LEGAL OVERVIEW OF CLEARANCES AND SUITABILITY ADJUDICATIONS By William Aramony Panelist Discussion 1998 Published By Findlaw 2000 Some minor edits were made to the FindLaw published article such as Footnotes were deleted here. Also note that the article, as to jurisdictional forums in particular, does NOT apply to contractors but the national security grounding and concerns are very similar. Finally, the Panel and article were done before 9/11, as the author has worked this field for decades. The base is good but also there have been more recent Developments. A legal overview of federal suitability determinations and personnel security adjudications, with a brief discussion of employment discrimination law is outlined below. This outline is intended as an educational tool, not legal advice. In these fact specific, and sometimes complex, cases neither layman nor lawyer should rely on general overviews to make decisions in particular cases. SUITABILITY The Difference Between Suitability and Clearance Decisions. The major distinction between suitability and security determinations is the underlying legal authority. Suitability determinations are made by the Office of Personnel Management (OPM) or by the employing federal agency pursuant to specifically delegated OPM authority. 5 C.F.R. Part 731. Personnel security clearance decisions (i.e., denial of access to classified information) are made by the Department of Defense and other employing agencies pursuant to authority from Executive Order 12968 and, in certain cases, statutes and regulations pertaining to access to classified information and other national security issues. A. Generally, the "efficiency of the service" is the standard for suitability determinations. "Clearly consistent with the interests of national security" is the standard for security clearance determinations. B. Federal employees are subject to suitability determinations whether they hold a clearance or not. C. It is possible for an employee to be eligible for federal employment, but not a security clearance. HEARING RIGHTS ATTENDING SUITABILITY DETERMINATIONS. An applicant or employee deemed unsuitable for federal employment within the competitive service (where OPM has jurisdiction) has rights to reconsideration by OPM of such a decision and to a hearing before the U.S. Merit Systems Protection Board ("Board" or MSPB"). A. When making suitability determinations, OPM provides to the impacted individual notice of its action and of the right to reconsideration. 5 C.F.R. sections 731.401-.506. B. If deemed unsuitable for federal employment by OPM, the individual has the right to appeal to the MSPB and request a hearing. McCormack v. Department of Justice, 22 MSPR 408 (1984). C. At the MSPB, there is a court type pre-hearing process and hearing before an administrative judge. OPM (or the agency with delegated authority) may contest the appeal. At hearing, the rules of evidence are relaxed, exhibits are introduced, and the appellant and witnesses are subject to direct and cross-examination. D. While OPM can rely on its administrative (e.g., investigative) record, the MSPB process involves more than record review. The judge may consider the merits of factual disputes, credibility of evidence and testimony, and the nexus between prior employment history (for example) and OPM conclusions that the individual is unsuitable for federal employment. E.g., Chavez v. OPM, 6 MSPB 343, 6 MSPR 404 (1981). DISCRIMINATION COMPLAINTS. I. Right to File A Complaint of Discrimination. The right to complain of discrimination is discussed generally here. However, discrimination complaints should be understood within the context of the security clearance determination process (discussed later below) and the rights to appeal suitability determinations to the MSPB (discussed above). A. An individual has the right to file a discrimination complaint in connection with discriminatory hiring or other employment decisions. With exceptions in certain federal employee or applicant cases, the U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency with jurisdiction over administrative aspects of such a complaint. B. There are time limits for filing such a complaint of discrimination. When a federal employer discriminated, contact must be initiated with an Equal Employment Opportunity (EEO) counselor within 45 days of the discriminatory act for violations of the Rehabilitation Act of 1973, as amended and Title VII of the Civil Rights Act of 1964, as amended. Different time limits apply to a federal employee (or an applicant) law suits for age discrimination and Equal Pay Act violations. C. A complaint against a federal employer first is processed by an EEO counselor at the agency accused of discrimination. Next, notice of a right to file a formal administrative complaint is provided. If a formal complaint is filed and accepted by the agency, it is investigated. Next, notice of a right to administrative hearing before the EEOC or a decision based on the record is provided to the individual, or after 180 days the individual may file in a law suit or with the EEOC. II. Lawful and Unlawful Discrimination. A. Discrimination in making personnel security decision based on a mental condition, for example, or certain behavior which may have been caused by a mental condition, may be lawful if there is a connection with risks to national security. For example, certain behavior by an individual or risks posed by the individual as predicted by psychiatrists may disqualify an employee for a clearance. E.g., Smith v. Crowell, (Tennessee Valley Authority) (February 10, 1997). B. A decision to discriminate against an individual for reasons that do not bear a relationship to the interests of national security likely would be unlawful. The question in such cases often is "who reviews the alleged discrimination. III. Review of Discrimination Claims by MSPB, EEOC, and Courts. There is limited judicial, MSPB, and EEOC review of national security determinations made by an agency. A. The Merit Systems Protection Board (Board) has held that it will not review discrimination and reprisal claims "when such affirmative defenses relate to the [underlying] revocation of the security clearance." Pangarova v. Department of Army, 42 MSPR 319 (1989). The Board has explained that where the allegations of discrimination are "inextricably intertwined with the agency''s denial of a security clearance," the Board will not review the discrimination claim; it does not intend to focus on the validity of agency reasons for revoking access to classified information. Hinton v. Department of the Navy, 61 MSPR 692 (1994). B. Various appellate courts have held that individual security classification terminations are not subject to judicial review for alleged violations of the Rehabilitation Act. E.g., Guillot v. Garrett, 970 F.2d 1320 (4th Cir., 1992). C. The U.S. Equal Employment Opportunity Commission (Commission) has held that it will not review the merits of a security clearance decision. "The Commission is, however, not precluded from determining whether the grant, denial, or revocation of a security clearance was conducted in a discriminatory manner. See Lyons v. Department of the Navy (March 22, 1990)." (other citations omitted here). Branigan v. Cohen, (Defense Investigative Service) (January 9, 1998). D. An example of the distinction between review of the merits of a personnel security decision and discriminatory denial of a clearance is seen in Lambert v. Dalton(Department of the Navy), (January 5, 1998) in which decision the Commission held that: "Here, appellant challenges the allegedly untruthful and inaccurate statements made by his supervisors that were subsequently used by the agency to continue suspension of appellant''s security clearance. Appellant alleged that those statements were made in reprisal for appellant having filed previous EEO complaints against these individuals. Appellant has correctly stated that he suffered harm with respect to the terms, conditions or privileges of his employment." Also see Dodson v. Cohen, (National Imagery & Mapping Agency), (June 13, 1997) SECURITY CLEARANCES There Are Procedural Rights. It has been settled for almost thirty years that individuals subject to denial of personnel security clearances have rights. In essence, these rights concern notice, a statement of the reasons, and an opportunity to respond to a proposed revocation or denial of a security clearance. In Greene v. McElroy, 360 U.S. 474 (1959), the U.S. Supreme Court declared that authority for Department of Defense regulations which provide for security clearance revocations without due process of law will not be inferred without explicit Congressional or Presidential command. Id. at 508. ("We decide only that in the absence of explicit authorization from either the President or Congress the respondents [Defense Department] were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross- examination.") Today, the Presidential command applicable to most [federal employee] cases is Executive Order 12968 and agency procedures promulgated thereunder by the various federal agencies.Agencies have been held to their own rules in revoking a security clearance. Service v. Dulles, 354 U.S. 363, 388, 77 S. Ct. 1152, 1165 (1957). The U.S. Supreme Court explained in one case: "Because the proceedings attendant upon petitioner''s dismissal from government service on grounds of national security fell substantially short of the requirements of the applicable departmental regulations, we hold that such dismissal was illegal and of no effect." Vitarelli v. Seaton, 359 U.S. 541, 544 (1959). There Is Limited Judicial Review of the Facts of A Case. When reviewing clearance cases, courts look to whether procedural and constitutional rights have been violated, not to whether the agencies'' national security determinations have merit. Such determinations have been left to agency discretion. Article II, section 2 of the U.S. Constitution and Executive Order 12968 provide the federal agencies authority to grant or deny access to classified materials. In Department of Navy v. Egan, 484 U.S. 518, 526-29 (1988), the U.S. Supreme Court held that such decisions are best left to the discretion of Executive Branch federal officials. As one appellate court has explained, "[c]ertainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk." (cite omitted here) . . . These decisions are based on grounds of institutional competence, separation of powers and deference to the Executive on national security matters." Stehney v. Perry, 101 F.3d 925 (3rd Cir., 1996), citing Department of Navy v. Egan, 484 U.S. 518, 526-29 (1988). Accordingly, the courts are reluctant to substitute their opinions concerning the merits of individual national security determinations. Due process and other colorable constitutional claims, however, are reviewable by the courts. Doe v. Webster, 486 U.S. 592 (1988). Federal Employee Due Process Rights."Due process" often is the term used in discussing procedural rights in respect to security clearances. While the term is not always correctly used in this context, due process rights are implicated when a federal employee stands to lose pay through an indefinite suspension or removal from employment caused by loss or suspension of a security clearance. McFarland v. Department of Navy, 62 MSPR 161 (1994). (Member Amador dissenting). In such cases, "notice which is sufficiently detailed to provide a meaningful opportunity to be heard is a fundamental requirement of due process. (cites omitted here)." Alston, infra. Specifically, pursuant to 5 U.S.C. section 7512-13, an agency must propose removal of an individual from employment with a statement of charges, an opportunity for the employee to provide a response, and a final decision. Such a notice based on, solely, the fact of loss of a security clearance, where no other reasons previously have been given, is insufficient. A meaningful opportunity to be heard requires notification of the cause for the decision, either during the process of denying access to classified information or in the notice of proposed removal. Kriner v. Department of the Navy, 61 MSPR 526, 532-3 (1994); Alston v. Department of the Navy, 62 MSPR 19 (1994) (Member Amador dissenting). The notice must be sufficient for the employee to understand the charges and provide a response. Id. An employee may be indefinitely suspended without pay while a security investigation is pending. Such an employee also has due process rights to notice of the reasons for suspension and an opportunity to respond. Other Statutes. An employee may be denied access to classified information or to employment pursuant to other statutory authority. Some (not all) of these laws are discussed next. Under 5 U.S.C. section 7532, an agency may suspend an employee without pay when there is an immediate threat of harm to the national security. Within 30 days, notice of the charges must be provided to the employee. Within 30 days of this notice, the employee may answer the charges with supporting documents or statements from others. If the employee requests a hearing, then a three person security hearing board is appointed by the agency. The employee is entitled to evidence intended to be used at hearing. A recommendation (or findings) is issued by the hearing board. The agency head or designee makes a decision whether to terminate the employment of the individual. Some agencies, such as the National Security Agency, have separate statutory authority to terminate employees on national security grounds. The Nuclear Regulatory Commission (NRC) provides an administrative hearing pursuant to the Atomic Energy Act of 1954. Prospective and present employees of contractors have procedural rights pursuant to Executive Order and procedures promulgated thereunder. An administrative hearing is available. The U.S. Department of Defense (DOD) publishes mitigating and aggravating factors applicable to its cases. These factors are set forth according to various categories of behavior or events which lead to concerns about granting an individual access to classified information. See attachment to this outline. Similar considerations are applied by other federal agencies. Ultimately, these decisions should be premised on the whole record and a common sense determination that errs on the side of protecting the national security. Such decisions usually are subjective at some level but also, notwithstanding the aggravating and mitigating factors, "bright line" rules encompassing each imaginable fact-pattern and individual case are difficult to imagine or justify. DOHA does have some written precedent from past cases and many agency adjudicators have sufficient experience in the area and a sense of fair play to allow balanced decisions. CONCLUSION. Personnel security clearance decisions are made conservatively and err on the side of national security. A suitability determination, while subject to different standards is a determination whether an individual now is suitable for federal employment. Unarguably, these are extremely important Government functions and there are important policy considerations implicit in the seminal personnel security clearance, suitability, and related discrimination cases.At the level of the individual employee or applicant, however, general or philosophical discussion does not suffice. As the U.S. Supreme Court described the purpose of the security clearance process, it is "an attempt to predict [the employee's] possible future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information". Department of Navy v. Egan, 484 U.S. 518 at pages 528-529 (1988). In conclusion, individual rights in the security clearance and suitability areas cannot be overemphasized. An intelligent exercise of rights may assist agency adjudicators in understanding events and other facts material to their final decision and, consequently, result in a fair decision consistent with the national security and the efficiency of the federal service. © 2000 William Aramony [FindLaw]