AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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National Security Issues and Security Clearances
A man worked at a naval shipyard housing nuclear-powered vessels and every position required a security clearance. He attended rehabilitation for alcoholism and provided the Navy with documents regarding his treatment. From his rehabilitation discharge letter, the Navy learned that he had used marijuana during his employment. The shipyard commander notified him that his security clearance was suspended and that the Navy proposed to indefinitely suspend his employment. He filed a reply, and the deciding official engaged in communications with the shipyard’s Human Resources staff, primarily concerning positions that would not require a security clearance. The HR department drafted a “Decision on Proposed Indefinite Suspension,” which was approved by the naval shipyard commander, and the Merit Systems and Protection Board ALJ affirmed, rejecting due process arguments that the reply process was an empty formality because the supervisor did not have the ability to take or recommend alternative agency action and the supervisor and the HR staff engaged in an improper ex parte communication. A federal appeals court upheld this ruling. The plaintiff received the procedural protections of 5 U.S.C. 7513(b); he received notice, had an opportunity to respond and to be represented, and was provided with a written decision with reasons. Hornseth v. Dept. of the Navy, #18-1188, 2019 U.S. App. Lexis 5842 (Fed. Cir.).
The plaintiff's security clearance was legitimately revoked by the FBI because he admitted misconduct in accessing sensitive information for personal reasons. A federal appeals court rejected claims that his equal protection rights were violated because he received a harsher penalty for his admitted misconduct than non-Muslim agents who committed similar misconduct, or because his naturalized family members were allegedly differently than native born U.S. citizens. These claims were barred by Department of the Navy v. Egan, #86-1552, 484 U.S. 518 (1988). He had no constitutionally protected property interest in his security clearance and he received all the process that was due. Gill v. DOJ, #16-5250, 875 F.3d 677 (D.C. Cir.2017).
A Nuclear Security Officer at a nuclear power plant carried a firearm and was authorized to use deadly force. He suffered personal and mental health problems, was paranoid and had problems with alcohol and bath salts—a synthetic drug that affects the central nervous system. He had a three-day stay in an inpatient treatment unit. Under federal regulations, his unrestricted access to the plant was “placed on hold” pending medical clearance. A psychologist interviewed him and performed required testing and reported that he was not fit for duty. He was fired and claimed that this violated the Americans with Disabilities Act (ADA). A federal appeals court upheld the termination because the plaintiff lacked a legally mandated job requirement: the unrestricted security access authorization that the Nuclear Regulatory Commission requires for armed guards. When Congress enacted the ADA, the court commented, “it recognized that federal safety rules would limit application of the ADA as a matter of law.” McNelis v. Pennsylvania Power & Light Co., #16-3883, 2017 U.S. App. Lexis 15207 (3rd Cir.).
The plaintiff was a civilian
Resource Analyst at the Nuclear Propulsion Directorate at the Naval Sea Systems
Command, which required a Department of Energy security clearance. His security
clearance was revoked because he knowingly brought a personal firearm onto a
Navy facility in violation of regulations; armed himself with a personal weapon
while acting as a Metropolitan Police Department reserve officer, contrary to
regulations; and made false statements and false time and attendance entries to
his civilian employer, the Naval Reserve Unit, and the police department. He
argued that he brought his firearm to the facility in response to the 2013
Washington Navy Yard shooting, in perceived compliance with his duty as a Navy
Reservist, and requested reinstatement under the Uniformed Services Employment
and Reemployment Rights Act, 38 U.S.C. 4301. The Navy removed Wilson from federal
service. The Merit Systems Protection Board properly found that it lacked the
authority to review adverse security clearance determinations because neither
the court nor the Board had authority to review the charge that discrimination
was the reason for revocation of the security clearance, the USERRA made no
mention of security clearances, explicitly or otherwise, the core of the former
employee's allegation was that his security clearance revocation was initiated
based on false complaints and accusations, and the Department of Energy
evaluated the trustworthiness of those statements as part of its determination,
and found them reliable; Wilson v. Department of the Navy, #15-3225, 2016 U.S.
App. Lexis 21747 (Fed. Cir.).
An employee of FEMA in
the Department of Homeland Security had a job requiring a top secret security
clearance. Her access to classified information became suspended after she was
indicted on federal criminal charges of conflict of interest, accepting a
gratuity, and making a false statement. She was then indefinitely suspended
without pay pending a further determination of her possible future access to
classified information. She appealed her suspension to the Merit Systems
Protection Board (MSPB). A federal appeals court upheld a MSPB decision
upholding the suspension and finding that she was not entitled to consideration
for transfer to a position not requiring a security clearance, despite her
subsequent acquittal on the criminal charges. The denial of a security
clearance is not subject to MSPB review. Ryan v. Dep't of Homeland Sec., #14-3181, 2015 U.S. App.
Lexis 11995 (Fed Cir.).
A man employed by the Navy for 29 years was
required to maintain a top secret security clearance for his job as the
Security Manager for the Naval Facilities Engineering Service Center. After a
duty officer found an outer vault door of the Secret Internet Protocol Router
Network room left open, an investigation was conducted, and it was recommended
that all security personnel at the center have their access to classified
material suspended because of various problems. The plaintiff's security
clearance was suspended pending a final determination. He was eventually
returned to duty status, assigned to a sensitive position, and found eligible
for a Top Secret security clearance. The Navy did not give him back pay for the
nine months of his suspension, or treat him as having been employed for
purposes of the calculation of retirement benefits. He claimed that his
suspension had been motivated by retaliatory animus for his past participation
in an EEOC proceeding. A federal appeals court ruled that the employee was not
entitled to back pay and that neither the Merit Systems Protection Board nor
the court could review the merits of a security clearance revocation or
suspension. Biggers v. Dep't of the Navy, #13-3059, 2014 U.S. App. Lexis 5304
(Fed. Cir.).
The Merit Systems Protection Board was barred
under Department of the Navy v. Egan, 484 U.S. 518 (1988), from reviewing the
merits of a Defense Department national security determination on the
eligibility of the plaintiff to be in a position that was sensitive and
implicates national security. Kaplan v. Conyers, #11-3207, 2013 U.S. App. Lexis
17278, 36 I.E.R. Cas. (BNA) (Fed. Cir.).
The
Transportation Security Administration suspended and then revoked a federal Air
Marshal's security clearance, relying on allegations about his misconduct
during previous jobs as a deputy sheriff and police officer. The lack of
security clearance rendered him ineligible for his job. He argued that the
failure to provide him in a timely fashion with the documentary material relied
on to suspend his security clearance violated his procedural due process
rights. Upholding a decision of the Merit Systems Protection Board affirming
the revocation of the security clearance, a federal appeals court found that
decisions about security clearances do not implicate any due process rights.
Accordingly, the fact that the plaintiff was not provided with copies of the
materials until three months after he was suspended from his job did not
violate his rights. Gargiulo v. Dep't of Homeland Sec., #12-3157, 2013 U.S.
App. Lexis 17014 (Fed. Cir.).
An employee of a federal intelligence
agency lost his top secret security clearance after his marriage. He sought to
challenge this, arguing that it violated his constitutional rights, arguing
that the agency did not take the time to review the facts and had assumed that
anything with the name "Islam" associated with it is a subversive
terrorist organization. He and his parents and siblings held dual citizenship
with Egypt and he believed that his wife held dual citizenship with Jordan. The
federal appeals court ruled that it would not review the merits of a security
clearance decision, and that it was for the agency to determine how much
potential foreign contact and ties it could allow. Hegab v. Long, #12-1182,
2013 U.S. App. Lexia 8411 (4th Cir.).
A naval aide who collected secret documents at
his home was charged with espionage under 18 U.S.C. § 793(e), even though he
did not tender the documents to a foreign power. After serving in Bahrain as a
Navy contract linguist, he allegedly improperly retained classified documents
unlawfully. He said that his sole purpose in taking the documents to his
quarters was to read them, and also argued that he had no knowledge that they
were classified, despite clear markings on them. U.S. v. Hitselberger,
#1:12-cr-00231 (D.D.C. 2012).
President Obama issues a Policy Directive
on national preparedness. PP Directive #8 (2011).
Federal employees who occupy non-critical
sensitive positions may contest adverse actions with the Merit Systems
Protection Board if their agencies find them ineligible to occupy sensitive
jobs. Two Defense Dept. workers complained that they were disciplined for being
security risks even though they never accessed classified information. Conyers
v. Dept. of Defense, #CH-0752-09-0925-I-1, 2010 MSPB 247; Northover v. Dept. of
Defense, #AT-0752-10-0184-I-1, 2010 MSPB 248.
Federal appeals panel sustains the separation of
a defense dept. employee who lacked an active security clearance. There was no
obligation that the employee be retained on paid leave or transferred to a
non-sensitive position. Adams v. Dept. of Defense, #2010-3041, 2010 U.S. App.
Lexis 7540 (Unpub. Fed. Cir.).
Third Circuit rejects an appeal filed by an
Egyptian-American scientist who was fired from the U.S. Dept. of Energy after
his security clearance was revoked for "sympathetic association with a saboteur,
spy, terrorist, traitor ... espionage agent, or representative of a foreign
nation whose interests are inimical to the United States." The District
Court properly dismissed the case because the complaint failed to state a claim
upon which relief could be granted. El-Ganayni v. U.S. Dept. of Energy,
#08-4745, 2010 U.S. App. Lexis 548, 108 FEP Cases (BNA) 100 (3rd Cir. 2010).
Federal appeals court sustains the termination of a
Secret Service agent who passed four counterfeit $20 bills. “Employment actions
based on denial of security clearance are not subject to judicial review.”
Oryszak v. Sullivan, #08-5403, 2009 U.S. App. Lexis 18175 (D.C. Cir.).
Federal court rejects a
national origin discrimination suit brought by a Treasury Dept. worker who was
subjected to an intensive security investigation. Management believed the
employee was traveling to Afghanistan because his mother was ill and later
discovered that the employee's mother was already deceased. Asghar v. Paulson,
#06-0400, 2008 U.S. Dist. Lexis 73279 (D.D.C.).
Noting that the U.S. Government widely
disseminated photos of emaciated prisoners and corpses found in Japanese and
German prison camps, the Second Circuit rejects upholds a FOIA action to
release 21 photographs depicting abusive treatment of detainees by U.S.
soldiers in Iraq and Afghanistan. ACLU v. Dept. of Defense, #06-3140-cv, 2008
U.S. App. Lexis 20074 (2nd Cir.).
Federal appeals court rejects a national origin
and religion discrimination claim brought by an Egyptian-American DHS
anti-terrorist specialist who was suspended and then fired after his security
clearance was not renewed. Relying on Dept. of the Navy v. Egan, #86-1552, 484
U.S. 518 (1988), there can be no judicial review of the merits of a security clearance
determination; that decision is exclusively for the executive branch and the
denial of a security clearance is not an "adverse action." Makky v.
Chertoff, #07-3271, 2008 U.S. App. Lexis 16687 (3rd Cir.).
Federal appeals panel sustains the termination of
a Secret Service criminal investigator after his top-secret security clearance
was revoked. The court found no error in excluding the proposed testimony of a
retired supervisor, who supported the appellant's claim that the decision to
revoke his security clearance was predetermined. The excluded testimony was not
an abuse of discretion, because the record did not demonstrate that it would
have proved bias on the part of his superiors. Robinson v. Dept. Homeland
Security, #2006-3123, 2007 U.S. App. Lexis 20736 (Fed. Cir.).
Appeals court upholds MSPB's decision to sustain
the termination of a sergeant after revocation of her security clearance;
because all Secret Service positions require a security clearance, removal was
the only option. Jwanouskos v. Dept. of Treasury, #2007-3123, 2007 U.S. App.
Lexis 13793 (Fed. Cir.).
Egyptian born Muslim could not judicially
challenge the loss of his security clearance; classification decisions are non
reviewable. Makky v. Chertoff, #06-4329, 2007 U.S. Dist. Lexis 39468 (D.N.J.
2007); affirming #PH-0752-06-0023-I-1, 2006 MSPB Lexis 1479 (Unpub. MSPB 2006).
Supreme Court rejects a suit for unpaid
compensation brought by two former intelligence operatives. If such suits
proceed, an espionage relationship could be revealed. Forcing the government to
litigate similar claims would make it vulnerable to "graymail."
Requiring the government to invoke a privilege on a case-by-case basis risks
the perception that it is either confirming or denying relationships with
individual litigants. Tenant v. Doe, #03-1395, 125 S.Ct.1230, 2005 U.S. Lexis
2202 (2005). {N/R}
Federal appeals court rejects a discrimination
complaint filed by a black criminal investigator who was fired for not having a
valid security clearance. The clearance failure was based on an untruthful job
application. Relying on Ryan v. Reno, 168 F.3d 520 (D.C. Cir. 1999), the panel
held that adverse employment action that is based on the denial or revocation
of a security clearance is not actionable under the Civil Rights Act of 1964.
Bennett v. Chertoff, #04-5281, 425 F.3d 999, 2005 U.S. App. Lexis 22382 (D.C.
Cir. 2005).
A contract employee, seeking a government
security clearance, is not an "applicant for employment" and is not
entitled to a right to appeal to the Merit Systems Protection Board. Thompson
v. Merit Sys. Prot. Bd., #5-3122, 421 F.3d 1336, 2005 U.S. App. Lexis 18257
(Fed Cir. 2005).
President Bush orders a common identification
card standard for access to federal facilities. "Policy for a Common
Identification Standard for Federal Employees and Contractors," Homeland
Security Presidential Directive No. 12, 42 (2074) G.E.R.R. (BNA) 847. [2004 FP
Dec]
Federal court dismisses a whistleblower action
brought by a terminated FBI contract translator. Although the plaintiff
reported security lapses, the court dismissed the action because a trial could
expose intelligence-gathering methods and disrupt diplomatic relations with
foreign governments. Edmonds v. Dept. of Justice, #02-1448, 2004 U.S. Dist.
Lexis 12355 (D.D.C. 2004). [2004 FP Oct]
Firefighters, police officers and others who work
at an airport need security clearances under 18 U.S. Code §1001(a)(2). The
Fourth Circuit, in reversing a lower court, held that the FAA may lawfully
include questions about relevant misdemeanor convictions in addition to
felonies. U.S. v. Baer, #02-4667, 324 F.3d 282 (4th Cir. 2003), dismissed by
274 F.Supp.2d 778, 2003 U.S. Dist. Lexis 13240 (E.D. Va. 2003).
The Dept. of Defense did not violate its own
procedural regulations when it revoked the security clearance of an employee
for the failure to disclose his marijuana use on a security questionnaire.
Duane v. U.S. Dept. of Defense, #00-1309, 275 F.3d 988 (10th Cir. 2002).
The U.S. Government implements more stringent
standards for new and current employees with jobs requiring a security
clearance. Info site: www.dss.mil/isec/smithguidei.htm [2001 FP 148]
Arbitrator conditionally overturns the
termination of an Air Force firefighter, who was charged criminally and
confessed to having sex with a minor in a public toilet. The award is subject
to a reinstated security clearance. Hill Air Force Base and AFGE L-1592, FMCS
Case #00/07189, 114 LA (BNA) 1670 (Staudohar, 2000).
President Clinton adds sexual orientation to the list
of statuses that may not be used to deny a security clearance. "Access to
Classified Information", U.S. Executive Order 12968, 60 Fed.Reg. 40245,
1995 U.S.C.C.& A.N. B80-91 (8-2-95). [1995 FP 169]
Title VII does not confer jurisdiction on the
courts to review a management/executive decision to revoke a federal security
clearance. Brazil v. U.S. Navy, 1995 U.S. App. Lexis 26038 (9th Cir. 1995).
EEOC rules against a federal employee who was
denied a security clearance because of an obsessive-compulsive disorder.
Zimmerman v. Peterson, #01941377, 19 (5) MPDLR (ABA) 623 (EEOC 1995).
FBI adopts new "Policy regarding sexual
orientation" for applicant background investigations and security clearances.
Sexual conduct may be considered if it affects "character, judgment,
stability..." or makes one vulnerable to compromise. "Heterosexual
and homosexual conduct will be equally considered in this regard."
FBIHQ/SAC Airtel (3/2/94).
CIA could not deny a security clearance to a
homosexual employee of a government contractor because the CIA had not
articulated a rational basis for its policy. Citing High Tech Gays v. DISCO,
the exclusion violated the employee's First Amendment rights. Dubbs v. CIA, 769
F.Supp. 1113, 1990 U.S. Dist. Lexis 18988, 62 FEP Cases (BNA) 1531 (N.D.Cal.
1990).
Homosexuals are not members of a "suspect
class"; CIA's failure to advance a rational basis for blanket policy of
denying top secret clearances to gays precluded dismissal of plaintiff's equal
protection claims. Dubbs v. C.I.A., 769 F.Supp. 1113 (N.D.Cal. 1990). {N/R}
Gay rights advocates lose challenge to security
clearance procedures that automatically subject them to different criteria and
expanded clearance mechanisms. High Tech Gays v. Defense Ind. Security
Clearance Off., 895 F.2d 563 (9th Cir. 1990); reh. en banc den., 90 D.A.R.
8293.