The Right to Respond to a Clearance-Related Indefinite Suspension

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Federal employees facing indefinite suspensions based on the suspension of their security clearance or access to classified or sensitive information must review their agency's actions carefully. Depending on the facts of each case, it is possible that their suspension is improper.

Recently, Federal agencies have interpreted new case law from the MSPB and its reviewing court, the U.S. Court of Appeals for the Federal Circuit, to severely limit the response rights of employees facing indefinite suspension due to a temporary suspension of their security clearance. Some agencies have taken an extreme view that does not provide employees any meaningful response right. Th is is an incorrect reading of the law.

Legal background.

Indefinite suspensions based on underlying clearance issues pose a difficult question for agencies as well as the MSPB and Federal Circuit. The law has long established that a federal employee with MSPB rights facing an unpaid suspension from work has a due process right to respond. But it's also settled that agencies have broad discretion to act in the interest of national security and the MSPB cannot review the merits of a security clearance determination. Clearance-based unpaid indefinite suspensions sit at the intersection of these two established concepts and require the MSPB and Federal Circuit to strike a balance of interests.

Adding to the complexity of these cases is that both attorneys and the MSPB have historically discussed employees' due process response rights in general terms without considering whether a particular right is rooted in the Constitution, statutes passed by Congress, or agency regulations. This has created confusion in the law as the rights provided by each of the three sources vary.

What the agency must prove to justify a clearance-based indefinite suspension.

An agency must establish three facts to justify its clearance-based indefinite suspension of an employee with MSPB rights. The first two are rarely subject to dispute: the agency must prove (1) the employee's job required a security clearance and (2) the employee's clearance was suspended.

The third factual conclusion the agency must prove is that it complied with the requirements of 5 U.S.C. § 7513, a statute governing adverse actions against employees with MSPB appeal rights. Section 7513(b) provides that an employee against whom an action is proposed is entitled to:

  1. at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;
  2. a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
  3. be represented by an attorney or other representative; and
  4. a written decision and the specific reasons therefor at the earliest practicable date.

The right to reply under Section 7513 must be meaningful.

The MSPB and Federal Circuit have determined that the reply right Section 7513 establishes must be "meaningful," not just an empty formality. To meaningfully respond an employee must know the allegations against him. Two cases from the Federal Circuit lay the framework for determining whether an agency provided sufficient notice of the allegations against the employee: King v. Alston and Cheney v. Department of Justice.

King v. Alston involved a case where an employee was told he was to be indefinitely suspended because his clearance was suspended due to his medical condition. The court found that this was sufficient notice to the employee to allow him to meaningfully respond to his unpaid suspension. The employee knew the medical condition the agency referenced and could present evidence that the condition did not justify unpaid suspension. Although the court upheld the indefinite suspension in the King case, it established a key principle for the notice required by 5 U.S.C. Section 7513:

"[m]erely providing the employee with information that his access to classified information is being suspended, without more, does not provide the employee with sufficient information to make an informed reply to the agency before being placed on enforced leave."

The court considered the notice question further in Cheney v. Department of Justice. In that case, the agency first informed the employee that the suspension of his access was based on:

"(1) derogatory personal conduct, (2) possible violations of law and the DEA's standards of conduct, (3) failure to comply with security regulations, and (4) a pattern of dishonesty and rule violations."

After the employee requested further information, the agency provided:

"the decision to suspend your security clearance is based upon allegations that you inappropriately queried or caused to be queried Law Enforcement Data Bases and abused the Administrative Subpoena process. Additionally, it is believed that you are in violation of the confidentiality agreement you entered into with the Office of Professional Responsibility during their investigation into these issues."

The Cheney court decided that the agency's notice failed to inform the employee of the nature of the derogatory information, the laws or standards of conduct he had violated, or when he had allegedly acted improperly. The court thus found that the agency did not meet the requirements of Section 7513 because the lack of detailed allegations prevented the employee from providing a meaningful response and forced the employee to "guess" at the reasons for the suspension of his access to classified information.

The recent confusion regarding the reply right requires a precise response.

The Federal Circuit has not overturned or modified its interpretation of Section 7513 as explained in King and Cheney but two recent decisions have caused significant confusion among agencies and attorneys. In a 2014 case, Gargiulo v. Department of Homeland Security, the Federal Circuit stated that the Fifth Amendment to the Constitution did not provide due process rights for suspensions based on clearance issues. Then, in a 2015 case, Rogers v. Department of Defense, the MSPB determined that Department of Defense regulations providing detailed response rights did not apply to clearance-based indefinite suspensions.

For agencies, attorneys, and judges accustomed to referring to employee response rights in general terms, these decisions appeared to be a drastic change. But neither decision changed the requirements of Section 7513, which provides separate rights from those provided by the Constitution or regulations. The decisions have led agencies to mistakenly underestimate their notice requirements and improperly suspend employees.

It's important to precisely assert your rights given the complex legal landscape. While the protections of Section 7513 remain in place, they are not always an employee's only protection. Federal employees facing or appealing clearance-based indefinite suspensions should carefully consider the facts of their suspension and may want to consult an attorney.

Questions?

Are you facing or do you have questions about an indefinite suspension? Call Alan Lescht and Associates, P.C. at (202) 536-3315, or email Alan.