Raleigh Robinson, Jr. was removed from his position with the Department of Homeland Security after the agency revoked his security clearance, which was a condition of his employment. Robinson appealed his removal to the Merit Systems Protection Board, arguing that his minimum due process rights had been denied because the agency’s decision to revoke his security clearance had been “predetermined.” The MSPB affirmed the agency’s removal decision.
Robinson appealed the decision to the Court of Appeals for the Federal Circuit, and challenged the ruling by the MSPB to exclude a witness from testifying. The witness, if permitted, would have testified regarding the agency’s alleged “predetermination” that Robinson’s security clearance should be revoked.
The agency responded that the MSPB lacks the authority to review the agency’s security clearance determination at all, and may only review whether the agency followed the procedures for taking adverse actions when it removed him. Because the testimony would relate only to the underlying security clearance decision, the agency contended, the MSPB correctly excluded it. The MSPB’s decision was that Robinson had been afforded procedural protections in the removal action, and in addition his security clearance was revoked only after he had been afforded the minimum due process rights to which he was entitled.
The court of appeals held, in Robinson vs. DHS, No. 2006-3123 (Fed. Cir. 2007), that contrary to Robinson’s argument and what appeared to be the MSPB’s view, security clearance decisions are not reviewable for “minimum due process protection.” The court noted that it has “consistently” held that a federal employee does not have a liberty or property interest in access to classified information and therefore the revocation of a security clearance does not implicate constitutional procedural due process concerns. In other words, an employee can not challenge the reasons or motivations for the revocation before the Board.
The lesson learned from this case, although not a new one, bears repeating. If a federal employee is advised that his or her security clearance is under review to be revoked, every effort should be made during the security review clearance procedures to maintain the clearance.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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