1988 Supreme Court case prevents security clearance challenges

Thursday - 1/26/2012, 7:09am EST

Debra Roth, partner at Shaw, Bransford and Roth

Download mp3

A National Geospatial-Intelligence Agency budget analyst claims his security clearance was taken away because his Islamic wife was employed by an Islamic faith-based organization. So he sued NGA for ethnic discrimination.

But this employee may never have his day in court because of a 1988 Supreme Court case.

In Department of Navy vs. Egan, a federal employee objected to his security clearance being revoked. The court decided it was up to the executive branch to make the decision about the merits of a security clearance denial.

Federal employees can object to the process of a clearance denial opposed to the merit, said Debra Roth, partner at Shaw, Bransford and Roth, in an interview with The Federal Drive with Tom Temin.

Federal employees and contractors can take up their case with the Equal Employment Opportunity Commission or the Merit Systems Protection Board, she said.

The NGA employee, however, did not challenge the clearance based on process but on the merit of the denial, she said.

"I do think that these security clearance cases that are raising constitutional challenges are probably headed by up to the [Supreme] Court," Roth said.