Reinstated Security Clearance After Alleged Marijuana Use: A Case Study

CASE STUDY

Imagine you have devoted more than 25 years of your life to the federal government. You have held a top-secret security clearance the entire time with no disciplinary actions and nothing but rave performance reviews. Then suddenly you’re notified that you tested positive for marijuana on a urinalysis. You believe you haven’t willingly consumed marijuana, but your employer seems determined to fire you anyway.

A thousand thoughts flood your mind: Where will I live? How will I pay my mortgage? How will I feed my family?

It’s easy to feel discouraged when you’re going up against the federal government. But our client was confident he had done nothing wrong. In the following case study, you will read how Robinson & Henry’s Military Law Team helped him prove it and recover a year-and-a-half of back pay that he was rightfully owed.

Past results afford no guarantee of future results. Each matter is different and must be judged on its own merits. Facts are those of an actual Robinson & Henry military law case. The client’s name was changed to protect their privacy.

Introduction: A Positive Test

In 2013, Robinson & Henry client Michael was an Army veteran working for the Department of Defense on an Air Force base in a job that required a top-secret security clearance. He was shocked to learn that he had tested positive for marijuana on a urinalysis test.

Despite Michael’s argument that he had never knowingly consumed marijuana, his leadership unit still placed him on administrative leave. He soon received a notice of proposed removal detailing the explanations for terminating his employment.

Michael knew he had done nothing wrong and was prepared to appeal the federal agency’s decision. But he also knew he couldn’t do it alone.

“This was supposedly the first case of a civilian fighting a positive urinalysis,” Michael said. “[The federal government] wanted to make sure they won so they wouldn’t be setting a precedent for the future.”

Appealing the federal government’s decision wouldn’t be easy. Michael needed a savvy military employment attorney to help him fight his employer’s decision. He found just that at Robinson & Henry.

The Challenge: Unintentional Marijuana Consumption

The passage of Amendment 64 in 2012 made it legal for Coloradans to possess small amounts of marijuana. However, federal employees remained bound by federal law that defines marijuana as a controlled substance. With no support from his unit leadership, Michael faced an uphill battle.

The federal government has unlimited financial resources at its disposal and “doesn’t like to lose,” as Michael put it.

It soon became clear to Michael the direction the federal government was headed with his matter.

“I was removed from the organizational charts before a decision was even made about my case,” he said. “The entire time I was on administrative leave, my leadership just totally ostracized me. I was a pariah.”

Wes responded in writing to the federal agency’s proposed removal on Michael’s behalf. Michael posited that he had unknowingly eaten some THC-infused treats at a friend’s birthday party. Innocent ingestion can be used as a defense to a failed drug test.

However, the agency ultimately decided to fire Michael.

Appealing the Decision

The next step was requesting an administrative hearing with the U.S. Merit Systems Protection Board (MSPB) to appeal that decision. The MSPB is an independent, quasi-judicial agency of the executive branch that serves as the guardian of federal merit systems.

Going into the hearing, Michael was hopeful but guarded.

“[Wes] never told me, ‘Yeah, we’re going to win,’ or, ‘Yeah, we might lose,’” Michael said. “He said we could only do the best that we can.”

Wes and Michael appeared together before an administrative judge to plead Michael’s case. Wes argued that the federal government had no legal grounds to fire Michael because even if he had knowingly used marijuana, that use was legally authorized. Why? Michael was not a servicemember at that time. He was a civilian employed by the federal government.

“It is not illegal in any jurisdiction [in Colorado] except for military members to use marijuana,” Wes said. “My argument was that since no law prohibits the use of marijuana, and there is a state law that authorizes use, even if he knowingly used, his use was authorized.”

The administrative judge agreed with Wes and ruled that Michael should return to his position. However, his employer promptly issued another notice of proposed removal.

“They had to do it like four times because they just kept screwing it up,” Wes said. “They finally got to the point where they actually fired him.”

The federal government does not move swiftly. Michael took a job as a substitute teacher while awaiting the results. Over a year later, he finally got them.

A judge reversed the agency’s decision and ordered Michael be restored to his former position within 20 days. The judge also ruled that Michael would receive a year and a half of back pay.

That was great news. But the fight wasn’t over.

The Department of Defense Consolidated Adjudications Facility, which determines security clearance eligibility of DOD personnel, revoked Michael’s top-secret security clearance. Because this was a requirement for his former position, Michael could not return to that job.

The Solution: Reapply for a Security Clearance

Some military employment law cases have many legal options to reach a resolution. This one did not.

“Once that appeal is decided, you can go to district court,” Wes said. “But district courts — unless there’s something really egregious — are always going to uphold the decision of the consolidated adjudicative [agency].”

Ultimately, Michael and Wes chose not to take his case to district court. Instead, Michael would wait the required three-year period to reapply for a security clearance. During that time he was able to get a job on the same Air Force base that did not require a security clearance.

Michael characterized his new job as “receptionist work.” Although he was still receiving the same pay as before, the position was “well below” his education level and skillset.

Three years later, Michael reached out to Wes once again. This time he needed help filling out his Standard Form-86. This is the questionnaire that security clearance applicants complete for background investigation purposes. Michael had been offered a new job. This one had a paygrade higher than the one he and Wes fought so hard for him to retain, but it required a top-secret security clearance.

It took the better part of a decade, but Michael feels he is now back where he belongs. He credits it all to Wes McConnell’s tenacity and legal acumen.

“Wes is the man,” Michael said. “To have gone through something like that, I wouldn’t have wanted anyone else but him.”

Talk to a Military Law Attorney

If you are a federal employee or contractor who believes you have been wrongfully removed from your position, the military law attorneys at Robinson & Henry PC can help. Our attorneys are well-equipped to hold the federal government accountable and fight for you when your livelihood is on the line. Call 303-688-0944 today to begin your case assessment.

Past results afford no guarantee of future results. Each matter is different and must be judged on its own merits. Facts are those of an actual Robinson & Henry military law case. The client’s name was changed to protect their privacy.