# Opposition Brief — Krc v. United States Information Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1109

## Text

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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)

IV

Statutes—Continued: Page
On I 18
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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
v.
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)

2

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:

3

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.

4

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

5

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

6

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

7

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.

8

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

9

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-

10

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.

11

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

12

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.

13

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.

14

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”).

15

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-

16

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.

17

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.

18

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

19

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.

20

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.

21

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

22

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’

23

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.

DREw S. Days, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

BARBARA L. HERWIG
Attorney

JANUARY 1994

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0573%3A2. Public record. Not legal advice.