Indefinite Suspension and Security Clearances

What happens when an employee, who is required to maintain a security clearance as a condition of employment, has his or her security clearance revoked or suspended? In most cases, it has been practice to place the employee on an indefinite suspension until a final determination was made regarding the employee's security clearance and any resulting appeal. However, the Merit Systems Protection Board (MSPB or Board) has limited the ability of Department of Defense components to impose such suspensions in several case decisions based on requirements in DoD 5200.2-R, Chapter 8 (published in part at 32 C.F.R. part 154 subpart H).

DoD 5200.2-R, Chapter 8, sets forth agency procedures relating to an unfavorable administrative action, including an adverse action, taken as a result of a personnel security determination. It provides that "no unfavorable administrative action shall be taken under the authority of part 154 unless the person concerned has been given the procedures set forth under [section 154.56(b)]." Those procedures include the opportunity to appeal to, and obtain a written decision from, the Personnel Security Appeals Board.

The regulation, nevertheless, attempts to limit the application of its language by providing that it "is intended only to provide guidance for the internal operation of the Department of Defense and is not intended to, does not, and may not be relied upon, to create or enlarge the jurisdiction or review authority of any court or administrative tribunal, including the Merit Systems Protection Board." The Board, however, rejected this stating that its authority to review whether an agency complies with its regulations derives from a preexisting obligation under 5 U.S.C. § 7701 (c)(2)(A).

Before taking any action, management must consult with the servicing CPAC and legal office.

Content last reviewed: 04/01/2014-DAH

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This page was last revised: 04/21/2014