Revoked Security Clearance Results in Removal

A DHS Criminal Investigator’s security clearance was revoked, but she argued that her job really did not require one so she should be allowed to stay in her position.

Ms. Rodriguez was a 24-year federal employee who had her security clearance revoked when she was serving as a Criminal Investigator (National Program Manager) with the DHS in its Homeland Security Investigations Office. (Rodriguez v Department of Homeland Security, CAFC No. 2023-1833 (nonprecedential), 12/8/23, p. 2) Once her security clearance was revoked, DHS proposed her removal since she could no longer perform all of her duties. She was afforded an opportunity to reply, following which DHS removed her, explaining this was not due to misconduct but was because she “failed to maintain a condition of employment.” (Opinion pp. 2-3)

Ms. Rodriguez appealed to the Merit Systems Protection Board (MSPB) where she argued that her duties did not really require a security clearance and that in any event, DHS should have reassigned her to a position that did not require a clearance. She questioned how her removal promoted the efficiency of the service since she could perform her job without a clearance as she had been doing while the agency action against her had been pending. (p. 3)

Before the MSPB judge, the agency and Rodriguez who was represented by counsel made certain stipulations. The court’s opinion on pp. 3-4 delineates those stipulations but included were stipulations that her position required a Top Secret clearance, that her clearance had been revoked, and that “The agency was not obligated by statute, regulation, or policy to reassign the appellant to a position that did not require a security clearance.” (P. 4)

The AJ found that the MSPB’s review was limited in such a case to determining whether the position required a clearance (it did), the clearance was revoked (it was), and Rodriguez was afforded procedural protections (she was). Those protections include 30 days’ notice of the proposed removal (which she received), a reasonable time for her to answer and make her case (that happened), representation (which she had), and a written final decision setting forth the basis for her removal (done). (P. 4) 

As to Rodriguez’s argument that the agency was required to assign her to a position not requiring a security clearance, the AJ found that no law or regulation sets forth such an obligation and the MSPB has no authority to second guess the agency’s decision not to reassign her, noting that the parties had stipulated to this being the case. (Pp. 4-5) Just because Rodriguez had continued to work while the clearance was revoked and her removal was processed the AJ concluded that this in itself did not require the agency to keep her employed. Where Rodriguez argued that the efficiency of the service was not promoted by removing her, the AJ found it was “well-settled” that when removal or other adverse action was based on revocation of a clearance, “the action promotes the efficiency of the service.” (p. 5)

MSPB affirmed the removal decision.

Rodriguez took her arguments to the federal appeals court. The court quickly disposed of her argument that her job did not really require a clearance, pointing out that by stipulating before the AJ that it required a Top Secret clearance, she had waived that argument. (P. 6) Add to that that “an agency’s determination that a position requires a security clearance is unreviewable.” (P. 6)

As to her argument that the agency had condoned her continuing to work meant it was required to keep her on the job, the court refused to second-guess the agency: “Finding condonation when an employee was allowed to work while proceedings required by rule, regulation, or statute to remove them occurred would be illogical.” (p. 7)

As to Rodriguez’s argument that the Douglas factors were required to be applied by the agency and the MSPB in reviewing her case and that the Board had erred in not doing so, the court rejected this, stating “It is well-established that the Board does not need to apply the Douglas factors if the removal action is based on an employee’s failure to maintain a security clearance.” (p. 7) 

Finally, on her argument that her removal does not promote the efficiency of the service and should be set aside, the court ruled that “we and the Board lack the authority to consider whether or not removal for failing to maintain a security clearance promotes the efficiency of the service.” (p. 7)

Both the MSPB and now the court have ruled against Ms Rodriguez. While this situation may seem harsh the reality is that revocation of a security clearance makes it difficult to hang onto a federal position and any appeal rights are very narrow as this case, and many others before it, illustrate.

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.