Fedweek Legal

The U.S. Court of Appeals for the District of Columbia recently upheld the dismissal of a lawsuit challenging a black criminal investigator’s termination by the Transportation Security Administration. Bennett v. Chertoff, D.C. Cir. No. 04-5281 (10/18/05). Although the appellant claimed that she was discriminated and retaliated against when she was dismissed for “unsuitability,” the court, citing Ryan v. Reno, 168 F.3d 520 (D.C. Cir. 1999), decided that she could not contest an adverse job action based on denial or revocation of a security clearance despite her claim that the “national security” justification was pretext.

The appellant came to TSA after serving in a similar position in the Department of Defense Office of Inspector General. She resigned from DoD under a mediation agreement which resolved an administrative complaint of discrimination after DoD had proposed her termination. Under the agreement, DoD agreed to expunge and to refrain from disclosing its proposed removal and decision to remove appellant who retained her security clearance. While she disclosed her employment with DoD when she interviewed with TSA, the appellant certified that she had not quit or left any job within the past five years after being told that she would be fired or to resolve work problems.

TSA hired the appellant subject to a “suitability” termination and solicited background information from DoD for her security clearance. DoD provided negative information about her prior employment history. As a result, TSA terminated the appellant due to a “negative suitability determination.” In response to the lawsuit, TSA responded that the termination was warranted as the appellant “could not sustain a security clearance.” The court found that suitability and national security concerns were not mutually exclusive and that misrepresentation was also a basis for denying her security clearance.

The lesson to be learned from this case is that it is necessary to disclose negative information when applying for a security clearance even if you have previously negotiated for a “clean record” from your prior employer. When it comes to national security, agencies are required to provide relevant information concerning past employment problems regardless of any settlement to the contrary. An employee should respond truthfully to any inquiry concerning a security clearance and take his or her chances in administratively appealing any denial of a security clearance. However, there is no judicial review in security clearance appeals.

* 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.

The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to