Michael R. Palafox v. Department of the Navy
2016 MSPB 43
| MSPB | 2016Background
- Appellant was a Shipfitter Supervisor at Pearl Harbor Shipyard in a position requiring classified access.
- Local investigators alleged the appellant used, sold, and transacted marijuana with coworkers (incidents dated ~2005–2015); multiple coworkers provided corroborating statements.
- The Shipyard suspended the appellant’s access to classified information pending DOD CAF’s adjudication; the agency then proposed and issued an indefinite suspension for failure to meet a condition of employment (access to classified info).
- The appellant responded orally and in writing, appealed the indefinite suspension to the MSPB, and argued denial of due process and procedural error.
- The administrative judge sustained the indefinite suspension; the Board denied review and affirmed, focusing on whether minimal due process was provided and whether authorized alternatives were reasonably considered.
Issues
| Issue | Palafox's Argument | Navy's Argument | Held |
|---|---|---|---|
| Whether an indefinite suspension is permissible when clearance/access is suspended | Indefinite suspension was improper or lacked due process | Indefinite suspension is permitted where job requires classified access and access is suspended | Permissible; Board lacks authority to review merits of clearance suspension but can review prerequisites and due process |
| Whether appellant received constitutionally adequate (Loudermill) process before suspension | Denied meaningful opportunity to be heard and to persuade for alternatives | Appellant was notified of reasons and given oral/written opportunity to respond | Due process satisfied: timely notice and chance to respond were provided |
| Whether agency improperly refused to consider alternatives (reassignment or administrative leave) | Deciding official failed to meaningfully consider reassignment/leave; policy barred reassignment | Agency says reassignment/leave were not viable; deciding official retained discretion and considered evidence | No due process violation; deciding official had discretion and appellant had opportunity to seek those alternatives |
| Whether appellant had right to review classified evidence underlying access suspension | Denied ability to review relied‑on information and respond meaningfully | Access decisions do not create property/liberty interest; no due process right to classified access | No due process right to access classified materials; termination of clearance does not implicate property/liberty interests |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (due process balancing test for deprivation of property)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (pre‑deprivation opportunity to respond requirement)
- Rogers v. Department of Defense, 122 M.S.P.R. 671 (Board’s limits when access to classified info is suspended)
- Buelna v. Department of Homeland Security, 121 M.S.P.R. 262 (due process in indefinite suspensions based on clearance suspension)
- Gargiulo v. Department of Homeland Security, 727 F.3d 1181 (no property/liberty interest in access to classified information)
- King v. Alston, 75 F.3d 657 (sufficiency of notice for suspension based on clearance issues)