The U.S. Office of Special Counsel (OSC) applauds the April 26th decisions of the Merit Systems Protection Board (MSPB) in McGriff v. Dep’t of the Navy, 2012 MSPB 62, and Buelna v. Dep’t of Homeland Security, 2012 MSPB 63, ensuring constitutional due process rights for employees facing indefinite suspension because their security clearance was suspended. The Board held that employees must be given a meaningful opportunity to respond to the reasons for the proposed suspension. The MSPB concluded that due process requires that the deciding official must have authority to change the outcome of a proposed indefinite suspension. For example, the deciding official must have the discretion to consider whether the employee can be reassigned to a position not requiring access to classified information. Significantly, the Board indicated that it will look at the totality of the evidence to determine whether an agency had reasonable grounds to suspend an employee based on a security clearance suspension.

OSC filed an amicus brief (a legal argument filed by a non-party in a pending matter) with the MSPB, arguing that the Board should afford greater due process protections to employees who are suspended without pay as a result of the suspension of a security clearance. The OSC noted that:

By their nature, indefinite suspensions pose significant threats to employees’ property interests. Indeed, employees may endure an indefinite suspension for well over one year. If, in the end, the employee retains his or her security clearance, there is no statutory provision to provide back pay for the loss of pay suffered in the interim. Thus, the risk of an improper indefinite suspension is borne entirely by the employee. This poses a particular threat to whistleblowers, if, in reprisal for a disclosure, management initiates a retaliatory investigation that results in the suspension of a clearance and an indefinite suspension of pay. Only a meaningful Board review can protect against this threat. Moreover, the Board may evaluate whether an agency should retain an employee on paid status pending a security clearance determination without overstepping its jurisdictional limits and intruding on the agency’s prerogative to make security clearance decisions.

Special Counsel Lerner stated that she was pleased with the Board’s holdings and noted that “where the employee lacked an opportunity to respond to the suspension of the security clearance, it is especially critical for the deciding official to have authority to change the outcome of a proposed indefinite suspension.”