Yes, Clearance Holders Can Sue for Retaliation and Discrimination (Sometimes)

Photo of Elizabeth M. Baker, associate with DC employment law firm KCNFObtaining a security clearance can be difficult; losing it is a lot easier. And, if an agency makes an adverse security clearance decision, clearance holders are not permitted to raise the issue with an outside entity such as the EEOC, the MSPB, or the courts. This concept, known as the “Egan Doctrine,” stems from a 1988 Supreme Court decision in which the Court held that “an outside nonexpert body” (for example, the MSPB or the courts) may not disturb an agency head’s decision regarding who may access its classified information.

This does not mean, however, that the involvement of a clearance determination precludes review of every related action. Indeed, in recent years, courts have recognized carveouts to this rule, including that courts can review whether a security clearance requirement is “a bona fide job requirement” for the position in question or, as discussed in a recent D.C. District Court decision, Brackett v. DHS, whether “agency employees acted with a retaliatory or discriminatory motive in reporting or referring information [for investigation] that they knew to be false.”

In Brackett, federal employee and clearance holder Cindy Brackett alleged that her second-level supervisor retaliated against her when she referred Brackett for investigation based on allegedly knowingly false allegations. Brackett, afflicted with Lyme disease, had been approved for telework and regularly worked from home and other remote locations. In May 2014, Brackett was assigned a significant task that required substantial work to be complete by June 30, 2014. Brackett informed her first-level supervisor that she would be in Tennessee for a wedding from June 20-25, but that she would work on an as-needed basis. Brackett worked during that period from Tennessee and communicated with her supervisor and second-level supervisor by e-mail.

Upon Brackett’s return, her first-level supervisor approved her timecard, even though it erroneously reflected that she had been home—and not traveling—during the period. The issue lay dormant until May 2015, when Brackett requested a reasonable accommodation and initiated an EEO complaint involving adverse employment actions unrelated to her clearance. Then, Brackett alleges, just one month after she requested an accommodation and the very next day after her second-level supervisor learned of the EEO complaint, the second-level supervisor referred Brackett for investigation based on allegations of time fraud in connection with the Tennessee trip a year earlier that, Brackett alleges, she knew to be false. As the result of the referral and investigation, Brackett’s clearance was suspended and she was suspended from her duties and pay.

The agency ultimately restored Brackett’s clearance and she returned to work, but she pursued claims related to what she argued was a false and retaliatory referral for investigation. Brackett ended up at the district court where the government invoked the Egan Doctrine and moved to dismiss her case, arguing that the court could not review Brackett’s claims because “they arise from [the agency’s] nonreviewable decision to suspend her security clearance.” The court, however, following an earlier case, held that the Egan doctrine did not bar Brackett’s claim that her supervisor knew the allegations to be false when she made the referral and had a retaliatory motive. The court’s decision in this case is not the final ruling on the matter—it means only that Brackett may proceed to trial.

This is not the first case to arrive at this conclusion, but it should serve as a reminder to clearance holders that retaliatory actions, even if they end up affecting a person’s clearance, may well be actionable in court. It is good to keep in mind, however, that even where a case may proceed under an Egan carveout, as in Brackett’s case, the court will not review or modify the agency’s clearance determination. That means that going to court will not win back a clearance, although other damages may be available.

If your security clearance has been put in jeopardy and you are not sure of your rights, you should consult with a security clearance attorney immediately.