Hornseth v. Dep't of the Navy, 916 F.3d 1369

Shawn A. Hornseth was a combined trade supervisor at the Puget Sound Naval Shipyard, a sensitive, security‑clearance position; while in rehab for alcoholism he disclosed marijuana use and the Navy learned he had used marijuana during employment.
The Navy suspended his security clearance and proposed indefinite suspension of employment; Hornseth submitted a written reply and was represented.
Charlie Combs, a Shipyard supervisor, was the designated deciding official; HR staff researched legal authority, communicated with Combs, and drafted a five‑page decision that Combs signed.
Hornseth appealed to the Merit Systems Protection Board (MSPB), arguing denial of minimum due process because (1) Combs lacked authority to grant alternative agency action (making the reply an empty formality) and (2) impermissible ex parte communications occurred.
The MSPB administrative judge found procedures adequate: Hornseth received required notice, opportunity to respond, and a written decision; any ex parte communications were cumulative and not prejudicial. The Board’s decision became final; Hornseth petitioned for review in this court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether due process requires the deciding official to have authority to provide an alternative position or penalty when adverse action stems from a security‑clearance revocation	Hornseth: Reply is meaningless if deciding official cannot change outcome; lacking authority violated due process	Government: Review of clearance‑based adverse actions is limited; minimal procedures in 5 U.S.C. § 7513 suffice and were provided	Court: Deciding official need not have an available alternative position in security‑clearance cases; § 7513 procedures were satisfied, so no due process violation
Whether ex parte communications between Combs and HR deprived Hornseth of due process	Hornseth: HR’s communications and drafting of decision introduced new, prejudicial information and pressured Combs	Government: Communications were clarificatory/cumulative; decision relied only on proposal, reply, and cited references	Court: AJ’s factual finding that communications were cumulative and not prejudicial is supported by substantial evidence; no due process violation

Dep’t of Navy v. Egan, 484 U.S. 518 (security clearance is not a property right; agency has primary responsibility for national security clearance decisions)
Hesse v. Dep’t of State, 217 F.3d 1372 (limited review of clearance‑based adverse actions: clearance denial, requirement for position, and § 7513 procedures)
Lyles v. Dep’t of Army, 864 F.2d 1581 (agency must provide notice, reasons, and opportunity to respond when clearance denied under § 7513)
Griffin v. Def. Mapping Agency, 864 F.2d 1579 (no entitlement to reasonable accommodation or transfer when employee fails to meet essential clearance requirement)
Stone v. FDIC, 179 F.3d 1368 (not all ex parte communications are fatal; analyze prejudice, cumulative nature, and employee’s opportunity to respond)
King v. Dep’t of Health & Human Servs., 133 F.3d 1450 (Board’s credibility determinations are highly deferential on appeal)