The appeals court has upheld the indefinite suspension of an employee whose security clearance was suspended after he got in an altercation with security personnel at the Norfolk Naval Shipyard. (Fuller v. Department of the Navy, CAFC No. 2011-3180(nonprecedential), 2/13/12)
Fuller, a Marine Machinery Mechanic, “became disruptive and aggressive” at the security building at the shipyard and as a result he was “physically removed…his badge was confiscated because his disruptive behavior raised concerns about the potential for workplace violence.” (Opinion p. 2)
Following the required notice and response procedures, Navy suspended Fuller’s security access after this incident. Fuller responded to the proposed suspension after which the final decision was made to suspend his security access. This led to a notice of indefinite suspension from his job since Fuller was required by his position to have a security clearance. Fuller was given a chance to respond to the proposed suspension but he did not. The upshot was a final decision suspending Fuller indefinitely. (p. 3)
The Merit Systems Protection Board held a hearing on Fuller’s appeal. The Administrative Judge sustained the Navy’s suspension action, finding that Fuller was required to have a clearance, his clearance had been suspended, thus the indefinite suspension was supported, and that Fuller had been afforded all of his adverse action rights. (pp. 3-4)
The appeals court has now sustained Fuller’s suspension. Among other things Fuller argued to the court that his constitutional rights had been violated when the Navy took his badge. As the court points out, Fuller was on paid administrative leave after his badge was confiscated so this action alone did not amount to a suspension. A suspension means you are put in a non-duty, non-pay status. That did not happen to Fuller at the time his badge was pulled. “Moreover, Mr. Fuller has no liberty or property interest in access to classified information or to restricted government premises. … Because individual employees have no vested right to such access, the confiscation of Mr. Fuller’s badge, and the resulting termination of his right of access…did not implicate any due process concerns.” (pp. 6-7)
There are no surprises in the court’s decision in this case. When it comes to positions that require access to classified information or facilities, a security clearance is an absolute necessity. Once the clearance is suspended or denied, an employee has few options on appeal.