In a case that revisits the rights employees have to challenge management’s decision to deny — or revoke — a security clearance, something many employees believe can be used as a pretext for dismissal, the Federal Circuit U.S. appeals court has upheld the dismissal of a criminal investigator in the Secret Service who claimed that his minimum due process rights were denied when his security clearance was revoked and he was subsequently fired.
In his initial challenge of the agency’s decision to revoke his clearance, which was the cause of his termination, he cited in the notification delivered to him that the question of his security clearance status appeared "to have been predetermined."
He sought, unsuccessfully, to enter in his defense a statement made by a retired supervisor in his former office about conversations between two of his superiors where it was decided to terminate the employee, hoping that such a statement would show bias regarding the question of his clearance.
MSPB rejected the witness statement, saying his testimony was not relevant to "whether the appellant was granted minimum due process protection," concluding that he had been.
The appeals court said even if that statement was admitted it would only serve to confirm other evidence showing that an investigation into the employee’s conduct raised enough concerns to revoke the security clearance, in this case regarding claimed work hours and possible criminal activity.
Even if the alleged "predetermination" were within the scope of MSPB’s review, the exclusion of the statement would not be an abuse of discretion, the appeals court said.
It clarified that security clearance decisions cannot be reviewed for "minimum due process protection," and that federal employees do not have a liberty or property interest in access to classified information.
In this case, the loss of security clearance was a completed matter in which the employee fully participated, so that its absence became a matter of record before the MSPB on which the MSPB could rely, according to appeals court decision 2006-3123.
Further, it said the witness’s statements did not demonstrate that any particular decision maker at the agency was incapable of judging fairly on the merits whether the employee’s clearance should have been revoked.
