Removal of a Federal Employee After a Final Security Clearance Denial
John V. Berry, Esq., Berry & Berry, PLLC
For many federal employees a security clearance is a requirement of employment. When a clearance is denied or revoked after the appeals process is exhausted, the federal agency will often move forward with a proposal to remove the employee from their position unless a suitable reassignment is available.
Because of this risk, it is extremely important for federal employees to actively protect and defend their security clearance at the earliest stage of a security investigation or denial.
At Berry & Berry, PLLC, our attorneys regularly represent federal employees nationwide in security clearance matters and federal employment disputes. Learn more about our federal employment practice.
What Happens When a Federal Employee Loses a Security Clearance?
Many federal positions, particularly in defense, intelligence, and law enforcement require an active security clearance as a condition of employment. If an employee ultimately loses that clearance, the agency must determine whether:
The employee can be reassigned to another position that does not require a clearance, or
The agency may remove the employee from federal service.
In many cases, reassignment options are limited or unavailable, which means that removal from federal employment becomes the likely outcome.
This reality highlights why it is essential for federal employees to seek legal advice early in the security clearance process before a security clearance is lost.
Our firm represents federal employees in matters involving security clearance investigations, denials, revocations, and appeals. Learn more about security clearance representation.
MSPB Appeals After a Security Clearance-Based Removal
Federal employees who are removed from their positions due to the loss of a security clearance often ask whether they can appeal the decision to the Merit Systems Protection Board (MSPB).
However, MSPB review in these types of cases is extremely limited.
The Supreme Court held in Department of the Navy v. Egan, 484 U.S. 518 (1988) that the MSPB generally does not have the authority to review the underlying merits of a security clearance determination. The Federal Circuit later reaffirmed this principle in Cheney v. Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007).
In other words, the MSPB typically cannot second-guess a federal agency’s decision to deny or revoke a security clearance.
Limited Issues the MSPB May Review
Although the MSPB cannot review the security clearance determination itself, the Board may consider certain procedural issues related to the employment action.
For example, the MSPB may evaluate:
- Harmful procedural error that could have changed the outcome of a case (i.e. not following Agency policy).
Whether the agency had a formal policy requiring reassignment of employees who lose their clearance.
Whether a suitable reassignment position existed at the time of the removal.
Why Early Legal Representation Matters
Because the ability to challenge a removal based on a security clearance denial is limited, it is critical for federal employees to respond proactively to security clearance concerns.
Early legal guidance may help:
Address issues raised during the background investigation
Respond to a Statement of Reasons (SOR)
Prepare for security clearance hearings or appeals
Develop mitigation strategies under the Adjudicative Guidelines
Our attorneys at Berry & Berry, PLLC focus on representing federal employees in security clearance and federal employment law matters nationwide.
Contact a Federal Employment and Security Clearance Lawyer
If you are facing a security clearance denial, revocation, or federal employment action, it is important to seek legal guidance as early as possible.
Each security clearance case and federal employment matter involves unique facts, procedures, and deadlines.
Berry & Berry, PLLC represents federal employees, contractors, and military personnel in security clearance and federal employment matters throughout the United States.
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