Opposition Brief — Doe v. Webster

eae gta eA 8 Bt Sint © y lls 8 RSLS GEO be walt aes re 7

( ; y Supreme Court, US. |

, sale PILED [

Fs ‘ ee

j No. 86-1442 : 2 te

es

| JOSEPH F. SPANIOL, JR,

tf ie OOLERK Ce

ie eae

OCTOBER TERM, 1986 : cy

r, ob

> f 3

ig “i >

JOHN DOB, CROSS-PETITIONER | | 3 ; g

) RoBERT M. GATES, Ss oe

AcTING DIRECTOR OF CENTRAL INTELLIGENCE aa)

- . te

° a

<

Saye ON CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE at

8. . | UNITED STATES COURT OF APPEALS — =

FOR THE DISTRICT OF COLUMBIA CIRCUIT oe

MEMORANDUM FOR THE RESPONDENT aM

IN OPPOSITION hin a

CHARLES FRIED a8 Hi

Solicitor General et, TN

Department of Justice yin

: Washington, D.C. 20530 Cae

. UP c (202) 6383-2217

DAvip P. DOHERTY

General Counsel

‘Central Intelligence Agency

Washington, D.C. 20505

TABLE OF AUTHORITIES

Cases: Page

Bishop Vv. Wood, 426 U.S. 341 (1976) -..................... 3-4

Board of Regents v. Roth, 408 U.S. 564 (1972) ...... 2

Bollow v. Federal Reserve Bank, 650 F.2d 1093

(9th Cir. 1981), cert. denied, 455 U.S. 948

6: Re eg ens 2 A ON eS Oe 7,8

CIA ¥. Sima, 471 U.S. 168 (1966) ............................. 6

Cleveland Board of Education v. Loudermill, 470

| RESETS 2,3

Codd v. Velger, 429 U.S. 624 (1977)................-.--...... 3, 4

Cole v. Young, 351 U.S. 536 (1956).......................... 6

Dunlop v. Bachowski, 421 U.S. 560 (1975) ............ 8,9

Egan v. Department of the Navy, 802 F.2d 1563

(Fed. Cir. 1986), petition for cert. pending, No.

ee nadinpiawimsnentnec~ 11

Gonzalez v. United States, 348 U.S. 407 (1955)...... 9

Haig v. Agee, 453 U.S. 280 (1981) .....: Ee 6

Hewitt v. Helms, 459 U.S. 460 (1983) .................... 5

Hoska v. Department of the Army, 694 F.2d 270

GY. Bip ROR ee 8

King v. Hampton, 451 F.2d 247 (8th Cir.), aff’g

827 F. Supp. 714 (E.D. Mo. 1971) ....................... 8

Normile v. McFague, 685 F.2d 9 (1st Cir. 1982)... 8

Olsen v. Department of Commerce, 735 F.2d 558

BR REESE a SE ea Ee 8

Simmons Vv. United States, 348 U.S. 397 (1955).... 9

Walters v. National Ass’n of Radiation Survivors,

ee 6

Zeisel v. Pierce, 784 F.2d 405 (D.C. Cir. 1986)...... 8

Constitution, statutes, and regulation:

U.S. Const. Amend. V (Due Process Clause) ........ 2,6

Administrative Procedure Act, 5 U.S.C. (& Supp.

IIT) 551:

cach dnanionisibdlendaccntisvnnasinpsmsigsines

in snl ni shsead ocsaleisndciadnnnesousriens

en ciccacasnxenerschvenreshacmonnentedesie

2. | = eer

I I cn sncncveninnncan inns eensinnnceaannantants

SE I TR 6, 7, 8,

eI fiiciccininncicnsninninsinianhnmasdennniccmidininhs

5 U.S.C. 701 (a) (2)....

“IF © 0 00 WOW

II

Constitution, statutes, and regulation—Continued: Page

Civil Service Reform Act of 1978, 5 U.S.C. 7501.... 3

Intelligence Authorization Act for Fiscal Year

1987, Pub. L. No. 99-569, § 504, 100 Stat. 3198... 11

Labor-Management Reporting and Disclosure Act

of 1959, 29 U.S.C. 481:

I oc ccctinisenesisncesaisaconeticcaaseuiaes 9

Be II inciteccccsenccndivicncinniiannticacncmab eee. a 9

National Security Act of 1947, § 102(c), 50 U.S.C.

| ESOS IS pee ea OE DON 1, 3, 4, 6, 7, 8, 9, 10

Universal Military Training and Service Act

§ 6(j), 50 U.S.C. App. (Supp. II 1948) 456(j).. 9

MR I Shia hs ccknce thn eatin sas od a 11, la-2a

10 UU. (eee Til) 1604(e) (1) 10

Se I chs iniicaspssiceninspicinncnaei eke ee 10

CIA Headquarters Reg. 20-27 (Mar. 17, 1977):

| a eC men aon eee WS Pree 3,9

| EERE REO PME reas eh, ee SY 3,9

1 F 5| RE CLOSE Sr et wee 3,9

Miscellaneous:

Senate Comm. on the Judiciary, Administrative

Procedure Act: Legislative History, S. Doc. 248,

voun tee, BE Get, COO 5c 8

In the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1442

JOHN DOE, CROSS-PETITIONER

Vv.

ROBERT M. GATES,

ACTING DIRECTOR OF CENTRAL INTELLIGENCE

ON CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENT

IN OPPOSITION

In No. 86-1294, we filed a petition for a writ of

certiorari presenting the question whether the decision

of the Director of Central Intelligence to discharge

an officer or employee of the Central Intelligence

Agency (here, John Doe) pursuant to the Director’s

authority under Section 102(c) of the National Secu-

rity -Act of 1947, 50 U.S.C. 403(c), is judicially re-

viewable under the Administrative Procedure Act,

5 U.S.C. (& Supp. III) 701-706. Respondent John

Doe has now filed a cross-petition, claiming that the

review afforded him by the court of appeals does not

go far enough, because he is entitled to a fuller ex-

planation of the reasons for his dismissal (Cross-

Pet. 2). Because the cross-petition neither raises a

(1)

2

significant question of federal law nor demonstrates

a conflict with the decisions of this Court or among

the circuits, review by this Court is not warranted.

1. Doe maintains that he is entitled under the

Due Process Clause, the APA, and the CIA’s regula-

tions to a statement of the reasons for his dismissal

from the CIA. That claim does not warrant review

even if the government’s petition is granted. The

court of appeals remanded this case to the district

court precisely because the record did not reveal the

Director’s reason(s) for dismissing Doe (Pet. App.

25a, 32a). In these circumstances, it is difficult to

see how the relief Doe has sought in his cross-petition

differs from the relief he has already been awarded

under the judgment below. In any event, he is not

entitled to further information concerning the rea-

sons for his dismissal.

a. Relying on Cleveland Board of Education v.

Loudermill, 470 U.S. 582 (1985), Doe argues (Cross-

Pet. 8) that he was entitled to a statement of the

reasons for his discharge from the CIA, since it may

affect his liberty interest in obtaining future em-

ployment. Loudermill ruled that a “tenured public

employee is entitled to oral or written notice of the

charges against him, an explanation of the employer’s

evidence, and an opportunity to present his side of

the story” before he may be discharged (470 U.S. at

546). Doe was not a “tenured” CIA employee, how-

ever,, as the court of appeals correctly deter-

*Tenure rights are created by “existing rules or under-

standings” that stem from a source independent from the

Due Process Clause, such as a statute, regulation, or contract

(Loudermill, 470 U.S. at 546; Board of Regents v. Roth, 408

U.S. 564, 577 (1972) ). Nosuch authority gave Doe a property

right in continued employment with the CIA. The text of

3

mined,? and Doe does not argue to the contrary. Ac-

cordingly, Doe’s reliance on Loudermill is misplaced.

Doe argues that the hearing procedures necessary

before a tenured public employee may be discharged

also apply when an employee is entitled only to a

“name-clearing hearing’ (Pet. App. 31a). It is

doubtful that Doe has stated a claim that the govern-

ment has deprived him of a liberty interest by pre-

venting him from obtaining future employment, be-

cause his complaint did not allege that the CIA has

published any false or defamatory statements in con-

nection with his dismissal, and the failure to do so

ordinarily “dooms” a claim like Doe’s (Loudermill,

470 U.S. at 547 n.13; Bishop v. Wood, 426 U.S. 341,

Section 102(c) denies CIA personnel the qualified tenure

rights held by other civil service employees under the Lloyd-

LaFollette Act (now the Civil Service Reform Act of 1978,

5 U.S.C. 7501) ; the Agency’s regulations reiterate the terms

of the statute (CIA Headquarters Reg. §§ 20-27.j, 20-27.m,

20-27.m(8)(c) (Mar. 17, 1977); and Doe has alleged no

other source of a property right. Accordingly, s.ace Doe was

not deprived of a property right by his discharge, he had no

due process right to examine the Office of Security report or to

receive a statement of reasons for his dismissal. Codd Vv.

Velger, 429 U.S. 624, 628 (1977) (when a public employee

has no property interest in continued employment, “the ade-

quacy or even the existence of reasons for failing to rehire

him presents no federal constitutional question”).

2 Doe erroneously asserts (Cross-Pet. 6) that the court of

appeals never addressed his claim that he had a property

interest in continued employment with the CIA. The court

ruled that Doe would have no constitutional claim unless the

Director dismissed him because of a CIA policy barring the

employment of all homosexuals. Pet. App. 23a-28a (discussed

at 86-1294 Pet. 7-8). In so ruling, it necessarily rejected

Doe’s claim that his discharge unlawfully deprived him of a

property interest in continued employment with the CIA.

4

348 (1976)).° In any event, “the hearing required

where a nontenured employee has been stigmatized

in the course of a decision to terminate his employ-

ment is solely ‘to provide [him] an opportunity to

clear his name,’” not to convince his employer that

he should be reinstated (Codd v. Velger, 429 U.S.

624, 627 (1977)). As the court of appeals found

(Pet. App. 3la-32a), the procedures afforded Doe

gave him “an opportunity to refute the charges and

‘clear his name.’ ” Doe admitted that he was a homo-

sexual; he was given notice that the CIA was con-

cerned that the circumstances of his homosexuality

created a security risk;* he was given a chance to

8 Doe’s complaint alleged that the CIA will give him a posi-

tive recommendation to any future employer, but that he was

told by a CIA security officer and an assistant general counsel

that, if he applies for a job requiring a security clearance, the

CIA will inform the prospective employer that the CIA deter-

mined that Doe is a security risk because of his homosexuality.

Amended Complaint paras. 37-38 (C.A. App. 49-50) ; see also

Plaintiff’s Statement of Material Facts As To Which There

Is No Genuine Dispute paras. 53-54 (C.A. App. 16-17). The

court of appeals predicted that, “[a]s a practical matter,

Doe will be unable to obtain employment whenever a security

clearance is required,” because “we find it inconceivable that

other agencies [and private employers] would second-guess

such a determination by the CIA” (Pet. App. 30a & n.67).

But Section 102(c) in terms provides that dismissal does not

by itself bar a former CIA employee from obtaining other

employment by the federal government (86-1294 Pet. 24).

Given the sensitive nature of the CIA’s work, there is also no

reason to assume, as the court of appeals did, that private

employers will automatically follow the CIA’s determination.

There is no need to resolve these issues in this case, however,

since the court of appeals correctly held that the procedures

afforded Doe by the CIA were sufficient.

* The letter that Doe’s counsel submitted to the Director

stated that a CIA security officer had told Doe that the CIA

ace iacacaaemmmmmias

5

review and to respond to a factual report summariz-

ing his interviews and his polygraph results; and

he took advantage of the opportunity to dispel the

CIA’s concern that he was a security risk in a letter

from his counsel to the Director (id. at 4a; C.A.

App. 26-30). Doe has cited no decision suggesting

that a “name-clearing hearing” requires more.

Doe complains (Cross-Pet. 7) that he deserved a

fuller explanation of the facts to learn whether the

Director’s decision “was based on some misunder-

standing of the facts of his case or on an irrational

bias toward homosexuals.” But Doe was aware of

the nature of the Office of Security’s general con-

cerns, including “his unwillingness to identify his

homosexual partners” (C.A. App. 27). Moreover, in

an extensive letter to the Director, Doe’s counsel ad-

dressed his concerns that the Director might mis-

understand the facts of his case or harbor an irra-

tional bias towards homosexuals (id. at 26-30). Ac-

cordingly, Doe had a meaningful opportunity to clear

his name, even though the proceedings were informal.

Cf. Hewitt v. Helms, 459 U.S. 460, 472-474 (1983)

(prison officials need only conduct “an informal, non-

adversary review” of the information supporting

administrative confinement).

Doe concedes (Cross-Pet. 10-11) that there are cir-

cumstances where the CIA may properly withhold the

reasons for dismissing an employee because of na-

tional security concerns, but he maintains that the

Director should be required to justify such with-

holding on a case-by-case basis. The court of appeals

was concerned about “the duration and frequency of Mr.

Doe’s sexual activity, his failure to reveal his homosexuality

to the Agency for six years, and his unwillingness to identify

his homosexual partners.” C.A. App. 27.

_——

6

correctly noted (Pet. App. 23a-24a), however, that

Section 102(c) of the National Security Act of 1947,

50 U.S.C. 403(c), reflects Congress’s judgment that

the Director must have broad power to remove em-

ployees for the slightest security risk, and that even

his judgments about whether to withhold information

or explain the reasons why he is doing so are en-

titied to great deference. This judgment by Congress

is entitled to deference even on the question whether

due process requires disclosure (see Walters v. Na-

tional Ass’n of Radiation Survivors, 473 U.S. 305,

319-320 (1985)). Congress’s judgment is also emi-

nently reasonable. As this Court has recognized,

“Tijt is conceivable that the mere explanation of

why information must be withheld can convey valu-

able information to a foreign intelligence agency,”

which has “both the capacity to gather and analyze

any information that is in the public domain and

the substantial expertise in deducing the identi-

ties of intelligence sources from seemingly unimpor-

tant details.” CIA v. Sims, 471 U.S. 159, 178-179

(1985). These considerations are relevant in deter-

mining the process that is due under the Fifth

Amendment. See Haig v. Agee, 453 U.S. 280, 309

(1981); Cole v. Young, 351 U.S. 536, 546-547

(1956). It was thus hardly unreasonable for the

court of appeals to limit the disclosures necessary

for a proceeding whose sole purpose is to allow an

employee to clear his name.

b. Doe also contends (Cross-Pet. 8-9) that he has

a right under 5 U.S.C. 555(e) to a statement of the

reasons for his dismissal. More specifically, he

5 Section 555(e) of Title 5 provides:

Prompt notice shall be given of the denial in whole or

in part of a written application, petition, or other re-

7

claims a right under Section 555(e) to a copy of the

CIA Office of Security report to the Director, but

having made no such claim in the lower courts he

may not do so now. In any event, Doe’s argument

under Section 555(e) is insubstantial.°

quest of an interested person made in connection with

any agency proceeding. Except in affirming a prior de-

nial or when the denial is self-explanatory, the notice

shall be accompanied by a brief statement of the grounds

for denial.

* As we have explained in the petition (86-1294 Pet. 12-22),

the Director’s decision to dismiss a CIA employee under

Section 102(c) is not subject to review under the APA. Doe

therefore is not entitled under 5 U.S.C. 555(e) to a statement

of the reasons why he was discharged. Bollow vy. Federal

Reserve Bank, 650 F.2d 10938, 1101-1102 (9th Cir. 1981), cert.

denied, 455 U.S. 948 (1982) (the government is not required

by 5 U.S.C. 555(e) to provide a statement of reasons for an

employee’s dismissal when the decision to discharge him is

“committed to agency discretion by law” under 5 U.S.C.

701 (a) (2)).

But Section 102(c) shows that Doe’s claim lacks merit

even if the Director’s decision to dismiss him may be re

viewed under the APA. As we explained in the petition (at

14-15), Section 102(c), which was adopted the year after the

enactment of the APA, denies CIA personnel the rights that

Doe seeks, because it provides that the Director’s authority

to remove a CIA employee is exempt from the civil service

laws, which would otherwise have guaranteed Doe notice of

any charges and a statement of reasons for his removal. It

would be anomalous to find that 5 U.S.C. 555(e) guarantees

CIA personnel the same rights explicitly withheld from them

under a statute that is specifically addressed to the rights of

Agency employees, Section 102(c). Accordingly, 5 U.S.C.

555(e) cannot be read to require the Director to provide a

statement of reasons why he invoked his authority under

Section 102(c) to remove a CIA employee, even if the merits

8

Section 555(e) applies only to an “agency proceed-

ing,’ and an “agency proceeding” includes only

“rule-making,” “adjudication,” or “licensing” proce-

dures (5 U.S.C. 551(5), (7), (9), and (12)). While

the termination of an employee might conceivably be

argued to involve an adjudication, it is clear from

the statute that the APA hearing procedures do not

apply to disputes regarding the “selection or tenure

of an employee.” 5 U.S.C. 554(a) (2) ; Senate Comm.

on the Judiciary, Administrative Procedure Act: Leg-

islative History, S. Doc. 248, 79th Cong., 2d Sess.

202, 260-261 (1946) ; Normile v. McFague, 685 F.2d

9, 10 n.2 (1st Cir. 1982) (5 U.S.C. 555(e) is in-

applicable to the dismissal of a federal employee) ;

Bollow v. Federal Reserve Bank, 650 F.2d 1098,

1101-1102 (9th Cir. 1981), cert. denied, 455 U.S.

948 (1982) (5 U.S.C. 555(e) does not entitle a

federal employee to a statement of the reasons for

his removal) ; King v. Hampton, 451 F.2d 247, 249

(8th Cir.), aff’'g 327 F. Supp. 714, 716 (E.D. Mo.

1971); see Zeisel v. Pierce, 784 F.2d 405, 408 (D.C.

Cir. 1986) (dismissal of an employee is a matter

involving “tenure” under 5 U.S.C. 554(a)(2));

Olsen v. Department of Commerce, 7385 F.2d 558,

562 (Fed. Cir. 1984) (“[t]he discharge of an

employee involves his ‘tenure’” under 5 U.S.C. 554

(a)(2)); Hoska v. Department of the Army, 694

I'.2d 270, 273 (D.C. Cir. 1982).’ Accordingly, Doe

of the Director’s decision can itself be reviewed under the

APA.

For the reasons given in the text, however, Doe’s claim

lacks merit even if our construction of Section 102(c) is

erroneous.

7 None of the cases cited by Doe is to the contrary. Dunlop

v. Bachowski, 421 U.S. 560 (1975), on which Doe relies

9

had no right under 5 U.S.C. 555(e) to a statement

of reasons from the Director explaining his actions.

ce. Finally, Doe argues (Cross-Pet. 10) that the

CIA’s regulations entitle him to know why he was

dismissed and to examine the Office of Security re-

port, but that claim is frivolous. The pertinent regu-

lation expressly preserves the Director’s discretion

under Section 102(c) to remove an employee summar-

ily without issuing a statement of reasons. CIA Head-

quarters Reg. §§ 20-27.j, 20-27.m, 20-27.m(8) (c)

(Mar. 17, 1977) (reprinted in relevant part at Pet.

App. 19a-20a).® As the court of appeals succinctly

(Cross-Pet. 8), does not support his claim. Dunlop found

insufficient the Secretary of Labor’s statement of reasons for

refusing to file an action to set aside a labor union election,

on the ground that the statement did not satisfy the require-

ments of the Labor-Management Reporting and Disclosure

Act of 1959, 29 U.S.C. 482(a) and (b) (421 U.S. at 573-

574). That statute is not at issue in this case, and, in con-

trast to it, the relevant statute, Section 102(c) of the National

Security Act of 1947, 50 U.S.C. 403(c), certainly does not

expressly or impliedly require a statement of reasons for an

employee’s removal.

Doe’s reliance (Cross-Pet. 9) on Simmons vy. United States,

348 U.S. 397 (1955), and Gonzalez v. United States, 348 U.S.

407 (1955), is also misplaced. Neither case involved 5 U.S.C.

555(e). Instead, those cases dealt with the requirements of

an entirely different statute, Section 6(j) of the Universal

Military Training and Service Act, 50 U.S.C. App. (Supp.

II 1948) 456(j), which required a hearing on “ ‘the charac-

ter and good faith’” of a claim of conscientious objector

status (Simmons, 348 U.S. at 403 (quoting statute) ). In this

case, the relevant statute, Section-102(c), does not require

the Director to find any facts or to conduct a hearing before

an employee may be removed.

8 Doe argues (Cross-Pet. 10) that the Director’s authority

is limited by the Agency’s regulations to those circumstances

10

put it (Pet. App. 20a), “[w]Je cannot imagine how

the CIA could have more plainly expressed its intent

to protect the discretion granted it by section 102

( c) ”

2. Doe asserts (Cross-Pet. 7) that the court of

appeals’ decision threatens “thousands of federal em-

ployees,” who, he contends, may be summarily re-

moved under that decision by “the mere invocation

of the phrase ‘national security.’” Doe has clearly

exaggerated the effect of the court of appeals’ deci-

sion on federal employees.

The court of appeals emphasized that judicial re-

view is limited because of the broad discretion vested

in the Director to remove CIA personnel under Sec-

tion 102(c) and because the sensitive nature of the

CIA’s functions and the national security interests

at stake dictate that judicial oversight of the Direc-

tor’s removal decisions be particularly circumscribed

(Pet. App. 23a-24a). Neither consideration is pres-

ent for civil service personnel not employed within

the intelligence community.® In fact, a different stat-

where urgency is required. As the court of appeals explained

(Pet. App. 20a-21a), however, the CIA’s regulations impose

no such requirement. In any event, the Director’s affidavit

indicates that he did “exercis[e] my discretion under the

authority granted by section 102(c) * * * and pursuant to

HR 20-27m” to discharge an employee “immediately” when

the “circumstances of a case * * * make the[] [normal sepa-

ration] procedures impractical or undesirahle”’ (C.A. App.

45 (quoting regulation) ). Doe is incorrect in asserting that

the Director did not.

___® There are other statutes similar to Section 102(c), but

they are also limited to employees of other intelligence

agencies. 50 U.S.C. 833(a) (National Security Agency) ;

10 U.S.C. (Supp. III) 1604(e)(1) (Defense Intelligence

11

ute, 5 U.S.C. 7532, defines the procedures for the

separation on national security grounds of such civil

service employees, and it provides them with the very

procedures that petitioner deems necessary (App.,

infra, 1a-2a).” Accordingly, although we believe that

the court of appeals’ decision will have a serious and

damaging effect on the intelligence community, there

is no substance to Doe’s fear that its ruling will be

applied beyond those confines.

Agency); Intelligence Authorization Act for Fiscal Year

1987, Pub. L. No. 99-569, §504, 100 Stat. 3198 (civilian

intelligence employees or officers of a military department) ;

see 86-1294 Pet. 18-19 & nn.16-17 (reprinting statutes).

Moreover, under these statutes the Secretary of Defense may

summarily discharge an employee only when the Secretary

finds that other procedures cannot be followed consistent

with the national security.

1°In Department of the Navy v. Egan, petition for cert.

pending, No. 86-1552, we have sought review of a decision of-

the Federal Circuit holding that the Merit Systems Protec-

tion Board may, in the course of reviewing the removal of an

employee for failing to maintain a required security clear-

ance, review the merits of the agency’s underlying decision

to revoke a security clearance. (We have provided Doe’s

counsel with a copy of our petition in Egan.) The questions

in Egan and in this case are quite distinct. In Egan, we

agree that Egan’s removal was subject to review to determine,

inter alia, whether he received procedural due process; we

contest only the MSPB’s right to second guess the clearance

determination on the merits. 86-1552 Pet. 19-20. Here, our

contention is that another statute specifically bars review of

either the merits or the procedures leading to removal. The

Federal Circuit in Egan specifically recognized that the intel-

ligence agencies, such as the CIA, are governed by their own

statutes, which exempt them from the procedural rights

applicable to civil service employees generally. Egan v. De-

partment of the Navy, 802 F.2d 1563, 1567 n.2 (1986).

12

It is therefore respectfully submitted that the

cross-petition for a writ of certiorari should be

denied.

CHARLES FRIED

Solicitor General

DAVID P. DOHERTY

General Counsel

Central Intelligence Agency

APRIL 1987

APPENDIX >

5 U.S.C. 7532 provides as follows:

(a) Notwithstanding other statutes, the head

of an agency may suspend without pay an

employee of his agency when he considers that

action necessary in the interests of national se-

curity. To the extent that the head of the agency

determines that the interests of national security

permit, the suspended employee shall be notified

of the reasons for the suspension. Within 30

days after the notification, the suspended em-

ployee is entitled to submit to the official desig-

nated by the head of the agency statements or

affidavits to show why he should be restored to

duty.

(b) Subject to subsection (c) of this section,

the head of an agency may remove an employee

suspended under subsection (a) of this section

when, after such investigation and review as he

considers necessary, he determines that removal

is necessary or advisable in the interests of na-

tional security. The determination of the head

of the agency is final.

(c) An employee suspended under subsection

(a) of this section who—

(1) has a permanent or indefinite appoint-

ment;

'(2) has completed his probationary or trial

period; and

(3) is a citizen of the United States;

is entitled, after suspension and before removal,

to—

(1a)

2a

(A) a written statement of the charges

against him within 30 days after suspen-

sion, which may be amended within 30 days

thereafter and which shall be stated as spe-

cifically as security considerations permit;

(B) an opportunity within 30 days there-

after, plus an additional 30 days if the

charges are amended, to answer the charges

and submit affidavits;

(C) a hearing, at the request of the em-

ployee, by an agency authority duly consti-

tuted for this purpose;

(D) a review of his case by the head of the

agency or his designee, before a decision ad-

verse to the employee is made final; and

(E) a written statement of the decision of

the head of the agency.

W U. S. GOVERNMENT PRINTING OFFICE; 1987 181483 40306