Indefinite Suspensions: When an Agency Suspends Access to Classified Information
By Deborah J. Hopkins, September 24, 2024
We have been discussing indefinite suspensions in a series of articles over the past few months. As a reminder, an agency may indefinitely suspend an employee in three instances:
1. The agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed;
2. The agency has legitimate concerns an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate; and
3. The agency has suspended the employee’s access to classified information and the employee is required to have access in order to do his job.
Sanchez v. DOE, 117 M.S.P.R. 155, ¶ 10 (2011).
If you missed them, check out the previous articles on indefinite suspensions for criminal conduct and medical conditions.
Today, we’ll focus on the third instance, indefinite suspensions when an employee’s security clearance has been suspended.
What types of things might cause an employee to lose a security clearance?
Despite common misconceptions that anyone who loses a clearance must be attempting to sell national security secrets to a foreign adversary, a number of factors (known as the adjudicative guidelines) can impact an employee’s clearance – and not all would constitute misconduct. The 13 guidelines below identify the broad areas that impact an employee’s potential for a clearance, and include detailed information about why each of these areas is a potential concern, which conditions could raise a concern and be disqualifying, and which conditions could mitigate security concerns.
- GUIDELINE A: Allegiance to the United States
- GUIDELINE B: Foreign Influence
- GUIDELINE C: Foreign Preference
- GUIDELINE D: Sexual Behavior
- GUIDELINE E: Personal Conduct
- GUIDELINE F: Financial Considerations
- GUIDELINE G: Alcohol Consumption
- GUIDELINE H: Drug Involvement and Substance Misuse
- GUIDELINE I: Psychological Conditions
- GUIDELINE J: Criminal Conduct
- GUIDELINE K: Handling Protected Information
- GUIDELINE L: Outside Activities
- GUIDELINE M: Use of Information Technology
What proof does an agency need to justify an indefinite suspension when an employee’s access to classified information has been suspended?
As we have discussed previously, the four elements the Board looks for when it reviews indefinite suspensions are:
(1) The agency imposed the indefinite suspension for an authorized reason;
(2) The suspension will have an ascertainable end (an event that will end the suspension);
(3) The indefinite suspension has a nexus to the efficiency of the service; and
(4) The indefinite suspension is reasonable under the circumstances.
Hernandez v. Navy, 120 M.S.P.R. 14, ¶ 6 (2013). The authorized reason here is the suspension of a security clearance pending a determination about revocation, and the lead case is Jones v. Navy, 48 M.S.P.R. 680 (1991).
How are indefinite suspensions related to security clearances different than the other types of indefinite suspensions?
When it comes to security clearance suspensions and revocations, the Board does not have the authority to review the underlying merits of an agency’s decision to suspend or revoke an employee’s access to classified information. Navy v. Egan, 484 U.S. 518, 530-31 (1998). The grant of a security clearance to a particular employee is a sensitive matter and the denial of access to classified information is entrusted to the sole discretion of the agency; the Board also lacks the authority to review any argument related to the nexus between the employee’s alleged conduct and the suspension of their security access. Id. at 536.
Unlike most other MSPB appeals, the Board is also precluded from reviewing allegations of prohibited discrimination and reprisal when such affirmative defenses relate to the revocation of a security clearance. Pangarova v. Army, 42 M.S.P.R. 319, 322 (1989).
What can trigger the end of the indefinite suspension?
There are three options:
1. After the investigation, the agency does not revoke the employee’s security clearance and the suspension of access to classified information is lifted. If this happens, the employee should be promptly returned to duty.
2. After the investigation, the agency revokes the employee’s security clearance and informs the employee in writing. In this case, the employee may accept the result and resign or retire, which could end in the indefinite suspension. If the employee wishes to appeal the revocation of their clearance, typically during this appeal, the employee would remain on indefinite suspension pending the outcome of the appeal.
3. If the employee does not appeal the revocation but also does not resign or retire, or if after appealing the revocation, the revocation stands, the employee should be given a notice of proposed removal for failing to maintain a security clearance. Jones v. Navy, 48 M.S.P.R. 680, 683 (1991).
How should an agency handle removing the employee whose clearance has been revoked?
The employee obviously cannot stay in the position if a clearance is required. While reassignment to a position that does not require a clearance may be an option (depending on the underlying reason for the revocation), below are the elements required to justify removing an employee for failing to maintain a security clearance:
- The agency determined that the position required a security clearance,
- The agency revoked or denied the clearance,
- The agency provided the employee adverse action rights, and
- The deciding official considered reassignment to a non-sensitive position.
Egan, 484 US at 521-522. On element 4, unless the agency has a statute or regulation that creates a substantive right to reassignment, the Board may not require the agency to reassign the appellant to a position that does not require a security clearance or access to classified information. See Ryan v. DHS, 793 F.3d 1368 (Fed. Cir. 2015).
One final note, removing an employee for failing to maintain a security clearance is a nondisciplinary action. As such, the Douglas factors are not required. Munoz v. DHS, 121 M.S.P.R. 483, ¶ 15 (2014).
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