Security Clearances and Indefinite Suspensions: Federal Circuit vs the MSPB

A recent decision on an indefinite suspension and revoking an employee’s security clearance highlights a conflict between two courts.

Unlike the Hill, the Administration and most Federal employee unions, the Court of Appeals for the Federal Circuit appears to subscribe to a theory articulated by none other than Bruce Springsteen, who said, “Getting an audience is hard. Sustaining an audience is hard. It demands a consistency of thought, of purpose, and of action over a long period of time.” Let’s talk about why that’s the best thing possible at least in one area of Federal employment and who is the audience to get and hold?

The Merit Systems Protection Board (MSPB) doesn’t much like the government’s security clearance process. A couple of years ago, the Board tried to sneak up on and undercut a Supreme Court decision saying that security clearance determinations, done with regard for due process, are the exclusive determination of Agency heads without any appeal to the Board except to challenge whether due process was afforded. Not much grist for appellant lawyers in that mill, they seemed to believe.

Some might say that the current Board was motivated by ideology in that sneak attack and I was one of them. After taking the beating the Federal Circuit administered, the Board has somewhat reluctantly and not without catty remarks in some decisions, gotten on board the Court’s train. The new case is indicative of this evolution.

Unless you haven’t been paying attention, the federal government has been undergoing its own steady, unpredictable and apparently inexorable devolution without a consistent plan or anything approaching an understanding of the wildly different courses Agencies might take when no one is steering the overall boat. Different personnel systems springing up; pay bargaining at some; coverage by title 5 or not; mandatory removal offenses at yet others; and the like insure that we are coming to a point where something called the Federal civil service has absolutely no meaning except in the media whose members are all named shallow Hal for good reason.

Ok, OK, I’ll get to the point. I believe the Federal Circuit understands and uniquely, it would seem, that matters within its jurisdiction and discretion may need to be made consistent to insure a true equal protection under the law. Some may call it judicial activism but as a practitioner for over 40 years, I see it as, perhaps, totally responsible behavior in an irresponsible era of government. Rudy Giuliani said an interesting thing, “Civilization must stand up and combat the current collapse of governance, the rise of violence, and the spread of chaos and fear in many parts of the world.Do you think he knew he was talking about how our own government is currently operating?

So how does that get us to Ryan v. DHS, an appeal of an indefinite suspension involving a decision whether to revoke a security clearance?

BTW, a thing the career troopers do well at MSPB are the case reports on the Board’s website. The description of the case is as follows (in their words):

“The petitioner’s access to classified information was suspended after she was indicted on federal criminal charges. Because her position required her to maintain a top secret security clearance, the agency indefinitely suspended her until the agency made a final determination on her future eligibility for access to classified information. After the petitioner was acquitted of all criminal charges, she filed an appeal of her indefinite suspension with the Board. The administrative judge (“AJ”) found that she was not entitled to a termination of the indefinite suspension because the indefinite suspension was based on the suspension of her security clearance, and not the underlying reason for the suspension of the clearance, which was the indictment. The petitioner appealed the decision to the Board, and the Board affirmed.

While the petitioner’s first appeal was pending, she filed a second appeal, claiming that the agency was unreasonably delaying the adjudication of her clearance.

The administrative judge dismissed the claim for lack of jurisdiction, and the Board affirmed again.

In the second decision, the Board noted there was no support for the proposition that the Board could end her suspension based solely on the amount of time that has elapsed since her acquittal. The agency eventually revoked the petitioner’s security clearance, and afterward the petitioner filed a third MSPB appeal.

In the third appeal, the petitioner claimed that the basis for her indefinite suspension was amended when her security clearance was revoked, because the revocation was based on reasons not specified in the notice of proposed suspension. The AJ dismissed the appeal, because the new details in the clearance revocation did not change the basis of her indefinite suspension. The Board affirmed, holding that the revocation of her clearance did not change the basis for her indefinite suspension.

Holding: The Court affirmed.”

The Case Report folks at MSPB went on to say that the case is important because:

  1. “An indefinite suspension based on a loss of security clearance is not subject to a Douglas mitigation analysis.
  2. When a security clearance is required for a position and the employee does not have one, the Board does not have the authority to inquire into the feasibility of transfer to an alternative position not requiring a security clearance unless a substantive right to such a transfer is available from some other source.
  3. An agency has broad discretion to determine the length of time needed to evaluate whether the revocation of a suspended security clearance is appropriate.
  4. The new grounds for the revocation of the petitioner’s security clearance did not change the basis of her indefinite suspension, which remained the loss of the clearance itself, and not the reasons for the loss of the clearance.”

While they are perfectly on the mark as far as it goes, and I guess it’s not their job to make decisions too easy to understand, there’s a number of other important points implied but not stated (except in the Court’s decision) in sufficient detail to offer a roadmap. I once wrote an article in which I praised the Board (some time ago) for being the Emeril Lagasse of the employee relations business offering workable recipes that, if followed, facilitated the taking of actions while protecting employee rights. This is the single largest failure of this MSPB. It does not lead, instead it disrupts, reflecting beliefs not facts about its perceived mistreatment of employees by Agencies.

The Federal Circuit has taken up the crucial role of leader and guide, whether intentional or not. But the structure of this decision belies the idea that such is accidental. To prove my point, let’s look at what the Court said in this decision that’s worth repeating and I think, over and over again:

  • “The MSPB does not have authority “to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action,” such as discharge or indefinite suspension. Dep’t of the Navy v. Egan, 484 U.S. 518, 520 (1988). Rather, the MSPB has the authority to review only whether: (1) the petitioner’s position required a clearance; (2) the clearance was denied, suspended, or revoked; and (3) the procedural protections specified in 5 U.S.C. § 7513 were followed. Hesse v. Dep’t of State, 217 F.3d 1372, 1376 (Fed.Cir.2000).”
  • “The Supreme Court has made clear “[a] denial of a security clearance is not an ‘adverse action,’ and by its own force is not subject to [MSPB] review.” Egan, 484 U.S. at 530. “
  • “…where a security clearance is required for a position and the employee does not possess one, the MSPB “has no authority to inquire into the feasibility of transfer to alternative positions” unless a “substantive right [to be transferred] is available from some other source, such as a statute or regulation.”
  • “Applying the Supreme Court’s decision in Egan, this court concluded “the [MSPB] is not authorized to review security clearance determinations or agency actions based on security clearance determinations.” Id. at 1376 (emphasis added). The MSPB is therefore not authorized to review FEMA’s determination with respect to the feasibility of Ms. Ryan’s transfer to an alternative position, given the MSPB’s finding that FEMA does not have a policy requiring it to consider reassignment in cases where security clearances have been lost or suspended.”
  • “To the extent Ms. Ryan is arguing the MSPB should consider whether the determination with respect to her security clearance, as opposed to her indefinite suspension, was unduly delayed, the Supreme Court has stated “no one has a ‘right’ to a security clearance.” Egan, 484 U.S. at 528. The Court explained that “[f]or reasons ․ too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible.”
  • “The transition from clearance suspension to clearance revocation was accompanied by a notice stating the reasons for the revocation, which included the specifics of the indictment (as opposed to just the existence of the indictment, referenced in the clearance suspension), and to which was added a basis not stated in the indictment: misleading statements to an ethics officer. Id. at 54. As already noted, “[a] denial of a security clearance ․ is not subject to [MSPB] review.” Egan, 484 U.S. at 530. The notice discussed in detail the bases for the clearance revocation. It did not alter the basis for suspending Ms. Ryan’s employment. The suspension, as stated in the letter informing Ms. Ryan of the indefinite suspension of her employment, was “based exclusively upon the suspension of your access to classified information.” J.A. 78. It was therefore Ms. Ryan’s inability to access classified information, rather than the underlying reasons for that inability, that formed the basis of the indefinite suspension. See Gargiulo, 727 F.3d at 1185 (An employee indefinitely suspended for failure to maintain a required security clearance “ha[s] due process rights with respect to [the] indefinite suspension, but they [do] not include the right to contest the merits of the decision to suspend [the] security clearance.”). The revocation of Ms. Ryan’s clearance made this inability permanent.”

In writing this decision, the Federal Circuit clearly leads the reader through a learning process. It is clear, logical and orderly. MSPB used to do this in a spectacular fashion. I was amazed to see some of the members say that prior Board decisions were unfair because employees didn’t win enough. Of course Agencies prevailed, they had taken the advice of previous Boards on how to do cases right. The current Board of former union or appellants counsel appear not interested in guiding Agencies but rather offering profit opportunities to appellant counsel by juggling the bases of decisions. I’d like to see as an indicator of this, the number of AJ decisions overturned or modified by this Board as compared to previous Boards. It might just tell us something.

Please line up if you think that in addition to MSPB, EEOC, FLRA and, yes, even OPM should be taking lessons in writing, logic and clarity from the Federal Circuit.

At the beginning, I talked about an audience to get and hold. That audience includes advisors, advocates, deciding officials, security clearance decision makers and, yes, employees and their unions all of which, whether they like them or not, can get to know the rules. Wouldn’t it be amazing if other decision processes were this consistent and clear unless, of course, you have a political as opposed to a sound government reason for your goals?

I’m sure Judges O’Malley, Wallach and Gilstrap are unlikely to get a round of applause for their good work in this decision just as I’m sure the reward for good work is more work.

Since I do express an opinion or two in this article, I guess I have to remind you that such are my sole responsibility.

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.