Fired After a Security Clearance Suspension: What a Wrongful Termination Attorney in DC Can Actually Challenge

Losing a clearance in this region usually means losing the job within days. The contract requires cleared personnel, the company has no uncleared work to offer, and the termination letter arrives before the adjudication is anywhere near finished. Workers in that position are often told nothing can be done. That advice is half right, and the half it gets wrong is where a wrongful termination attorney in DC does the real work. Courts will not second-guess the clearance decision itself. They will look closely at how the employer behaved around it.

Can you sue over a security clearance decision?

No. The Supreme Court held in Department of the Navy v. Egan, 484 U.S. 518 (1988), that the authority to grant or revoke access to classified information belongs to the executive branch, and that courts and administrative bodies may not review the merits of that judgment. Federal courts have extended the reasoning to discrimination and retaliation claims when deciding them would require a judge or jury to evaluate whether the clearance call was correct.

The line is narrower than employers often claim. Egan bars review of the security determination. It does not grant a company immunity for everything it does before, during, and after that determination.

What can you challenge when the clearance decision is off limits?

The employment conduct surrounding the clearance remains reviewable. Several theories survive Egan because they can be decided without any court weighing in on whether access should have been suspended:

• The employer fabricated or slanted the information it reported to the adjudicating agency, or filed the incident report in retaliation for protected activity
• Similarly situated employees who lost or lacked clearances were reassigned, placed on uncleared work, or kept on payroll while the complaining employee was terminated
• The company had available uncleared positions and applied its own reassignment policy inconsistently
• The termination decision was made by a manager acting on a discriminatory motive that predated the clearance issue

The evidence that matters here is usually internal, not governmental. Personnel files, the company’s own security policy, the identity of the person who initiated the incident report, and the treatment of comparators carry the case. A claim framed as “the adjudicator got it wrong” fails. The same facts framed as “my employer used the suspension as cover” can proceed.

What does the clearance appeal process look like for contractors?

Contractor employees have their own due process track, separate from anything their employer controls. Executive Order 12968 guarantees written notice of the reasons, access to the documents relied on, an opportunity to respond, and a written decision with a right to appeal.

For most Defense Department contractors, the process runs through the Defense Office of Hearings and Appeals. It begins with a Statement of Reasons identifying which of the National Security Adjudicative Guidelines are at issue. Those guidelines, issued as Security Executive Agent Directive 4 and effective June 2017, cover thirteen areas labeled A through M, including foreign influence, personal conduct, financial considerations, drug involvement, and handling of protected information. Financial considerations and personal conduct account for a large share of contractor cases.

The response window after a Statement of Reasons is short, commonly twenty days, and the employee may request a hearing before an administrative judge with the right to present evidence and cross-examine. Adverse decisions can be appealed to the DOHA Appeal Board. Cases frequently run a year or longer from suspension to final resolution, which is precisely why the employment question and the clearance question have to be handled on parallel tracks rather than sequentially.

Does your employer have to keep you on while the clearance is suspended?

Generally no. Nothing in federal security regulation obligates a contractor to retain or pay an employee who cannot perform the cleared work, and most companies move quickly to unpaid leave or termination. Written policies, offer letters, and collective bargaining provisions sometimes say otherwise, and those documents are worth pulling before accepting the employer’s version.

The absence of a duty to retain does not authorize selective enforcement. If the company parked one employee on an uncleared contract during a suspension and terminated another under materially identical circumstances, that disparity is admissible and has nothing to do with the merits of either clearance file.

What if the clearance referral followed a whistleblower report?

Contractor employees have a statutory remedy under 41 U.S.C. § 4712, which protects disclosures of gross mismanagement of a federal contract, gross waste of federal funds, abuse of authority, a substantial and specific danger to public health or safety, or a violation of law related to a federal contract. Protected disclosures include reports to a member of Congress, an Inspector General, the Government Accountability Office, a contracting officer, or a supervisor with responsibility to investigate.

The claim starts with a complaint to the Inspector General of the agency involved, filed within three years of the reprisal. The IG generally has 180 days to report, and the agency head 30 days after that to act. If the agency has not granted relief within 210 days, the employee may file a de novo action in federal district court and request a jury. Available remedies include reinstatement with seniority, back pay, compensatory damages, and attorney’s fees.

Moving on both tracks at once

A suspension is not the end of the analysis, and a termination letter citing a clearance is not a defense to everything that came before it. The clearance appeal and the employment claim have different decision-makers, different standards, and different deadlines, and preserving one does not preserve the other. Anyone facing a suspension, a Statement of Reasons, or a separation agreement offered in the middle of an adjudication should have the record reviewed by a wrongful termination attorney in DC before signing anything or letting a response window close.