No Security Clearance, No Job

If a federal job requires that the employee maintain a security clearance, then if the clearance is revoked the employee no longer meets the job’s requirements. No clearance, no job.

The appeals court has upheld three decisions of the Merit Systems Protection Board dealing with the indefinite suspension of a GS-15 FEMA (Federal Emergency Management Agency) employee that was based on first the suspension, and then the revocation of her required security clearance. ( Ryan v. Department of Homeland Security (CAFC No. 2014-3181, 7/13/15))

As the court’s opinion reports, Ms. Ryan was FEMA’s regional Mission Support Division Director and as such was required to keep a top-secret security clearance. When federal criminal charges were brought against her involving conflict of interest, soliciting a gratuity, and making false statements, the agency suspended Ryan’s clearance. Once the clearance was suspended, she was indefinitely suspended from her job without pay until a final decision was made on her clearance since she was not qualified to do her job without the clearance. (Opinion p. 1)

Ryan appealed the indefinite suspension to the MSPB. By the time the Board ruled on the indefinite employment suspension, she had been acquitted of all charges against her. Nevertheless, the Board noted that the suspension was tied to the final agency decision on her top-secret clearance. Since that determination had not yet been made, the MSPB sustained the indefinite suspension. (pp. 3-4)

Meanwhile, Ryan filed another MSPB appeal arguing the agency was unreasonably delaying a final decision on her security clearance. Essentially the MSPB ruled it lacked jurisdiction over this second appeal.

Several months after Ryan’s acquittal on the criminal charges, the agency made a final decision revoking her security clearance. Ryan then filed a third MSPB appeal arguing that with this final decision revoking her clearance, there was now no basis for continuing the indefinite suspension from her job. The Board disagreed with the logic, noting that it was her “inability to access classified information” that was the reason underlying her indefinite suspension and that had not essentially changed—the fact that the clearance revocation had gone from a suspension to a final revocation did not change the basis for her job suspension. She cannot access classified information in either event and therefore cannot do her job. In short, Ms. Ryan would have to challenge the security clearance revocation through a different process. (pp. 4-5)

Ryan’s court case combined three difference MSPB cases. She did not argue the point that to do her job she had to have the clearance. Rather she argued that the MSPB was required to do a “Douglas-like” mitigation analysis (Douglas v Veterans Administration, 5M.S.P.B. 313 (1981)) and should have ordered the agency to put her in a position that did not require a security clearance. Not so, said MSPB and now says the appeals court. (p. 7) The court held that Douglas only applies in an adverse action situation, not a security clearance revocation case, which the court pointed out, is NOT an adverse action. Says the court, “If no security clearance suspension were at issue and Ms. Ryan had been indefinitely suspended from duty based on the underlying alleged criminal misconduct, a Douglas mitigation analysis might be proper….” But that is not the case here. (p. 9)

The court specifically declined to apply Douglas to security clearance revocation cases.

As to Ryan’s argument that following her acquittal MSPB improperly failed to take jurisdiction then to review her job suspension, the court again disagreed since her suspension was tied to the revocation of her clearance and not the facts underlying the criminal charges against her. Just because she was acquitted, there was still the matter of a final decision on her security clearance and that decision was to revoke it. (p. 10)

The court points out that denial of a security clearance is not something MSPB has the authority to review. Once the clearance was revoked permanently, Ms. Ryan no longer qualified to hold her job and therefore the basis for the indefinite suspension remains. She will find no recourse through the MSPB.

Ryan v. DHS (2014-3181, 2014-3182, 2014-3183)

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.