 fighter plane than can’t fly in the rain.  DOD and the State Department gave us the illegal and immoral war in Iraq that cost more than a trillion dollars. DOD is a corrupt Government Department that can’t be trusted. The DOD Corrupt High Level Managers will use this provision to get rid of honest employees, whistle blowers etc. 

  5. thomas_in_alaska says:

    Well I can see DOD abusing this as every position in DOD requires some sort of security clearance.  What is funny the same exact position and PD are considered non-sensitive in other federal agencies.  With this and the cuts coming to DOD it doesn’t look like a good place to be employed at this time.