I was intrigued by a case Bill Wiley discussed in the Federal Employment Law Training Group Newsletter this week. The case involved a decision by a Merit Systems Protection Board (MSPB) Administrative Judge (AJ) reversing the Federal Bureau of Investigation’s removal of a Special Agent for lying concerning a medical condition or use of a drug.
The case is available on Cyberfeds®, a subscription service, so I can’t copy it verbatim and post it here. If you have the service, the case number is DC-0752-14-1110-I-2 dated September 22, 2017. BTW, if you want to read Bill’s article go to feltg.com and subscribe to the newsletter or wait a month and read it at his site.
The long and short of the case is that the individual was taking anabolic steroids in addition to other medications and because he believed the specific use and purpose of the drugs was a “private matter”, he answered a question asking about the use of other drugs by saying or checking “none”.
It turned out that his claim was untrue. The MSPB AJ found that indeed the use of these medications were related to, in the AJ’s opinion, a matter outside the Agent’s duty to disclose under the Americans with Disabilities Act and reversed the removal.
FYI, I stole part of the title of this article from a Supreme Court decision as we’ll see in a bit.
Why is this Case Important?
This case is important for two major reasons:
- It points out why Agencies should use the security clearance revocation process when an employee commits an offense involving an integrity call.
- It brings again the issue of an administrative body substituting its judgement for that of the involved Agency where the Agency, not the administrative body, has the responsibility for the effect of the decision on the Agency’s mission.
Security Clearance Revocation
Since this article is titled in part “Second Guessing”, let me engage in a little.
I don’t understand why Justice used the adverse action procedures in this case. The matter apparently involved an individual with a very high-level security clearance; the Agency argued to the AJ that the facts established that the employee lied; and, integrity offenses are directly linked to the ability of an individual to maintain a clearance.
This case is exactly the kind of matter, addressed in Navy v. Egan, 484 U.S. 518 (1988), best left to the Agency’s security clearance revocation process. Why the Agency went to the Board is hard to understand. I do know that most civilian Agencies think that the security clearance revocation process is for the military or are ignorant of the process at all.
Of course, it’s not too late. The AJ ordered the person returned to duty, but the facts remain the same.
While I don’t think the new MSPB, when installed, will sustain the decision of this AJ, why risk it? Forget the appeal and revoke the clearance. I suspect the adjudicators of the revocation will be more likely to see the nexus between lying in an official matter, whatever the motivation, and the ability to hold a clearance.
Substitution of Decision Making without Consequences
The AJ in this case, in her decision, completely missed the point of the removal and the consequences of her decision on the Agency’s mission. By the way, such is common among administrative bodies hearing cases involving Federal employees.
This case places in high contrast the ability of Agencies such as MSPB, FLRA and others to focus on complicated legal parsing of employee administrative rights versus a much simpler concept. That concept is that the government has missions which, as in this case, affect the lives and safety of Agency employees and others.
This case involves, frankly, a political decision by the judge, i.e., that this person could decide what medical information is relevant to determine their suitability to perform a difficult and dangerous job unilaterally.
The Supreme Court addressed this exact issue. In Egan, the court said it all much better than I ever could:
As noted above, security clearance normally will be granted only if it is “clearly consistent with the interests of the national security.” The Board, however, reviews adverse actions under a preponderance of the evidence standard. § 7701(c)(1)(B). These two standards seem inconsistent. It is difficult to see how the Board would be able to review security clearance determinations under a preponderance of the evidence standard without departing from the “clearly consistent with the interests of the national security” test. The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials. Placing the burden on the Government to support the denial by a preponderance of the evidence would inevitably shift this emphasis and involve the Board in second-guessing the agency’s national security determinations. We consider it extremely unlikely that Congress intended such a result when it passed the Act and created the Board. (My emphasis)
Of course, the AJ might argue in her defense that the Agency gave it to her to decide and so placed the fate of its decision in her hands. Based on the Board’s recent efforts to get Egan and similar cased reversed, she’d probably be right. Now while I certainly wasn’t raised to second guess esteemed high level solons in the Department of Justice, it’s pretty clear they picked the wrong road in this case.
I’ve written about this exact issue before and am still amazed that Agencies fail to understand the tool the courts have recognized as in their hands. Why the revocation process is not used is still a mystery to this writer.
Anything you read above is the view of the author and not the publisher.