Petition for Writ of Certiorari — Germino v. Department of Defense

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( \ Supreme Court, U8

Nene PILE D

95.57 JUL3 1995

No.

Gn the 5 reme Cet of the United States

OCTOBER TERM, 1995

NORMAN A. GERMINO, PETITIONER

DEPARTMENT OF DEFENSE

PETITION FOR A WRIT OF CERTIORARI

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

EMILE JOSEPH HENAULT, JA.

Attorney at Law

Henault & Sysko, Chartered

306 Crain Highway, North

Glen Burnie, Maryiand 21061

(410) 768-9300

—————EE

QUESTION PRESENTED

Whether, in reviewing a removal action

taken by an agency pursuant to 5 U.S.C. §

7512 and § 7513, whose underlying basis is

the revocation of an employee’s security

clearance, the Merit Systems Protection

Board may exclude from consideration

related statutes, executive orders,

directives, and agency regulations to the

detriment of an employee’s constitutional

procedural due process entitlements.

TABLE OF CONTENTS

PAGE

Opinions below. .ccvscccscccsescccccecccs 1,2

SUPPL OGIeiGc 0060 660 06ns Cee ceeecuiwsds 2

Statutory provisions involved......... 2

SCACGMONE ccc ccccesesessceesevedesceses 2

Reasons for granting the petition..... 16

COMBLUGAOGs o.oo 60000096000 006566 00 08808 62

APPONGIs A. ccccccasescseceseseseseoses la

ABMONEALS Bo cccccesvscctecsecseeseeceeses 9a

ABPONGLE Co ccccscccvesceeeecceseeasses 33a

ApMendix D.vcccivcevevecercesevecevses 50a

TABLE OF AUTHORITIES

Cases:

Burkett v. United States,

402 F.2d 1002 (1968)....... 56, S57, 58

Burns v. Wilson, 346 U.S.

137 (2953) cencacedweesvescoscesees 42

Cafeteria Workers v. McElroy,

367 U.8. GES LIDBL) o<ccceecaense 23, 41

Carlucci v. Doe 488

U.S. FS (USER ccccvewesesweseucs 24, 48

Chappell v. Wallace, 462 U.S.

296 (EDES) oc cvnneceedesencuse neces 42

Cleveland Board of Education v.

Loudermi ll, 470 UcBeccccsecsece 46, 59

532 (1985)

Crenshaw vs. United States, 134 U.S.

SS (1890)... covccvececeececssansses 23

Department of the Navy v. Egan,

484 U.S. 518 (1988)...12, 13, 14, 29,

30, 321, 33, Jos Bee See Ga, 86, 46,

47, 48, 49

Dozier v. United States, 473

P.2d 866 (1973) ccecce ee eeed tonne 60

Egan v. Department of the Navy, 28

M.S.P.R. 509 (1985), afi’d, 868

F.2d 1277 (Fed. Cir. 1988)

(TaDLE) -ccceccecessescceassssenes 38

Engdahl v. Department of the Navy,

900 F.2d 1572 (Fed. Cir. 1990)... 35

Cases-Continued:

PAGE

Germino v. Department of Defense,

61 M.S.P.R. 683 (1994)..... Be. aay 18,

33, 39, 30, 6)

Gilligan v. Morgan, 413 U.S. l

OG. ge) EO SPT OUEELRECTTTTTTTrre 42

Green v. McElroy, 254 F.2d

944 (D.C. Cir. 1958), rev’d

Bee Gels SFE (ESSER cccvccccccecs 29, 55

Griffin v. Defense Mapping Agency,

864 F.2d 1579, (Fed. Cir 1989).42, 49

Hill vs. Department of the Air Force,

844, F.2d 1407 (10th Cir. 1988).. 47

Jamil v. Secretary, Department of

Defense, 910 F.2d 1203

[SCR Gate APOC) sccccssceces 43, 49, 50

Jones v. Department of the Navy,

48 M.S.P.R. 680, (1991),

aff‘d 978 F.2d 1223

(Peds Cie. £992)..660+-35, 36, 47, 50

Keim v. United States, 177 U.S.

rT eT eT ee eee eee 23

Lyles v. Department of the Army,

864 F.2d 1581 (Fed. Cir. 1989).43, 49

Morton v. Ruiz, 415 U.S.

fy ae Tere ree rer Tee eee 43

Orloff v. Willoughby, 345 U.S.

Ey 8 ee ee 42

Pangarova v. Department of Army,

De Meets DAP (EPOP) conc cccecs 35

Ricucci v. United States, 425 F.2d

Dr CEP M le eases ees cocceecaecces S)

Schlesinger v. Councilman, 420 U.S.

Pi TPP icc eeeeevbeseceescceccens 42

Schweiker v. McClure, 456 U.S. 188

Te iere ere ae ee beens eeecesces 10

Service v. Dulles, 354 U.S.

SE Seer rere eee eee eee 46

Stephen v. Dept. of the Air Force,

SF MeB.PoR. GFZ, (1991) cccccss 58, 59

United States v. Nixon, 418 U.S.

We PEP UMOR bc wees se eeeuteeecececes 41

Cases-Continued:

PAGE

Vitarelli v. Seaton, 253 F.2d, 338

(D.C. Cir. 1958), rev’d, 359 U.S.

$35 (1989) -cccccccccsess evisecenee 20

Weissberger v. U.S. Information Agency,

39 M.S.P.R. 370 (1968)..--13, 14, 32,

ats €2

Woroneski v. Department of the Navy,

3S M.S.P.R. 366 CESSES) cc veccocases 36

Constitution:

U.S. Constitution, Article II,

Section Ze veeecesscssveseeedG, af) 41

Statutes and regulations:

5 U.S.C. 2302(b) Page 47

Civil Service Reform Act of 1978:

Chapter 75, subchapter, II.......37, 38

S O.8.0. G1206 (e311) iss ccccede 37

TT oe. RPCRrEe ony 20

5 U.S.C. §7511(a)(1)(B)-..eee. 10

U.S.C. §7512.....-2, 10, 20, 30,

33, 34, 38, 39

U.S.C. §7513...... as bby 32, 16,

17, 18, 20, 23, 246, 235, 27, 28,

31, 32, 34, 36, 38, 39, 41, 44,

47, 49, 50

$ U.BOe BI i cree 24, 31

S UB. 0. BPSAR 119) oo coe 26, 31

S UeBcGs SPEEA TAY oa sc ce vane 62

S B.SC BURR) ns one wcnnei 24, 31

S U.8.0. STRLSIA cesses 24, 36, 37

Et eS eee eee 22

S Get Sy Beene co ba 0 cancwes 2, 24

S Co hin ko ks views ven 10

or ee. | eer 19

Se PE os «6 os cn neuds 60

S UBB Be sha nn 0 Ko 04s 3 19

Toke: eh TT ee 60

PAGE

Pub. L. No. 86-36, 73 Stat. 63 (1959)

(codified at 50 U.S.C. § 402 note). 14,

20, 17, 16, 27, $3, $2, 54,

55, 59, 60, 62

Pub. L No. 88-290, 78 Stat. 168 (1954)

(codified at 50 U.S.C. 831-833)..22, 27

National Security Agency Act of 1959,

(1959 NSA Act)

20,

23, 24, 39, 51

National Security Agency/Central Security

Service Personnel Management Manual 30-

2, Chapter 370 (April 12, 1991) (PMM):

Chapter 370..... Sy £1, Sa, 24, 25;

a0, 29, 22, 41, 67, 48, 3

SOCCSOR 266s cect eecaneendveds 21,48

SOE LOR: Bobs Rieck 006 ces 00 ban ¥e @

POUPCLON Gobet Es vc ccc da cvees 25

oe ee 22

Section 4-6.a....... iceeeneen » 6]

ee ree 61, 62

UOTE BO Giinocccs vectavenas 62

i a ee eee 25

ge ee ee re 25

POCO B47 cs 6 6 64 6k.0-40s 0 ba ees 56

BROCAOR GH7 i. 62) 6c co ec ne éaces 55

BOWCEON £97 Bion cscend avn ees 4a, 62

et Ee ee tre err ee 8

ee re 22

Miscellaneous:

Classification Act of 1949

(now covered by chapter 51

and subchapter III of chapter 53

of Title 5, Government Organization

BING. TR LOW GRR is enka sen bs reece ene 52

Director of Central Intelligence

Directive Ho. 1/14.ccccccce 26, 27, 28

Department of Defense Directive

No. 3100.23 (May 17, 1967)....... 20

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

NO.

NORMAN A. GERMINO

DEPARTMENT OF DEFENSE

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

EMILE J. HENAULT, JR., attorney for the

petitioner, petitions for a writ of

certiorari to review the decision of the

United States Court of Appeals for the

Federal Circuit in this case.

OPINIONS BELOW

The unreported decision of affirmance

without opinion under Fed.Cir. R. 36 by

the Court of Appeals for the Federal

Circuit (App., infra, la-8a) was decided

on April 5, 1995. The opinion of the

Merit Systems Protection Board (App.,

infra, 9a-3la) is reported at 61 M.S.P.R.

683. The initial decision by a presiding

official of the MSPB (App., infra, 32a-

48a) is unreported.

JURISDICTION

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The pertinent statutory provisions

of 5 U.S.C. 7512, 7513, and 7701, as set

forth in App., infra, 49a-52a.

STATEMENT

The petitioner, a preference eligible

veteran, was hired to serve in the

excepted service at the National Security

Agency (hereinafter "NSA" or "agency") as

a Language Technician, GG-09, on December

30, 1974. At the time of his removal by

the agency on January 31, 1992, the

petitioner was employed as a Language

Analyst, GG12.07. The agency’s removal of

the petitioner began on March 13, 1990,

when the agency suspended the petitioner’s

access to classified information pending

further investigation into issues outlined

in the agency’s Request for Clearance

Suspension, dated March 9, 1990, (C.A.

App. 832-834)*. The petitioner remained in

pay status and was assigned temporary

duties within the agency that did not

require access to classified information.

On January 3, 1991, NSA’s Office of

Security recommended that petitioner’s

security clearance be revoked, which

revocation was concurred in by the

Assistant Deputy Director for

]

"C.A. App." cites are to the joint appendix

to the petitioner's brief in the Court of Appeals

for the Federal Circuit.

Administration that same day (C.A. App.

842-846). On March 19, 1991, NSA’s Office

of Civilian Personnel notified the

petitioner that, pursuant to NSA/CSS PMM

30-2, Chapter 370 (hereinafter "Chapter

370"), the petitioner had been found to be

ineligible for continued access to

classified information and thereby failed

to meet a mandatory condition of

employment, and that he had the right to

respond to both the security access

determination and the proposed removal

action orally, 4n writing, or both (C.A.

App. 829, 830). He was also to be allowed

to review the official records relied upon

to support the reasons for the proposed

action, but the agency failed to allow

this review and did not fully respond to

the petitioner’s requests for discovery.

On March 26, 1991, Emile J. Henault,

Jr., Esquire, entered his appearance for

the petitioner (C.A. App. 818, 820) and

filed an FOIA request with the agency

(C.A. App. 822, 824, 825). On April 9,

1991, Mr. Henault submitted a request for

discovery to the NSA General Counsel (C.A.

App. 805-814). (The majority of the

discovery information sought from the

General Counsel was not covered by the

FOIA request.) A series of correspondence

ensued between Mr. Henault and the agency

concerning Mr. Henault’s discovery request

(C.A. App. 753, 754, 756-758, 763, 765,

766, 768-770, 772-774, 778-780, 782, 783,

788, 790, 792, 793, 795-798, 800, 801).

On August 26, 1991, the agency finally

informed the petitioner that it had no

formal discovery policy (C.A. Nee 782),

and that "he got all he was going to get"

(C.A. App. 758).

Concurrently with the foregoing

requests, the petitioner initiated FOIA

requests to the State Department (C.A.

App. 619) and the CIA (C.A. App. 623) for

relevant information concerning his

employment with those agencies. On

November 1, 1991, Mr. William P. Crowell,

the NSA Chief of Staff who had set the

original parameters for the petitioner’s

response to the agency’s proposed removal

action, was suddenly replaced by Mr.

Donald L. Parsons as chief arbiter of the

petitioner’s case. Mr. Parsons

immediately refused to allow the

petitioner to finish building his case,

and denied the extensions requested by the

petitioner’s attorney in order to complete

discovery (C.A. App. 753). The petitioner

protested, but to no avail (C.A. App. 577-

581, 756-758). Mr. Parsons’ predecessor

had understood the complexities of the

petitioner’s case, and had granted extra

time for the petitioner to obtain

information for his defense. Mr. Parsons,

on the other hand, later admitted under

oath that he lacked expertise in personnel

removal actions, and that he was not

familiar with the NSA regulations

governing the case (C.A. App. 1379, 1390-

1392). The upshot of Mr. Parsons’ entry

into the petitioner’s case was the unkept

promise of discovery that had earlier been

given by Mr. Crowell, and the spectacle of

Mr. Parsons serving as the deciding

official in the petitioner’s case, despite

the fact that he had no experience in such

matters (C.A. App. 1379, 1390-1392). Mr.

Parsons forced the petitioner to submit

his incomplete written response under

protest on November 21, 1991. On December

3, 1991, an oral hearing was held before

Mr. Parsons’, at which time the petitioner

The petitioner complained that the agency

violated Chapter 370, Section 4-5b, which provides

flail iat citing’ 1 Aatcaidein ee

supplemented his earlier written reply

with an appendix containing FOIA

information received from the FBI. At

that time, the State Department and the

CIA had not responded to the petitioner’s

FOIA requests, nor had the agency (having

stalled for eight months) provided the

discovery information requested by the

petitioner on April 9, 1991 (C.a~. App.

805-814). Mr. Parsons’ hearing of the

petitioner’s case amounted to a "futile

that the Deputy Director for Administration (DDA)

shall dispose the action, and Chapter 370, Section

4-7(d)(1) which provides that the deciding official

(DDA) may not delegate the hearing of the oral

reply, except for furlough actions. In

promulgating Sections 4-5b and 4-7(d)(1) the

Director, NSA, understood that the severity of a

removal action requires judgment by an experienced

and qualified official. There is no other agency

written delegation of authority for a substitute

deciding official.

ritual’." See Ricucci v. United States,

425 F.2d 1252, 1254 (1970). Mr. Parsons,

who was supposed to be an impartial

deciding official, actually joined the

agency’s investigative team and personally

conducted a post-hearing investigation,

the results of which he later relied on to

make his decision to remove the petitioner“

(C.A. App. 727-729). The petitioner was

never given an opportunity to respond to

Mr. Parsons’ post-hearing “finding”. The

petitioner later discovered Mr. Parsons’

role as investigator when he was

; In view of Mr. Parsons' conduct, the

petitioner's hearing before him was a "futile

ritual" in that the allowance of an oral reply

implies an intent that the employee may be

successful with it at times given that he has been

provided all the facts. The petitioner did not

have all of the facts, nor was the investigation

complete at the time of the oral hearing. Id.

Ricucci at 1254.

*“ Id. Ricucci at 1254 stressed, "that the

right to answer charges orally is not met by

appearance before the investigators who have

developed facts to substantiate the charges."

. serra ys atinney — 4

CLAS ORY Wet Na DAE CN i Bs CC ON. EP EO AR PRLS SRR PAE Is :

confronted with Mr. Parsons’ "report"

during the initial MSPB hearing’.

The petitioner was removed from his

employment with the agency on January 31,

1992, (C.A. App. 724-725). He then

appealed to the Merit Systems Protection

Board (hereinafter "MSPB" or "Board").

The MSPB presiding official ruled that

the petitioner was entitled to appeal his

removal under 5 U.S.C. §§ 7701l(a), 7512,

7511(a)(1)(B), and that the Board’s

inquiry would be limited to determining

The conduct of Mr. Parsons displayed his

personal motive to dismiss Mr. Germino so directly

and strongly that his conduct was an insensitive

practice which should have been avoided, as

espoused in Burkett v. United States, 402 F.2d

1002, 1007 (1968). Mr. Parsons in making his final

decision should have exercised impartiality and

satisfied due process. His prejudice and lack of

familiarity with the agency's regulations raise

doubts about the fidelity of Mr. Parsons’

stewardship of the hearing and his adherence to the

requirement of impartiality without the bias of

institutional loyalty. "To perform its high

function in the best way, justice must satisfy the

appearance of justice." Schweiker v. McClure, 456

U.S. 188, 196 (citations omitted), 197 (1982).

0 EIES’:’S eo

whether the petitioner received the

procedural protections of 5 U.S.C. § 7513

(hereinafter "7513").

On June 19, 1992, the presiding

official in the petitioner’s case

concluded that:

1) retention of a security clearance

was a requirement of the petitioner’s

position, petitioner’s security clearance

was revoked, and reassignment to a

nonsensitive position was not required; 2)

the agency complied with the procedural

requirements of § 7513 and related agency

regulations governing adverse actions; and

3) the agency afforded the petitioner the

required minimal due process in revoking

his security clearance.

On July 24, 1992, the petitioner filed

a timely petition for Board review of the

initial decision, raising the following

objections to the initial decision:

1) the agency violated its own

regulations in removing the

petitioner; 2) the agency’s notice

to the petitioner was defective; 3)

the agency’s deciding official was

not qualified to perform such a

function and later chose to become

an investigator; 4) the agency

provided redacted documents to the

petitioner and unredacted documents

to the agency’s deciding official

and MSPB presiding official; 5) the

MSPB presiding official improperly

disallowed the petitioner’s

witnesses; and 6) the MSPB presiding

official’s concept of minimum due

process was at variance with

Department of the Navy v. Egan, 484

U.S. 518 (1988)*.

On April 21, 1994, the full Board

issued its opinion and order affirming the

initial decision as modified by the

Board’s opinion and order.

The Board wrongly disposed of the

petitioner’s argument concerning’ the

denial of his witnesses by finding that he

had not objected to the denial. (CA. App.

16). The Board did not understand that

the "issue" described by the MSPB

administrative judge (CA. App. 1310,

The petitioner testified before the MSPB

that he never received specific notice of the

charges (CA. App. 1431, L15-17), and that there was

no way he and his attorney "could conceivably

understand what it was all about." (CA. App.

1430, L 10-19). The petitioner's statements

concerning lack of reasonable notice were not

contradicted by the agency at the initial hearing.

1312, 1313, and 1450), when he stated, "I

preserve your objection of my failure to

decide those as issues..." (CA. App.

1450), concerned both subject matter

issues and witness issues.

In addition, the Board stated that the

petitioner did not allege violation of his

statutory rights. Id. Germino Vv.

Department of Defense, 61 M.S.P.R. 683,

687 (1994). This premise is false. 5

U.S.C. § 7513 procedural requirements

regarding notice and opportunity to

respond were always an issue in this case

as evidenced by pretrial submissions of

record and the fact that the MSPB

administrative judge clearly stated on

Many occasions during the prehearing and

hearing that he would limit his judicial

horizons to minimal due process as

espoused in Egan, and Weissberger v. U.S.

Information Agency, 39 M.S.P.R. 370

OE OLE IEE LIES LEELA SIS IY IR ENN Hiro 55 Pate EN ae Sella ancien emmmmean

(1988). The petitioner’s attorney,

summarizing his argument, stated, "I think

that, just to quote, that I understand

Egan; I understand Weissberger, and I

think that from a procedural standpoint,

the agency didn’t fulfill its commitments

to Mr. Germino." (CA. App. 1453 L4-7).

The agency also identified these

"statutory rights" by referring to Egan

and Weissberger (CA. App. 1445 L12-16).

The administrative judge used Weissberger

in discussing the legal sufficiency of

procedural protections. (CA. App. 30).

On August 5, 1994, the petitioner

requested the United States Court of

Appeals for the Federal Circuit to review

the Board’s opinion and order.

The petitioner raised the following

issues in his brief to the Court of

Appeals for the Federal Circuit:

1) the agency’s misuse of

Public Law No. 86-36 to deny the

petitioner information subsequently

used by the agency at the initial

MSPB hearing was not in accordance

with the law and is harmful error,

all of which denied petitioner a

fair hearing, meaningful notice, and

minimum due process; 2) the agency

denied petitioner’s due process

entitlements by violating its own

regulations in removing the

petitioner from his employment; 3)

the agency’s denial of reasonable

discovery to the petitioner, at a

meaningful time and in a meaningful

manner, adversely affected his

ability to respond to the agency’s

action, and resulted in a denial of

minimum due process; 4) the

administrative judge erred in

refusing to allow petitioner to

produce witnesses and raise issues

of procedure; 5) the petitioner was

denied minimum due process when the

agency withheld information from the

petitioner’s attorney regarding the

petitioner’s transfer to the

Department of State; and 6) the

Board’s review (a) was arbitrary,

capricious, an abuse of discretion

and not in accordance with law, (b)

obtained without procedures required

by law, rules, or regulations, and

evidence.

On April 5, 1995, the United States

Court of Appeals for the Federal Circuit

issued a decision affirming the Board’s

opinion and order. In its decision, the

Court of Appeals for the Federal Circuit

found that the Board correctly determined

that the agency had provided the

petitioner with all of the procedural

protections to which he was entitled under

§ 7513, but the Court decision failed to

comprehend the petitioner’s argument

regarding the agency’s misuse of PL 86-36.

REASONS FOR GRANTING THE PETITION

It is imperative that this Court

exercise its power of Supervision in the

petitioner’s case to decide a federal

question bearing on the application of

laws by the Federal Circuit and the Merit

Systems Protection Board, which are

conflicting in the usual course of

judicial proceedings.

The Board erroneously ruled that the

petitioner was afforded his Statutory due

process rights under § 7513. In so doing

the Board did not adequately address the

eae aia

petitioner’s arguments concerning

defective notice of the charges, the

inability of the agency’s deciding

official to provide a fair hearing, the

failure of the agency to follow the

procedures outlined in its own

regulations, the misuse by the agency of

P.L. 86-36 to deprive the petitioner of

information later used by the agency’s

deciding official, and the minimum due

process requirements to which the

petitioner is entitled under § 7513.

The failure of the Board to uphold the

petitioner’s procedural entitlements

within the full due process standards and

scope of review as established by law and

precedent denied the petitioner his

constitutionally protected due process

entitlements, and demonstrated that the

Board could not distinguish between

procedural due process for ae removal

action and the administrative process of

an underlying security clearance

determination.

The Board’s decision stands as the

dispositive reported opinion on these

issues, because the United States Court of

Appeals for the Federal Circuit, in its

unreported decision, affirmed the Board’,

and in the process further distorted §

7513 and agency procedural requirements by

misconstruing PL 86-36%. The Court of

Appeals for the Federal Circuit has

exclusive jurisdiction over government

petitioners and, except in certain

’ Germino v. DOD, 94-3366, Decided April 5,

1995.

* The Court also erroneously misleads one to

believe that the three charges it specifies in its

decision (page 2) are offenses that the petitioner

acknowledged he committed. There is no evidence of

such acknowledgment by the petitioner in the entire

record. In fact, the agency's record is full of

confusing and confused charges that were never

specifically identified. Thus, the petitioner was

required to speculate about the subject matter of

the charges he was required to defend or explain.

discrimination cases, over employee

petitions for review of MSPB decisions

(see U.S.C. 7703(b) and (d)). Thus, this

decision will have an adverse effect on

the ability of government employees to

exercise their constitutionally protected

procedural due process entitlements, and

petitioner believes it is plainly wrong.

The issues in this case do not concern

the underlying merits of the agency’s

revocation of petitioner’s security

clearance. This case concerns’ the

petitioner’s entitlement to minimum due

process pursuant to the laws, statutes and

agency regulations which apply in this

case. In reviewing the legal sufficiency

of the procedural aspects of the security

clearance revocation, one is required to

be cognizant of petitioner’s preremoval

procedural rights required by agency

regulations, minimum due process

procedures required by § 7513, and the due

process rights granted by legal precedent.

The National Security Agency Act of

1959 (hereinafter "NSA Act") empowers the

Secretary of Defense, or his designee, to

establish NSA positions and appoint

employees thereto “as may be necessary to

carry out the functions of such agency."

2u U.8.C. 8 402 seta, By virtue of the

NSA Act, employees who are preference

eligible veterans in the "excepted"

service are covered by the removal

provisions of the Civil Service Reform Act

of 1978 (hereinafter "CSRA") §§ 7511-7513.

Pursuant to the Department of Defense

Directive No. 5100.23 (May 17, 1967),

entitled "Administrative Arrangements for

the National Security Agency", the

Secretary of Defense delegated his NSA Act

appointment authority to the NSA Director,

who implemented this authority by

promulgating regulations covering both the

hiring and removal of NSA employees.

Chapter 370 of these NSA _ regulations

describes procedures for removing

employees, and states generally that

removal is permissible for “such cause as

will promote the efficiency of the

service..." Id., at Chapter 370, §§ 3-4.

Dismissals proposed under Chapter 370

guarantee employees various procedural

protections such as 30-day advance notice

before the action can be taken, advance

written notice stating the specific

reasons for the proposed action, an

opportunity to reply orally and/or in

writing, a reasonable amount of time to

prepare the reply and to furnish

affidavits and other documentary evidence

in support of the reply, review of

documentation on which the proposed action

is based, legal representation, and a

————

“it SE LE ERENT CELINE LIN IE OS NE 2 EO eh te ecanmmmanaemaatln

final decision and the specific reasons

upon which the decision was based’.

Chapter 370 also provides a further right

to appeal to the MSPB for preference

eligible employees, such as the

petitioner, who is covered by the CSRA”’.

NSA may also exercise removal actions

under § 7532", which provides that "(n)ot

withstanding other statutes," an agency

head "may" remove employees "in the

interest of national security," if they

are given a preremoval hearing; or under

50 U.S.C. 833%, which provides that the

Secretary of Defense "May" remove NSA

* Chapter 370, Section 4-6 Entitlements.

" Chapter 370, 4-10 Appeal Rights.

“ — Section 7532 of Title 5 of the United

States Code was passed in 1950 and reenacted and

codified in 1966, as part of Chapter 75 of Title 5.

In 1964 Congress amended The Internal

Security Act relating to "Personnel Security

Procedures in the Nationa] Security Agency." 78

Stat. 168, 50 U.S.C. 831-833 (NSA Personne]

Security Procedures Act).

0) NR RR EAST OLY IY, oi

employees upon determining that

termination procedures in other statutes

“cannot be invoked consistently with

national security." These removal actions

are reserved for cases involving national

security concerns. They are an

alternative recourse to NSA’s ordinary

removal mechanism pursuant to the NSA Act.

Although the NSA Act does not refer to

termination, the Court has held as a

matter of statutory interpretation that,

absent a “specific provision to _ the

contrary, the power of removal from office

is incident to the power of appointment’’."

Petitioner does not dispute this general

proposition. Petitioner argues that where

"for cause" procedures for removal under §

7513, or under the regulations adopted

* Keim v. United States, 177 U.S. 290, 293

(1900); see also Crenshaw v. United States, 134

U.S. 99, 108 (1890); Cafeteria Workers vy. McElroy,

367 U.S. 886, 896 (1961).

under the NSA Act, do not jeopardize

national security, recourse may be had

pursuant to procedures in § 7513 in

conjunction with NSA’s regulations, which

are binding on both the government agency

and eligible employees. See Carlucci Vv.

Doe, 488 U.S. 93 (1988).

$ 7513 procedures are similar to those

specified in Chapter 370 removal

procedures.*‘

§ 7513 carries the right to MSPB review

to provide checks and balances on whether

proper procedures were followed in the

denial of a clearance, and on whether the

Section 7513 (b) procedural entitlements

provide for 30-days advance written notice, a

reasonable time to answer orally and in writing,

representation by an attorney, and a written

decision and specific reasons therefor. In

addition, Section 7513 (c) provides that "(a)n

agency may provide, by regulation, for a hearing

which may be in lieu of or in addition to the

opportunity to answer provided under subsection (b)

(2) of this section." Section 7513(d) authorizes

the employee against whom action is taken to appeal

to the MSPB under 5 U.S.C. Section 7701.

suspension or removal was justified by the

denial of the clearance. However, Chapter

370 removal procedures entitle the

employee to additional procedural

safeguards in excess of the § 7513 removal

safeguards; namely, “written notification

of the opportunity to review the

documentation upon which the proposed

action is based" (§4-6.e.); “an amount of

official time, if the employee is in a

duty status, to work on the reply" (§4-

6.f.); and “if an employee chooses to

reply to the notice of the proposed

action, he or she may, within the allotted

time period, provide a written reply,

request to meet with the deciding

official, or both. The deciding official

may not delegate the hearing of the oral

reply, except for furlough actions.” (§ 4-

7-d.)- The deciding authority is

specified in §4-5.b.(1) which states “the

ee ee FS ee a a NN NE Li a oe SER TRI s N ita te a

{

Deputy Director for Administration (DDA)

shall dispose the action."

The agency selectively uses another set

of standards in reviewing security

clearances and in granting employee

procedural entitlements. Director of

Central Intelligence Directive No. 1/14

(hereinafter "DCID 1/14"), effective April

14, 1986, sets forth minimum personnel

security standards and procedures

governing eligibility for access to

sensitive compartmented information (SCI)

for all United States Government

Civilians. DCID 1/14, Annex A,

"Adjudication Guidelines" sets forth a

common approach to be followed by the

Intelligence Community for SCI access.

This common approach consists of carefully

weighing a number of variables known as

the "whole person" concept**. The agency

~ DCID 1/14, Annex A, provides that the

(continued...)

subscribes to DCID 1/14 in making security

clearance determinations.

DCID 1/14, Annex B, “Appeals”

establishes a common appeals procedure for

the denial or revocation of access to SCI.

The agency has discretion to adjust the

procedural standards set forth in Annex

B**, but only marginally exercised this

leverage in the petitioner’s case. In

considering § 7513 and DCID 1/14

procedural safeguards for NSA employees

*(...continued)

ultimate determination in granting SCI access

consistent with the interests of national security

shall be an overall common sense determination

predicated on all available information with

",..careful scrutiny to the following matters: a.

loyalty, b. close relatives and associates, c.

sexual considerations, d. cohabitation, e.

undesirable character traits, f. financial

irresponsibility, g. alcohol abuse, h. illegal

drugs and drug abuse, i. emotional and mental

disorders, j. record of law violations, k. security

violations, and 1. involvement in_ outside

activities.

‘© PCID 1/14, Annex B, "Appeals" does not

affect applicant or personnel actions pursuant to

Public Law 88-290, Public Law 86-36, or other

applicable law."

‘ o han -

Bi: I ED. oS ete eae

who are subjected to suspensions or

removal actions, it is obvious that the

Chapter 370 removal procedures, to which

an employee is entitled, is an

amalgamation of employee procedural

entitlements espoused in § 7513 and DCID

1/14. The agency has exercised its

discretion in mandating these entitlements

by promulgating Chapter 370 removal

procedures for the benefit of its

employees, and therefore must abide by

these removal procedures in affording an

employee procedural due process. In

reviewing procedural entitlements of NSA

employees, one cannot impose § 7513

procedures alone, since NSA _ provides

additional procedural entitlements for its

employees in Chapter 370 removal

procedures. Conversely, NSA has _ not

incorporated into its regulations all of

DCID 1/14 procedural entitlements, which

provide more safeguards than those found

in Chapter 370 removal procedures.

The Federal Circuit has historically

recognized the imperative of procedural

safeguards. "In the case of a Government

employee the courts will not inquire into

the merits of a dismissal (for want of a

security clearance): They will inquire

whether required procedures have been

observed, or an applicable statute

violated." Greene v. McElroy, 254 F.2d

at 953 (citations omitted); see Vitarelli

v. Seaton, 253 F.2d 338, 342-343 (D.C.

Cir. 1958), rev’d on other grounds, 359

U.S. 535 (1959)*’; (Emphasis Added).

The narrow question presented in Egan

The reversal in Id. Greene was based on the

absence of _ presidential or congressional

authorization for the procedure leading to the

dismissal. The reversal in Vitarelli was based on

procedural flaws in the dismissal. The Court did

not contradict the court of appeals' statements in

those cases that the merits of security clearance

determinations are unreviewable.

re ae

OO a a ee ee ee a a ae al a eee ee meee bie ea

was whether the MSPB has authority by

statute to review the substance of a

decision to deny or revoke an underlying

security clearance in the course of

reviewing an adverse action. Id. Egan at

520. Mr. Egan did not challenge that the

Navy did not afford him procedural due

process or that the Navy did not follow

its own regulations in its removal action.

Egan at 530 held that, in an appeal

under § 7513(d), the Board does not have

the authority to review the substance of

an underlying security clearance

determination in the course of reviewing

an adverse action, because a clearance

denial is not one of the enumerated

adverse actions that are subject to board

review’.

. “adverse actions" which the Board may

review under Section 7512 Board authority are "1)

a removal; (2) a suspension for more that 14 days;

(3) a reduction in grade; (4) a reduction in Day;

and (5) a furlough of 30 days or less."

However, "An employee who is removed

for "cause" under § 7513, when his

required clearance is denied, is entitled

to the several procedural protections

specified in that statute”. The Board

then may determine whether such cause

existed, whether in fact clearance was

denied, and whether transfer to a

nonsensitive position was feasible.

Nothing in the Act, however, directs or

empowers the Board to go further."

In the aftermath of Egan, the MSPB

stated that "the Board will review only

the procedures utilized by the agency to

*% Section 7513(b) procedural entitlements

include (1) at least 30 days written notice stating

the specific reasons for the proposed action; (2)

a reasonable time to answer orally and in writing

and to furnish affidavits and other documentary

evidence in support of the answer; (3)

representation by an attorney; and (4) a written

decision and the specific reasons therefor at the

earliest practicable date; and, under Section 7513

(c), "An agency may provide, by regulation, for a

hearing which may be in lieu of or in addition to

the opportunity to answer provided under subsection

(b)(2) of this section."

insure that it afforded the employee

procedural due process." The Board then

defined "minimal due process," explaining

it as being all that the employee would be

entitled to before Board review, namely,

the procedural protections of 6§7513.

Weissberger v. U.S. Information Agency, 39

M.S.P.R. 370 (1988).

In the petitioner’s case, the Board

erroneously refused to address

petitioner’s contention that the

administrative judge may review due

process procedures as outlined under

agency regulations. The Board opined that

the agency’s procedural regulations do not

apply in the case of a negative security

determination; therefore, the agency’s

procedural regulations also do not apply

in the related removal action”®. fThis non

“The Board reasoned that the agency's

regulations at Chapter 370 cover disciplinary and

(continued...)

sequitur shows that the Board misconstrued

Egan in this case. Egan agreed that the

Board has no authority to review an

underlying security clearance revocation,

because it is not an adverse action in its

own right. However, Egan clearly stated

that the Board has authority to review §

7512 adverse actions--which include

removal actions. The Board’s refusal to

review the agency’s application of its

procedural regulations in removing the

petitioner, simply because the removal

action was preceded by a security

clearance determination, is not supported

by Egan and its’ progeny. Agency

”(...continued)

adverse actions, namely "involuntary actions which

reprimand, suspend, enforce leave, separate for

disability, remove, reduce in pay or grade, and

furiough for 30 days or less." "The regulations do

not, we find, include negative security clearance

determinations. Therefore, the agency's procedural

regulations do no apply to those determinations."

Id. Germino at 688.

regulations provide for the employee to

respond to both the revocation of his

security clearance and his dismissal for

the efficiency of the service at the time

the agency decides to dismiss’ the

employee. At that time, the agency’s

procedural due process is given to the

employee pursuant to agency regulations

which include full procedural due process

for both the revocation and removal

actions. The Board is authorized pursuant

to § 7512 to review both of these actions

because, according to agency regulations,

they are collateral. The Board’s

unilateral denial of this due process to

the petitioner is plainly arbitrary and

capricious to the extent’ that it

constitutes harmful error. The CSRA, §§

7512-13 provides for MSPB' review of

removals and certain other adverse

personnel actions affecting civilian

employees of the government, such as the

petitioner. This statute does not suggest

that the Board does not have the authority

to review procedural due process in

negative security determinations. See

Pangarova Vv. Department of Army, 42

M.S.P.R. 319, 32 (1989) (In light of Egan,

the Board does have the authority to

determine whether an employee has received

due process.) See also Jones _v.

Department of the Navy, 48 M.S.P.R. 680,

692 (1991) wherein the Board stated:

"Furthermore the procedures followed by

the agency before the appellants were

indefinitely suspended provided them an

opportunity consistent with Egan to

persuade the agency that its decisions

were ill-founded. See Engdahl, 900 F.2d

at 1576." The Board has been zealous in

pruning its authority to review removal

actions under the limitations of "minimal

esate POEL COE LLL LN PLES ORR ROR He 5 NS yy EAC ES SNA ee nea merece

due process”. Woroneski v. Department of

the Navy, 39 M.S.P.R. 366 (1988). See Id.

Jones at 692, wherein the Board stated:

"([e]xcept for determining that the

appellants were afforded minimal due

process, the Board is precluded from

reviewing constitutional claims in

connection with the merits of the agency’s

suspension of the security access and its

procedures for reviewing their security

clearances." (Emphasis added) .”*

Egan did not mandate to the Board that

its authority to review the legal

sufficiency of procedural protection was

limited to "minimal due process" under §

7513, to the exclusion of agency

regulations predicated on Executive

authority under the U.S. Constitution,

*“The procedural review was not an issue, as

the employee stipulated that the procedures the

Navy followed satisfied legal requirements. Id.

Jones at 692.

Article II, § 2. The Board, being a

constituted arm of the Executive Branch of

the Government is required to consider

procedures handed down to agencies by

Executive orders and the agency

regulations which are enacted as a result

of this delegation of authority by the

President. The Board’s premise in Id.

Weissberger is misplaced as it deprives

the petitioner of his constitutionally

protected due process entitlements.

In reviewing the Board’s decision, one

must consider the statutes defining the

Board’s authority. The Board is required

to "hear, adjudicate, or provide for the

hearing and adjudication, of all matters

within the jurisdiction of the Board." §

1205 (a)(1). In § 7512 (1) and § 7513 (d)

Congress assigned the Board appellate

review of removal actions taken against

"employees" pursuant to subchapter II of

Fe Pama os aT IS TTT T STRANI Tee SAE ROS MOB ATDT es eecariam pm est Let gatas UM aR Oa ne 4 Ee he 8 ge 0 et

Chapter 75.** The Board first raised the

"minimal due process" standard of review

in Egan, 28 M.S.P.R. at 519-520, wherein

it held that it had authority to review

the procedures used by the agency in order

to ascertain whether the agency afforded

Mr. Egan “minimal due process’’." The

Board’s "minimal due process" proclamation

essentially limited its scope and standard

of review of removal procedures that are

preceded by security clearance

revocations. The petitioner has not been

apprised of any statutory support for the

Board’s concept of "minimal due process."

The petitioner questions whether the

founding fathers intended that "due

process" should be divided into bits and

“Removal pursuant to 5 U.S.C. 7512 carries

entitlement to the procedures set forth in 5 U.S.C.

/$13.

“Mr. Egan did not assert a failure of the

Navy to follow its regulations or any statute.

pieces. If we agree that the Board is

responsible for ensuring that an employee

receive due process, it must also be

responsible for exercising this

responsibility by being cognizant of other

statutes and agency regulations in its

scope of review; otherwise, the Board is

abdicating its responsibilities under §§

7512-13, and the Board’s review of the

application of due process entitlements is

meaningless. The Board should, indeed

must, include agency procedural

regulations and statutory entitlements in

its scope of review‘. If the Board cannot

* In the petitioner's case, the Board refused

to consider agency regulations which the petitioner

said were violated, and the misuse of PL 86-36 by

the agency, because these did not fit the Board's

tortured interpretation of "minimal due process."

The Board specifically stated that the agency's

procedural regulations did not apply. Germino v.

Department of Defense, 61 M.S.P.R. 683, 688 (1994).

The Board completely ignored the petitioner's claim

that the agency violated PL 86-36, thus depriving

him of specific notification of the charges and a

meaningful hearing, and further skated around most

(continued...)

fit statutory violations and agency

procedural violations into its concept of

"Minimal due process," the petitioner

should not be legally hobbled as a result

of the Board’s' shortsightedness. The

Board is not authorized to discard these

viable issues when they are brought to the

Board’s attention, but, instead, has a

duty and obligation to remedy

misapplication of agency procedural

regulations and statutory violations,

according to the constitutional laws at

its disposal. The petitioner maintains

that the Board does not have the

discretion to ignore these pivotal due

process issues. The petitioner’s removal

"for cause" by the agency "for the

*(...continued)

of the other procedural issues raised by the

petitioner, by indicating the Board could not delve

into agency procedural regulations and therefore

the procedural issues raised by the petitioner

deserved no consideration under "minimal due

process."

efficiency of the service" pursuant to

Chapter 370 provides the petitioner with

procedural safeguards in excess of the

Board’s "minimal due process" procedures

(§7513). These agency regulatory

procedures, authorized by the President,

do not fly in the face of § 7513, but are

coincidental. The Board must recognize

this authority unless preempted by

statute. The Board has not shown this to

be the case’. In the areas of the

President’s Article II duties "the courts

have traditionally shown the utmost

deference to Presidential

responsibilities." United States v.

Nixon, 418 U.S. 683, 710 (1974). "Thus,

* The President is authorized under the U.S.

Constitution, Article II, Section 2, to classify

and control] access to information bearing on

national security. The petitioner's access and

procedural removal entitlements flow primarily from

this constitutional investment of power in the

President and exist separate from any explicit

Congressional grant. See Cafeteria Workers vy.

McElroy, 367 U.S. 886, 890 (1961).

FILMED TS 5 De a ic ee SE Ee PKA pera FO LIL RAMI TY EY P Sam AN patel mibgD Tree FOL YY PRN ES OI NIET SS TN TIN,

unless Congress specifically has provided

otherwise, courts traditionally have been

reluctant to intrude upon the authority of

the Executive in military and national

security affairs." See, _e.g., Orloff v.

Willoughby, 345 U.S. 83, 93-94 (1953);

Burns v. Wilson, 346 U.S. 137, 142, 144

(1953); Gilligan v. Morgan, 413 U.S. Ap 0

(1973), Schlesinger v. Councilman, 420

U.S. 738, 757-758 (1975); and Chappell v.

Wallace, 462 U.S. 296 (1983).

In the wake of Egan and Weissberger,

the Federal Circuit provided additional

guidelines regarding an employee’s

procedural due process. The United States

Court of Appeals for the Federal Circuit

stated in Griffin v. Defense Mapping

Agency, 864 F.2d 1579, 1580 (Fed.Cir

1989), ",..That the Supreme Court’s

decision in Egan did not create a new

substantive right to transfer to a

nonsensitive position, and that’ the

Board’s role in reviewing the feasibility

in such transfer is limited to where "that

substantive right is available from some

other source, such as statute or

regulation."(Emphasis added).

In Lyles v. Department of the Army, 864

F.2d 1581 (Fed. Cir. 1989), the Court,

addressing reassignment to a nonsensitive

position, stated, "(T)he Army must abide

by its own regulation, even if it is more

rigorous than necessary" (citing Morton v.

Ruiz, 415 U.S. 199, 235 (1974) and other

citations omitted); "(and) the Board,

according to Egan, may review the Army’s

efforts under this regulation to

reposition Lyles."

In Jamil v. Secretary, Department of

Defense, 910 F.2d 1203, 1208, (4th Cir.

1990), the Court made it clear that an

agency may change its regulations, but

SS OTe a a ale ene ee “ ; . A Re

until it does so, affected employees may

require the agency to follow procedures

which the agency itself has promulgated.

The Court specifically stated:

"While this Court may lack the power to

review the merits of the decision to

revoke Jamil’s security clearance, it

still possess the authority to require an

agency like the DMA to follow its own

regulations in making a security clearance

determination and in dismissing an

employee. See Hill v. Department of the

Air Force, 844, F.2d 1407, 1412 (10th Cir.

1988) ("Courts do have the power to compel

agencies to follow their own

regulations"). See also Egan, 484 U.S. at

930, 108 S.Ct. at 825 ("An employee who is

removed for "“cause" under Section #343,

when his clearance is denied, is entitled

to the several procedural protections

specified in that statute."). An agency

like the DMA may change its regulations,

but, until it does so, an affected

employee may require the agency to follow

the procedures which it itself has

promulgated. "”®

The Court also explained that Jamil did

not have a property or liberty interest in

his security clearance, therefore, he had

no constitutional rights to procedural due

process in connection with its revocation;

consequently, any claims to procedural

protection must be grounded in statutes

and regulations. Jamil distinguished

property or liberty interest in a security

clearance as being clearly separate from

property interest in continued employment,

indicating that "Jamil did have a property

interest in his continued employment..."

Jamil did not question the Egan holding

concerning underlying security determinations, but

asserted DMA failed to follow the procedures

required by its own regulations, an issue which was

not raised in Egan.

—_ ee

pa eee coon al OTR te al > Sy ea a $ “ a. 2. ~ 4 ¥ . . a

This concept is not surprising, as the

Fourteenth Amendment ’s procedural

protection of property is a safeguard that

a person has already acquired in specific

benefits. The petitioner has a property

interest in his employment. Cleveland

Board of Education v. Loudermill, 470 U.S.

334, 536, n.3.

The principle of Service v. Dulles, 354

U.S. 363 (1957), and its progeny,

establishes that judicial review is and

should be available. The regulations and

statutes which set forth reviewing

authority must be applied to preserve the

rule of law and protect the integrity of

the regulations and statutes in individual

cases. See Service v. Dulles, 354 U.S.

a3 (1957). If the agency is using its

regulations and statutes in removal

actions, it is improvident for the Board

to ignore them in the Board judicial

review process simply because they do not

conveniently fit into a rote

interpretation of Board review under §

75137’. Nevertheless, this is exactly what

the Board did in its interpretation of

Egan. See Id. Jones at 692.

The Board has created a double standard

for applying the laws regarding a federal

employee’s constitutional due process

procedural entitlements in "for cause"

removals, in that the Federal Circuit

provides one set of standards based on

Egan, while the Board provides a different

set of standards based on Egan.

Chapter 370 describes procedures for

" S §s.t. 7701(c) (2) provides:

"Notwithstanding paragraph (1), the agency's

decision may not be sustained under subsection (b)

of this section if the employee or applicant for

employment--(A) shows harmful error in_ the

application of the agency's procedures in arriving

at such decision; (B) shows that the decision was

based on any prohibited personnel _ practice

described in Section 2302(b) of this title; or (C)

shows that the decision was not in accordance with

the law."

removing employees for "such cause as will

promote the efficiency of the service."

$$ 3-4. Although Chapter 370 assigns to

preference eligible veterans the right to

appeal a removal action to the Board,

nonveteran employees at NSA do not have

this right. NSA nonveteran employees may

only appeal the agency’s decision through

the courts of the Federal Circuit,

provided they have _ standing. See

Carlucci v. Doe, 488 U.S. 93 (1988).

A reasonable inference would suggest

that an employee’s procedural entitlements

in "for cause" removal actions would be

observed diligently in order to avoid

misconduct in their application in view of

Egan and its progeny. The procedural

guidance in Egan concerning Board review

of security-clearance related removals is

narrowly construed by the Board. The

Board totally disregards agency

regulations and other statutes which

provide agency employees with greater

procedural safeguards than those contained

in § 7513. The agency employee is

subjected to conflicting law without solid

precedent and defined boundaries. The

burden of refutation placed on the

employee is made overwhelming by the

Board’s review standard for § 7513

procedures, which disregards agency

regulations and other statutes, despite

the holdings of the Federal Circuit, as

established post-Egan in Id. _ Lyles,

Griffin, and Jamil. The Federal Circuit,

on the other hand, gives deference to

agency procedural regulations in "for

cause" removals in its interpretation of

Egan, holding that an agency may change

its regulations (to conform with § 7513)

but, until it does so, an affected

employee may require the agency to follow

the procedures which the agency itself has

promulgated. Id. Jamil at 1412.

Meanwhile, the Board only looks at § 7513

in reviewing “for cause" removals,

insisting it is precluded from taking a

broader view of the case when an

employee’s security clearance has been

Suspended or revoked; thus the Board

disregards the agency’s procedures used in

these removals. Id. Jones at 692. See

Id. Germino at 688, concerning the

petitioner, wherein the Board refused to

review his procedural due process rights

under agency regulations. The point in

controversy concerning agency procedural

regulations is a lack of agreement on

stare decisis between the Board and the

Federal Circuit, because an established

and accepted legal precedent, under which

rights may accrue, is nonexistent. One

ironical result of this is that

nonveterans in the excepted service, who

are compelled to seek redress through the

Federal Circuit are provided with more due

process than veterans in the excepted

service, who are compelled to seek redress

through the CSRA. The veterans receive

minimal due process in Board cases because

the Board does not follow the Federal

Circuit in the doctrine of stare decisis.

This discrepancy between the Federal

Circuit and the Board denies federal

employees, such as the petitioner, equal

protection and due process under the law,

which, in its present application by the

Board, is, inter alia, prejudicial to

veterans in the excepted service. There

is a compelling need for the Court to set

a government-wide standard to which review

authorities shall adhere.

The National Security Agency Act of

1959, 50 U.S.C. 402 note (May 29, 1959),

ata ilice |

“ SEA OE LPN PIRES thy > s +e 4 Sa 9 Reece ate te DCMI LP ID tie ARIES EY eM en mange a cg

P.L. 86-36, 73 Stat. 63., is commonly

referred to by agency officials as "Public

Law 86-36". The purpose of this

legislation is to exempt NSA from the

provisions of the Classification Act of

1949, as amended**, for reasons of national

defense. This allows NSA to withhold

personnel data from the Civil Service

Commission--data normally required by the

Commission to perform its audit under the

Classification Act”. PL 86-36, Section 6,

provides that the agency is not required

to disclose information about its

organization or functions and activities,

or the names, titles, salaries or numbers

of persons employed by the agency. PL 86-

36 is used by the agency to withhold

* Now covered by chapter 51 and Subchapter

III of chapter 53 of Title 5, Government

Organization and Employees.

~ For the legislative history of the 1959 NSA

Act, Pub. L. 86-36, 73 Stat. 63, see 1959 U.S. Code

Cong. and Adm. News, pp. 1534-36.

administrative, organizational and

functional information which the agency

decrees should be protected in the

interest of national defense. However,

the agency routinely releases this type of

information by means of its NSA Newsletter

and other public media.”

The agency also

selectively "redacts" other kinds of

information from documents it uses in

removal actions by using black grease-

pencil obliterations. Thus, an employee

asking for documentation in a removal

action will receive documents containing

redacted information about agency

* A random sampling of the NSA Newsletter for

1990-1991 (unclassified) prepared for the

information and enjoyment of NSA employees and

their families (as well as NSA retirees), provides

a plethora of detailed information concerning the

names, organizations, titles and functions, and

activities of the agency. NSA Newsletter Volume

XXXVIII, No. 1 (January 1990), Volumes XXXIX, No.

2 (February 1991), No. 3 (March 1991), No. 4 (April

1991) No. 9, (September 1991), No. 10 (October

1991) and Volume XL, No. 3 (March 1992). See also

NSA organizations chart (unclassified) published in

the agency's report to the MSPB at its Exhibit 43}.

organizations, functions, and other

matters vital to the employee’s defense

against the agency’s' charges. The

redacted information is justified as a PL

86-36 exemption. The agency’s use of its

discretion in PL 86-36 redactions in

employee removal actions is totally

arbitrary and devastating to the

employee’s efforts to answer the agency’s

charges.

The agency thus evades its

responsibility to inform the employee of

the subject matter relied on by the agency

to remove the employee. This selective

redaction of information by the agency in

"for cause” removals amounts to

prosecuting the employee for events which

he knows nothing about. The agency’s

censorship deprives the employee of

specific notice and a meaningful hearing,

thus taking away the employee’s right of

free speech necessary to defend himself

against agency charges. A reasonable

inference would be that the agency’s

misuse of PL 86-36 constitutes prior

restraint of an individual’s right to free

speech in a public forum (Board). The

petitioner was further damaged by the

agency’s failure to comply with Chapter

370, §4-7.b.(2), which provides’ that

information which may not be disclosed to

the employee or his representative may not

be used to support the reasons in the

notice of proposed dismissal”.

The Board completely ignored the

petitioner’s argument that he was deprived

* ~The Court in Id. Green at 953 held that

"{[c]ertain principles have remained relatively

immutable in our jurisprudence. One of the

principles is that where governmental action

obviously injures an _ individual, and the

reasonableness of the action depends on fact

findings, the evidence used to prove the

Government's case must be disclosed to the

individual so that he has an opportunity to show

that it is untrue."

of adequate notice by the agency because

the agency misused PL 86-36 to redact data

from the notice that was given to the

petitioner. These data were later

provided to the agency deciding official

and the Board in an unredacted version not

available to the petitioner”. The agency

deciding official testified under oath

that he used the unredacted notice to make

his final decision. This unfair double

standard used by the agency to deprive the

petitioner of the notice to which he was

entitled was fatally prejudicial to the

petitioner as it deprived him of a fair

opportunity to oppose his removal.

Burkett v. United States, 402 F.2d 1002,

1004 (1968). Burkett at 1004 also advises

* NSA PMM Chapter 370, Section 4-7 b.,

“Advance Notice of Proposed Action", provides that

the agency will present to the employee, inter

alia, a statement outlining the specific charges

and the details of the infraction sufficient for

the employee to make an informed reply.

that notice of the proposed action must

inform the employee of the charges with

"sufficient particularity to apprise him

of the allegations he must refute or acts

he must justify."

The information contained in the notice

package provided to the agency deciding

official and the Board, (but not to the

petitioner), was harmful to the petitioner

in that he was not apprised of the charges

against him, was not given ae fair

opportunity to respond, and was not given

a fair hearing™. The procedural

. The agency argued that petitioner's

procedural rights were not prejudiced nor was he

caused substantial harm by the- redacted

information. The petitioner argued to the

contrary, as the information denied to the

petitioner under this agency premise constituted

bad notice, as it significantly hobbled,

complicated and prejudiced his ability to respond

to the notice and defend himself. Id. Burkett at

1007.

Failure by the agency to provide an

(continued...)

protection afforded to the petitioner was

thus inferior to that called for in

Chapter 370, and consequently constitutes

harmful error. In Stephen v. Dept. of the

Air Force, 47 M.S.P.R. 672, 681 (1991),

the Court held that "under S

§7701(c)(2)(A), the Board cannot sustain

an agency’s decision in any case if the

employee shows harmful error in the

application of the agency’s procedures in

arriving at such decision." "Reversal of

an action for harmful error is warranted

where the procedural error, whether

regulatory or statutory, likely had a

harmful effect upon the outcome of the

“(...continued)

identical notice package to the petitioner resulted

in 1) lack of specificity of the charges as to

Statements made by persons alleging them; 2) lack

of specificity as to the persons who made the

charges; 3) indefiniteness as to the Subject

matter; 4) undue generality as to the agency's

charges; and 5) exclusion of the information

required by the petitioner to defend himself.

Burkett at 1004

case before the agency" (Citations

omitted).

The agency had no legal authority to

misuse PL 86-36 by providing the Board

with unredacted data not provided to the

petitioner. This discrimination by the

agency is unlawful in its entirety. The

Board should have reversed such action as

"not in accordance with law" under §

7701(c)(2)(C). Stephen at 684. The

agency’s conduct in misusing PL 86-36 also

damaged the petitioner by not providing

him with “minimum procedures that satisfy

the institutional requirements of due

process of law. Under Loudermill, 470

U.S. 532, 105 S.Ct. 1487, the action must

be reversed because it cannot withstand

constitutional scrutiny." Stephen at 684.

The agency’s conduct in misusing PL 86-36

also deprived the petitioner of access to

the "case record," and therefore he was

unable to review all of the agency’s

evidence. This significantly prejudiced

his case and violated his minimum due

process entitlements. Dozier _v. United

States, 473 F.2d 866, 868 (1973).

The result of the manipulation of PL

86-36 by agency officials not only

deprived the petitioner of crucial

information to which he was entitled, but

seriously hobbled the petitioner’s ability

to gather information in his defense for

his written and oral responses to the

agency. Subsequent to the initial hearing

at the MSPB, the petitioner, pursuant to §

7703(c), submitted additional data to

demonstrate to the Board the harmful

effect of the agency’s actions. The Board

casually dismissed these data submitted by

the petitioner, citing C.F-R, §

1201.114(i), and holding that they

"related to the agency’s security

determinations underlying the removal

action and, therefore, are outside of the

Board’s scope of review." Id. Germino at

686. The Board’s rejection was misplaced,

as the petitioner had informed the Board

in his submissions that the data were

being submitted to demonstrate procedural

irregularities by the agency (not bearing

on the underlying security determination)

which harmed him by denying him an

opportunity to explain the charges against

him. (CA. App. 1480). The agency’s

conduct deprived him of specific notice”,

a meaningful hearing before the agency

deciding official®*, and an opportunity to

respond to the portion of the record

* Chapter 370 Sections 4-6.a. and b. - notice

and specific reasons; 5 U.S.C. 7513(b)(4) - notice

and specific reasons.

* Chapter 370 Section 4-7.d. - employee may

meet with the agency deciding official who wil]

hear the oral reply.

PELE SITE E LO IDLE LEA, GOL IG) ON OLE SEE LOL, TENN GAME TEL LTK, ad EEA EEL MPA Rs COE OEE

sequestered by the agency®’ through its

misuse of PL 86-36.

The evidence ‘ before the Board in the

petitioner’s case concerned the procedural

issues only and not substantive underlying

security determinations. The Board

compounded the agency’s mistakes by

denying the petitioner his constitutional

due process rights in ignoring the

procedural issues on the pretext that they

were inextricably interwoven with the

underlying security determination. The

fact is that the security clearance

determination and the removal process are

collateral, not interwoven.

CONCLUSION

There is a compelling need to set

government-wide standards in order to

provide fairness and uniformity in

Chapter 370 Section 4-6.c. - opportunity to

reply orally and/or in writing.

procedures used to adjudicate removal-

action cases which involve ae prior

suspension or revocation of an employee’s

security clearance. In the petitioner’s

case the Board and the Court of Appeals

for the Federal Circuit did not ascertain

whether the agency complied with its own

regulations and statutes.

For the above reasons, it is

respectfully submitted that the Court

issue a writ of certiorari to the Court of

Appeals for the Federal Circuit in the

petitioner’s case.

Respectfully Submitted:

y 4

y .

EMILE JOSEPH T, JR.

Attorney for the Petitioner

HEZENAULT & SYSKO, CHARTERED

306 Crain Highway, North

Glen Burnie, Maryland 21061

(410) 768-9300

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NORMAN A. GERMINO, Petitioner

APPENDIX A

NOTE: Pursuant to Fed. Cir. R. 47.6, this

disposition is not citable as precedent.

It is a public record. The disposition

will appear in tables published

periodically.

United States Court of Appeals for the

Federal Circuit

94-3366

NORMAN A. GERMINO,

Petitioner,

DEPARTMENT OF DEFENSE,

Respondent.

Decided: April 5, 1995

BEFORE RICH, NEWMAN, and SCHALL,

Circuit Judges.

SCHALL, Circuit Judge.

(la)

DECISION

Norman A. Germino petitions for review

of the April 21, 1994 final decision of the

Merit Systems Protection Board (Board)

affirming his removal from the National

Security Agency (agency). Germino v.

Department of Defense, Docket No.

DC0752920272-I-1. We affirm.

DISCUSSION

This court must affirm the Board’s

decision unless it is found to be 1)

arbitrary, capricious, an abuse of

discretion; or otherwise not in accordance

with law, 2) obtained without procedures

required by law, rule or regulation having

been followed, oor 3) unsupported by

substantial evidence. 5 U.S.C. § 7703(c)

(1988).

Mr. Germino was removed from his

position as a Language Analyst following an

agency decision to revoke his security

clearance, the retention of which was a

a ee

oa Le ee TE SA RS EE ee ETI AIT Pek ow

mandatory condition of employment. The

agency determined that Mr. Germino was

ineligible for continued access to

Classified information because he had

engaged in 1) the unauthorized removal and

subsequent storage of classified

information in unsecured spaces, 2) the

disclosure of classified information to

unauthorized persons, and 3) the

disclosure, to unauthorized persons, of the

identities of several intelligence officers

in sensitive assignments. Mr. Germino has

acknowledged committing each of these

offenses.

On appeal, Mr. Germino contends that, in

affirming his removal, the Board abused its

discretion, made findings which were not in

accordance with law, and denied him minimum

due process under 5 U.S.C. § 7513.

Under 5 U.S.C. § 7513, an agency

employee who is the subject of a removal

action is entitled to 1) at least 30 days’

advance written notice stating the specific

reasons for the proposed removal, 2) a

reasonable time to answer orally and in

writing and to furnish affidavits and other

documentary evidence in support of the

answer, 3) representation by an attorney or

other representative, and 4) a written

decision and the specific reasons therefor.

5 uU.S.C. § 7512 (1988 & Supp. II 1990); 5

U.S.C. § 7513(b) (1988). However, §§7512

and 7513 do not apply to, and the Board

therefore lacks authority to review, an

agency’s denial of an employee’s security

clearance. Department of the Navy v. Egan,

484 U.S. 518, 530 (1988); Brockmann v.

é Department of the Air Force, 27 F.3d 544,

546 (Fed. Cir. 1994) (citing Egan, 484 U.S.

at 530); see 5 U.S.C. §$§ 7512, 7513(b).

Nevertheless, “an employee who is removed

for ‘cause’ under § 7513, when his required

clearance is denied, is entitled to the

several procedural protections specified in

that statute." In such cases, the Board

May determine "whether such cause existed, "

and "whether in fact clearance was denied."

Egan, 484 U.S. at 530.

In view of the evidence of record, we

hold that the Board’s decision was not

arbitrary, Capricious, an abuse of

discretion, or obtained without procedures

required by law. Neither the Board nor

this court has authority to review the

agency’s denial of Mr. Germino’s security

clearance. With regard to Mr. Germino’s

removal, however, the Board and this court

may determine whether the agency provided

Mr. Germino with the procedural protections

specified in § 7513. Upon review of the

record, we find the the agency provided Mr.

Germino with advance written notice of 1)

the proposed removal, 2) the fact that the

removal action was the result of the

agency’s denial of his securit clearance

and 3) the specific offenses which resulted

in his clearance being denied. The agency

also provided Mr. Germino with eight months

to respond, an opportunity to be

represented by an attorney or other

representative, and a written decision

enumerating the reasons for his removal.

Accordingly, we find that the Board

correctly determined that the agency

provided Mr. Germino with all of the

procedural protections to which he was

entitled under § 7513.

Mr. Germino’s claim that the agency

improperly deleted certain classified

information from the documentation it

provided to him, even if true, does not

support his contention that the agency

failed to provide him minimum due process

under § 7513. The agency is entitled to

prevent classified information from

entering the public domain. See National

Security Agency Act of 1959, Pub. L. No.

86-36, § 6, 73 Stat. 63 (codified as

———

ee re

amended at 50 U.S.C. § 402 note (1988)).

Mr. Germino fails to cite any authority for

the proposition that the agency was obliged

to provide him with the classified

information at issue. Additionally, Mr.

Germino fails to show how the agency’s

deletion of this information resulted in

harmful error. > U.S.C. §¢ 7701(c) (2) (A)

(1988).

Mr. Germino’s contention that the agency

failed to observe its own personnel

procedures in removing him is also without

merit. Mr. Germino cites no authority in

Support of this argument and, additionally,

fails to show how any such alleged failure

by the agency resulted in harmful error.

Id.; 5 C.F.R. § 1201.56(b)(1) (1994).

ELL LLL LLL A ee ee

NOTE: Pursuant to Fed. Cir. R. 47.6, this

disposition is not citable as precedent.

It is a public record. The disposition

will appear in tables published

periodically.

United States Court of Appeals for the Federal Circuit

94-3366

NORMAN A. GERMINO,

Petitioner,

Vv.

DEPARTMENT OF DEFENSE,

Respondent.

JUDGMENT

ON APPEAL from the Merit Systems

Protection Board

in CASE NO(S). DC0752920272-I-1

This CAUSE having been heard and considered

it is ORDERED and ADJUDGED: AFFIRMED

ENTERED BY ORDER OF THE COURT

Francis X. Gindhart

FRANCIS X. GINDHART, Clerk

DATED:__April 5, 1995

ISSUED AS A MANDATE: MAY 30, 1995

APPENDIX B

Norman A. Germino, Appellant,

Vv.

DEPARTMENT OF DEFENSE, Agency.

DC0752920272-I-1.

Merit Systems Protection Board.

April 21, 1994.

Employee petitioned for review of

initial decision that sustained agency’s

action removing him from his position

following revocation of his security

clearance. The Merit Systems Protection

Board held that agency afforded employee

minimum due process rights.

Petition denied; case reopened; initial

decision affirmed as modified; removal

action sustained.

Member Antonio C. Amador issued opinion

concurring in part and dissenting in part.

OPINION AND ORDER

This case is before the Board upon the

appellant’s timely petition for review of

10a

the June 19, 1992 initial decision that

sustained the agency’s action removing him

from his position. For the reasons

discussed below, the Board DENIES the

appellant’s petition for failure to meet

the criteria for review set forth at 5

C.F.R. § 1201.115, REOPENS the case on its

own motion under 5 C.F.R.§ 1201.117, and

AFFIRMS the initial decision as MODIFIED

by this Opinion and _ Order, still

SUSTAINING the removal action.

BACKGROUND

The appellant filed with the Board’s

Washington, D.C., Regional Office a timely

appeal of the agency’s January 31, 1992

action removing him from his Language

Analyst position for failure to meet a

mandatory condition of employment due to a

prior determination that he was ineligible

for continued access to classified

information based on his involvement in:

(1) The unauthorized removal and

lla

subsequent storage of classified documents

in unsecured spaces; (2) the divulgence of

Classified information to unauthorized

individuals; and (3) the disclosure of the

identities of several intelligence

officers in sensitive assignments. Appeal

File (AF), Tab 1 and Tab 5, Subtabs 4b,

4cc. The agency attached to the removal

proposal notice two investigative

memoranda describing the alleged

underlying misconduct. In his defense,

the appellant alleged, inter alia, that

the agency committed harmful error because

it failed to follow applicable statutory

and regulatory procedures in effecting his

removal, failed to afford him due process

in revoking his access to classified

information, and failed to adequately

notify him of the reasons for the security

clearance ineligibility determination.

See, e.g., AF, Tabs 1, 15, 16.

After affording the appellant a

l2a

hearing, the administrative judge, in his

initial decision, sustained the removal

action. The administrative judge first

noted that it was undisputed that

retention of a security clearance was a

condition of the appellant’s employment,

that the agency had revoked his security

clearance, and that there was no

requirement that the agency reassign him

to a nonsensitive position. He then found

that the agency had complied with the

procedures set forth at 5 U.S.C. § 7513

and its own regulations in effecting the

appellant’s removal and that the agency

had afforded the appellant minimum due

process in revoking his security

clearance. See Initial Decision (I.D.) at

3-8.

In his petition for review, the

appellant challenges the administrative

judge’s findings on the issues of the

alleged agency procedural errors made

l3a

below, reiterating his arguments in

support of his harmful error contentions.

He also contends that the administrative

judge erred by rejecting certain of the

issues he identified for adjudication and

denying him his requested witnesses and an

opportunity to fully examine one of the

agency’s witnesses. The agency has timely

responded in opposition to the petition

for review.

[1] The appellant also filed, after

the close of the record on review, a reply

to the agency’s response and various

documents that he contends are based on

new and material evidence. See Petition

for Review (PFR) File, Tabs 4-7. The

documents consist of affidavits by certain

persons interviewed by the agency’s

investigator that indicate that the

investigator’s report was misleading,

supporting evidence, and other

investigatory material. See id., Tabs 5-

l4a

7 Even if these submissions were

unavailable before the record closed on

review, we will not consider them because

they relate to the agency’s' security

determinations underlying the removal

action and, therefore, are outside of the

Board’s scope of review. See 5 C.F.R. §

1201.114(i); Weissberger Vv. u.8.

Information Agency, 39 M.S.P.R. 370, 374

(1988).

ANALYSIS

The agency afforded the appellant his

minimum due process rights in removing him

from his position.

[2] In Jones _v. Department of the

Navy, 48 M.S.P.R. 680, 689-90 (1991),

aff’d, 978 F.2d 1223 (Fed.Cir.1992), the

Board held that an agency may indefinitely

suspend an employee based on_ the

suspension of his security access, or

pending its investigation of his security

clearance, where the agency believes that

l5a

his retention in a duty status would be

detrimental to government interests.

Citing Department of the Navy v. Eaan, 484

U.S. 518, 527-32, 108 S.Ct. 818, 824-26,

98 L.Ed.2d 918 (1988), we further found

that the Board lacks authority to review

the merits of an agency’s suspension of an

employee’s security access. See Jones, 48

M.S.P.R. at 689-90.

[3] In Kriner_v. Department of the

Navy, 61 M.S.P.R. 526 (1994), the Board

again addressed the rule in Jones. We

there reaffirmed that an agency may

indefinitely suspend an employee based on

its prior action with respect to his

security access, and that the Board may

not inquire into the merits of the

agency’s reasons for the security access

decision; we nonetheless held that we must

assure that minimum due process

requirements were accorded in the

indefinite suspension action. Thus, where

l6a

an indefinite suspension is based on the

revocation of access to security areas or

information, the agency must provide the

appellant with a meaningful opportunity to

respond to the reasons for the indefinite

suspension by ensuring that either in the

advance notice of that action, or in the

earlier access determination, he has been

notified of the cause that led to the

access determination. Because an employee

against whom an adverse action such as an

indefinite suspension is taken is entitled

to notice of the specific reasons for that

action and to an opportunity to address

those reasons in his response to the

agency’s proposal, only in this manner

does the agency assure that the appellant

is afforded meaningful due process with

respect to his constitutionally protected

property interest in his employment. See

Cleveland __ Board of __ Education _v.

Loudermill, 470 U.S. 532, 546, 105 S.Ct.

l7a

1487, 1495, 84 L.Ed.2d 494 (1985);

Stephen v. Department of the Air Force, 47

M.S.P.R. 672, 681 (1991).

Applying that ruling to the facts of

this case, we note that, before the agency

removed the appellant, it informed him, in

its 30-day removal proposal notice and in

its supporting investigative memoranda, of

the reasons for the revocation of his

security clearance. See AF, Tab 5, Subtab

4cc. It specifically informed him that

the revocation was based on his alleged

unauthorized removal and improper storage

of classified documents, divulgence of

Classified information to unauthorized

individuals, and disclosure of the

identities of several intelligence

officers. Id. It also provided him with

an opportunity to "reply to the security

access determination and this proposed

removal..." Id. We find that this notice

was sufficient to satisfy the appellant’s

18a

minimum due process rights, as well as his

right to notice under 5 U.S.C. §

7513(b)(1), and that the appellant was

afforded meaningful due process in the

agency’s action removing him from his

position.

[4] We further note that the appellant

challenges the administrative judge’s

statement in the initial decision that he

did not allege violation of his statutory

procedural rights. See PFR at 10; I.D. at

3-4. He argues that he specifically

alleged in his appeal that the agency had

violated 5 U.S.C. chapters 75 and 77, as

well as related laws, statutes,

directives, and regulations. PFR at 10.

We note, however, that the appellant did

not allege below that the agency violated

any specific provision of 5 U.S.C. § 7513.

See AF, Tabs 1, 15, 16. On review, the

appellant challenges, as we will further

discuss below, only the administrative

19a

judge’s finding that the agency did not

violate its own regulations in the removal

process. See PFR at 10, 21-23. Even

assuming that the administrative judge

erred in this regard, we find that such

error did not prejudice the appellant’s

substantive rights inasmuch as_ the

administrative judge ultimately correctly

concluded that the agency afforded the

appellant his due process rights under 5

U.8.Cs § 7813, See Weissberger, 39

M.S.P.R. at 373; Karapinka v. Department

of Energy, 6 MSPB 114, 6 M.S.P.R. 124, 127

(1981); I.D. at 3-4; Hearing Transcript

(Tr.) at 9; see also AF, Tab 5, Subtabs

4b-4k, 4m, 4p, 4r-4t, 4x-4y, 4aa, 4cc.

The appellant has not shown harmful

error by the agency in the application of

its regulations.

[5] The appellant reiterates his

contention made below that, in removing

him, the agency failed to follow its

regulations at NSA/CSS PMM 30-2, chapter

370, sections 4-5(b) and (d), 4-8(a), and

4-8(c)(3), which provide that: (1) The

Deputy Director for Administration (DDA)

shall dispose of adverse actions and may

not delegate the hearing of the oral reply

except for furloughs; (2) the DDA shall

document his final decision and state the

reasons upon which he based the decision;

and (3) information obtained in the course

of the decision process may be used in

reeching a final decision provided that

the employee has access to that

information and an opportunity to respond

to it. PFR at 11, 21-23. The appellant

contends that the agency violated these

provisions of its regulations because the

DDA delegated his decision-making function

to his Chief of Staff (the deciding

official), whose final decision did not

adequately set forth the reasons upon

wkich it was based. See id. at 11-12.

2la

Regarding the DDA’s delegation, NSA/CSS

PMM 30-2, chapter 370, section 4-5(b),

provides in pertinent part that, where

"Chief, M3 has proposed an adverse action

[such as the instant action, the DDA}]

Shall dispose the action." AF, Tab 5,

Subtab 4kk. There is nothing in the

regulation that prohibits delegation of

the DDA’s deciding authority and, thus,

the appellant has not shown error here.

Moreover, even if he had shown error, his

bare assertion that he was harmed by the

delegation because the deciding official

delegated "lacked the skills and

background to perform this function, even

if he would have been legally entitled to

serve as deciding official," is

insufficient to establish harn. PFR at

19; see Stephen, 47 M.S.P.R. at 681.

The appellant further argues that the

administrative judge may review procedural

due process under the agency’s

22a

regulations. See PFR at 16. We note

that the agency’s regulations at NSA/CSS

PMM 30-2, chapter 370, cover disciplinary

and adverse actions, namely, "involuntary

actions which reprimand, suspend, enforce

leave, separate for disability, remove,

reduce in pay or grade, and furlough for

30 days or less." AF, Tab 5, Subtab 4kk,

NSA/CSS PMM 30-2 at 231. The regulations

do not, we find, include negative security

clearance determinations. Therefore, the

agency’s procedural regulations do not

apply to those determinations.

The appellant has failed to show that the

agency did not allow him adequate

discovery in preparing his response to the

removal charges.

The appellant contends that the agency

did not afford him adequate discovery in

responding to the removal charges and

therefore violated its own procedures at

NSA/CSS PMM 30-2, chapter 370, section 4-

23a

6, because he could not fully respond to

the charges, as required by those

regulatory procedures. See PFR at 23-26;