Employment & Labor Law for Public Safety Agencies

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National Security Issues and Security Clearances

     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 His security clearance was revoked because he knowingly brought a personal firearm onto a Navy facility in violation of regulations; armed himself with a personal weapon while acting as a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: [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.

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