MSPB holds it can address due process in security clearance cases

In two landmark decisions last week, the federal Merit System Protection Board (MSPB) held that it does have the authority to enforce the procedural protections for federal employees who suffer adverse employment actions as a result of issues with their security clearances. The MSPB recognizes that it does not have authority to review the security determinations themselves, respecting the Supreme Court’s decision in Department of Navy v. Egan, 484 U.S. 518 (1988). Still, federal employees are “entitled to constitutional due process when the agency indefinitely suspend[s] [them] from federal employment based on a suspension of access to classified information.” McGriff v. Department of the Navy, 2012 MSPB 62 (April 26, 2012), p. 12. Special Counsel Carolyn Lerner submitted a most helpful amicus brief urging the MSPB to reach this result. In Buelna v. Department of Homeland Security, 2012 MSPB 63 (April 26, 2012), the Board reached the same result for a federal air marshal working at the Transportation Security Administration (TSA) by applying the agency’s Management Directive (MD) No. 1100.75-3. I reported in a 2009 blog post about a federal court decision concluding that Bunny Greenhouse could pursue a claim for her supervisor’s refusal to submit her request for a security clearance. The new MSPB decisions represent a significant advance for national security whistleblowers who face shenanigans with their security clearances in reprisal for making lawful disclosures of misconduct by their agencies. Now they have recourse for violations of their due process rights, even if they cannot challenge a security decision about their clearance.

Congratulations to Corry McGriff’s attorneys Laura O’Reilly and Neil Bonney of Virginia Beach, Virginia, to Alexander Buelna’s attorney, Jeffrey Jacobsen of Tucson, Arizona, and the Special Counsel Carolyn Lerner and her legal staff, including Bruce Fong and Elisabeth Brown.