The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 45
Docket No. DA-0752-09-0404-B-1
Alexander Buelna,
Appellant,
v.
Department of Homeland Security,
Agency.
June 19, 2014
Jeffrey H. Jacobson, Esquire, Tucson, Arizona, and Lawrence Berger,
Esquire, Glen Cove, New York, for the appellant.
Daniela Murch, Michael W. Gaches, Esquire, and Steven E. Colon,
Esquire, Arlington, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
Vice Chairman Wagner issues a separate, concurring opinion.
OPINION AND ORDER
¶1 The appellant has petitioned for review of the initial decision on remand
that affirmed his indefinite suspension. For the reasons set forth below, we
AFFIRM the initial decision as MODIFIED by this Opinion and Order. The
agency’s action is SUSTAINED.
BACKGROUND
¶2 The appellant was formerly employed as a Federal Air Marshal (FAM) with
the Transportation Security Administration (TSA). Initial Appeal File (IAF),
2
Tab 8. As a condition of employment, a FAM is required to obtain and maintain
a Top Secret security clearance. Id. By memorandum dated February 20, 2009,
the agency’s Personnel Security Division (PSD) notified the appellant that his
Top Secret security clearance was suspended, effective immediately, pending an
internal agency review. IAF, Tab 6, Subtab 4I. The memorandum indicated that
the clearance suspension was based on derogatory information developed from
the U.S. Army and the agency’s Office of Inspector General (OIG) concerning
alleged fraudulent claims, which raised questions about his honesty, integrity,
trustworthiness, and ability to protect national security information. Id. The
appellant was not provided an opportunity to contest the suspension of his
security clearance. See id.
¶3 By notice dated March 3, 2009, the agency proposed to indefinitely
suspend the appellant without pay based on two charges: (1) the suspension of
his Top Secret security clearance; and (2) the pending OIG investigation into the
same alleged misconduct underlying the clearance suspension. IAF, Tab 6,
Subtab 4G. The appellant responded orally and in writing to the deciding
official. Id., Subtabs 4B, 4E. In his oral reply, the appellant requested that he
remain in administrative leave status pending final resolution of the security
clearance matter. See id., Subtab 4B.
¶4 By letter dated April 2, 2009, the deciding official notified the appellant
that he was suspended without pay, effective that date, and that the suspension
would remain in effect until the completion of the investigation and/or resolution
of the appellant’s security clearance status. Id., Subtab 4B. In the decision letter,
the deciding official stated that any review of the decision to suspend the
appellant’s security clearance “rests exclusively with [PSD],” and that the
“process to appeal [PSD’s] decision is separate and distinct from the process to
reply to the proposal to suspend you indefinitely.” Id. The parties have
stipulated that the appellant’s indefinite suspension was based on the suspension
of his security clearance and the investigation into his alleged misconduct, not on
3
the underlying merits or factual predicate for the suspension or the investigation.
IAF, Tab 8.
¶5 On appeal to the Board, the appellant argued that the agency denied him
due process 1 by failing to provide a meaningful opportunity to contest the merits
of the security clearance suspension before placing him in nonpay status. IAF,
Tabs 1, 11. In his initial decision, the administrative judge noted that the action
on appeal is governed by TSA Management Directive (MD) 1100.75-3, 2 which
authorizes the agency to impose an indefinite suspension where an employee’s
security clearance has been suspended, denied, or revoked, and a security
clearance is a condition of employment or is otherwise required for the
employee’s position. IAF, Tab 16 at 2; see MD 1100. 75-3 Handbook (2009),
§ J(1)(d) . The administrative judge then sustained the action, finding that the
appellant’s position required a clearance, that his clearance was suspended, that
the agency had complied with the procedures set forth in MD 1100.75-3, and that
the suspension had a condition subsequent that would bring the action to an end.
IAF, Tab 16 at 47. The administrative judge did not address the agency’s second
charge or the appellant’s claim that he was denied due process under the
Fifth Amendment.
¶6 The appellant filed a petition for review, in which he reiterated his due
process claim. Petition for Review (PFR) File (I-1), Tab 1. Citing its decision in
1
For purposes of this decision, the term “due process” refers exclusively to the
procedural due process guaranteed under the Fifth Amendment.
2
The provisions of MD 1100.75-3 and the accompanying Handbook, rather than
chapter 75, govern disciplinary actions against TSA employees. Winlock v. Department
of Homeland Security, 110 M.S.P.R. 521, ¶ 6 (2009), aff’d, 370 F. App’x 119 (Fed. Cir.
2010); see 49 U.S.C. §§ 114(n), 40122(g)(2). MD 1100.75-3 and the 2009 edition of
the Handbook are located in the record at IAF, Tab 6, Subtabs 4J and 4K, respectively.
The Handbook was revised in 2013, but with no substantive changes pertinent to
this appeal.
4
McGriff v. Department of the Navy, 118 M.S.P.R. 89 (2012), issued that same
day, the full Board held that the appellant was entitled to due process concerning
his indefinite suspension, and that the Board had authority to review whether due
process was provided. Buelna v. Department of Homeland Security,
118 M.S.P.R. 115 , ¶¶ 10-12 (2012) (citing McGriff, 118 M.S.P.R. 89 , ¶¶ 24-25).
Again citing McGriff, the Board further held that in determining the requirements
of due process, it would apply the balancing test employed in Gilbert v. Homar,
520 U.S. 924 (1997), and consider the following factors: (1) the private interest
affected by the official action; (2) the risk of erroneous deprivation of the interest
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the government’s interest. Buelna,
118 M.S.P.R. 115 , ¶ 11 (citing McGriff, 118 M.S.P.R. 89 , ¶¶ 27-28); see Homar,
520 U.S. at 931-32 (citing Mathews v. Eldridge, 424 U.S. 319 , 335 (1976)). 3
¶7 In analyzing the “Homar factors”—more accurately, the Mathews factors—
the Board determined that, under the circumstances presented in this case, the
first and third factors were not dispositive, and that there were unresolved factual
issues relating to the second. Buelna, 118 M.S.P.R. 115 , ¶¶ 12-16. The Board
found that although the agency had reasonable grounds to support its action and
provided the appellant with the specific reasons for the security clearance
suspension, id., ¶¶ 14-15, the evidence did not indicate that the deciding official
had the authority to consider the merits of the clearance suspension, and also may
have lacked authority to take other remedial action, such as temporarily
reassigning the appellant to a position that did not require a security clearance,
id., ¶ 17. Thus, the Board concluded, “a question exists regarding whether the
agency afforded the appellant a meaningful opportunity to reply to the reason for
the suspension of his security clearance before suspending him from his position,
3
See infra, note 7.
5
or whether instead the agency merely provided him with an empty formality.”
Id., ¶ 18. The Board further noted that even if the agency did provide due
process, the appellant could still argue that the agency committed harmful error
by violating its own regulations governing adverse actions. Id., ¶ 19.
Accordingly, the Board remanded for further development of the record on both
the due process and harmful error issues.
¶8 After considering the parties’ additional written submissions, the
administrative judge again sustained the indefinite suspension. Remand Appeal
File (RAF), Tab 14. The administrative judge found that although the deciding
official had no authority to change the decision to suspend the appellant’s
security clearance, he had the authority to choose an alternative to the proposed
suspension, such as continued placement on administrative leave. Hence, the
administrative judge concluded, the appellant received a meaningful opportunity
to respond to the proposed indefinite suspension, and was thereby provided due
process. Id. at 3-6. Regarding the appellant’s harmful error claim, the
administrative judge again found that the agency provided the procedures
required under MD 1100.75-3, and that even if the agency had failed to do so, the
appellant failed to show how it would have reached a different decision in the
absence of the error. Id. at 6-7.
¶9 The appellant subsequently filed a petition for review of the remand initial
decision. PFR File (B-1), Tab 3. The agency filed a response in opposition. PFR
File (B-1), Tab 6. Following the issuance of the U.S. Court of Appeals for the
Federal Circuit’s decision in Gargiulo v. Department of Homeland Security,
727 F.3d 1181 (Fed. Cir. 2013), the Board invited the parties to address the
possible application of Gargiulo to the appellant’s due process claim. PFR File
(B-1), Tab 12. Both parties responded. PFR File (B-1), Tabs 14, 17.
6
ANALYSIS
The only issues remaining to be adjudicated are whether the agency violated the
appellant’s due process rights or committed harmful error in indefinitely
suspending him based on the suspension of his security clearance.
¶10 During the initial proceedings prior to remand, the administrative judge
issued a summary of the telephonic close of record conference, in which he stated
that the parties were precluded from arguing any but the following issues,
whether: (1) the appellant’s position requires a security clearance; (2) the
appellant “lost” his security clearance; (3) the appellant “was granted minimum
due process rights under the agency’s internal regulations”; and (4) the indefinite
suspension had a condition subsequent that would bring the action to an end.
IAF, Tab 14. The administrative judge further informed the parties that any
objections to the summary must be submitted in writing. Id. Neither party
objected to the summary.
¶11 As to issues (1) and (2), the parties have stipulated that the appellant’s
position required a security clearance and that his clearance was suspended. IAF,
Tab 8. The agency’s first charge is therefore sustained. See 5 C.F.R. § 1201.63 .
However, because the exhaustive list of issues to be adjudicated did not include
the merits of the agency’s second charge, i.e., the continuing OIG investigation,
and the parties did not object to the summary, we conclude that the agency does
not intend to rely on that charge, and must establish that its action was warranted
based on the first charge alone. 4 In that regard, the administrative judge correctly
noted that an indefinite suspension based on the suspension of a required security
clearance promotes the efficiency of the service, see Jones v. Department of the
Navy, 978 F.2d 1223 , 1226-27 (Fed. Cir. 1992), and also is expressly authorized
4
Because the merits of the second charge are not before us, we do not decide whether
the holding of Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318,
¶¶ 23-25 (2010), applies to indefinite suspensions taken under the TSA personnel
system.
7
under the TSA personnel system, see MD 1100.75-3 Handbook (2009), § J(1)(d).
As to issue (4), the appellant has not contested the administrative judge’s finding
that the indefinite suspension had a condition subsequent that would bring it to an
end, and we discern no error in his finding.
¶12 The outcome of this case therefore turns on the appellant’s claims that the
agency violated his due process rights and/or committed harmful error in
indefinitely suspending him. It appears that in framing issue (3), the
administrative judge initially conflated the question of whether the agency denied
the appellant due process with the question of whether it committed harmful
error. The appellant raised both issues, however, and we identified both for
consideration on remand. Buelna, 118 M.S.P.R. 115 , ¶ 20. No other issues
remain to be adjudicated.
The appellant was entitled to due process concerning the indefinite suspension.
¶13 While it is well established that no one has a right to a security clearance or
access to classified information, a tenured federal employee nonetheless has a
property interest in continued employment. King v. Alston, 75 F.3d 657 , 661
(Fed. Cir. 1996). Typically, this is so because the statutory federal employment
scheme provides that the agency may take an adverse action against the employee
only for unacceptable performance, pursuant to 5 U.S.C. § 4303 , or for such
cause as will promote the efficiency of the service, pursuant to 5 U.S.C. § 7513 .
Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 , 1375 (Fed. Cir.
1999). In this case, the adverse action on appeal is governed not by statute, but
rather by the TSA’s personnel management system, in particular, the provisions
of MD 1100.75-3 and the accompanying Handbook. Buelna, 118 M.S.P.R. 115 ,
¶ 8. However, MD 1100.75-3 similarly provides that a tenured TSA employee
may only be suspended, removed, or demoted for unacceptable performance or
for such cause as will promote the efficiency of the service. Id., ¶ 9; IAF, Tab 6,
Subtab 4J, § 6(E). Accordingly, we reaffirm that the appellant’s indefinite
suspension deprived him of a property interest cognizable under the Fifth
8
Amendment, and that the agency was required to provide him due process in
connection with that action. Buelna, 118 M.S.P.R. 115 , ¶ 12; see Gargiulo,
727 F.3d at 1185 (acknowledging that the petitioner, a FAM who was indefinitely
suspended under the TSA personnel management system based on the suspension
of his security clearance, had due process rights regarding his indefinite
suspension); Kriner v. Department of the Navy, 61 M.S.P.R. 526 , 532 (1994) (“It
was the agency’s deprivation of the appellant’s property interest in his
employment—his suspension from his job—which triggered the application of
due process.”).
The Board has authority to review whether the agency provided the appellant due
process in indefinitely suspending him.
¶14 In Department of the Navy v. Egan, 484 U.S. 518 , 530-31 (1988), the
Supreme Court held that in an appeal of an adverse action under chapter 75 based
on the denial or revocation of a required security clearance, the Board may not
review the merits of the underlying clearance determination, but may review,
inter alia, whether the position required a security clearance, whether the
clearance was denied or revoked, and whether the agency complied with the
procedural requirements of § 7513. 5 The holding of Egan has since been applied
to indefinite suspensions based on the suspension of a security clearance. See,
e.g., Cheney v. Department of Justice, 479 F.3d 1343 , 1351-52 (2007). Egan also
controls where, as here, the adverse action is taken under the TSA personnel
system. See Gargiulo, 727 F.3d at 1186. In such cases, the procedural
requirements of section 7513 are not directly applicable; however, the Board has
authority under 5 U.S.C. § 7701 (c)(2)(A) to review the agency’s compliance with
5
The Court further stated that in such cases the Board may review “whether transfer to
a nonsensitive position was feasible.” Id. However, the Federal Circuit has since
clarified that such review is appropriate only where a statute or regulation provides the
employee a substantive right to such reassignment. Griffin v. Defense Mapping Agency,
864 F.2d 1579, 1580 (Fed. Cir. 1989).
9
its own procedures, which include the similar provisions of MD 1100.75-3. See
Romero v. Department of Defense, 527 F.3d 1324 , 1328-29 (Fed. Cir. 2008).
¶15 The Court did not have occasion in Egan to decide if the Board was
authorized to consider a claim that an agency denied due process in taking an
adverse action based on a security clearance determination. We have long held,
however, that the Board is authorized to review such claims. See, e.g., McGriff,
118 M.S.P.R. 89 , ¶ 25; Kriner, 61 M.S.P.R. at 532-33. The Federal Circuit also
has implicitly recognized that due process claims are reviewable in this context.
See Hesse v. Department of State, 217 F.3d 1372 , 1381-82 (Fed. Cir. 2000)
(finding that the agency did not deny the petitioner due process regarding an
indefinite suspension based on the suspension of a security clearance). This
result is not contrary to Egan, because review of the due process protections
afforded does not require the Board to second guess security determinations
committed to agency discretion. Weissberger v. U.S. Information Agency,
39 M.S.P.R. 370 , 374 (1988). 6 We therefore reaffirm our authority to determine
whether an agency afforded an appellant due process in taking an adverse action
based on a security clearance determination. For the reasons discussed below,
however, we must reconsider the question of what due process requires in such
a case.
6
Indeed, we need not consider any factual issues that are not also involved in
determining an agency’s compliance with the procedures set forth at 5 U.S.C. § 7513, a
matter which lies squarely within our review authority under Egan. Whether an agency
provided due process is in certain respects a distinct inquiry, in that the requirements of
constitutional due process are not conditioned on statutory procedures, and furthermore
are not subject to the harmful error test. Stone, 179 F.3d at 1375, 1377. Nonetheless,
section 7513 has been drafted so that its procedural protections include, inter alia, the
due process rights independently guaranteed under the U.S. Constitution, such as notice
and a meaningful opportunity to respond to the proposed action. Chavies v. Department
of the Navy, 104 M.S.P.R. 81, ¶ 10 (2006). The same is true of the similar provisions of
MD 1100.75-3. See Buelna, 118 M.S.P.R. 115, ¶ 9.
10
In determining the general requirements of due process concerning an indefinite
suspension based on the suspension of a security clearance, the Board will apply
the Mathews factors.
¶16 Due process requires, at a minimum, that an employee being deprived of
his property interest be given “the opportunity to be heard ‘at a meaningful time
and in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting Armstrong v.
Manzo, 380 U.S. 545 , 552 (1965)). However, due process “is flexible and calls
for such procedural protections as the particular situation demands.” Id. at 334
(quoting Morrissey v. Brewer, 408 U.S. 471 , 481 (1972)). As previously stated,
to determine the specific dictates of due process, we consider: (1) the private
interest affected by the official action; (2) the risk of erroneous deprivation of the
interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; and (3) the government’s interest. Id. at 335.
¶17 These considerations are not limited in their application to indefinite
suspension actions, such as the one at issue in Homar, but apply generally to the
deprivation of any property interest. For example, in Cleveland Board of
Education v. Loudermill, 470 U.S. 532 (1985), issued more than a decade before
Homar, the Supreme Court relied on the Mathews factors in determining what
process was due a public employee who, under state law, could be removed only
for cause. Id. at 538-39, 542-45. After considering the factors in turn, the Court
concluded that a tenured government employee is entitled to “notice of the
charges against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story” prior to the deprivation of his
property right to continued employment. Id. at 546-48. We have since applied
the holding of Loudermill to removals of federal employees. See, e.g., Alford v.
Department of Defense, 118 M.S.P.R. 556 , ¶¶ 2, 6 (2012).
¶18 We find occasion here to conduct a new Mathews factors analysis. We do
so in part because, as the Court noted in Homar, it cannot be assumed that in all
cases Loudermill will apply in full to the temporary deprivation of a suspension
11
without pay. See 520 U.S. at 929-32. More to the point, our recent analysis of
the Mathews factors in McGriff and related decisions, including our previous
decision in this case, requires clarification. 7 As with Loudermill and its progeny,
our conclusions here may be applied to similar appeals without reiterating the
Mathews analysis in each case.
We may rely on Loudermill and its progeny in determining whether the
appellant’s predeprivation hearing was meaningful.
¶19 In considering the first Mathews factor, i.e., the private interest affected by
the action, we must consider the length and finality of the deprivation. Homar,
520 U.S. at 932. Here, as in Homar, the appellant has suffered only a temporary
suspension, rather than a permanent deprivation of his property interest in
continued employment. See id. In drawing that distinction, the Court paid no
particular attention to the precise duration of the suspension, see id., and we need
not do so here. For purposes of the Mathews analysis, it is sufficient to observe
that, while a suspension is a temporary deprivation, it is nonetheless “likely to cut
off subsistence income and to prevent one from obtaining other gainful
employment,” and has “great practical impact” on the employee. Engdahl v.
Department of the Navy, 900 F.2d 1572 , 1575 (Fed. Cir. 1990).
¶20 Regarding the third Mathews factor, the government has a compelling
interest in withholding national security information from unauthorized persons.
Buelna, 118 M.S.P.R. 115 , ¶ 13 (citing Egan, 484 U.S. at 527). It is true the
7
To the extent our analysis below is inconsistent with Hairston v. Department of
Defense, 119 M.S.P.R. 162 (2013); Diehl v. Department of the Army, 118 M.S.P.R. 344
(2012); Gaitan v. Department of Homeland Security, 118 M.S.P.R. 180 (2012);
Gargiulo v. Department of Homeland Security, 118 M.S.P.R. 137 (2012), aff’d on other
grounds, 727 F.3d 1181 (Fed. Cir. 2013); Buelna, 118 M.S.P.R. 115; and McGriff,
118 M.S.P.R. 89, these decisions are hereby modified. To the extent our prior due
process analysis of these appeals under Gilbert v. Homar, 520 U.S. 924 (1997),
suggested that we engaged in a review of the merits of agency security clearance
determinations, we hereby clarify that this was not our intent.
12
hazard may be temporarily avoided by keeping the employee in a paid non-duty
status. See Loudermill, 470 U.S. at 544-45. However, the government’s interest
in the efficiency of the service is sufficiently strong to permit an indefinite
suspension without pay pending completion of the security clearance
adjudication. See Jones, 978 F.2d at 1226.
¶21 In considering the second and decisive Mathews factor, our focus is on the
need to ensure that the procedures used provide adequate assurance that the
agency had reasonable grounds to support the adverse action. Buelna,
118 M.S.P.R. 115 , ¶ 14 (citing Homar, 520 U.S. at 933-34); see Fuentes v.
Shevin, 407 U.S. 67 , 80-81 (1972) (the purpose of the right to be heard is not
only to provide “abstract fair play,” but also “to minimize substantively unfair or
mistaken deprivations of property”). 8 Because the appellant was afforded an
opportunity to respond to the proposed action prior to being suspended, it is clear
the hearing occurred at a “meaningful time” for these purposes, see Mathews,
424 U.S. at 333, and we need not decide whether a postdeprivation hearing might
have satisfied the requirements of due process. However, it remains to be
determined whether the appellant was heard in a “meaningful manner” that
provided sufficient protection against an erroneous deprivation of his property
interest. Id. at 333, 335.
¶22 When the Court in Loudermill considered the second Mathews factor, it
explained that for the purpose of reaching an accurate decision, the opportunity to
respond to a proposed removal is important for two reasons. Loudermill,
470 U.S. at 542-46. First, an adverse action will often involve factual disputes
and consideration of the employee’s response may clarify such disputes. Id.;
Stone, 179 F.3d at 1376. Second, “[e]ven where the facts are clear, the
8
Our inquiry here is limited to the procedures used in the adverse action proceedings,
and does not extend to the merits of the underlying clearance suspension. See Gargiulo,
727 F.2d at 1186-87.
13
appropriateness or necessity of the [penalty] may not be,” and in such cases the
employee must receive a “meaningful opportunity to invoke the discretion of the
decision maker.” Loudermill, 470 U.S. at 543. Thus, “the employee’s response
is essential not only to the issue of whether the allegations are true, but also with
regard to whether the level of penalty to be imposed is appropriate.” Stone,
179 F.3d at 1376. Although the appellant in this case was not removed, we find
the same considerations described in Loudermill are present in determining
whether he received an adequate opportunity to contest his proposed suspension.
We address them in turn.
For purposes of responding to the charge, due process does not require an
opportunity to contest the merits of the clearance suspension.
¶23 As to the facts underlying the agency’s charge, it is well established that
the suspension of a security clearance, pending a final decision on whether to
revoke or restore it, may serve as a basis for imposing an indefinite suspension.
Jones, 978 F.2d at 1226-27; see also MD 1100.75-3 Handbook (2009), § J(1)(d).
This is so even where, as in Jones, the agency ultimately determines that the facts
warrant restoration of the clearance. See 978 F.2d at 1224, 1227. Consequently,
where an agency proposes to indefinitely suspend an employee based on the
suspension of his security clearance, the only relevant factual disputes that could
be raised regarding the charge are whether the position required a security
clearance and whether the clearance was suspended. Indeed, the parties have
stipulated that the appellant’s indefinite suspension was based on the suspension
of his clearance, not the merits or factual predicate of the clearance suspension.
IAF, Tab 8.
¶24 The Board has previously held that in an indefinite suspension action based
on the suspension of a security clearance, due process requires that the employee
be provided an opportunity to contest the underlying security determination.
Gaitan, 118 M.S.P.R. 180 , ¶ 23 (due process requires only that the appellant
receive a meaningful opportunity to respond to someone with authority to change
14
the outcome of the security clearance determination in either the security
clearance proceeding or the adverse action proceeding); Gargiulo, 118 M.S.P.R.
137 , ¶ 20 (same). That holding was incorrect because an employee has no
property interest in a security clearance. Gargiulo, 727 F.3d at 1185. Failure to
provide an opportunity to contest a clearance suspension prior to placement in a
nonpay status may constitute harmful error, if such a procedure is required under
an agency’s own regulations concerning adverse actions based on personnel
security determinations. See Ulep v. Department of the Army, 120 M.S.P.R. 579 ,
¶ 5 (2014). It does not, however, constitute a due process violation, because the
merits of the agency’s charge do not hinge on any factual disputes concerning the
merits of the clearance suspension. 9
For purposes of responding to the charge, constitutional due process does not
require notice of the factual basis for the clearance suspension.
¶25 Constitutional due process does not necessarily require that the employee
be notified of the factual basis underlying the security clearance suspension.
Gargiulo, 727 F.3d at 1186; contra Hinton v. Department of the Navy,
61 M.S.P.R. 692 , 695-96 (1994). Such notice is required under 5 U.S.C. § 7513 ,
which provides that an employee facing an adverse action be notified of the
specific reasons for the proposed action. See Cheney, 479 F.3d at 1352 (the
employee must be given enough information to enable him to make a meaningful
reply); King, 75 F.3d at 661-62; see also MD 1100.75-3 Handbook (2009),
9
We further note that in cases where the employee does receive an opportunity to
contest the clearance determination prior to the adverse action proceedings, that
opportunity alone is insufficient to satisfy due process with respect to the proposed
adverse action. Contra Gaitan, 118 M.S.P.R. 180, ¶ 23; Gargiulo, 118 M.S.P.R. 137,
¶ 20. Due process requires that the employee have the “opportunity to present reasons,
either in person or in writing, why proposed action should not be taken.” Loudermill,
470 U.S. at 546 (emphasis added). In an adverse action, there is no “proposed action”
for due process purposes until the agency issues its proposal notice. Hodges v. U.S.
Postal Service, 118 M.S.P.R. 591, ¶ 6 (2012).
15
§ I(2)(a)(i) (requiring that the notice of proposed adverse action include “[t]he
charge(s) and specification(s) for each charge, including a description of the
evidence that supports the charge(s)”). However, as the court explained in
Gargiulo, the right to such notice is not constitutional, but statutory, or in this
case, a matter of agency policy. 717 F.3d at 1186. Hence, as to the charge, the
agency was not obliged as a matter of constitutional due process to notify the
appellant of the specific reasons for the suspension of his security clearance. Id.
Rather, it was sufficient for the agency to inform the appellant that his position
required a security clearance, and that he could no longer hold his position once
he had lost his clearance. See Hesse, 217 F.3d at 1381-82. The appellant
received adequate notice of these essential facts, see IAF, Tab 6, Subtab 4G, and
there is no indication that he would have been denied the chance to contest those
facts had he been so inclined.
If there are viable alternatives to indefinite suspension, due process requires that
the employee be afforded an opportunity to invoke the discretion of a deciding
official with authority to select such alternatives.
¶26 Regarding the penalty, the appellant has argued that he was denied a
meaningful opportunity to persuade the deciding official to take an action other
than the proposed indefinite suspension. In Gargiulo, our reviewing court
declined to address what due process would be required had the petitioner in that
case claimed entitlement to a penalty other than suspension without pay. See
727 F.3d at 1185 n.4. Because the appellant in this case has asserted that the
agency denied him due process concerning the penalty imposed, that question is
now before us.
¶27 As the Court recognized in Loudermill, the right to invoke the deciding
official’s discretion exists only “in such cases” where there is doubt as to the
appropriateness or necessity of the penalty. 470 U.S. at 543. For example, there
is no due process right “to insist on a hearing in order to argue that the
decisionmaker should be lenient and depart from legal requirements.” Id. at 543
16
n.8 (citing Dixon v. Love, 431 U.S. 105 , 114 (1977)); see, e.g., Delong v.
Department of Health & Human Services, 264 F.3d 1334 , 1342-43 (Fed. Cir.
2001) (where the petitioner’s criminal record required her removal pursuant to
25 U.S.C. § 3207 , due process did not require that she be afforded a hearing on
the issue of her fitness for service in a covered position). Due process does not
demand that the deciding official consider alternatives that are prohibited,
impracticable, or outside management’s purview.
¶28 However, to the extent there may have existed viable alternatives to
suspension without pay, e.g., placement on administrative leave, the appellant
had a due process right to invoke the discretion of a deciding official with
authority to select such alternatives. See Loudermill, 470 U.S. at 543. Here, the
deciding official declared under penalty of perjury that he had authority under the
agency’s discipline procedures to choose alternatives to the proposed indefinite
suspension, including the appellant’s requested outcome of continued placement
on administrative leave. RAF, Tab 13 (Declaration). The appellant has not
rebutted that evidence, and we conclude that he was afforded an opportunity to
invoke the discretion of a deciding official with authority to change the outcome
of the proposed action to the extent that may have been feasible.
Due process requires notice of the facts underlying the clearance suspension to
the extent those facts are considered in determining the penalty.
¶29 The appellant asserts that he was nonetheless denied a meaningful
opportunity to invoke the deciding official’s discretion because he was not
provided with all of the information on which the deciding official relied in
deciding to indefinitely suspend him. PFR File (B-1), Tab 3 at 6-7. In particular,
he cites the deciding official’s declaration that he “considered the facts regarding
[the appellant’s] alleged fraudulent time and attendance reports in reaching [the]
decision to indefinitely suspend [the appellant].” RAF, Tab 13 (Declaration).
Based on that statement, the appellant concludes that the deciding official
“apparently” considered evidence regarding the alleged fraudulent claims beyond
17
what he was provided in the proposal notice and the notice of his clearance
suspension. PFR File (B-1), Tab 3 at 7.
¶30 To enjoy the right to be heard, an individual must first be notified.
Fuentes, 407 U.S. at 80 (citing Baldwin v. Hale, 68 U.S. 223 , 1 Wall. 223, 233
(1863)); see Loudermill, 470 U.S. at 546 (“The essential requirements of due
process . . . are notice and an opportunity to respond.”). In Stone, 179 F.3d
at 1376, our reviewing court held that introduction of new and material
information to the deciding official through ex parte communications undermines
the due process guarantee of notice and an opportunity to respond because the
employee is no longer on notice of all the reasons for the action and/or the
evidence relied upon by the agency. In determining if an ex parte communication
introduces new and material information, the Board considers, among other
factors, whether: (1) the ex parte communication merely introduces cumulative
information or new information; (2) the employee knew of the error and had a
chance to respond to it; and (3) the ex parte communications were of the type
likely to result in undue pressure upon the deciding official to rule in a particular
manner. Id. at 1377. Ultimately, the inquiry is whether the deciding official’s
consideration of the additional material was so substantial and so likely to cause
prejudice that no employee could fairly be required to be subjected to a
deprivation of property absent an opportunity to respond. Id.
¶31 Concerning the charge, any additional information the deciding official
may have considered could not have been new and material because the only
information material to the charge was that the appellant’s position required a
security clearance and that his clearance was suspended. For purposes of the
Stone analysis, however, there is no basis for distinguishing between those
ex parte communications relating to the charge and those relating to the penalty.
Ward v. U.S. Postal Service, 634 F.3d 1274 , 1280 (Fed. Cir. 2011). As the court
explained in Ward, “if ex parte communications influence a deciding official’s
penalty determination, contributing to the enhancement of the penalty . . . the
18
communications impact the employee’s property interest in continued
employment no less than if they relate to the underlying charge.” Id. To the
extent the deciding official’s penalty determination was influenced by the factual
basis for the underlying security clearance determination, the appellant was
entitled to notice of the information on which he relied, even if due process
would not have required such notice regarding the charge alone.
¶32 The appellant has not shown, however, that his due process rights were
compromised by ex parte communications. First, it is unclear that any ex parte
communication in fact took place. The deciding official’s statement that he
“considered the facts regarding [the appellant’s] alleged fraudulent time and
attendance reports” is vague, and could refer to nothing more than the fact that
PSD cited those alleged fraudulent reports as a basis for suspending the
appellant’s security clearance. That information had already been provided to the
appellant in the proposal notice. Moreover, even if the deciding official did
consider additional information concerning those reports, beyond what was
included in the proposal notice, the appellant has not established that the
information considered was new and material. Accordingly, we find the appellant
has not shown that he was denied a meaningful opportunity to invoke the
deciding official’s discretion regarding the penalty determination. In sum, we
conclude that the appellant has not shown that he was denied due process.
The appellant did not establish that the agency committed harmful error.
¶33 To prove harmful procedural error, an appellant must prove that the agency
committed an error in the application of its procedures that is likely to have
caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error. See 5 C.F.R. § 1201.56 (c)(3). The
relevant procedures in this case are set forth in the MD 1100.75-3 Handbook,
which provides, inter alia, that an employee facing an adverse action receive
written notice stating the charges and specifications and a description of the
evidence that supports the charge. MD 1100.75-3 Handbook (2009), § I(2)(a)(i).
19
The directive further provides that the employee is entitled to see the materials
relied upon to support each charge and specification. Id., § I(2)(a)(x). In
addition, the employee must be provided an opportunity to respond orally and in
writing to a deciding official who will consider the replies and decide the
outcome based on all of the evidence of record and the applicable Douglas
factors. Id., § I(2)(c). The appellant asserts that the agency violated its
procedures because the decision to indefinitely suspend him was based on
information that the agency failed to disclose, and that the agency failed to
provide him a meaningful opportunity to address the underlying accusations
before indefinitely suspending him. PFR File, Tab 3 at 7-8.
¶34 Where an agency indefinitely suspends an employee under chapter 75
based on the suspension of a security clearance, 5 U.S.C. § 7513 requires that the
appellant be provided sufficient information to make an informed reply, including
a statement of the reasons for the clearance suspension. See Cheney, 479 F.3d
at 1352-53; Alston, 75 F.3d at 662. The same general principles apply in
determining whether the agency committed harmful error concerning the similar
notice requirement of MD 1100.75-3. See Buelna, 118 M.S.P.R. 115 , ¶ 19.
Here, the notice suspending the appellant’s security clearance, coupled with the
notice proposing his indefinite suspension, informed him of the basis for the
suspension of his security clearance, i.e., the alleged fraudulent claims. We find
this was sufficient information to allow for an informed response, as required
under agency procedures. See Alston, 75 F.3d at 662 (finding that the agency
provided the employee with sufficient information to make an informed reply
when it notified him that his security clearance was being suspended because of
“a potential medical condition” and then informed him that he was being
indefinitely suspended from duty based on the suspension of his security
clearance); cf. Cheney, 479 F.3d at 1353 (finding that the employee was not
provided with the opportunity to make a meaningful response to the notice of
20
proposed suspension where he had to guess at the reasons for his security
clearance suspension).
¶35 Furthermore, as mentioned above, the appellant has not shown by
preponderant evidence that the agency failed to provide any additional evidence
on which the deciding official relied. Moreover, assuming arguendo that the
agency did commit procedural error in that regard, the appellant has not shown
that the agency was likely to have reached a different decision in the absence of
that error. Finally, as discussed above, the appellant was provided the
opportunity to respond orally and in writing to a deciding official with authority
to decide the outcome of the proposed indefinite suspension. We therefore affirm
the administrative judge’s finding that the appellant failed to establish harmful
error. Accordingly, we AFFIRM the administrative judge’s determination to
sustain the appellant’s indefinite suspension.
ORDER
¶36 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113 (c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
21
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm .
Additional information is available at the court's website,
www.cafc.uscourts.gov . Of particular relevance is the court's "Guide for Pro Se
Petitioners and Appellants," which is contained within the court's Rules of
Practice , and Forms 5, 6, and 11.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
CONCURRING OPINION OF ANNE M. WAGNER
in
Alexander Buelna v. Department of Homeland Security
MSPB Docket No. DA-0752-09-0404-B-1
¶1 I agree with the majority’s description of the background and issues to be
decided in this case (Majority Opinion, ¶¶ 2-12) and their findings that: the
appellant was entitled to due process concerning his indefinite suspension (Id.,
¶ 13); the Board has authority to review whether the agency provided the
appellant due process in indefinitely suspending him (Id., ¶¶ 14-15); due process
required that the deciding official have the authority to select alternative penalties
other than suspension without pay (Id., ¶ 28); due process required notice of the
facts underlying the clearance suspension to the extent that those facts were
considered in determining the penalty (Id., ¶¶ 29-32); and, the appellant did not
establish that the agency committed harmful error (Id., ¶¶ 33-35). Furthermore, I
conclude, as does the majority, that the agency did not violate the appellant’s due
process rights in indefinitely suspending him based upon the suspension of his
security clearance. However, I fundamentally disagree with my colleagues as to
their delineation of the process to which the appellant was entitled under the Fifth
Amendment.
¶2 In Gargiulo v. Department of Homeland Security, 727 F.3d 1181 , 1185
(Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit recognized
that the appellant, a Federal Air Marshal, “had due process rights with respect to
his indefinite suspension.” It did not, however, define what those rights entailed.
Rather, the court noted that, under Egan v. Department of the Navy, 484 U.S. 518
(1988), the Board’s review of an adverse action based on a security clearance
revocation is limited to whether a security clearance was denied and was a
requirement of the position and whether the 5 U.S.C. § 7513 procedures were
followed. Id. at 1186. It thereafter found that the Board erred in holding
2
as a matter of constitutional due process, that Mr. Gargiulo was
entitled to notice of the reasons for the suspension of his security
clearance and an opportunity to make a meaningful response
regarding those reasons to someone in the agency with the authority
to affect that decision. While this court’s cases hold that section
7513 grants those rights . . . we have not held that those rights are
guaranteed by the Fifth Amendment.
Id. at 1186. Thus, the question remains as to what exactly the constitutional right
to due process ensures when a tenured federal employee is deprived of a property
interest in that employment based upon security clearance determinations.
¶3 Before reaching that question, however, I note my agreement with the
majority that we should clarify our recent decisions involving indefinite
suspensions based on a suspension of a security clearance. In Gargiulo, the
Federal Circuit found that the Board reached the merits of the underlying security
clearance action in its analysis of the appellant’s due process claim and, thereby,
exceeded its authority. Id. at 1187. Our discussion of due process in Gargiulo,
and in our prior decision in this appeal, was originally articulated in McGriff v.
Department of the Navy, 118 M.S.P.R. 89 (2012).
¶4 In McGriff, the Board cited Gilbert v. Homar, 520 U.S. 924 (1997), which
analyzed the factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), to
determine what constitutional process is due a public employee suspended from
employment. 118 M.S.P.R. 89 , ¶ 27. While not erroneous, that analysis was
unnecessary for two reasons. First, in Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985), the U.S. Supreme Court had already distilled
the Mathews factors to arrive at the fundamental contours of due process, i.e.,
notice and meaningful opportunity to respond, when a public employee is
deprived of a property interest in employment. * Moreover, the Board long ago
*
For this reason, I believe that the majority’s discussion (Majority Opinion, ¶¶ 16-22)
of Mathews v. Eldridge, 424 U.S. 319 (1976), and particularly, its application of the
3
applied Loudermill in cases involving indefinite suspension from employment
based on a suspension of access to security areas or information. See Byerline v.
Department of the Navy, 62 M.S.P.R 279 , 283 (1994). Second, we ostensibly
cited Homar for the proposition that constitutional due process may not, in every
circumstance, require predeprivation notice and opportunity to respond.
118 M.S.P.R. 89 , ¶ 27; Kriner v. Department of the Navy, 61 M.S.P.R. 526 , 531
(1994). However, the process afforded Mr. McGriff occurred prior to his
indefinite suspension, thus, making its timing irrelevant to the question of
whether it satisfied the constitutional requirements under Loudermill.
¶5 Beyond being unnecessary, our discussion of the second Homar factor also
unfortunately suggested that the Board was engaged in a review of the merits of
the agency’s security clearance determination. I believe that Homar was not
essential to the resolution of the appellant’s due process claim and our discussion
of it in our prior decisions here and elsewhere risks perpetuating the
misapprehension that the Board lacks a proper understanding of our authority in
reviewing adverse actions based on security clearance determinations. Therefore,
I would modify our prior decisions only to eliminate the discussion of Homar and
Matthews altogether and to examine the appellants’ due process claims solely
under Loudermill.
¶6 In King v. Alston, 75 F.3d 657 , 659 (Fed. Cir. 1996), the Federal Circuit
reviewed a Board decision finding that the agency violated constitutional due
process in placing the appellant on enforced leave after suspending his access to
classified information. The court recognized that, while no one has a right to a
security clearance or access to classified information, an employee as defined by
5 U.S.C. § 7501 “has a property right in his continued employment.” Id. at 661
(citing Loudermill). It thereafter affirmed that such employees “cannot be
Mathews factors to define what constitutional process is due under these circumstances
to be unnecessary.
4
deprived of that interest without the procedural protections provided by 5 U.S.C.
§ 7513 (b).” It went on to hold that “section 7513(b) entitles an employee to
notice of the reasons for the suspension of his access to classified information
when that is the reason for placing the employee on enforced leave pending a
decision on the employee’s security clearance. Such notice provides the
employee with an adequate opportunity to make a meaningful reply to the agency
before being placed on enforced leave.” Id. at 661-62. It further held that
“[m]erely providing the employee with information that his access to classified
information is being suspended, without more, does not provide the employee
with sufficient information to make an informed reply to the agency before being
placed on enforced leave.” Id. at 662.
¶7 In Gargiulo, the court expressly recognized that the appellant had due
process rights with respect to his indefinite suspension. 727 F.3d at 1185. At the
same time, it found that the Board erred in holding that the appellant was entitled
as a matter of constitutional due process to notice of the reasons for the
suspension of his security clearance and an opportunity to make a meaningful
response regarding those reasons to someone in the agency with the authority to
affect that decision. Id. at 1186. This designation of error seems to me to be at
odds with King v. Alston, which plainly, albeit tacitly, equated the constitutional
due process afforded a federal employee facing deprivation of his property
interest in continued employment with the right to notice and opportunity to
respond under section 7513(b). Moreover, the court’s insistence in Gargiulo that
the rights “to notice of the reasons for the suspension of his security clearance
and an opportunity to make a meaningful response regarding those reasons to
someone in the agency with the authority to affect that decision” derive solely
from 5 U.S.C. § 7513 (b) seems to imply that these rights do not also comprise the
elements of constitutional due process. Id. at 1186. If constitutional due process
demands something less than what the statute compels in these cases, then how
5
does one define it consistent with Loudermill’s dictate for notice and meaningful
opportunity to respond? The court has left this question unanswered.
¶8 I disagree with the majority’s answer—that it is sufficient for due process in
this context “for the agency to inform the appellant that his position required a
security clearance, and that he could no longer hold his position once he lost his
clearance”—because it renders the process utterly void of meaning and is
contrary to Loudermill. It also inexplicably departs from longstanding Board
precedent. In Kriner, the Board held that “[w]hen a suspension is based on
restriction of the employee’s security access, the agency is required to provide
the employee a meaningful opportunity to respond to the reasons for the
suspension by ensuring that either in the advance notice of that action, or in the
earlier access determination, the employee has been notified of the cause that led
to the access determination.” 61 M.S.P.R. at 533. Similarly, in Byerline, the
Board concluded that “where an indefinite suspension is based on the revocation
of access to security areas or information, the agency must provide the appellant
with a meaningful opportunity to respond to the reasons for the indefinite
suspension by ensuring that either in the advance notice of that action, or in the
earlier access determination, he has been notified of the cause that led to the
access determination.” 62 M.S.P.R. at 283 (emphasis added). The Board went
on to say that “only in this manner does the agency assure that the appellant is
afforded meaningful due process with respect to his constitutionally protected
property interest in his employment.” Id. Likewise, in Alston, the court
recognized that when an adverse action is based upon the suspension of a security
clearance, merely providing the employee with notice of the clearance action,
without more, does not “provide the employee with sufficient information to
make an informed reply to the agency” as to the adverse action. Id. at 662.
¶9 The majority cites Gargiulo in finding that the agency “was not obliged as a
matter of constitutional due process to notify the appellant of the specific reasons
for the suspension of his security clearance.” Majority Opinion, ¶ 25. I do not
6
believe that Gargiulo compels that conclusion. Rather, the court objected to the
characterization of the statutory rights to notice and opportunity to respond as a
constitutional guarantee that the Board “may delineate and enforce” as contrary
to precedent holding that there are no due process rights attaching to security
clearance determinations. 727 F.3d at 1186. However, its criticism is essentially
premised on the notion that, by recognizing the constitutional dimension of these
rights, the Board improperly presumed the authority to review the merits of the
security clearance decision in derogation of Egan. However, in Alston, the court
reviewed a similar claim by the Office of Personnel Management that, by
recognizing the appellant’s right to notice of the reasons for the security
clearance action, the court and the Board were reviewing the merits of the
agency’s decision to suspend his clearance or to review the procedures used in
denying such access. 75 F.3d at 662. As the court explained, Egan “does not
foreclose board review of the procedures used by the agency” in effecting the
adverse action. Id. at 662-63. Similarly, in Kriner, the Board fully reconciled
the limitations on its review under Egan with the constitutional due process
demands of Loudermill:
In security clearance cases, the Board’s authority to determine
whether the agency has provided minimum due process is made clear
when the Supreme Court’s decisions in Egan and Loudermill are read
together, as they must be. The right to a full, evidentiary
post-termination hearing recognized by Loudermill does not confer a
right to merits review by the Board in these cases because under
Egan the commitment by law of security clearance determinations to
the discretion of the employing agency precludes review by an
outside body like the Board. However, nothing in Egan excused the
employing agency from providing the employee the pre-termination
opportunity to be heard which Loudermill requires, and as, as noted
above, Egan recognized the Board’s authority to review whether the
agency has done so.
Review by the Board of the agency’s procedures in a case such as
this one does not require the Board to inquire into substantive
matters of national security or to second-guess the agency’s
judgment concerning whether a particular employee is fit for access
7
to classified information. Rather, the Board need only make the kind
of determinations it routinely makes: whether the agency has given
the employee an opportunity to reply to its charges and whether its
notice was adequate to give the employee a meaningful opportunity
to respond.
61 M.S.P.R. at 531-32.
¶10 Although Alston held that section 7513 provides the employee with an
adequate opportunity to make a meaningful reply, it does not follow that “[t]hat
right . . . is . . . not [also] constitutional.” Gargiulo, 727 F.3d at 1186. That is,
Alston’s holding that the right to make a meaningful reply is embodied in section
7513 must be read consistently with Loudermill’s holding that the right to make a
meaningful reply is guaranteed by the Fifth Amendment. If merely providing the
employee with notice of the clearance action, without more, fails to provide the
employee with sufficient information to make an informed reply under section
7513(b), see Alston, 75 F.3d at 662, it also fails to provide the employee with
sufficient information to make a meaningful reply under the Fifth Amendment,
see Loudermill, 470 U.S. at 546.
¶11 I believe that the only logical conclusion that can be reached from
Loudermill and King v. Alston is that an appellant with a
constitutionally-protected property interest in employment cannot be indefinitely
suspended pending a security clearance determination without being afforded the
due process guaranteed by the Fifth Amendment and that the essential elements
of that constitutional due process are the notice and opportunity to respond
described in 5 U.S.C. § 7513 (b). I also believe that Gargiulo does not expressly
define constitutional due process as anything other than what the court said it was
in Alston. But even if it did, then I believe that the Board is obliged to follow
Alston pursuant to the Federal Circuit’s judicial practice wherein the precedential
decision of the court is the first decision that was issued unless overruled by an
en banc decision. See Bosley v. Merit Systems Protection Board, 162 F.3d 665 ,
672 (Fed. Cir. 1998).
8
¶12 Regardless of my disagreement with the majority on these issues, I concur
with the decision to sustain the appellant’s indefinite suspension because I
believe the record shows that the agency provided the appellant with notice and
opportunity to respond to the proposed indefinite suspension by providing him
with the specific basis for the suspension of his security clearance and by
delegating the proposed action to a deciding official with the authority to change
the outcome of a proposed indefinite suspension. Accordingly, the appellant was
afforded the minimum due process required by the Constitution. McGriff,
118 M.S.P.R. 89 , ¶ 33.
______________________________
Anne M. Wagner
Vice Chairman