Government Employee’s Removal Upheld Due to Security Clearance Denial
In a recent Merit Systems Protection Board (MSPB) case the original decision to remove a Department of the Navy employee due to his security clearance being revoked was upheld by the board. Specifically, the employee was removed for failure to maintain a top secret security clearance as a condition of employment. It has been well established by case history that the MSPB cannot look at the reasons for a security clearance denial, as that authority is reserved for the adjudicating agency. However, MSPB can consider and rule on whether the agencies administrative processes and procedures were followed in removing the employee and whether due process was given.
So why am I writing about this MSPB case you ask? Although the MSPB only pertains to Federal employees, it is similar in nature to the Defense Office of Hearing and Appeals (DOHA) that hears security clearance denial appeals for contractors. For current and/or future Federal employees, if you are applying for or are in a position that is designated as a national security position, then the favorable adjudication of an appropriate level background investigation is a condition of employment. If issues come up in the investigation or reinvestigation that results in a denial or revocation of a security clearance then you no longer meet the position requirements, and thus can legally be removed from employment after due process.
While the appellant in the MSPB case filed for a review of his removal, the case came down to a basic question – did the position require a security clearance (yes). Did he have one following the revoking of his security clearance (no). It’s a reminder to very seriously respond to a letter of intent or statement of reasons. Even if you’re currently employed by a government contractor or agency, if you lose your clearance, you can lose your job.
A security clearance = valid need and meeting eligibility
The point here is that no one has a property interest in their eligibility for a security clearance. It is not a right or privilege, but rather is based on meeting eligibility requirements and having a valid need. If you conduct yourself in a manner that is above reproach at all times then the scenario described in the aforementioned case will not happen to you.