shaw bransford & roth case law update

MSPB Finds Interim Suspension of Access to Classified Info Doesn’t Trigger Process

On August 13, 2013, Department of Defense (DoD) suspended an Operations Research Analyst’s access to classified information pending a final security determination by the DoD Central Adjudication Facility (CAF) concerning whether to revoke the employee’s security clearance.

Later that same day, the agency proposed the employee’s indefinite suspension based on the suspension of his access to classified information. On October 10, 2013, following a response from the employee, the agency indefinitely suspended the employee. The employee appealed the indefinite suspension to the Merit Systems Protection Board, and the MSPB administrative judge reversed the indefinite suspension, finding that the agency “violated its regulations” when it indefinitely suspended the employee before “affording him its unfavorable administrative action procedures.” The agency petitioned the full Merit Systems Protection Board for review, arguing that it was not required to use the agency’s unfavorable administrative action procedures because those procedures were inapplicable. On September 30, 2015, the full Board reversed the administrative judge’s initial decision, and sustained the employee’s indefinite suspension.

Although both the employee and the agency agreed that the employee’s position required access to classified information and that his access had been suspended, the parties disagreed as to whether the agency had complied with the procedural protections for security clearance determinations set forth in the agency’s own regulations in DOD regulation 5200.2-R. The Board looked to Section C8.2.2 of DOD 5200.2-R, which provides that the agency may not take an “unfavorable administrative action” based on a “personnel security determination” without affording the employee the procedural protections of the agency’s “unfavorable administrative action procedures.” While the agency did not contend that the employee was afforded unfavorable administrative action procedures prior to the suspension of his access to classified information pending a final determination, it argued that it was not harmful procedural error.

The Board, through the agency’s regulations, defined an unfavorable administrative action as an “adverse action taken as the result of personnel security determinations and unfavorable personnel security determinations as defined in this Regulation.” Because the indefinite suspension in this case was taken as a result of an interim suspension of access, rather than the final adjudication of the employee’s security clearance (resulting in a “personnel security determination”), the Board found that interim suspension did not constitute an “unfavorable administrative action” under the agency’s regulations.

The Board observed that a temporary suspension of access to classified information pending final adjudication of the security clearance is not included in the definition of “unfavorable personnel security determination” in the agency’s regulations. Therefore, the Board found that the employee could not prove that the agency committed harmful procedural error by failing to afford him the “unfavorable administrative action procedures” that follow a final adjudication of a security clearance and subsequent personnel security determination.

For the above stated reasons, the Merit Systems Protection Board reversed the administrative judge’s initial decision and sustained the employee’s indefinite suspension.

Read the full case: Rogers v. Department of Defense

This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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