Opposition Brief — Krc v. United States Information Agency

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

yh — ~ = ws . 0 Y i 5

} } 2

No. 93-599 ~~ JAR

Jn the Supreme Court of the United States

OCTOBER TERM, 1993

JAN KRC, PETITIONER

Vv.

UNITED STATES INFORMATION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DREw S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

BARBARA L. HERWIG

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

. ma rt

QUESTIONS PRESENTED

1. Whether the court of appeals’ decision after remand

was consistent with its decision before remand.

2. Whether the courts below correctly determined

that summary judgment on petitioner’s equal protection

claim was appropriate.

3. Whether the United States Information Agency’s

(USIA) termination of petitioner’s limited appointment

to the Foreign Service comported with due process.

4. Whether the USIA’s decision to terminate a lim-

ited appointment to the Foreign Service pursuant to

Section 611 of the Foreign Service Act of 1980 (Act), 22

U.S.C. 4011, is “committed to agency discretion by law”

within the meaning of 5 U.S.C. 701(a)(2).

5. Whether the courts below correctly concluded that

the Foreign Service Grievance Board lacked jurisdiction

to review petitioner’s challenge to the termination of his

limited appointment under Section 611 of the Act,

because terminations under Section 611 are expressly

excluded from the definition of “grievance[s]” over which

the Board has jurisdiction, 22 U.S.C. 4131(b)(3).

(I)

TABLE OF CONTENTS

Page

SII Dhinlidiiiaddithdiiaesiciibdchshiadednidiidocadaiimsdiemoeeccsuceiies 1

ERS ASE IES ERS nt a ae EO a 1

AE SR ll A EAR a A ae 2

ENTER ESE AEE a AOL aa 12

REE ERSS LR ACES SA 23

TABLE OF AUTHORITIES

Cases:

Berenyi v. District Director, INS, 385 U.S. 630 (1967) .. 16

Board of Regents v. Roth, 408 U.S. 564 (1972) .............. 18

Cole v. Young, 351 U.S. 586 (1956) ..........cccccccccccceececeeeeee 23

Department of the Navy v. Egan, 484 U.S. 518 (1988)... 5, 7,

14, 23

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

Cir. 1986), rev’d, 484 U.S. 518 (1988) .............ccceeeees 5, 7, 14, 23

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ......... 16

Hill v. Department of the Air Force, 844 F.2d 1407

(10th Cir.), cert. denied, 488 U.S. 825 (1988) ................ 23

Paul v. Davis, 424 U.S. 693 (1976) ........cccccccecececceceeeeeeee 19

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ........ 10, 15

Sampson v. Murray, 415 U.S. 61 (1974) coccccccccecceccoceecess 19

United States v. Doe, 465 U.S. 605 (1984) .o...cccccccccccecees 16

United States v. Reliable Transfer Co., 421 U.S. 397

RENE I SS i 16

Webster v. Doe, 486 U.S. 592 (1988) .........cccccccccecceceeees 15, 20, 21

Wisniewski v. United States, 353 U.S. 901 (1957) .......... 12

Constitution and statutes:

U.S. Const. Amend. V (Due Process Clause) ................... 6, 18, 20

Administrative Procedure Act, 5 U.S.C. 551 et seq. ........ 6

i ccouneuens 8, 21

Foreign Service Act, 22 U.S.C. 3901 et seq.:

§ 101(a)(4), 22 U.S.C. 3901(a)(4) .......cccccccccccesceseeeceees 22

(III)

Statutes—Continued: Page

On I 18

DF ey Be Case MOE. cccccoscvestoscesoesecnssscessinserniines 21

Be SIE TEED itis cn adenicntndemesoniienctckennbedsimemesians 2

§$ 610(a)(1), 22 U.S.C. 4010(a)(1) .........ccccccscecsesceeereees 18

§ 610(a)(2), 22 U.S.C. 4010(a)(2) .0.......ccceceeee 2, 8, 11, 13, 22

§ 610(a)(2)(B), 22 U.S.C. 4010(a)(2)(B) .........cccccceeeeee 13

Dy Bee I NEE cchcttarettienenniernicomnedieens 2, 5, 8, 13, 21, 22

$ 1101(b)(3), 22 U.S.C. 4131(D)(B) 2.0.0.0... eeeeeeceeeeeeeees 5, 13, 23

Bo Be see 14

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

GED Socidandeiinsiatesdtacentnectsehneandiinbicenmisdmsunecedaiadiinsinbesineadia 8, 21

eee ED sevsdcndeessictrepastnsndinilesebscntccidiiontbaniniieuses 21, 22

Se SE NEED wesiccsiosnciccscdimsatinititicechnittadiittentiiistitbterest 10

Miscellaneous:

OB a Te, CR I ancestries 20

3 Foreign Affairs Manual (1984) .................ccccccccsseeeceeeees 18

In the Supreme Court of the Giuted States

OCTOBER TERM, 1993

No. 93-599

JAN KRC, PETITIONER

UNITED STATES INFORMATION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals after remand

(Pet. App. 5a-34a) is reported at 989 F.2d 1211. The

opinion of the court of appeals before remand (Pet.

App. 35a-54a) is reported at 905 F.2d 389. The opinions

and orders of the district court after remand (Pet.

App. 55a-68a) and before remand (Pet. App. 69a-83a,

86a-90a) are unreported. The decisions of the Foreign

Service Grievance Board (Pet. App. 92a-100a and 101a-

119a) are also unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 9, 1993. A petition for rehearing was denied on

July 23, 1993. Pet. App. 4a. The petition for a writ of

certiorari was filed on October 21, 1993. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. a. In September, 1982, petitioner entered the

Foreign Service under a limited appointment as an

officer candidate. In 1983 he was posted to Belgrade,

Yugoslavia, as a Foreign Service Information Officer

for the USIA. During this posting, petitioner en-

gaged in homosexual conduct with numerous other

people, including two other Foreign Service officers,

the assistant military attache of a non-NATO coun-

try, and two nationals of a Communist country.

Petitioner revealed that conduct to a USIA security

officer during a debriefing at the end of his posting.

Pet. App. 6a, 37a, 70a-71a, 92a-93a.'

After an investigation into petitioner’s homosexual

conduct in Belgrade, the Personnel Director of

USIA, Angie Garcia, notified petitioner in October,

1984, that she was recommending that his limited

appointment be terminated pursuant to Sections 610

and 611 of the Foreign Service Act, 22 U.S.C. 4010,

4011, based on his misconduct in violating USIA’s

fraternization policy. In a subsequent meeting with

1 During petitioner’s posting in Belgrade, USIA received

secret information concerning petitioner, about which he was

also questioned during his debriefing. Pet. App. 6a. The in-

formation was filed under seal with the district court and the

court of appeals and is available to this Court upon request.

Ibid.

2 Section 611 of the Foreign Service Act, 22 U.S.C. 4011,

provides in pertinent part:

Except as provided in section 4010(a)(2) of this title, the

Secretary [of State] may terminate at any time the

appointment of any member of the Service serving under a

limited appointment * * *.

The provision to which Section 611 refers, Section 4010(a)(2) of

Title 22 (§ 610(a)(2) of the Act), provides in relevant part:

Garcia, petitioner claimed that he had not been told of

that policy. Based on that claim, Garcia withdrew the

proposed termination in December, 1984, and issued,

instead, a letter of reprimand “based on the poor

judg{Jment and indiscretion demonstrated by [peti-

tioner’s] actions.” Pet. App. 6a; see also id. at 38a,

71a, 93a-94a, 102a-103a.

In January, 1985, the USIA Director of Security,

Bernard Dowling, told Garcia in a written memoran-

dum that he would “not approve any foreign service

assignment of [petitioner] because of the strong

security risk involved.” Pet. App. 6a. Dowling’s

memorandum stated:

I have again reviewed [petitioner’s] security file,

particularly his actions at his last overseas post.

As you know, he submitted a signed statement to

the Office of Security on August 21, 1984 wherein

he admitted engaging in homosexual relationships

with eight different men, including two citizens of

Yugoslavia while he was serving in Belgrade,

Yugoslavia.[*?] By engaging in such conduct, he

not only showed poor judgment and lack of

discretion, he also committed acts which we feel

A member of the Service who * * * is assigned to a salary

class in the Foreign Service Schedule and who * * * (B) if

separation is to be by reason of misconduct, is serving

under a limited appointment, shall not be separated from

the Service under this section until the member has been

granted a hearing before the Foreign Service Grievance

Board and the cause for separation established at such

hearing * * *.

® It appears that petitioner admitted to engaging in homo-

sexual conduct with five, not eight, people while in Belgrade.

91-5339 Gov’t C.A. Br. 5.

make him a security risk in any foreign service

assignment. Specifically, he admitted that he had

been open about his homosexuality with a number

of other Yugoslav nationals with whom he social-

ized, including those who would obviously be

relied upon as informants by hostile intelligence

services. Therefore, to allow [petitioner] to serve

in an overseas capacity would be an intolerable

security risk since his homosexuality would make

him an extremely likely target for hostile intelli-

gence approaches. Also, in some seventy foreign

countries homosexual acts are illegal and punish-

able by law. Therefore, by [sic] simply engaging

in homosexual activity while overseas would place

him in violation of the laws of most foreign

countries thus further increasing his vulner-

ability to hostile approaches. Consequently, I will

not approve any foreign service assignment of

[petitioner] because of the strong security risk

involved.

This should not preclude him from a domestic

assignment where possible hostile intelligence ap-

proaches are less bold and can be more carefully

monitored and controlled.

Pet. App. 103a.

On January 25, 1985, Garcia notified petitioner that

she was terminating his limited appointment “by

authority of Section 611 [of the Foreign Service

Act].” Pet. App. 40a. She explained that, because of

the Office of Security’s determination that he could

not receive security clearance for any overseas

assignments, there was no need for his services in the

Foreign Service. Jd. at 104a. She emphasized that

~ the termination of petitioner’s limited appointment

was “not a disciplinary or performance-based action.”

Id. at 40a.

The termination of petitioner’s limited appointment

took effect on March 2, 1985. Pet. App. 7a. The next

day, petitioner was appointed to a domestic civil

service appointment at a higher salary. Jd. at 38a.

Petitioner remained in this appointment until

October, 1993, when he secured a limited Foreign

Service appointment in the Department of State. Pet.

3n.1.

b. Petitioner filed a complaint with the Foreign

Service Grievance Board (FSGB or Board) challeng-

ing the termination of his limited appointment. See

Pet. App. 7a. In March, 1987, the Board ordered the

USIA to reinstate petitioner with a five-year appoint-

ment as an officer candidate and to remove the

restriction withholding security clearance from

petitioner for overseas assignments. /d. at 118a.

The Board first determined that it had jurisdiction

over petitioner’s complaint. Pet. App. 107a-109a. The

Board deemed it unnecessary to decide whether, as

USIA argued, the termination of petitioner’s limited

appointment was unreviewable because it was made

pursuant to Section 611 of the Act. See 22 U.S.C.

4131(b)(3) (excluding “the termination of a limited

appointment under section [6]11 of th[e] [Act]” from

the definition of “grievance[s]” over which the Board

has jurisdiction). In the Board’s view, even if it

lacked jurisdiction to review USIA’s decision to ter-

minate the appointment, it had authority to review

USIA’s decision to deny petitioner security clearance

for overseas assignments under the Federal Circuit’s

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

1563 (1986), rev’d, 484 U.S. 518 (1988). Pet. App. 107a-

109a. If the denial of overseas security clearance was

erroneous, the Board reasoned, then so too was the

termination of petitioner’s limited appointment, since

the termination “was based solely on the determina-

tion of the [USIA] Office of Security not to clear

[petitioner] for an overseas assignment.” /d. at 106a.

Applying the standard of review adopted by the

Federal Circuit in Egan, the Board determined that

there was no “rational nexus” between the USIA’s

denial of overseas security clearance to petitioner and

the evidence on which the denial was based. Pet. App.

115a; see also id. at 109a. The Board credited

petitioner’s claim that he had not been told of USIA’s

fraternization policy at the time of his posting to

Belgrade. /d. at 1lla-112a. The Board also credited

petitioner’s assertion that “if the practice of homo-

sexuality were prohibited in a country of assignment,

he would be prepared to remain sexually inactive

while there.” Jd. at 114a. Based on those assertions,

the Board concluded that there was no reason to

believe that petitioner would violate the laws re-

garding homosexual conduct in any foreign country

to which he was posted or that he posed a security

risk. /d. at 113a-115a.

2. The USIA commenced this action in the United

States District Court for the District of Columbia,

seeking to set aside the Board’s order. Petitioner

counterclaimed for enforcement of the order. In

addition, petitioner claimed that the USIA’s failure to

comply with the order violated the Administrative

Procedure Act (APA), 5 U.S.C. 551 et seq., and

deprived him of liberty and property without due

process. See Pet. App. 39a. In an amended counter-

claim, petitioner also alleged a violation of the equal

protection component of the Due Process Clause,

eaten

interference with his employment opportunities, and

unlawful reprisal. /bid.; see also id. at 52a.

On April 20, 1989, the district court granted the

USIA’s motion to set aside the Board’s order. Pet.

App. 69a-83a. It held that the Board “did not have the

authority to review USIA’s revocation of [peti-

tioner’s] security approval for overseas service.” /d.

at 79a. In so holding, the court relied on this Court’s

decision in Department of the Navy v. Egan, 484 U.S.

518 (1988), which was handed down after the Board’s

decision and which reversed the decision of the

Federal Circuit upon which the Board had relied. See

Pet. App. 39a.‘ The court also dismissed petitioner’s

claim that he had been deprived of a property interest

without due process. /d. at 8la. Subsequently, on

May 31, 1989, the court dismissed petitioner’s claims

that he had been deprived of liberty without due

process and that USIA’s action violated the APA. /d.

at 86a-90a.

3. The court of appeals affirmed all of the district

court’s rulings. It remanded the case to the district

court, however, for consideration of the claims in

petitioner’s amended counterclaim that the district

court had not yet considered. Pet. App. 35a-36a.

The court of appeals held, first, that the Board did

not have jurisdiction to review either the termination

of petitioner’s limited appointment or the security

clearance decision underlying the termination. Pet.

‘ In Egan, afovernment employee was removed from his

position because he was denied the security clearance necessary

for that position. 484 U.S. at 520-523. This Court held that,

although the Merit Systems Protection Board could review the

removal, the Board could not review the underlying denial of

security clearance. /d. at 525-534.

App. 40a-44a. The court determined that the termina-

tion of petitioner’s limited appointment was not a

“grievance” within the Board’s jurisdiction, because

it was “legitimately classified under § 611,” rather

than under Section 610(a)(2) of the Act. The court

adopted the Board’s finding that the termination of

petitioner’s appointment was not made “by reason of

misconduct” within the meaning of Section 610(a)(2)

but instead “was based solely on the determination of

the Office of Security not to clear [petitioner] for an

overseas assignment.” Pet. App. 41a. However, the

court rejected the Board’s theory that, even if it

lacked authority to review the termination itself, it

could nevertheless review the security clearance

decision underlying the termination. /d. at 43a.

The court of appeals affirmed the dismissal of

petitioner’s APA claim. It held that the USIA’s

termination of petitioner’s limited appointment was

not reviewable under the APA because it was

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

701(a)(2). The court observed that the provision under

which petitioner’s appointment was terminated, Sec-

tion 611 of the Foreign Service Act, “imposes fewer

shackles on the agency head’s decisionmaking than

the corresponding provision in the 1947 National

Security Act, which the Supreme Court [in Webster

v. Doe, 486 U.S. 592 (1988)] found precluded judicial

review.” Pet. App. 45a.

The court of appeals also affirmed the dismissal of

petitioner’s claims that he had been deprived of

property and liberty without due process. Pet. App.

47a-5la. The court observed that, to demonstrate

deprivation of a protected liberty interest, petitioner

was required to “show that the agency altered his

status in a tangible way, and that an imposition of

a ee

stigma or injury to reputation accompanied this

change in status.” Jd. at 47a. The court explained

that petitioner’s status had not changed in a constitu-

tionally cognizable way because, after his appoint-

ment was terminated, he was hired by USIA in a

different capacity with a pay increase. Ibid. Peti-

tioner had not shown damage to his reputation, the

court determined, because “USIA’s termination

letter explicitly stated that he was not disqualified

from any future domestic government employment,

and the record contains no evidence that [petitioner’s]

attractiveness to potential employers has been

reduced.” Jd. at 48a (citations and internal quotation

marks omitted). The court further held that peti-

tioner’s “circumscribed” property interest in his

limited appointment had been terminated by proce-

dures, and under a standard, that satisfied due

process. /d. at 49a-50a.

4. On remand, petitioner claimed that USIA had

deprived him of equal protection by terminating his

limited appointment on the basis of his sexual

orientation. Pet. App. 56a-57a. The district court

granted summary judgment for USIA on that claim.

Id. at 57a-59a. The court reaffirmed its prior

determination that “USIA did not deny [petitioner]

security clearance approval for overseas service

because of his homosexuality, but because of the

particular homosexual conduct that he engaged in

while in Belgrade.” J/d. at 57a (internal quotation

marks omitted).°

5 The district court also granted summary judgment for

USIA on petitioner’s claim of interference with prospective

employment. That claim was based on a letter from USIA to

the Defense Industrial Security Clearance Office (DISCO) re-

5. The court of appeals again affirmed all of the

district court’s rulings, this time by a divided vote.

Pet. App. 5a-34a. A majority of the panel upheld the

district court’s award of summary judgment to USIA

on petitioner’s equal protection claim. Jd. at 8a-12a.

The court of appeals observed that, by analogy to

the framework for “mixed motive” Title VII claims

outlined in Price Waterhouse v. Hopkins, 490 U.S.

228 (1989), petitioner could not prevail on his equal

protection claim, even if his sexual orientation played

some role in USIA’s termination of his appointment

and constituted an impermissible factor, if USIA

could prove that it “would have made the same

decision even in the absence of the impermissible

factor.” Pet. App. 9a. The court determined that such

proof had been established by undisputed evidence.

Thus, the court found that “[iJn this case, it is clear

that the USIA would have terminated [petitioner]

from the Foreign Service on the basis of his conduct,

i.e., regardless of his sexual orientation.” bid. The

court also found it “beyond genuine dispute that the

sponding “yes” to the question whether USIA had any

“adverse information” on petitioner. Relying on the exception

in the Federal Tort Claims Act precluding liability for

“claim[s] arising out of * * * interference with contract rights,”

28 U.S.C. 2680(h), the court held that petitioner’s claim was

barred by sovereign immunity. Pet. App. 60a-61a. In the alter-

native, the court held that USIA’s response to DISCO’s inquiry

was not actionable because it “was no more than an accurate

response to an authorized inquiry.” Jd. at 62a (footnote omit-

ted). Finally, the district court held that it lacked jurisdiction

over petitioner’s reprisal claim. /d. at 63a-67a.

The court of appeals affirmed the dismissal of petitioner’s

interference and reprisal claims, Pet. App. 12a-15a, and they

are not at issue in this Court.

USIA would have terminated the Foreign Service

appointment of an officer who had heterosexual

escapades with the military attache of a neutral

country and with nationals of a Communist country.”

Such conduct, the court remarked, “reflects ap-

pallingly poor judgment and virtually invites an

approach from a hostile intelligence service.” I[bid.

The court also observed that “[petitioner] can point to

no pattern, or even instance, of USI[A] disciplinary

action to suggest that the agency discriminated

against him in his security review on account of his

homosexuality.” Jd. at 1la.

The majority then addressed the dissent’s asser-

tion that its analysis of petitioner’s equal protection

claim was inconsistent with the court’s decision when

petitioner had previously been before it (Krc I). Pet.

App. 10a n.*. In Kre I, the majority explained, the

court of appeals had held that petitioner’s limited

appointment had not been terminated for “mis-

conduct” within the meaning of Section 610(a)(2) of

the Act. Pet. App. 10a n.*. But the majority observed

that “conduct that is not misconduct can have an

adverse national security implication” and thus be

relevant “to the USIA’s determination about an

individual’s fitness for Foreign Service duty over-

seas.” Ibid. That was the case here: “[{S]everal

factors, especially [petitioner’s] ill-advised conduct,

contributed to the agency’s decision to terminate

[petitioner’s] Foreign Service appointment.” Ibid.

Even if one of those factors was petitioner’s sexual

orientation, the majority found it “perfectly clear

that the USIA would have terminated [petitioner’s]

Foreign Service appointment based solely upon the

legitimate reasons it gave—i.e., [petitioner’s] sexual

indiscretions in combination with the Secret informa-

tion regarding him.” /d. at lla n.*.

Judge Vald dissented from the majority’s affir-

mance of summary judgment for USIA on petitioner’s

equal protection claim. Pet. App. 15a-34a.° She

believed that the court of appeals in Kre J decided that

the termination of petitioner’s limited appointment

“stemmed from [petitioner’s] sexual orientation, not

from any lack of judgment evinced by his sexual

conduct.” Jd. at 15a. She also believed that, in any

event, there was a genuine dispute of fact whether

petitioner’s sexual orientation played a role in the

termination of his appointment. Jd. at 23a-338a.

ARGUMENT

1. Petitioner first contends (Pet. 12) that the court

of appeals’ decisions in Kre I and Krc II “are squarely

in conflict.” That contention does not merit further

review.

a. This Court ordinarily does not grant review to

resolve intra-circuit conflicts. Wisniewski v. United

States, 353 U.S. 901, 902 (1957). In addition, the

asserted conflict between Arc I and Krc II does not

involve any issue of broad importance. On the

contrary, the alleged conflict is entirely case-specific:

whether petitioner’s limited appointment in the For-

eign Service was terminated because of his conduct or

because of his sexual orientation. That issue would

not warrant further review even if it were the subject

of a conflict in the courts below.

6 Judge Wald also dissented from the majority’s affirmance

of the award of summary judgment for USIA on petitioner’s

interference-with-employment claim. She concurred, however,

in the affirmance of the district court’s dismissal of the reprisal

claim. Pet. App. 19a n.3.

b. In any event, Kre I and Kre II do not conflict.

The two decisions involved different issues, and the

court of appeals resolved those issues in a consistent

manner.’

i. The issue in Kre J was whether the Foreign Ser-

vice Grievance Board had jurisdiction over petition-

er’s challenge to the termination of his limited

appointment. The resolution of that issue depended

on the reason for the termination. If petitioner’s ap-

pointment was terminated “by reason of misconduct,”

then it was a termination under Section 610(a)(2) of

the 1980 Foreign Service Act, 22 U.S.C. 4010(a)(2)(B),

which the Board had jurisdiction to review. On the

other hand, if petitioner’s appointment was termi-

nated for some reason other than misconduct, then it

was properly classified as a termination under

Section 611 of the Act, which the Board lacked

authority to review. 22 U.S.C. 4131(b)(3).

The court of appeals in Are J held that petitioner’s

appointment was not terminated because of “mis-

conduct.” Instead, the court determined, the term-

ination was based on the Office of Security’s decision

to revoke petitioner’s security clearance for overseas

assignments; it was not based on whether petitioner

had “violated a canon of conduct governing Foreign

Service officers.” Pet. App. 41a. The court’s deter-

mination was consistent with the Board’s finding that

petitioner’s termination “was based solely on the

determination of the [USIA] Office of Security not to

7 The court of appeals in Kre I] specifically addressed the

asserted conflict and decided that no such conflict exists. Pet.

App. 10a n.*. Moreover, the D.C. Circuit’s denial of rehearing

en banc reflects the full court’s judgment that there is no

conflict requiring resolution. /d. at 2a.

clear [petitioner] for an overseas assignment.” /d. at

106a.

The distinction between the termination of peti-

tioner’s limited appointment, on the one hand, and the

security decision that led to the termination, on the

other hand, is a meaningful one. As the court in Kre /

held in a ruling that petitioner does not challenge in

this Court, the Board had no jurisdiction to review

USIA’s revocation of overseas security clearance.

Pet. App. 42a-44a. That holding follows from this

Court’s decision in Egan, which held that, even

though the Merit Systems Protection Board (MSPB)

had authority to review the removal of a government

employee, it lacked authority to review the denial of

security clearance that led to the employee’s removal.

484 U.S. at 525-534."

8 As the court of appeals recognized, “Egan does not

squarely control the FSGB’s authority here,” because the

FSGB’s authority derives from a different statute than the one

that governs the MSPB’s authority to review personnel actions,

and because this case involves a modification, rather than a

denial, of a security clearance. Pet. App. 42a-43a. Nonetheless,

the court of appeals correctly determined that Egan is instruc-

tive here for two reasons. First, “[t]he nature of USIA’s deci--———

sion [modifying petitioner’s security clearance] * * * is analo-

gous to the Navy’s decision in Egan,” because both represented

the agency’s “[assessment] whether, under compulsion of cir-

cumstances or for other reasons, [petitioner] might compromise

sensitive information.” Jd. at 43a, quoting Egan, 484 US. at

528 (some bracketed material supplied by court of appeals;

some bracketed material added). Second, the FSGB, like the

MSPB, “does not appear to be the kind of inside expert body

that, Egan suggested, might be qualified to review the

substance of the agency’s [security] decision.” Pet. App. 43a;

see 22 U.S.C. 4135(a) (FSGB composed of “independent” citi-

zens “who are not employees of the Department [of State] or

members of the [Foreign] Service”).

ii. Unlike the court of appeals in Kre I, the court of

appeals in Kre IJ did address the question whether

USIA’s decision to revoke petitioner’s overseas secu-

rity clearance was based on conduct. That issue was

before the court because of petitioner’s equal pro-

tection challenge to USIA’s decision. Cf. Webster v.

Doe, 486 U.S. 592, 603-604 (1988).

The court in Kre IJ held that USIA’s security

clearance decision was based on his sexual conduct,

and not on his sexual orientation. That holding

rested on the undisputed evidence “that the USIA

would have terminated the Foreign Service appoint-

ment of an officer who had heterosexual escapades

with the military attache of a neutral country and

with nationals of a Communist country,” Pet. App. 9a,

and the lack of evidence of any “pattern, or even

instance, of USI[A] disciplinary action to suggest

that the agency discriminated against [petitioner] in

his security review on account of his homosexuality.”

Id, at lla. The holding in Kre II concerning the

reason for the security clearance decision thus

plainly did not conflict with the holding in Kre J on

the different issue of the reason for the termination of

petitioner’s limited appointment.

2. Petitioner next contends (Pet. 15-17) that the

courts below erred in granting summary judgment in

favor of USIA on his equal protection claim. That

fact-bound contention does not warrant further

review.

Petitioner criticizes the court of appeals for

relying on Price Waterhouse to determine the

burdens of proof on his equal protection claim on the

ground that Price Waterhouse was not cited in the

USIA’s briefs. Pet. 15. Petitioner does not challenge

the court of appeals’ determination that Price Water-

house provides the appropriate framework for assess-

ing his claim. See Pet. App. 8a-9a. Instead, petitioner

challenges only the court of appeals’ determination

that there was no genuine dispute that he was denied

overseas security clearance because of his sexual

conduct and not because of his sexual orientation.

The district court, however, also determined that

“t]he government did not deny [petitioner] security

clearance approval for overseas service because of his

homosexuality, but because of the particular homo-

sexual conduct that he engaged in while in Belgrade.”

Pet. App. 82a-83a; see also id. at 57a. Thus, at bottom

petitioner’s challenge to the award of summary

judgment is based on his disagreement with findings

of fact concurred in by both courts below. This Court

generally does not review such challenges, see, e.g.,

Goodman vy. Lukens Steel Co., 482 U.S. 656, 665

(1987); United States vy. Doe, 465 U.S. 605, 614 (1984);

United States v. Reliable Transfer Co., 421 U.S. 397,

401 n.2 (1975); Berenyi v. District Director, INS, 385

U.S. 630, 635 (1967), and petitioner provides no reason

for the Court to depart from that practice in this case.

Nor does the partial dissent in Are // suggest any

need for review by this Court. In her dissent, Judge

Wald cited three items of evidence that she believed

suggested that the decision to revoke petitioner’s

overseas security clearance was based on his sexual

orientation. Pet. App. 18a-i9a. The majority reason-

ably concluded, however, that the evidence before the

district court did not create a genuine factual dispute.

Judge Wald cited, first, the memorandum in which the

USIA Director of Security, Bernard Dowling, ex-

plained why he was denying petitioner overseas

security clearance. /d. at 19a. That memorandum

(reproduced in full at pp. 3-4, supra, and at Pet. App.

103a) focused on petitioner’s conduct, not his orien-

tation.’ Judge Wald next cited testimony that another

member of the USIA’s Security Office said that

petitioner’s “problem” was his “sexual preference,” a

“type of behavior” that the Foreign Service does not

“condone.” Jd. at 19a. Testimony that homosexual

“behavior” is generally not “condone{d],” however, is

not equivalent to evidence that petitioner was

discriminated against because of his homosexual

orientation. Finally, Judge Wald cited testimony

concerning a statement by Dowling “suggest{ing|}”

that he considered homosexuality a disqualification

for employment in the Foreign Service. Ibid. The

relevance of that testimony is extremely attenuated,

because (1) it related to a single statement; (2) that

statement did not relate to petitioner; (3) the

statement was made a significant amount of time

after the challenged conduct took place; (4) the

statement was only “suggest[ive]” of bias based on

sexual orientation; and (5) the statement apparently

did not purport to reflect agency policy. In sum,

Judge Wald’s dissent suggests, at most, that reason-

able minds could differ on the question whether the

evidence sufficed to preclude summary judgment on

petitioner’s equal protection claim. And that fact-

bound question does not warrant this Court’s review.

3. Petitioner renews his contention (Pet. 17-19)

that the termination of his limited appointment

* Although Judge Wald attached significance (Pet. App.

18a-19a) to the statements in the memorandum that petitioner

“had been open about his homosexuality with a number of other

Yugoslav nationals,” and that homosexual conduct is illegal in

70 other countries, id. at 103a, those statements refer to con-

duct, not sexual orientation.

violated the Due Process Clause. The court of ap-

peals in Kre I correctly rejected that contention. Pet.

App. 47a-5la.

The court of appeals in Kre / correctly held that

USIA did not deprive petitioner of a protected

property interest without due process. As the court

recognized, petitioner’s property interest in his

limited appointment was only “a circumscribed one.”

Pet. App. 50a; see Board of Regents v. Roth, 408 U.S.

564, 577 (1972). As the court explained, under the

statutes and regulations governing limited appoint-

ments, “USIA retains discretion to determine when

the need no longer exists for the employee’s services

or when continued employment would not promote the

efficiency of the Service.” Pet. App. 50a (internal

quotation marks and citations omitted); see 22 U.S.C.

3905, 4010(a)(1); 3 Foreign Affairs Manual § 767.1

(1984). The court then correctly determined that it

was reasonable for USIA to terminate petitioner’s

limited property interest based on the conclusion that

there was no further need for his services after his

overseas security clearance had been revoked. Pet.

App. 50a. And as both the district court and the court

of appeals subsequently held in Arc //, the revocation

of petitioner’s security clearance was reasonable in

light of his conduct in Belgrade. Pet. App. 8a-12a, 57a-

59a."°

10 Petitioner criticizes (Pet. 18) the court of appeals for

failing in Kre ] to address whether the revocation of his secu-

rity clearance for overseas assignments was “patently arbitrary

or discriminatory,” and thus a violation of substantive due

process. That criticism is unfounded, since petitioner did not

allege a violation of substantive due process in his amended

counterclaim. Instead, he asserted only procedural due process

challenges to the revocation of his overseas security clearance

The court of appeals in Kre J also correctly rejected

petitioner’s claim that he was deprived of a liberty

interest without due process. Pet. App. 47a-48a; see

Paul v. Davis, 424 U.S. 693, 708-710 (1976). As the

court of appeals determined, that claim failed for two

independent reasons. First, petitioner did not demon-

strate a “loss of government employment sufficient to

constitute a constitutionally cognizable change of

Status.” Pet. App. 47a (internal quotation marks

omitted). In fact, he was rehired by USIA in a

domestic position at a higher salary the day after his

Foreign Service appointment was terminated. Sec-

ond, petitioner did not demonstrate that the USIA’s

actions damaged his reputation in a manner that

interfered with his employment prospects. USIA’s

termination letter specifically stated that he was not

disqualified from future domestic government

employment. Moreover, petitioner had not presented

any evidence in the record before the court in Kre I

(in Count III) and to the termination of his limited appointment

(Count IV). See C.A. Appellant Public App. 245 (security

clearance decision “was made without affording [petitioner] a

statement of the reasons therefor or a fair opportunity to

challenge the determination”), 246 (same allegation regarding

termination decision). The court of appeals in Kre I correctly

rejected petitioner’s procedural due process claims, finding

that USIA complied with applicable regulations by providing

petitioner with notice of the impeding termination and by

terminating him “on a ground expressly provided in its own

regulations”—i.e., that there was no need for his services. Pet.

App. 50a; see Sampson v. Murray, 415 U.S. 61, 64 (1974). Fur-

thermore, both the district court and the court of appeals

addressed the rationality of USIA’s actions in ruling upon

petitioner’s equal protection claim in Kre IT. Pet. App. 8a-12a,

57a-59a. Thus, the courts below fully considered petitioner’s

procedural and substantive challenges to USIA’s actions.

that the termination had actually affected his em-

ployment prospects. Finally, petitioner had not

shown that USIA had published its finding that he

constituted a security risk. Pet. App. 48a."

4. Petitioner next contends that the court of

appeals in Are / erred in rejecting his claim that

USIA’s actions violated the APA and the Foreign

Service Act. That contention is without merit.

The court of appeals properly relied on Webster v.

Doe, 486 U.S. 592 (1988), to uphold the dismissal of

petitioner’s statutory claims. Pet. App. 44a-46a. In

Webster v. Dov, this Court held that a decision by the

Director of the Central Intelligence Agency to

terminate an employee under Section 102(c) of the

National Security Act of 1947, 50 U.S.C. 403(c), was

“committed to agency discretion by law” within the

In Count VI of his amended counterclaim, petitioner

alleged that USIA interfered with his employment opportuni-

ties by reporting to the DISCO that it had “adverse informa-

tion” about petitioner. C.A. Appellant Public App. 247-248.

Although petitioner now characterizes this claim as based on

the Due Process Clause (Pet. 18-19), he did not cite any consti-

tutional or statutory provision in the counterclaim to support

his interference claim. In any event, that claim was not before

the court of appeals in Arce J, because it had not then been

considered by the district court. Pet. App. 52a. On remand,

the district court awarded summary judgment for USIA on the

interference claim on the grounds that it was barred by

sovereign immunity and, in the alternative, that USIA’s

answer to DISCO’s inquiry was an accurate response that was

authorized under USIA regulations. /d. at 59a-63a; see also 55

Fed. Reg. 31,963 (1990) (authorizing USIA to disclose “relevant

data” to “duly authorized security officers of other agencies”

regarding “significant security information in the file of a

USIA employee”). The court of appeals in Kre // affirmed on

the latter ground, Pet. App. 13a-14a, and petitioner’s challenge

to that ruling (Pet. 18-19) does not warrant further review.

meaning of 5 U.S.C. 701(a)(2) and therefore was not

reviewable under the APA. 486 U.S. at 599-601. As

the court of appeals determined, Section 611 of the

Foreign Service Act, which authorizes USIA to

terminate a limited appointment “at any time,” 22

U.S.C. 4011, “imposes fewer shackles on the agency

head’s decisionmaking” than Section 102(c) of the

National Security Act. Pet. App. 45a. Thus, as was

true of the statute at issue in Webster v. Doe, the

statute at issue here “ ‘fairly exudes deference’ to the

Secretary [of State] when Foreign Service personnel

decisions implicate national security.” Pet. App. 45a,

quoting Webster v. Doe, 486 U.S. at 600.

Petitioner errs in contending (Pet. 19) that USIA’s

discretion was constrained by the requirement in 22

U.S.C. 3905(a) that “[{aJll personnel actions” accord

with “merit principles.” As the court of appeals

observed (Pet. App. 46a), the definition of “personnel

actions” omits revocations or modifications of secu-

rity clearance. 22 U.S.C. 3905(a). In light of that

omission, it is doubtful that USIA’s actions had to

comply with merit principles. Moreover, the statu-

tory prescription of merit principles does not

expressly bar discrimination on the basis of sexual

orientation. 5 U.S.C. 2302(b)(1). But even if such

discrimination were implicitly barred by the statute,

it would not help petitioner. As the court of appeals

subsequently held in Arc II, petitioner was termi-

nated because of his sexual conduct, not his sexual

orientation. Pet. App. 8a-1la.

Finally, even if discrimination on the basis of

sexual orientation were barred by merit principles,

and even if petitioner’s sexual orientation played

some limited role in the revocation of his security

clearance and the subsequent termination of his

limited appointment, it would not be appropriate on

the facts of this case for a court to hold that USIA’s

actions violated those principles. As discussed above,

there is no genuine dispute that USIA would have

determined, without regard to petitioner’s sexual

orientation, that his conduct impaired his ability to

“serve in assignments throughout the world,” 22

U.S.C. 3901(a)(4), as members of the Foreign Service

are required to do, and accordingly “adversely

affect{ed] [his] performance.” 5 U.S.C. 2302(b)(10).

Under the circumstances of this case, as found by

both lower courts, USIA’s actions comported with

merit principles.

5. Petitioner’s final contention (Pet. 20-22) is that

the court of appeals erred in holding in Kre J that the

Foreign Service Grievance Board lacked jurisdiction

to review his complaint. The court of appeals’ holding

was correct.

The Board plainly lacked jurisdiction to review the

termination of petitioner’s limited appointment. The

USIA expressly premised the termination on Section

611 of the Foreign Service Act. See Pet. App. 94a,

104a; see also id. at 106a. Subsequently, the Board

itself and the court of appeals found that the termina-

tion was indeed based on Section 611, and not on

Section 610(a)(2) of the Act. Pet. App. 40a-41la, 106a.

There is no basis for further review of that finding,

and that finding compelled the conclusion that the

Board lacked jurisdiction to review petitioner’s

termination. As the court of appeals stated, “the

statute makes clear that a limited appointee who the

Board finds was not terminated for misconduct—

whose termination was properly classified under § 611

—has no further remedy with the FSGB; such a ter-

mination is statutorily excluded from the ‘grievances’

within the Board’s jurisdiction.” Pet. App. 41a-42a;

see 22 U.S.C. 4131(b)(3).

The Board also lacked jurisdiction to review the

security clearance decision that led to the termina-

tion of petitioner’s limited appointment. That conclu-

sion follows frorm Egan, in which the Court held that

the MSPB lacked authority to review the security

determination underlying removal of a government

employee, even though it had authority to review the

consequent removal. 484 U.S. at 525-534; see also |

Cole v. Young, 351 U.S. 536, 546 (1956) (“an agency |

head * * * should have the final Say in deciding

whether to repose his trust in an employee” by the

grant of security clearance); Hill v. Department of

the Air Force, 844 F.2d 1407, 1411 (10th Cir.), cert.

denied, 488 U.S. 825 (1988) (MSPB lacked authority to

review Air Force’s suspension of security clearance).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.