No Base Access, No Job

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By on July 30, 2018 in Court Cases with 0 Comments

Rubber stamp in red reading 'access denied' on a solid white background

First the Merit Systems Protection Board (MSPB) and now the appeals court have sustained the Air Force’s removal of an employee because he was denied access to his base as well as a security clearance, both of which were required for his job. (Mitrano v Department of the Air Force (CAFC No. 2017-2572, 4/6/18 (nonprecedential))

Mr. Mitrano was hired as an engineer at Malmstrom Air Force Base, subject to Mitrano getting a secret clearance as well as obtaining access to the base, the mission of which includes nuclear weaponry. Readers familiar with the security clearance process know that this required Mitrano to complete a Standard Form 86 (SF-86). His original form failed to mention a few important facts, so the agency rejected it and required him to try again. However, the agency quickly figured out that Mr. Mitrano had been imprisoned for more than a year. Under Air Force rules in the Integrated Defense Plan for the Base, this was an insurmountable impediment to being given access to the base and likely would cause denial of a security clearance. In short order the Air Force put him on administrative leave and made an initial decision to deny him base access. After considering Mitrano’s response, he was permanently denied access some three months after his hire. (Opinion pp. 2-3)

Shortly thereafter Air Force proposed to remove Mitrano citing both the denial of base access and his refusal to comply with the order to fully complete and resubmit his SF-86. Following the reply period a final removal decision was issued.

On appeal to the MSPB, Mr. Mitrano tried to argue that he was denied due process when his base access was cut off. Not so, ruled the Board. It concluded that he was given all the due process he was entitled to for such a decision—he was told the reason, given the chance to reply—all that was needed for such a determination. The Air Force followed its rules and the Integrated Defense Plan spelled out the basis for the agency’s determination. His argument that Air Force failed to consider his argument as to his prior criminal conviction being wrongful was brushed aside by the MSPB and later the court. The Board had no authority to question the prior conviction and sentence. The Integrated Defense Plan required that a prior conviction resulting in a year or more term of imprisonment automatically required denial of base access. (p. 4)

Moreover, both the Board and the court found that Air Force had proved the charge of failure to follow the order to resubmit the SF-86. (p. 5)

Mr. Mitrano’s removal is sustained.

Mitrano v Air Force (2017-2572)

© 2019 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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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.

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