delivered the opinion of the Court.
The issue in this case is whether the National Security Agency (NSA) invoked the proper statutory authority when it terminated respondent John Doe, an NSA employee. The Court of Appeals held that NSA did not — a decision with which we disagree. We first describe the statutes relevant to this case.
Section 7532 of Title 5 of the United States Code, on which the Court of Appeals relied, was passed in 1950 and reenacted and codified in 1966, as part of Chapter 75 of Title 5, the Chapter that deals with adverse actions against employees of the United States. See 5 U. S. C. §7532. The section provides that the head of an agency “may suspend without pay” an employee when he considers such action “necessary in the interests of national security,” see § 7532(a), and “may remove” the suspended employee if such action is “necessary or advisable in the interests of national security.” § 7532(b). Subsection (c) of §7532 specifies the procedural protections to which a suspended employee is entitled prior to removal. 1
In 1964, Congress amended the Internal Security Act of 1950 by passing an Act relating to “Personnel Security Procedures in the National Security Agency.” 78 Stat. 168, 50 U. S. C. §§831-833 (NSA Personnel Security Procedures Act). Section 831 requires the Secretary of Defense to promulgate regulations assuring that no person will be employed
This case began in 1982 when John Doe, a cryptographic material control technician at NSA for 16 years, disclosed to NSA officials that he had engaged in homosexual relationships with foreign nationals. Doe was notified of his proposed removal pursuant to Chapter 370 of the PMM, which governs NSA’s procedures for removal for cause. The notification letter of Virginia C. Jenkins, Director of Civilian Personnel, was dated November 23, 1982, and explained that Doe’s “indiscriminate personal conduct with unidentified foreign nationals” makes impossible his continued — and essential to NSA employment — access to classified information. See App. in No. 86-5395 (CADC), p. 83. The notice also advised Doe of his adjudicatory rights to contest the decision, which rights he exercised through counsel, including in his answer the results of a psychiatric evaluation as to his security threat. Pursuant to 50 U. S. C. § 832(b), the NSA Director convened a board of appraisal, which ultimately con-
Doe brought suit in the District Court challenging his removal on constitutional and statutory grounds. He charged, inter alia, that the 1959 NSA Act’s appointment authority delegated by the Secretary of Defense to the NSA Director does not include the authority to remove employees; hence NSA is required to apply 5 U. S. C. § 7532’s termination procedures that guarantee NSA employees a preremoval hearing before the Secretary or his designee, the NSA Director. The District Court denied this argument and granted summary judgment for petitioners. Acknowledging that the NSA Director could have elected to proceed under either § 833 or § 7532 summary authority, the court held that the Director could also proceed under the authority provided by the 1959 NSA Act. Doe v. Weinberger, Civ. Action No. 85-1996 (DC, Apr. 25, 1986).
The Court of Appeals reversed as to the optional applicability of §7532 and vacated the remainder of the District Court’s decision.
Doe
v.
Weinberger,
The 1959 NSA Act authorizes the Secretary of Defense, or his designee, “to establish such positions, and to appoint thereto, without regard to the civil service laws, such officers and employees, in the National Security Agency, as may be necessary to carry out the functions of such agency.” Note following 50 U. S. C. §402. The Secretary, in turn, issued Defense Department Directive No. 5100.23 to delegate this appointment authority to the NSA Director, which authority was implemented by regulations covering both the hiring and removal of NSA employees. Although the 1959 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.”
Keim
v.
United States,
The Court of Appeals, however, held that removals for national security reasons must occur under either 5 U. S. C. §7532 or 50 U. S. C. §833 and that because NSA disclaimed reliance on § 833, resort to § 7532 rather than NSA’s for-cause removal regulations was mandatory. In our view, however, §833 and §7532 are not the exclusive means to remove NSA employees for national security reasons, but instead contemplate alternative recourse to NSA’s ordinary removal mechanisms pursuant to the 1959 NSA Act. This discretionary as
Section 833(a) states: “[Notwithstanding sections 7512 and 7532 of title 5, or any other provision of law,” the Secretary of Defense “may” remove an employee provided that he finds that “the procedures prescribed in other provisions of law that authorize the termination . . . cannot be invoked consistently with the national security.” Petitioners correctly argue that where the for-cause procedures for removal under §7512 or under the regulations adopted under the 1959 NSA Act do not jeopardize national security, recourse may, even must, be had to those other procedures. 2
Section 7532 also is not mandatory. It provides that “[notwithstanding other statutes,” the head of an agency “may” suspend and remove employees “in the interests of national security.” This language declares that even though other statutes might not permit it, the Secretary may authorize removals pursuant to § 7532 procedures, rather than those governing terminations under those other laws. The Court of Appeals did not expressly address the permissive character of the section and construed the statute to require the Secretary, in all cases of removal based on national security, to resort to the removal procedures of § 833 or § 7532, notwithstanding other available statutory removal regimes.
Indeed, when Congress passed the NSA Personnel Security Procedures Act in 1964, 50 U. S. C. §§831-833, Congress must have intended that § 7532 did not impose this restriction on the various affected agencies. The stringency would conflict with the provisions of that Act that require the Secretary to apply general security considerations in selecting NSA employees. Just as the Secretary need only find “inconsistency” with national security to reject an applicant seeking the necessary NSA clearance for classified information, see §831, so too the boards of appraisal that assist in this determination are authorized to recommend denial or cancellation of such clearance if the NSA Director “doubt[s]” that clearance is consistent with national security. See
The Court of Appeals was of the view that its construction of §7532 is necessary to provide employees sought to be removed on national security grounds with procedures equivalent to those provided by that section. This approach assumes that NSA’s ordinary clearance revocation and for cause dismissal procedures are less protective than those guaranteed by § 7532. This is a doubtful proposition, to say the least. The section, as we have said, provides for summary suspension without pay, affords a hearing of undefined scope before the agency head, and attaches to a removal order the sanction that the employee is ineligible for other governmental employment. NSA’s for-cause removals neither are preceded by suspension nor entail a collateral bar from federal employment. In this case, Doe was on the payroll until removed, and the record does not indicate that the hearing Doe received, or the other procedural protections accorded to him, were inferior to those that would have been available under § 7532. Indeed, in
Department of the Navy
v. Egan,
We thus agree with the conclusion of the Merit Systems Protection Board in a similar case that “section 7532 is not the exclusive basis for removals based upon security clearance revocations,”
Egan
v.
Department of the Navy,
28 M. S. P. R. 509, 521 (1985), and with the Court of Appeals for the Federal Circuit that “[t]here is nothing in the text of section 7532 or in its legislative history to suggest that its procedures were intended to preempt section 7513 procedures whenever the removal could be taken under section 7532. The language of section 7532 is permissive.”
Egan v. Department of the Navy,
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 6
So ordered.
Notes
Title 5 U. S. C. § 7532(c) accords the suspended employee the following procedural rights before removal: “(A) a written statement of the charges against him within 30 days after suspension, which may be amended within 30 days thereafter and which shall be stated as specifically as security considerations permit; (B) an opportunity within 30 days thereafter, plus an additional 30 days if the charges are amended, to answer the charges and submit affidavits; (C) a hearing, at the request of the employee, by an agency authority duly constituted for this purpose; (D) a review of his case by the head of the agency or his designee, before a decision adverse to the
See Defense Department Directive No. 5210.45, p. 3 (May 9, 1964), as printed in App. in No. 86-5395 (CADC), p. 75 (emphasis added), which reads: “When the two conditions [in §833 — i. e., (1) other statutory removal provisions, which (2) will safeguard the national security — ] do not exist, the Director, NSA shall, when appropriate, take action pursuant to other provisions of law, as applicable, to terminate the employment of a civilian officer or employee. The Director shall recommend to the Secretary of Defense the exercise of the authority of [§ 833] only when the termination of the employment of a civilian officer or employee cannot, because of paramount national security interests, be carried out under any other provision of law.”
The relevant sentences in the House Report state: “Under the present law, with respect to [the Departments of State and Defense,] the officer or employee who is suspended or terminated as a security risk is not entitled as a matter of right to an appeal to the head of the agency concerned. This legislation extends this appeal right to employees [of these agencies].” H. R. Rep. No. 2330, 81st Cong., 2d Sess., 3 (1950).
The Court of Appeals also noted that 5 U. S. C. §7533 provides that § 7532 does not “impair the powers vested in the Atomic Energy Commission [AEC] — or the requirement — that adequate provision be made for administrative review” of a termination by that Agency, yet does omit any similar exception for the pre-existing powers of any other agency. The Court of Appeals extrapolated that except in the case of the AEC, § 7532 supplants the removal authority of all agencies covered by the section in all cases involving national security. This conjecture extracts far more meaning than is warranted from the special mention by Congress that it intended to preserve the unique, expansive removal powers of the AEC, particularly in light of § 7532’s language indicating that its applicability is permissive.
Numerous congressional reports and statements indicate that §7532 and its legislative antecedents were proposed as extraordinary, supplementary measures to enable the Secretary of Defense, and other agency heads responsible for United States security, to respond to rare, urgent threats to national security. See,
e. g.,
S. Rep. No. 2158, 81st Cong., 2d Sess., 2, 6 (1950); H. R. Rep. No. 2330, 81st Cong., 2d Sess., 2, 6 (1950); S. Rep. No. 1155, 80th Cong., 2d Sess., 2 (1948); Hearing on S. 1561 and
Respondent defends the result reached by the Court of Appeals on the alternative ground that NSA violated its own regulations in removing him. That claim, as well as others argued to the Court of Appeals, was not passed on by that court, and we prefer to leave the matter to the Court of Appeals in the first instance.