In Kristof v Department of the Air Force (CAFC No. 2021-2033 (nonprecedential) 2/23/2023), Mr. Kristof worked for the Air Force as a Systems Integration Engineer. His position required that he have a security clearance as a condition of his job. The Air Force suspended Kristof’s clearance in early 2015 because of the allegation that he illegally distributed information to a foreign national. The agency explained in its notice to him that what is now known as the Defense Counterintelligence and Security Agency Consolidated Adjudication Services (“CAS”) would make the final decision as to Kristof’s ability to keep his security clearance. (Opinion p 2)
Air Force placed Kristof on paid administrative leave pending the final clearance decision, a status that lasted until 2019. At that point, Air Force notified Kristof of his proposed suspension without pay for an indefinite period, citing his inability to perform his job without a security clearance. He was further informed that the suspension would last until CAF made a decision on Kristof’s security clearance, and that should a final decision be made to deny him a security clearance, the indefinite suspension would continue until further personnel action, potentially including his removal, was taken by the agency. (Pp. 2-3)
When the deciding official upheld Kristof’s indefinite suspension without pay, Kristof appealed to the Merit Systems Protection Board (MSPB). Kristof ended up retiring before the MSPB processed his appeal. However, he petitioned to re-open the MSPB appeal in mid 2020, arguing that the agency had denied him due process. He challenged the delay in the security clearance investigation, flawed procedures in letting him challenge the final decision denying him a security clearance, and that his retirement amounted to a constructive discharge. He relied heavily on AFI 31-501 that provides the Air Force has as a goal “processing personnel security investigation requests at base level is 14 duty days.” (P. 4)
The MSPB judge affirmed Kristof’s indefinite suspension. He took his case to the appeals court.
The court has now upheld the indefinite suspension as well as the MSPB decision affirming the action by the Air Force. Citing Department of the Navy v. Egan (U.S. Supreme Court 484 U.S. 518, 530 (19)), the appeals court holds that the MSPB does not have jurisdiction to hear appeals involving denial of a security clearance: “[N]o one has a ‘right’ to a security clearance.” Repeating its consistent prior rulings on this issue, the appeals court explains, “the Board may determine whether a security clearance was a requirement of the appellant’s position, and whether procedures … were followed, but the Board may not examine the underlying merits of the security clearance determination.” (Opinion pp. 5-6, citations omitted)
In this case, the court has ruled that the MSPB was correct in holding that applicable procedural requirements had been satisfied. As for the 14 day rule relied on by Kristof, the court opines that this is a “goal,” and not a hard and fast requirement. (p. 6)
Mr. Kristof has now encountered the hard and fast case law set out in Egan and consistently followed by the MSPB and the courts, that it is all but impossible to challenge an agency decision to revoke an employee’s security clearance the almost inevitable adverse action that results from that revocation.