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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 930

## Text

( \ 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
V.
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.

ii
TABLE OF CONTENTS

PAGE
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Reasons for granting the petition..... 16
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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 Sy ea a $ “ a. 2. ~ 4 ¥ . . a

46

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

47

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."

48

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

49

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

50

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

51

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

52

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.

53

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}.

54

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."

ew

56

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.

57

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...)

58

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

59

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

60

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

61

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

62

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

37

Chapter 370 Section 4-6.c. - opportunity to
reply orally and/or in writing.

63

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,
Ve
DEPARTMENT OF DEFENSE,

Respondent.

Decided: April 5, 1995

BEFORE RICH, NEWMAN, and SCHALL,

Circuit Judges.

SCHALL, Circuit Judge.

(la)

2a

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

3a

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’

ee

4a

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

Va

5a

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
i

and 3) the specific offenses which resulted

6a

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

8a

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

9a

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;

see also AF, Tab 5, Subtab 4kk. We note

that the applicable provision of the
agency’s regulations states that an
employee subject to adverse action
procedures is entitled to an opportunity
to reply orally and in writing to the
agency’s charges. See AF, Tab 5, Subtab
4kk, NSA/CSS pPMM 30-2, chapter 370,
section 4-6(c). Because, as we found
above, the agency fully met its obligation
to provide the appellant with an
Opportunity to respond to the charges,
both orally and in writing, as required
under 5 U.S.C. § 7513, we find no merit to
the appéllant’s contention.

The appellant has not shown error by the

administrative judge in his prehearing

rulings.

The appellant contends that the

administrative judge erred by rejecting

nine of the issues he identified for
adjudication below, i.e., issues E, F, G,
B, J; Ky by BB, eee 0. ee Appellant’s

Hearing Submissions at 6-8, AF, Tab 15;
PFR at 26. Issues E, G, H, J, K, and L
relate to whether, in denying’ the
appellant access to documents and
information that may have been security-
related, the agency denied him an adequate
opportunity to respond both orally and in
writing to the charges in the removal

proposal notice.

Is
D

AF, Tab 1S.
Appellant’s Hearing Submissions at 6-7.
Issues F and N relate, respectively, to
whether the agency followed reasonable
investigatory procedures so that’ the
deciding official was able to review the
case in accordance "with the provisions of
DCID 1/4" and whether the agency erred by

considering the appellant’s conduct at the

Department of State, which, the appellant

claims, had no nexus to the agency’s

removal action and allegedly resulted in
his denial of an adequate opportunity to
respond to the charges. Id.

[6] In his order summarizing the
prehearing conference, the administrative
judge rejected all of these issues on the
basis that they related to matters that
extended beyond the scope of the requisite
minimum due process rights reviewable by
the Board. AF, Tab 16. The appellant
timely objected to the administrative

judge’s ruling excluding these issues.

See id.; Tr. at 11-14. Because, however,
these issues involve security
determinations within the agency’s
discretion, the administrative judge

correctly rejected them. See Weissberger,

39 MS.P.R. at 374.
[7] The appellant further contends

that the administrative judge erred by

denying all of his witnesses who, he

claimed, were expected to testify
regarding procedures used by agency
security and deciding officials in the
removal process. See PFR at 26-28. In
his order summarizing the prehearing
conference, the administrative judge
rejected these witnesses based upon his
determination that their testimony related
to issues that were not within the Board’s
scope of review. AF, Tab 16. The
appellant did not object to the

administrative judge’s ruling below even

though he was afforded an opportunity to

do so. See id.; Tr. at 1-14. Therefore,
we will not consider his’~ untimely

objection on review. See Whitehurst v.

Tennessee Valley Authority, 43 M.S.P.R.

486, 491 (1990).
[8] Finally, the appellant contends
that the administrative judge erred by not

allowing him to examine an agency witness

regarding the verification of the

~~
o

j
appellant’s service with the Department of

State during the period when the alleged
security breaches occurred. See PFR at
29-30. The administrative judge rejected
the appellant’s counsel’s reason for the
questioning-i.e., that he was not given
proper notice of the charges because the
record was incorrect-ruling that such
notice was unrelated to the issues
concerned in the appeal and went to the
merits of the underlying reasons for the
agency’s action. Tr. at 55-57. The
administrative judge correctly so ruled
inasmuch as the Board has no jurisdiction
over the merits of an adverse action based

on a security clearance determination.

see Egan, 484 U.S. at 530-31, 108 S.Ct. at

825-26, 98 L.Ed.2d 918.
ORDER
This is the final order of the Merit

Systems Protection Board in this appeal.

5 C.F.R. § 1201.113(c).

i
*

AMADOR, Member, issues an _ opinion

concurring in part and dissenting in part.
For the Board:

ROBER? E. TAYLOR,

WASHINGTON, D.C.

OPINION, CONCURRING IN PART AND
DISSENTING IN PART, OF ANTONIO C. AMADOR,
MEMBER.

While I concur with the majority
opinion sustaining the appellant’s
indefinite suspension, I must dissent from
my colleagues’ conclusion that the
termination of the appellant’s security
access implicated due process concerns.

The Federal Courts Improvement Act of
1982 established the Court of Appeals for
the Federal Circuit as an appellate forum
with nationwide jurisdiction for the
definitive adjudication of selected
categories of cases. S.Rep. No. 275, 97th

Cong., 2d Sess. 1-3(1982), reprinted in

Bee U.ScC.CeAcBe tii 3. The Federal

29a

Circuit was given exclusive jurisdiction
over, inter alia, final orders or final
decisions of the Merit Systems Protection
Board pursuant to section 7703(b)(1) and
7703(d) of Title “5. 20.60CUU.6.C. ¢
1295(a)(9). Accordingly, no matter how
strongly individual Board members may
disagree with a precedential decision of
the Federal Circuit, the Board is duty-
bound to follow that precedent until such
time as it is reversed by the Federal
Circuit en banc, by the Supreme Court, or
by legislative action.

In Jones v. Department of the Navy, 978

F.2d 1223 (Fed.Cir.1992), the Federal
Circuit held that a Federal employee has
no liberty or property interest in access
to classified information, and the
termination of that access therefore does
not implicate any due process concerns.

The Court stated:

The petitioners contend that

30a

they were denied procedural due
process in the termination of their
access to classified information
because the agency did not give them
full information about the basis for
such termination; that because
access to such material was a
condition of their continued
employment, such termination
necessarily would have resulted in
their suspension from employment;
and that their indefinite
suspensions, therefore, were
effected in violation of their
constitutional rights.

The argument fails because it
rests upon a faulty premise. The
petitioners did not have a liberty
or property interest in access to
classified information, and the

termination of that access therefore

did not implicate any due process

concerns.
Jones, 978 F.2d at 1225. My colleagues
mistakenly conclude that an individual’s
expectations in a clearance might be a
basis for a constitutional right; they
have confused a constitutional right to
due process and a property interest in
employment with the agency’s application
of administrative procedures "which are
intended to promote fairness and safeguard
the rights of individual employees, but
are not intended thereby to diminish
Executive authority rooted in Executive

responsibility." Hill v. Department of the

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

Cir.), cert.denied, 488 U.S. 825, 109
S.Ct. 73, 102 L.Ed.2d 49 (1988). In an
appeal under 5 U.S.C. § 7513, based on the
denial oor revocation of a security
clearance, the Board does not have
authority to review the substance of the

underlying security clearance

determination. Department of the Navy v.

Egan, 484 U.S. 518, 530-31, 108 S.Ct. 818,
825-26, 98 L.Ed.2d 918 (1988). Lacking
that authority, we may not look to the
sufficiency of the reasons for terminating
a security access.

Today, my colleagues exceed their

authority in deciding otherwise.

GERMINO.7

APPENDIX C

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE

NORMAN A. GERMINO,
Appellant,

DOCKET NUMBER
DC0752920272-I-1

V.

DEPARTMENT OF DEFENSE,
Agency.

DATE: JUNE 19, 1992

me ee eee ee eee”

Emile J. Henault, Jr., Esquire, Glen
Burnie, Maryland, for the appellant.

LCDR R. Tyrone Kee, Esquire, Fort George G.
Meade, Maryland, for the agency.

BEFORE
William C. Jenkins
Administrative Judge

INITIAL DECISION

INTRODUCTION

Appellant filed an appeal on February
19, 1992, from the action of the agency
removing him, effective January 31, 1992.
As a preference eligible employee in the
excepted service who has completed one year
of current continuous service in the same
or similar positions, appellant is entitled
to appeal his removal to the Board. 5
u.6.C. 66 770lita), 512, 751i(a)(1)}(B).
For the following reasons, the agency’s
action is AFFIRMED.

34a

ANALYSIS AND FINDINGS

Legal Standard Scope of Review

Appellant occupied the position of
Language Analyst, GGD-12, at the agency’s
National Security Agency (NSA). The action
of the agency removing him from this
position was based on a determination that
he was ineligible for continued access to
classified information and that he thereby
failed to meet a mandatory condition of
employment. (Ag. File, Tabs 4b and 4cc).
In considering appellant’s appeal of this
action, the Board is without authority to
review the merits oof the agency’s

revocation of the security clearance.

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

518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988);

Weissberger v. United States Information

Agency, 39 M.S.P.R. 370, 373 (1988). The
Board’s inquiry is limited to a
determination whether the appellant

received the procedural protection of 5

35a

U.S.C. § 7513, whether the position was
classified as _ sensitive, and whether
appellant was removed for failure to
maintain the required security clearance.

See Lyles _v. Department of the Navy, 864

F.2d 1581, 1583 (Fed.Cir. 1989). In
reviewing the legal sufficiency of the
procedural aspects of a revocation action,
the Board will determine whether the agency
afforded minimal due process protection to

the appellant. Weissberger, 39 M.S.P.R. at

373.

In its decision in Egan, the Supreme
Court also stated that the Board may
determine whether transfer to a
nonsensitive position was feasible. Egan,
108 S. ct. at 825. The Court of Appeals
for the Federal Circuit and the Board have
subsequently interpreted this statement to

require review of the feasibility of

transfer to a nonsensitive position only if

36a

that substantive right is available from
some other statute or regulation. Griffin

v. Defense Mapping Agency, 864 F.2d 1579,

1580 (Fed.Cirl1989); Lyles, 864 F.2d at

1583; VanDuzer v. Department of the Navy,

41 M.S.P.R. 357, 361 (1989). In the
absence of an agency regulation requiring
reassignment to alternative positions, the
Board may not review any efforts that an

agency does undertake. Skees v. Department

of the Navy, 864 F.2d 1576, 1578 (Fed. Cir

1989).

Retention of a security clearance was a

requirement of appellant’s position,

appellant’s clearance was revoked, and

reassignment to a nonsensitive position is

not required

Relevant statutory and regulatory
provisions as well as the testimony of
Donald L. Parsons, NSA Chief of Staff,

establish that all NSA employees are

required to be cleared for access to

37a

classified SRE ORERE NOM Department of

Defense (DOD) Directive 5100.23 thus
specifies that all positions at NSA are
designated "critical sensitive positions."
(Ag. File, Tab 4hh - p. 203). Section
832(a) of Title 50, U.S.C. also provides
that no person shall be employed by NSA
unless he is cleared for access to
classified information. (Ag. File, Tab
42f). On the basis of this evidence the
agency has thus established that retention
of a security clearance was a requirement
of appellant’s position.

That appellant’s clearance was actually
revoked is not in dispute and is well
documented. A March 19, 1991, memorandum
recommending appellant’s removal for
failing to meet a mandatory condition of
employment thus notes that his security
clearance was revoked on ‘January 3, 1991.
(Ag. File, Tab 4dd). A related January 3,

i99i, memorandum documenting that

Tn

38a
revocation is also in the record. Id. -
enclosure 3. Finally, the determination

that appellant was ineligible for access to
classified information was subsequently
sustained by Mr. Parsons in December 1991.
(Ag. File, Tab 4c).

As to his possible reassignment to
another position, appellant has not
identified any agency policy or regulation

that requires such action. Under VanDuzer,

41 M.S.P.R. at 361, the feasibility of
appellant’s transfer is therefore not
reviewable by the Board.

The agency complied with the procedural

requirements of 5 U.S.C. §7513 and related

agency regulations governing adverse

actions

As to the procedural aspects of the
case, the record shows that the appellant
was given the notice and opportunity to

respond required by 5 U.S.C. §7513. (Ag.

File, Tabs 4cc, 4c; Appeal File, Tab l -

39a

Appendix 8, appellant’s written reply).

Moreover, no violation of these statutory

rights has been alleged. Appellant,

however does contend that the agency failed

to comply with several related provisions

of its own adverse action regulations,

NSA/CSS PMM 30-2 Chapter 370, Section 4

(Ag. File, Tab 4kk). The Board has held

that an agency must follow its own

regulations. See Myers _v. Department of

the Air Force, 28 M.S.P.R. 479, 482

(1985).

Appellant thus alleges that Mr. Parsons’

final decision of January 2, 1992, violated

sections 4-6h and 4-8c(3) by failing to set

forth the reasons on which it was based.

Review of that decision discloses, however,

that it specifically states that the

proposed removal and the underlying charge

that the appellant failed to meet a

mandatory condition of employment were

sustained. (Ag. File, Tab 4c). The reason

for the agency’s decision is therefore

identified and no violations of the above-
cited sections is shown to have occurred.
Because the removal of appellant was
proposed by the Director of Civilian
Personnel, section 4-5{b) of the agency’s
regulations specifies that the Deputy
Director for Administration (DDA) shall be
the deciding official. The DDA, Eugene J.
Becker, disqualified himself, however, and
the agency then designated its Chief of
Staff, William P. Crowell, to receive
appellant’s replies and decide the case.
(Ag. File, Tab 4dd). In October 1991,
after appellant had been granted several
extensions to reply to the proposed action
and to the revocation of the security
clearance, Mr. Parsons became Chief of
Staff and was designated to hear and decide
appellant’s case. (Ag. File, Tab 41). It
is appellant’s contention that the

designation of Mr. Parsons violated section

4-5b as well as section 4-7d(l), which

provides that the deciding official may not
delegate the hearing of the oral reply. As
to section 4-7d(l), it is clear that no
violation occurred. Mr. Parsons,
functioning as the deciding official,
personally received appellant’s oral reply
on December 3, 1991, and did not delegate
that function to anyone else. (Ag. File,
Tab 4c.) I also find no violation of
section 4-5b as a result of the designation
of Mr. Parsons as deciding official. With
the DDA’s withdrawal, it is apparent that
someone still had to serve as deciding

official. Under these circumstances the

agency’s designation of the Chief of Staff,

a position at a higher organizational level
than the DDA (Ag. File, Tab 433), does not
evidence a violation of its own
regulations. In this regard, it was also
the uncontradicted testimony of Dorothy J.
Masterson, Chief of Employee Relations,

that the Chief of Staff, under the agency’s

42a

delegations of authority, had the authority
to decide a removal action and that that
authority had simply been redelegated to
the DDA.

Appellant’s remaining allegations
concern section 4-7b(1)(a), which addresses
the specificity of a proposal notice, and
section eta), which states that
information that cannot be provided to the
employee cannot be used to support the
adverse action. Appellant contends that
the proposal notice of March 19, 1991, did
not accurately identify the reasons for the
security clearance revocation, and that the
investigative material on which’ the
revocation was based and which was given to
him as an attachment to the proposal notice
(App. Ex. 1) deleted information that was
later included in the agency response (Ag.
File, Tab 4cc) filed with the Board. These

contentions concern the adequacy of the

agency’s revocation procedures, however,

43a

and not the adverse action procedures that
are the subject of the cited agency
regulations. The security clearance denial
is not itself an adverse action under 5

U.S.C. § 7513. Weissberger, 39 M.S.P.R. at

373. Section 4 of NSA/CSS PMM 30-2 Chapter
370 is therefore not applicable to the
procedural concerns of appellant outlined

in this paragraph. Those concerns will

only be analyzed in terms of the agency’s

compliance with the minimum due process
required by Egan.

The agency afforded appellant the required

minimum due process in revoking his

security clearance

The minimal due process right that must
be afforded to an employee in revoking his
security clearance are: (1) Notice of the
denial or revocation; (2) a statement of
the reason or reasons upon which the
negative decision was based; and (3) an

opportunity to respond. Weissberger, 39

M.S.P.R. at 374. The Board’s review of
the legal sufficiency of the procedural
aspects of the revocation action is limited
to determining whether the employee was
given these protections. Id. at 373. For
the following reasons, I find that the
agency did meet the minimal due process
requirements of Egan. First, the agency’s
March 19, 1991, notice specifically
informed appellant that he was ineligible
for continued access to classified
information and advised him that this
determination was based on:
[his] involvement in 1) the
unauthorized removal and
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.
(Ag. File, Tab 4cc). Attached to the
notice were the two memoranda and related
investigative material that were used to
first suspend appellant’s clearance in
March 1990 and then revoke it in January
1991. (Ag. File, Tab 4cc). In view of the
specificity of the notice and the inclusion
of the supporting evidence relied on by the
agency, I find no merit to appellant’s
contention that he somehow was not notified
of the reasons for the revocation action.
Similarly, I find completely unsupported
appellant’s allegation that he did not have
an adequate opportunity to respond to the
agency’s charges. The March 1991 notice

advised appellant that he could respond

orally and in writing to the security

access determination, and, at appellant’s

request, the period for responding was

.;
46a

extended approximately eight months. (Ag.
File, Tabs 4d-4z). During this period
appellant requested and was’ provided
additional documentation. Id. Appellant
eventually submitted an extensive written
reply on November 21, 1991, and replied
orally to Mr. Parsons on December 3, 1991.

(Appeal File, Tab 1 - Appendix 8; Ag.
file, Tab 4c).

Appellant, the record thus establishes,
was clearly provided an opportunity to
respond to the stated reasons for the
revocation of his security clearance. No
basis for altering this conclusion is
provided by the evidence indicating that
the supporting material furnished to
appellant with the November 1991 notice
deleted some information that was later
included in the copy of the notice provided
to the Board at Tab 4cc of the agency’s

response. In this regard, it was

appellant’s uncontradicted testimony that

47a

the document identified as App. Ex. 1 was
the actual proposal notice and related
material furnished to him by the agency.
A comparison of this document with the
notice and attachments in the agency’s
response, Ag. file, Tab 4cc, does reveal
that some agency organizational
designations and the names of some agency
employees were deleted from App. Ex. 1 and
that one entire document, a letter from
appellant to his wife (Ag. File, Tab 4cc,
pp 104-108) was omitted from Ag. Ex.1l.
(Appeal file, Tabs 17 and 18 - appellant
and agency responses comparing App. Ex. 1
and 4cc). The omission of this
information, however, is not shown to have
deprived appellant of an opportunity to
respond to the stated reasons for the
security clearance determination.

The testimony of appellant and his

written reply to the ineligibility

determination thus show that he was at all

ne ttn ne -

48a

times aware of the three specified reasons
for the revocation of his’ clearance.
Although appellant contends that a formal
reply procedure that included a right to
discovery should have been provided, no
such procedure and no Board review of the
desirability of such a= procedure is

required by Egan or Weissberger. Appellant

was entitled to notice of the reasons for
the revocation and an opportunity to
respond. Those rights were clearly
provided by the agency. In addition,
although he argues that he was prejudiced
by the omission of information from App.
Ex. 1, he has not in any manner established
that he was unable to respond to the
specific charges concerning his handling of
classified documents and his’ alleged
disclosure of classified information and
sensitive identities. For all of these
reasons, I find that appellant’s receipt of

App. Ex. 1 did not deprive him of the

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minimal due process rights required by
Egan.

Having found that appellant’s position
required a security clearance, that the
agency revoked that clearance, and that the
agency satisfied the requirements of 5
U.S.C. § 7513 and afforded appellant his
minimal due process rights, I conclude that
the agency’s charge is supported by a
preponderance of the evidence and that
appellant’s removal must be sustained.

VanDuzer, 41 M.S.P.R. at 362.

DECISION

The agency’s action is AFFIRMED.
FOR THE BOARD:
William C. Jenkins

WILLIAM C. JENKINS
Administrative Judge

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APPENDIX D
§ 7512. Actions Covered
This subchapter applies to-
(1) a removal;
(2) a suspension for more than 14
days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less;

but does not apply to-

(A) a suspension or removal under
section 7532 of this title,

(B) a reduction-in-force action
under section 3502 of this title,

(C) the reduction in grade of a
supervisor or manager who has not completed
the probationary period under section
3321(a)(2) of this title if such reduction
is to the grade held immediately before
becoming such a supervisor or manager,

(D) a reduction in grade or removal
under section 4303 of this title, or

(E) an action initiated under section
1206 or 7521 if this title.

§ 7513. Cause and procedure

(a) Under regulations prescribed by the
Office of Personnel Management, an agency
may take an action covered by this
subchapter against an employee only for
such cause as will promote the efficiency
of the service.

(b) An employee against whom an action
is proposed is entitled to-

(1) at least 30 days’ advance
written notice, unless there is reasonable
cause to believe the employee has committed
a crime for which a sentence ofimprisonment
may be imposed, stating the specific
reasons for the proposed action;

5la

(2) a reasonable time, but not less
than 7 days, to answer orally and in
writing and to furnish affidavits and other
documentary evidence in support of the
answer;

(3) be represented by an attorney
or other representative; and

(4) a written decision and the
specific reasons therefor at the earliest
practicable date.

(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.

(d) An employee against whom an action
is taken under this section is entitled to
appeal to the Merit Systems Protection
Board under section 7701 of this title.

(e) Copies of the notice of proposed
action, the answer of the employee when
written, a summary thereof when made
orally, the notice of decision and reasons
therefor, and any order effecting an action
covered by this subchapter, together with
any supporting material, shall be
maintained by the agency and shall be
furnished to the Board upon its request and
to the employee affected upon the
employee’s request.

$7701. Appellate procedures

(a) An employee, or applicant or
employment, may submit an appeal to the
Merit Systems Protection Board from any
action which is appealable to the Board

under any law, rule, or regulation. An
appellant shall have the right -
(1) to a hearing for which a

transcript will be kept; and

52a

(2) to be represented by = an
attorney or other representative. Appeals
shall be processed in accordance with
regulations prescribed by the Board.

(b) The Board may hear any case
appealed to it or may refer the case to an
administrative law judge appointed under
section 3105 of this title or other
employee of the Board designated by the
Board to hear such cases, except that in
any case involving a removal from the
service, the case shall be heard by the
Board, an employee experienced in hearing
appeals, or an administrative law judge.
The Board, administrative law judge, or
other employee (as the case may be) shall
make a decision after receipt of the
written representations of the parties to
the appeal and after opportunity for a
hearing under subsection (a)(1) of this
section. A copy of the decision shall be
furnished to each party to the appeal and
to the Office of Personnel Management.

(c)(1) Subject to paragraph (2) of this
subsection, the decision of the agency
shall be sustained under subsection (b)
only if the agency’s decision-

(A) in the case of an action based
on unacceptable performance described in
section 4303 of this title, is supported by
substantial evidence, or

(B) in any other case, is supported
by a preponderance of the evidence.

(2) 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 this
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 law.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2056%3A1. Public record. Not legal advice.