MERIT SYSTEMS PROTECTION BOARD
Matter of Corry B. McGriff, et al.
v.
Department of the Navy
MSPB Docket
Number DC–0752–09–0816–I–1, et al.
AMICUS BRIEF
PETER BROIDA
I. Interest of Amicus
Amicus is an attorney in private practice who also is involved in writing and lecturing on
matters pertaining to the MSPB. He has no direct or financial interest in any of the cases
included in the Board’s amicus briefing request of September 23, 2011.
II. Scope of MSPB Amicus Submission Request
As to four cases noted below, initial decisions have determined that appellants had sufficient
procedural due process relative to indefinite suspensions predicated upon suspensions of
security clearances pending investigation.
The Board seeks responses to the following inquiry:
The cases thus present the following legal issues: (1) Should the Board apply the
balancing test set forth in Homar, 520 U.S. 924, in determining whether an agency
violates an employee’s constitutional right to due process in indefinitely suspending
him or her pending a security clearance determination; (2) If so, does that right include
the right to have a deciding official who has the authority to change the outcome of the
proposed indefinite suspension; (3) If the Board finds that an agency did not violate an
employee’s constitutional right to due process in this regard, how should the Board
analyze whether the agency committed harmful procedural error in light of the
restrictions set forth in Egan, 484 U.S. 518, on the Board’s authority to analyze the
merits of an agency’s security clearance determination.
III. Case Facts
John Gaitan v. Department of Homeland Security, MSPB Dallas Regional Office
(DA-0752-10-0202-I-1 May 12, 2010)
A Federal Air Marshal was notified on October 22, 2009, by the Agency Office of Security, that
his top-secret clearance was suspended and that the agency intended to revoke the
clearance. The Appellant was allowed to challenge the preliminary determination. On October
28, the agency proposed to indefinitely suspend him for failure to meet the requirement that
he maintain a clearance for his position. Appellant replied. He was indefinitely suspended on
December 15, 2009, pending determination on the clearance revocation.
Appellant contended that the Agency violated his constitutional right to due process by
suspending a security clearance without first affording him notice and an opportunity to
respond to the misconduct–related reasons cited for the suspension of the clearance,
although he received notice and an opportunity to respond to his proposed indefinite
suspension from his position.
The administrative judge declined to credit the constitutional due process argument, noting
that the Federal Circuit rejected similar arguments in Jones v. Dept. of Navy, 978 F.2d 1223
(Fed. Cir 1992), since there is neither liberty nor a property interest in access to classified
information and since termination of that access does not implicate due process concerns.
The judge also relied on Hesse v. Dept. of State, 217 F.3d 1372 (Fed. Cir. 2000).
Joseph T. Gargiulo v. Department of Homeland Security, MSPB Western Regional Office
(SF-0752-09-0370-I-1 July 6, 2009)
In a case involving a more complex procedural history, Appellant’s security clearance was
suspended, upon notice of intent to revoke the clearance, based on conduct–related
allegations. The notice of intent to revoke was misdirected and not received by Appellant until
on August 28, 2008, when the agency proposed his indefinite suspension based upon the
suspension of the top-secret clearance. On appeal, Appellant argued that he was denied due
process because he could not effectively respond to the misdirected notice of intent to revoke
his clearance prior to the time that he received the notice of proposed indefinite suspension,
to which he did reply.
Citing Hesse, supra, the administrative judge found no support for the appellant’s argument
that the agency must have given to me opportunity to respond to the reasons for the security
clearance suspension prior to initiating an adverse action based on loss of the clearance. Also
cited by the judge was the Jones case, supra, as well as Robinson v. DHS, 498 F.3d 1361
(Fed. Cir. 2007), for the principle that an employee has no constitutional right to due process
in connection with the security clearance process. The judge found the advance notice of the
indefinite suspension factually and legally adequate.
Alexander Buelna v. Department of Homeland Security, MSPB Dallas Regional Office
(DA-0752-09-0404-I-1 July 31, 2009)
A Federal Air Marshal’s clearance suspended based on allegations of misconduct. He
received a proposed indefinite suspension, to which he replied. The Agency then indefinitely
suspended him. Citing Board decisions, some reviewed by the Federal Circuit, the judge
found that the Agency had provided proper notice of the revocation of the Appellant security
clearance and the opportunity to respond to the reasons recited in the notice. The judge found
that the Appellant was given minimum due process rights under the agency’s internal
regulations as to the indefinite suspension.
Corry B. Mcgriff v. Department of the Navy, MSPB Washington Regional Office
(DC-0752-09-0816-I-1 November 24, 2009)
Access of the Appellant, an IT specialist, to classified information was suspended pending
completion of your review is clearance by the agency central adjudication facility. That led to
the proposal in a position of an indefinite suspension pending adjudication, since the
appellant’s position required him to maintain a clearance.
Noting Romero v. Dept. of Defense, 527 F.2d 1324 (Fed. Cir. 2008), the judge determined that
an indefinite suspension appeal encompasses review, under the harmful error standard, of
agency compliance with its procedures for revoking a security clearance, even though the
Board may not review the substance of the revocation decision. The Agency provided to the
appellant, along with the notice of proposed indefinite suspension, a copy of the agency
Security Access Eligibility Report explaining in detail the bases for the suspension of access
to classified information. The judge concluded that the appellant had an adequate opportunity
to make a meaningful reply to the allegations against him before being suspended. As to the
appellant’s argument that his ability to respond to the proposed indefinite suspension was
compromised by a lack of documents that had been withheld, despite request to the agency,
the judge concluded that there was nothing to suggest that the agency failed to follow its
regulations in connection with suspension of the appellant’s clearance or that, if there was a
regulatory problem, that the error was likely to have caused the agency to reach a different
conclusion in the absence of the error.
IV. Discussion
We begin, as we must, with Department of Navy v. Egan, 484 U.S. 518 (1988), unequivocally
deciding that the Board lacks the authority to review the substance of an underlying decision
to deny or revoke a security clearance in the course of reviewing an appealable adverse
action. The Court concluded it was unlikely that Congress intended the MSPB to review
under a preponderance of evidence standard an agency determination that maintenance of
a security clearance is clearly consistent with the interest of national security without imposing
upon the Government the burden of supporting the denial of a clearance and a concomitant
“second-guessing the agency’s national security determinations.” Board review authority, as
cabined by the Court, was explained in Egan:
An employee who is removed for "cause" under § 7513, when his required clearance
is denied, is entitled to the several procedural protections specified in that statute. The
Board then may determine whether such cause existed, whether in fact clearance was
denied, and whether transfer to a nonsensitive position was feasible. Nothing in the
Act, however, directs or empowers the Board to go further.
The cases before the Board involved in this amicus submission do not involve an issue of
whether a clearance was necessary for a job, or whether transfer to a nonsensitive position
was feasible.
The only remaining line of inquiry under Egan is the definition of the “several procedural
protections specified” under § 7513.
The protections under 5 USC 7513, those of advance notice, specific reasons for the
proposed action, a reasonable time for reply, the opportunity for representation, and a
reasoned written decision at the earliest practical date roughly parallel the Fifth Amendment
protections explicated by Cleveland Bd. of Ed. v. Loudermill,470 U.S. 532 (1985).
The cases relied upon it the several initial decisions subject to amicus briefing are not
materially more expensive than Egan’s prescribed limitation. Jones v. Dept. of Navy, 978 F.2d
1223 (Fed. Cir. 1992), determined that an indefinite suspension based upon a a clearance
investigation was not invalidated by reason of denial to the appellants of classified information
they deemed necessary to present their response to the potential clearance revocation:
The petitioners contend that they were denied procedural due process in the
termination of their access to classified information because the agency did not give
them full information about the basis for such termination; that because access to such
material was a condition of their continued employment, such termination necessarily
would have resulted in their suspension from employment; and that their indefinite
suspensions, therefore, were effected in violation of their constitutional rights.
The argument fails because it rests upon a faulty premise. The petitioners did not have
a liberty or property interest in access to classified information, and the termination of
that access therefore did not implicate any due process concerns. Board of Regents v.
Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). . . .
From Jones one concludes that neither constitutional nor statutory due process protections
are offended by reason of denial of classified information that an employee may desire to
defend himself or herself against a clearance suspension resulting in an indefinite
suspension.
Hesse v. Dept. of State, 217 F.3d 1372 (Fed. Cir. 2000), determined that the Whistleblower
Protection Act could not be invoked to secure review of a clearance revocation or related
suspension from pay and duties, the case also determined that a right to transfer to a
nonsensitive position must be grounded in statute or regulation.
Egan, Jones and Hesse addressed substantive review by the Board of clearance
determinations. The cases did not address the adverse action process entailed in indefinite
suspensions. That process was addressed by Romero v. Dept. of Defense, 527 F.3d 1324,
1327–30 (Fed. Cir. 2008) (aff’g removal of Mr. Romero following remand to Board and initial
decision by AJ sustaining removal, Romero v. Dept. of Defense, ___F.3d___ (Fed. Cir. 2011)),
the court charged the Board with responsibility for determining the significance of violations
by agencies of their own regulations when those violations are raised by appellants who
challenge adverse actions based upon clearance revocations:
Although in a Board proceeding an agency does not need to provide evidence to justify
the denial or revocation of a security clearance, section 7513(b)(1) requires agencies
to give written notice to employees “stating the specific reasons for the proposed
action.” Section 7513 therefore requires—in some circumstances at least—that an
agency do more than simply state that an adverse action is based on the revocation
or denial of security clearance. In King v. Alston, 75 F.3d 657 (Fed. Cir. 1996), and
Cheney v. Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007), we held that the
suspension of an employee because of denial or revocation of a security clearance
could not be sustained when the agencies involved did not “provide the employee with
sufficient information to make an informed reply to the agency.” Cheney, 479 F.3d at
1352 (quoting Alston, 75 F.3d at 662).
Section 7513 is not the only source of procedural protections for employees subject
to adverse actions based on security clearance decisions; agencies must also follow
the procedures established by their own regulations. See Drumheller v. Dep’t of the
Army, 49 F.3d 1566, 1569-73 (Fed. Cir. 1995) (reviewing Department of the Army
regulations related to the revocation of security clearances). In the event that an
agency does not follow its own regulations, 5 U.S.C. § 7701(c)(2)(A) provides that an
adverse action decision may not be sustained by the Board if the employee can show
“harmful error in the application of the agency’s procedures in arriving at such
decision.”
Romero places the locus of focus upon the reply process. And the reply process, we have
noted, is part of constitutional due process. Cleveland Bd. of Ed. v. Loudermill,470 U.S. 532
(1985).
What can happen during the reply? The deciding officer could decide to place the employee
on administrative leave (or continue that status if already granted) rather than nonpay status.
Or the employee could be detailed to some worthy cause (the Combined Federal Campaign
comes to mind), or the employee could be placed on telework or flexiplace or detailed to any
other position in the agency, anyplace in the country, to duties or a position not requiring a
clearance. In short, assuming that the deciding official is not the agency authority entrusted
with granting or denying a clearance, there are actions that can be taken short of clearance
adjudication that would mitigate the impact of the clearance suspension on the employee.
From the possibility of these choices flows the conclusion that the reply process must not be
an empty formality. The deciding official must have discretion to act in a meaningful way with
the possibility of affording relief to the employee should circumstances warrant.
The concept of an empowered deciding official is not novel. The nature of the oral reply was
summarized in Noe v. USPS, 28 MSPR 86, 88–89 (1985):
An employee against whom adverse action is taken is entitled to the procedural
protections of 5 USC 7513, which include advance written notice and an opportunity
to answer. The Supreme Court has recently reaffirmed that these two protections
constitute due process requirements. Cleveland Board of Education v. Loudermill, 105
S. Ct. 1487 (1985). In the context of federal employment, it has long been recognized
that an employee may raise at an oral reply any matter he believes will sway the
decision. Washington v. United States, 147 F.2d 284 (Ct. Cl.) cert. dismissed, 78 S. Ct.
6 (1957). The reply is “meant to be a meaningful protection for the employee” and to
assure “significant conference…with management,” Ricucci v. United States, 432 F.2d
453, 454–55 (Ct. Cl. 1970), before adverse action is taken. Moreover, the fact that the
employee is entitled to make a reply “implies an intent that the employee may succeed
with it.… It is not to be a futile ritual.” Ricucci v. United States, 425 F.2d 1252, 1254 (Ct.
Cl. 1970).
The due process right is one to a reply that is meaningful within the meaning of Loudermill.
The harmful error analysis applies if, during the process of a constitutionally sufficient reply
process, the agency commits a procedural error through violation of a regulation or labor
contract article. The Board must then assess the likely impact of the violation on the goal
sought by the employee defending against an adverse action.
Now enters the question posited by the Board, what sould be the effect on the due
process/harmful error analysis of Gilbert v. Homar, 520 U.S. 924 (1997)? Homar found
constitutionally valid an indefinite suspension based upon an arrest of an employee of a state
educational institution. The case raised but did not decide the issue of whether due process
was denied based on a state administrative directive in the form of an Executive Order
requiring a suspension following a felony charge. The Court only deteriend that a
presuspension hearing was not required.
Homar’s pronouncement are unremarkable in the present situation where Loudermill’s
requirements are met through a statutory scheme allowing for an oral reply to the charges
leading to an indefinite suspension and the ability to challenge the ensuring suspension.
The result is simply that the indefinite suspension requires a meaningful opportunity to reply
to allegations as a matter of constitutional due process, that requirement is met by the
statutory reply opportunity, and to effectuate the constitutional command implemented by the
legislative directive, the deciding official must be empowered to exercise discretion. The
discretion of the deciding official is limited by Executive Order regulating the clearance
process and by agency directives governing separation of functions as to the ability to hold
a security clearance—to which there is no constitutional, statutory, or regulatory right. Denial
of the ability of the deciding official to determine the worthiness of the employee to hold a
clearance not being a matter of constitutional or statutory entitlement, the inability of the
deciding official to exercise jurisdiction over that matter cannot be considered harmful
procedural error under 5 USC 7701 since there is no violation of agency procedures relating
to the grant, suspension, or denial of a security clearance. As to other components of the
deciding official’s discretion involving potential mitigation of the effects of an indefinite
suspension, they form part of the reasoned discretion inherent in the constitutional due
process requirement of a meaningful opportunity to be heard and cannot be diminished by
agency regulations or directives that would unduly impinge upon that discretion.
Respectfully submitted,
____________________________
Peter B. Broida
Suite 705
2009 N. 14th St.
Arlington, VA 22201
703-841-1112
703-841-1006 (facsimile)