A recent report by Department of Justice Inspector General Michael Horowitz laid bare a significant problem facing clearance holders: the administrative appeals process for challenging a suspension or revocation of security clearance can take years, but some federal agencies suspend the impacted employee from pay and duty immediately after initial concerns are raised. The practical effect, as Horowitz points out, is that many employees are forced to resign because they can’t afford to challenge the action while still technically on the government’s employment rolls. Federal employees are severely limited in their ability to obtain employment elsewhere while on unpaid leave due to conflict-of-interest laws.
I’ve derided this dynamic for years as inconsistent with basic principles of fairness, and I often objected to it on behalf of clients while in law practice. My argument was then – and remains now – that the process isn’t supposed to be the punishment. Unfortunately, that’s what it has become at some agencies. Yes, taxpayers have an interest in ensuring problem employees don’t languish on the government’s payroll for years without working; however, the government has total control over how fast the appeals process does or doesn’t move, so budgetary arguments are unpersuasive.
I’m hopeful that Horowitz’s report will finally spur legislation to mandate that federal employees be allowed to maintain their paycheck through at least the first-level of the two-stage appeals process and establish firm timelines by which agencies must issue final decisions on appeals absent extraordinary circumstances. (Unfortunately, only the latter would help contractors, who aren’t paid directly by the government). In the meantime, here are a few options a federal employee or contractor facing this problem may wish to explore with the assistance of experienced legal counsel:
Assignment to Temporary, Uncleared Duties
In most cases, cleared employers have no obligation to consider transferring an employee to a different assignment that doesn’t require access to classified information or the performance of sensitive national security duties. There are a couple exceptions – namely, certain veterans working at some federal agencies or union contracts that require such consideration – but these can be rendered moot if every position at the agency requires a clearance. Nonetheless, it doesn’t hurt to try. Some federal agencies are more amenable to the idea than others, and federal contractors might be able to shift the impacted employee onto a different contract.
Negotiation of Continued Pay in Exchange for a Litigation Waiver
If the first option isn’t successful, an alternative may be negotiating a litigation waiver in exchange for a continued paycheck. To be clear, this does not mean foregoing a challenge to the security clearance action itself. Rather, the employee offers the employer a written, contractually-binding commitment that s/he will accept the ultimate outcome of the security clearance appeal. If it is unfavorable, the employee agrees not to challenge a subsequent termination in outside forums like the U.S. Merit Systems Protection Board, Equal Employment Opportunity Commission, or a federal court.
That may seem like a lot to give-up, but case law harkening back to a 1988 Supreme Court Case called Department of the Navy v. Egan severely limits the ability of outside bodies, including the courts, to hear cases arising from federal agency security clearance decisions. There are some exceptions for purely procedural violations, but the remedy is typically limited to the federal agency re-deciding the case following their appropriate internal procedures. Similarly, there may be scenarios in which constitutional violations would be entertained by the courts, but this is (rather incredibly) also a steep hill to climb. The bottom line is that many clearance holders in such a scenario aren’t giving up a lot by negotiating continued pay in exchange for a litigation waiver. Employers know this, but they also sometimes prefer the certainty that comes with a waiver and may be amenable to negotiation.
Filing a Whistleblower Reprisal Case
If the clearance action is believed to be retaliation for a protected whistleblower disclosure, filing a complaint with the relevant agency’s Office of Inspector General is an imperative. A credible case may help with the negotiation of a litigation waiver or convincing the agency to drop the case altogether. Alternatively, a frivolous reprisal complaint will likely harm the employee’s credibility in the security clearance appeals process and should not be pursued. If the Inspector General’s investigation validates retaliation, the office can recommend a variety of remedies to the agency head, including back pay for the aggrieved employee. Notably, the same is true for employees of federal contractors.
Seek Outside Employment – But Not Before Obtaining Ethics Approval
Finally, an employee facing the loss of pay over a security clearance suspension or revocation may pursue outside employment – but not without first obtaining ethics approval. The DOJ Inspector General strongly criticized the FBI for ignoring efforts by employees to obtain such approval. It isn’t generally that difficult at most agencies, nor should it be. Federal employees should not take this lightly; some of the conflict rules come with criminal penalties for violation. Similarly, federal contractors who fail to seek approval from their employer may face claims of violating company policy, theft of trade secrets, or related allegations. These outcomes are avoidable simply by being transparent and seeking approval, which should be granted absent legitimate, justifiable cause. In all cases, the request for outside employment and the approval should be in writing to protect the employee.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
