Office of Special Counsel is acting as amicus in several cases before the Merit Systems Protections Board involving the indefinite suspensions of federal employees pending security clearance determinations. See e.g. McGriff v. Dept of the Navy, MSPB Docket No. DC-0752-09-0816-I-1. OSC felt a need to act as amicus in these cases to ensure that due process is afforded to employees serving such indefinite suspensions.
Currently, in cases involving an indefinite suspension pending a security clearance review, the Board performs a perfunctory review to determine whether an employee received statutory procedural protections under 5 U.S.C. § 7513. Such a review only addresses whether an employee received sufficient notice of the charges against him or her, had an adequate opportunity to respond, was entitled to be represented by counsel, and received, in writing, the agency's specific reasons for a decision. OSC argues that the Board should extend its analysis beyond the minimum statutory requirements to ensure employees receive due process by employing a balancing test, as was set forth in Gilbert v. Homar, 520 U.S. 924 (1994).
The Gilbert test weighs three factors: (1) the private interest that will be affected by the suspension; (2) the risk of an erroneous deprivation of the private interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest. By employing this test in indefinite suspension cases, the Board would provide additional safeguards to employees by analyzing the propriety of indefinite suspensions. Using this test to assess indefinite suspensions will not require the Board to delve into the substance of security clearance determinations, as prohibited by the Supreme Court ruling Dep't. of the Navy v. Egan, 484 U.S. 518 (1988).
OSC further argues that meaningful due process requires an employee's appeal right to a decision maker with the authority to change the outcome of a proposed indefinite suspension. Such authority is necessary to allow an employee to respond to charges against him or her, OSC asserts. In addition, OSC argues that when reviewing appeals of indefinite suspensions, the Board should not restrict its review to the procedure afforded an employee, but rather should evaluate the merits of an indefinite suspension.
OSC stresses that indefinite suspensions pose significant threats to employees, who may endure extended periods of time no statutory right to back pay, even if they eventually retain their security clearances. Whistleblowers are at particular risk since management may initiate a retaliatory investigation in reprisal for a disclosure which results in the suspension of a clearance and indefinite suspension of pay. By widening its review to evaluate the merits of an indefinite suspension, the Board provides a potential check against retaliatory actions. OSC emphasized that it does not challenge established law under Egan that the Board lacks jurisdiction to consider the merits of a suspension or revocation of a security clearance in advocating for the review of the merits of an indefinite suspension.
Lastly, OSC stresses that Egan does not change or limit the Board's ordinary harmful procedural error analysis. If due process is not violated by an agency's failure to comply with the procedures in 5 U.S.C. § 7513 or the agency's own procedures, OSC asserts that the Board should apply its ordinary harmful procedural error review to determine whether to overturn an indefinite suspension. Such a review would not allow the Board to overturn a security clearance suspension, but would entitle an employee to recoup back pay and remain in a paid status pending the agency's redetermination of the appropriate penalty through proper procedures, claims OSC.
OSC acting as amicus in these cases involving indefinite suspensions is yet another example of the protections new Special Counsel Carolyn Lerner is willing to afford federal employees.
* 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/.