Gargiulo v. Department of Homeland Security
727 F.3d 1181
| Fed. Cir. | 2013Background
- Joseph T. Gargiulo was a TSA Federal Air Marshal requiring a top‑secret security clearance; the TSA suspended that clearance based on alleged prior law‑enforcement misconduct.
- TSA sent an initial notice (Aug. 1, 2008) to the wrong address and a second notice on Nov. 13, 2008; Gargiulo requested documentary materials to respond.
- TSA proposed indefinite suspension from duty (Aug. 28, 2008); Gargiulo waived an oral reply and was suspended without pay on Feb. 10, 2009.
- Documentary evidence underlying the clearance suspension was provided in May 2009; the clearance was finally revoked Nov. 25, 2009.
- Gargiulo appealed to the MSPB arguing he was denied constitutional due process because he did not receive the documentary material before his employment suspension; the MSPB upheld the suspension as meeting due process under Mathews.
- The Federal Circuit affirmed the MSPB’s ultimate upholding of the indefinite suspension but rejected the Board’s conclusion that the Fifth Amendment independently guarantees procedural rights in security‑clearance determinations or authorizes review of the merits of those determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fifth Amendment due process required timely production of documentary evidence used to suspend Gargiulo's security clearance | Gargiulo: delay in producing documents (provided after suspension) deprived him of a meaningful opportunity to contest suspension of employment | DHS/TSA: no constitutional right to a security clearance; due process in clearance determinations is limited and agency followed applicable procedures | Held: No constitutional due‑process right to contest the merits of a security‑clearance decision or to receive underlying clearance evidence prior to employment suspension; Board erred to treat §7513‑type protections as constitutional rights |
| Whether Board may review merits/reasonableness of agency security‑clearance decision when reviewing adverse employment action based on clearance loss | Gargiulo/MSPB: Board assessed totality of evidence and concluded agency had reasonable grounds (used in due‑process balancing) | DHS: Board exceeded authority by effectively reviewing merits of clearance decision; such merits are not subject to constitutional review | Held: Board exceeded its authority by using constitutional due‑process analysis to review whether agency had reasonable grounds for the clearance decision; merits of clearance decisions are not reviewable |
| Whether MSPB’s application of Mathews v. Eldridge to require notice and meaningful opportunity before indefinite suspension was proper | MSPB: applied Mathews balancing and found that notice and opportunity were required and that agency’s process satisfied due process | DHS: asserts that Egan and precedent remove constitutional due‑process protections from clearance determinations; only statutory/regulatory notice rights apply | Held: Court agreed MSPB erred insofar as it characterized §7513‑type procedural rights as constitutional guarantees, but affirmed outcome (suspension) because agency action was permissible under existing rules |
| Scope of review available to MSPB and Federal Circuit for adverse actions based on clearance suspension | Gargiulo: sought broader constitutional review of agency’s clearance procedures and evidence timeliness | DHS: review should be limited to whether clearance was denied, clearance was required for the position, and statutory/regulatory procedures were followed | Held: Review is limited to those discrete inquiries; constitutional review does not extend to the underlying merits of clearance decisions |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (Sup. Ct.) (balancing test for administrative due process)
- Gilbert v. Homar, 520 U.S. 924 (Sup. Ct.) (due‑process considerations in public‑safety employment suspensions)
- Department of the Navy v. Egan, 484 U.S. 518 (Sup. Ct.) (no constitutional right to a security clearance)
- Jones v. Dep’t of the Navy, 978 F.2d 1223 (Fed. Cir.) (no property/liberty interest in access to classified information)
- Hesse v. Dep’t of State, 217 F.3d 1372 (Fed. Cir.) (limits on review of security‑clearance proceedings)
- Robinson v. Dep’t of Homeland Sec., 498 F.3d 1361 (Fed. Cir.) (Executive Branch clearance decisions not entitled to minimum due process protection)
- Cheney v. Dep’t of Justice, 479 F.3d 1343 (Fed. Cir.) (scope of review when clearance decision pending)
- Drumheller v. Dep’t of the Army, 49 F.3d 1566 (Fed. Cir.) (no review of merits of clearance suspension in adverse‑action proceedings)
- King v. Alston, 75 F.3d 657 (Fed. Cir.) (statutory notice under §7513(b) provides opportunity to reply when clearance loss is basis for enforced leave)