MSPB Appeal Rights: Security Clearance versus and Programs Similar to Security Clearances
On August 30, 2007, the Federal Circuit Court of Appeals issued a ruling that reiterates the standard of review the MSPB must utilize when reviewing the revocation of a security clearance in connection with an appealable action. You can read the decision by clicking here.
The standard, in a nutshell, is that the MSPB may only review the decision to revoke the security clearance to ensure that the employee received minimum due process (this isn’t much at all). The logic is that Federal employees do not have a liberty or property interest in their security clearances, and the Federal Government has a compelling interest in ensuring that national security clearances are consistently maintained.
The revocation of a security clearance is not to be confused with the revocation of some other certification that is similar to a security clearance. As recently as February 2007, the MSPB clarified, that so long as a certification similar to a security clearance does not invoke the “national security” concerns of a security clearance, the Board has the authority to review the merits of the withdrawal or revocation of other kinds of certifications. Adams v. Department of Army, 105 M.S.P.R. 50, 55 (M.S.P.B. Feb 23, 2007) (MSPB Docket No. CH-0752-06-0251-I-1)
Here are some other certifications that the MSPB does have the authority to review (when coupled with an appealable action):
* Removal of Quality Assurance personnel, trained in the handling of nuclear ammunition, when employee lost his status in the Department of the Army’s Personnel Reliability Program.
* Removal of security personnel for failure to maintain positive status in Department of the Army’s Chemical Personnel Reliability Program (CPRP was designed to ensure the safety, security and reliability of chemical agents and weapons in the custody of the United States Army).
* Removal of helicopter pilot due to loss of his medical certification
* Removal of medical officer for failure to maintain medical credentials
* Removal of air traffic control specialist due to his decertification under agency medical standards
If your Federal Agency has removed your status in a program that looks and feels like a security clearance - but isn’t a national security clearance - and then proceeds to take action against you (Suspension for 15 days or more, demotion, or removal), contact an MSPB lawyer today. Your Agency may be trying to lead (or mislead) you into believing you don’t have an MSPB appeal right.
