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No Security Clearance May Equal No Job

By Susan Smith

Wednesday, September 12, 2007

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Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.

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 (Moody v. Department of Defense, C.A.F.C. No. 2007-3177 (nonprecedential), 8/14/07)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.

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Readers' Comments

  • I read about the firings and thank goodness somebody stood up for us---I have seen many many people working with me that shouldn't be there.. I just pray we all get the best results we can!!...
    Posted: June 23, 2010 10:56 AM
  • I totally understand your frustration. they started investigating me in 2002----and they denied it in 2007 but my access to all the system I needed wasn't stopped until july 2009--I am totally mad. I am very tired of the discrimination due to people having to file bankurptcy but as of late..they ...
    Posted: June 23, 2010 10:54 AM
  • not yet but last year they told me my clearance had been denied in 2007--and I needed to provide new information..but the security manager never gave me the new information to submit. I have been threatened with being fired for my credit rating and my bankruptcy but they never get the whole truth a...
    Posted: April 17, 2010 6:57 PM

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