Federal Security Clearances and the Role of the MSPB and the Courts

September 22, 2009 1:43 AM , Updated October 16, 2017 3:32 PM
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A Physicist/Scientist with the Naval Surface Warfare Center was not able to persuade the appeals court to overturn an indefinite suspension that lasted 370 days after the Navy pulled his security clearance. (Stoyanov v. Department of the Navy, C.A.F.C. No. 2009-3163 (nonprecedential), 9/15/09) The facts reported below are from the court’s decision.

The Navy followed procedures to suspend Stoyanov’s access to classified information based on his falsification of time records, misuse of government computers, and “lack of candor when questioned” about his alleged misconduct. (Opinion pp. 1-2) Meanwhile, the Navy suspended Stoyanov from work and pay indefinitely pending the outcome of the suspension of his security clearance. The court specifically said it had no details as to what happened with the appeal process on the security clearance suspension.

In the end, the Navy Central Adjudication Facility reversed the clearance suspension and ordered Stoyanov back to work. This process took a long time and by the time it was over, the work and pay suspension had added up to 370 days. (pp. 2-4)

Stoyanov appealed the indefinite disciplinary suspension to the Merit Systems Protection Board. The Administrative Judge ruled that the Board had no jurisdiction to review the merits of a decision suspending a security clearance. All the Board could do was review to determine whether Stoyanov had received due process and the AJ determined that the Navy had followed the proper procedures when it suspended his clearance. (p. 4)

When Stoyanov appealed to the full MSPB his case got mired in the fact that the 3-member Board had a vacancy—there were only two Board members and they could not agree on his appeal. Therefore, under Board rules, the AJ’s decision automatically became the final decision of the Board. (p. 4)

Stoyanov took his case to the appeals court. The court has now affirmed the Board’s decision, agreeing with the AJ that the Board has no jurisdiction over the merits of the Navy’s security suspension decision: “Although Dr. Stoyanov contends that the suspension of his security clearance and ensuing suspension of his employment…was ‘unlawful in its entirety,’ this charge is not within the Board’s purview beyond determination of whether he received the minimal due process….” (p. 8)

This result is no big surprise. The MSPB rarely disturbs the decision to suspend a security clearance since it can only look to see whether there was a procedural irregularity in the process used to suspend the clearance.

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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.