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MSPB Rights When Your Clearance Is At Issue

Federal employees have due process rights -- the ability to review charges made against them and to respond -- if an agency decides to propose indefinite suspension from work on the basis of a suspension or revocation of your security clearance.

The MSPB has held that due process does not require that an employee have an opportunity to challenge the merits of the agency's security clearance suspension or revocation.   What MSPB requires in order to comply with due process is that the deciding official has "discretion to change the outcome of the proposed action to the extent that may have been feasible."  Buelna v. Dept of Homeland Security, 121 MSPR 262 (2014) (the deciding official is not required to consider alternatives to the proposed adverse action that are prohibited, impracticable or outside management's purview).

The Buelna rule was recently restated by the MSPB in Putnam v. Dep't of Homeland Security,  2014 MSPB 70 (2014). 

In Putnam, the employee worked as the Assistant Federal Security Director at an airport and was required to maintain a security clearance.  Following receipt of statements the employee made to local policy, the agency placed her on administrative leave, then suspended her security clearance, and thereafter proposed her indefinite suspension from work citing the suspension of her security clearance as the basis for the indefinite suspension.  The employee contested the indefinite suspension, the deciding official affirmed the agency's action, and the employee appealed to MSPB.

The MSPB upheld the indefinite suspension because the agency established that she was required to maintain a clearance, the clearance was suspended and the deciding official had authority to consider reassigning her to another position but exercised his discretion and elected not to reassign her under the facts of the case. 

We at Alan Lescht and Associates, P.C., represent federal employees facing adverse actions at work and issues involving clearances on a regular basis.  Call us if you find yourself facing these issues and we will work with you to clear up any challenges to your clearance or to your employment.

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