A former FBI agent lost his suit to have his security clearance reinstated. The former FBI agent argued the employment and security clearance action violated his First Amendment rights. While employed with the FBI, Michael Zummer sent a letter to the court about a corruption investigation in the state of Louisiana. That action caused Zummer to lose both his security clearance and his job.
The legal decision carried on the precedent in affect since a 1988 Supreme Court decision, Department of Navy vs. Egan. That decision held that the Merit Systems Protection Board didn’t have the jurisdiction to make security clearance decisions, and those decisions fell under the purview of the executive branch. That was upheld in the Zummer case, with the 5th circuit court affirming that the Civil Service Reform Act precluded the court from having jurisdiction over the case.
What Protections Do Clearance Holders Have
There are some forms of limited due process surrounding security clearance determinations, specifically involving responding to issues that may be presented. What you don’t have a right to do is to sue the government once those determinations are made. Whether it’s a First Amendment right to free speech or a right to a security clearance, the government holds to keys to access and eligibility, and it makes security clearance decisions based solely on its own best interests.
If your security clearance is denied, you do have the option to reapply for a security clearance a year later. Whether that is enough time to mitigate the issue is another story.
Whistleblower vs. Careless Sharer
Zummer claims his case is a whistleblower issue. But that nuance likely won’t come to bear in keeping his security clearance access. The bar for a security clearance denial or revocation is lower than what would hold water in a court of law.
