Cheney v. Department of Justice

Before GAJARSA, SCHALL and Circuit Judges, MCKINNEY, Chief Judge.* Opinion for the court filed Circuit Judge SCHALL. Dissenting opinion filed by Chief Judge MCKINNEY. SCHALL, Circuit Judge.

Reginald Cheney petitions for review of the final decision of the Systems Merit (“Board”) Protection Board that sustained the action of the Drug Enforcement Ad (“DEA” ministration or “agency”) indefi nitely him suspending from employment. Justice, v. Dep’t CH0752050326- I-1, (M.S.P.B. M.S.P.R. 384 Nov. 2005) Decision"). {“Final Because we conclude that Mr. Cheney did not receive procedural statutory protections which he was entitled suspen before his sion, we reverse the decision of the Board and remand the case to the Board for * Larry Honorable McKinney, Judge Indiana, Chief ern District sitting by designation. the United States District Court for the South- investigation of an completion “until ed pay to which of the back computation Thereafter, by letter into this matter.” improp- by reason entitled Cheney is P. John Gil- September dated er bride, Agent Charge Special (“SAC BACKGROUND Gil- Detroit Field Division DEA’s bride”), Cheney that he was Mr. informed I. Cheney indefinitely that Mr. be proposing Mr. suspension, Che- the time At of employment because suspended from and investigator a GS-14 criminal ney was clearance. suspension of (“RAC”) of Charge Agent Resident “The to sus- letter stated: decision The Cheney had Mr. office. Cleveland DEA’s is based on your pend approximately DEA for employed been derogatory per- potentially of allegations positions as do all position, years. His of law possible violations sonal conduct and security clearance. DEA, required within You of Conduct. DEA Standards and Depart- security regula- component is a comply DEA failed to The have 27, (“DOJ”). July On pattern demonstrated a you of Justice have ment tions Respon- The 2004, of Professional rule dishonesty DOJ’s Office violations.” and/or (“OPR”) that Mr. Che- had Cheney that he sibility requested informed Mr. letter duty because date he received days on limited from the placed be ten ney suspension reply abused his author- proposed that he had alleged was August on Mr. Che- informed The further informed Cheney was it. letter ity. Mr. an- he after his requested possible as soon as 3, 2004, ney that that OPR had received, expiration of an or after duty because swer was on limited placed if he chose day on limit Subsequently, of the ten-calendar investigation. ongoing answer, with a he would be 2004, inter- not to 1, was Mr. September proposed regarding con- written from OPR decision inspectors by two viewed the no- Cheney received Mr. inspec- authority.” The cerning “abuse September on suspension proposed tice Cheney about whether Mr. questioned tors 27, 2004. during approached witnesses he had part of the inter- investigation. As OPR 29, 2004, Mr. Che- September On a confi- Cheney signed Mr. process,

view Employee the Chief ney contacted he agreed in which dentiality agreement Gilbride, request- Unit and SAC Relations counsel, he retained that, than to other concerning ing additional inter- been not disclose that would security clearance. suspension of conducting an that OPR or viewed Unit, Mr. Employee Relations From the investigation. material re- of all Cheney sought “review for indefinite proposed action 2004, Cheney’s garding the 9, Mr. September On Gilbride, Mr. From SAC suspension.” that Mr. was notified supervisor on “the material” sought to obtain had been indefinite proposed which derogatory per- allegations of “based “was based.”1 conduct,” suspend- remain would sonal 2004, 29, Consulting provided information about September HRM 1. On 2004, against On October him. ("HRM"), Re- "Human a self-described Inc. Cheney's behalf that Mr. targets a letter on Company wrote Management source Johnson, Deputy In- issues,” Chief copied Mark S. wrote performance capital human Programs. Security Driscoll, Office of spector of DEA’s Inspector DEA Deputy Chief John Cheney had "not that Mr. stated Che- The letter Washington, on Headquarters Mr. any identifies information which received been had not ney’s that Mr. behalf Following inquiry, on October to obtain the evidence underlying the received a memorandum agency’s reasons for suspending his securi- dated October 2004 from Mark S. John- ty clearance. son, Deputy Inspector Chief of DEA’s Of- 8, 2004, On November the Association Security Programs. fice of The letter responded to the notice sus- again notified Mr. suspen- pension Cheney’s behalf, on Mr. asserting sion of his clearance was “based that the DEA had not afforded Mr. Che- upon allegations derogatory personal ney due process. The Association assert- conduct.” memorandum stated that ed that Mr. Cheney had never been would remain in effect until notice of the apparently derogatory infor- investigation into the matter was com- mation that formed the basis for the sus- pleted Cheney and that Mr. could contact pension of security his clearance. Specifi- Johnson if any questions Mr. he had or cally, the Association stated that “[n]either required further information. proposing official nor the offi- deciding Cheney requested Mr. a 30-day exten- cial have been to any able materi- sion of respond time to to the notice of als to RAC other than the notice suspension, and on October 2004 he Cheney’s Mr. clearance” Johnson,

wrote Mr. stating: and that OPR and the Security Office of 5, 2004, On October I your received Programs had “yet respond to to requests 1, 2004, letter dated October which stat- for information as to the reasons for suspend ed the decision to my secu- suspension of RAC security rity upon clearance was allegation based course, clearance.” In due DEA gave Mr. of derogatory conduct, [sic] personal and Cheney an extension of time through No-

the suspension my clearance would respond vember 2004 to further to remain in effect until the completions proposed indefinite suspension. of an investigation. However, [sic] I did 17, 2004, On November Mr. Johnson facts, any receive documentation or sent Mr. Cheney a memorandum inform- information relative to the allegations in ing him that security his was this matter. though Even I have the suspended. The memorandum provided right respond, to it is difficult if not following to Mr. impossible respond to to an issue with- about the for security clear- out therefore, information. amI re- suspension: ance questing all of the information and evi- The decision suspend your dence to upon my relied revoke to clearance. upon allegations based you inappropriately queried or caused 19, 2004, On October the Federal Law queried be Law Enforcement Bas- Data (the Enforcement Officers Association “As- es and abused the Administrative sociation”), Sub- which at time repre- was poena process. Additionally, it senting Cheney, is be- Mr. wrote Mr. Johnson you lieved that in are requested violation the information of the confidentiality agreement Mr. sought you his letter of entered addition, October be into with the provided. be- Office Professional Re- 29, October 19 tween Mr. sponsibility Che- during their investigation ney and his counsel letters wrote seeking into these issues.

basis of does he nor have substan- investigation.” reasons of the tive supports factual information which allegations, and that regard 29, 2004, having submit- November On the case through permitted examine Associ- ted a written Cheney re- Mr. on November file.” ation indefinite orally

sponded 14, 2005, Therefore, January Mr. day, a handwrit- That same formally agen- Cheney was notified Summary” Kevin Action “Disciplinary ten employ- suspend cy’s final decision official, deciding Donnelly, Michael indefinitely suspen- ment because sus- Cheney should be that Mr. concluded Mr. sion of his clearance. with- indefinitely pended right appeal informed of his also was al- Donnelly wrote that Mr. pay. out Board. “unable Cheney had been though Mr. [the] for underlying reasons [the] review II. minimal ... timely appealed suspen in that Che- [Mr. followed process was due 25, 2005, May to the Board. On sion security clearance] ney] [his notified the admin telephonic hearing, following ... the reason suspension, (“AJ”) appeal the to whom Judge istrative given opportu- an and was suspension, the an initial decision sus assigned issued orally.” writing and in nity respond to suspending Mr. Che taining DEA’s action 3, 2004, A. Ber- Lawrence December On Justice, Dep’t v. ney. of Association, ger, general counsel (M.S.P.B. 25, May CH0752050326-I-1 Cheney’s Mr. appeal to Mr. Johnson called Decision”). 2005) (“Initial Noting that in a call resulted phone This suspension. matters authority to review Board’s “[t]he 2004, 16, in which letter, December dated security clearance determina relating to suspen- indefinite the upheld Mr. Johnson 4, limited,” explained id. at the AJ tions is Cheney’s security sion of Mr. “if action re that an adverse nevertheless ongoing [OPR] “completion of [the] until deny a to a decision sults from letter, In Mr. Johnson stated case.” clearance, is entitled pro- received all the had that Mr. forth 5 set procedural protections “fully because he was that was due cess 7513,” The AJ cited id. at 8. U.S.C. for [the] of the reason informed Navy, the 62 Lebray Department of suspension.” (1994), Kriner v. 468, and 473 M.S.P.R. 2005, wrote a letter January HRM On 526 Navy, 61 M.S.P.R. the Department of to Johnson. Mr. Mr. behalf on (1994), stated and letter, that Mr. Che- stated the HRM suspension is based indefinite where an subpoenas authority sign ney had security clear- of a on the queried to be the criminal databases cause appel- the ance, provide must agency investigate criminal of his duties part as meaningful opportunity a lant with that this could it activity, suggested the indefinite to the reasons for respond yearly basis. thousands times occur that either by ensuring time, infor- requested At the same action, or in notice the advance system accessed the about who had mation determination, ap- the earlier access infor- review this could that Mr. so that led cause was notified pellant “identify indi- could mation because determination. viduales) inappropriately queried who [had] also stat- AJ at 5-6. The Initial Decision Finally, HRM asked the database.” Alston, 75 F.3d King v. that in re-examined, ed Cheney’s case be Mr. (Fed.Cir.1996), this court stated detail “specificity and with “ ‘merely providing the employee with in- detail of the reasons for its deci- formation that his in- access classified sion jeopardize could the integrity of the being formation suspended, without investigation.” Initial Decision at 6. The more, does not with AJ stating continued that Mr. Cheney’s sufficient information to make an argument informed that “he could not file a mean- ” reply.’ Initial Decision ingful response proposal goes to the merits of security-clearance de- Board, Before Mr. chal- termination, which, Supreme as the Court lenged suspend the DEA’s decision to him ruled, clearly has is not reviewable.” Id. ground that he had not been able to (citing at 7 Dep’t Navy v. Egan, 484 prepare a meaningful response because 518, 528-30, U.S. 108 S.Ct. 98 L.Ed.2d him only general- “a (1988)). The AJ concluded that be- vague ized notice of the reasons for sus- cause Cheney’s security Mr. clearance had pending clearance.” Id. at 3. already been employ- when his Cheney argued that it enough was not ment suspension proposed, DEA had for the DEA to alleged describe his mis- satisfied requirement the notice of section (1) derogatory personal conduct as con- 7513(b) by informing Mr. Cheney that his (2) duct, possible violations of law and the employment suspension was based on his (3) conduct, DEA’s standards failure to security clearance suspension. Id. Having (4) comply security regulations, thus found procedural requirements of pattern dishonesty and rule violations. 7513(b) satisfied, section the AJ affirmed Cheney acknowledged that, Id. Mr. in Mr. Mr. Cheney’s indefinite Id. Johnson’s November 2004 memoran- dum, agency “expressed particu- The Initial Decision became the final larly than it had before” its reasons for decision of 7, the Board on November suspending clearance. This 2005, when the Board denied Mr. Cheney’s further explication helpful, was not howev- petition for review. Final Decision. This er, Mr. argued, “[s]till, because appeal followed. jurisdiction We have particularization there nowas of what the review the Board’s final decision under 28 specific prohibited queries Agency 1295(a)(9). § U.S.C.

data base in way [sic] were and what Appellant DISCUSSION abused the administrative sub- poena process.” Cheney pointed Mr. out I. that, position in his as RAC of DEA’s scope Our in appeal review an from a Office, Cleveland query he had reason to decision of the Board is Specifi limited. the DEA databases “thousands of times” cally, we must affirm the Board’s decision over the course his career and that he unless we find it to arbitrary, be capri also had “frequent occasions” to utilize the cious, discretion, an abuse of or otherwise subpoena process. administrative Under law; not in accordance with obtained with circumstances, these Mr. contend- procedures law, out required by rule, or ed, he meaningfully “could not prepare an regulation followed; having been unsup or appeal since he did not know which queries ported by substantial evidence. 5 U.S.C. or subpoenas allegedly were inap- 7703(c); § Kewley Dep’t v. Health & propriate.” Thus, argued he that he was Servs., (Fed. 1357, Human 153 F.3d 1361 deprived of procedural protections Cir.1998). which he was entitled under 5 U.S.C. 7513(b). § The DEA suspended Mr.

The rejected AJ argu- Mr. 7513, § under 5 U.S.C. ments, stating “providing first that greater which provides that regulations “[u]nder Alston, Mr. King of this court in sion Man- of Personnel by the Office prescribed statement .contends broad may take an action an agement, engaged “derogatory personal in that he chapter 75].” II of [subchapter by covered of law and possible conduct violations are and by subchapter II The actions covered and even the DEA of Conduct” one Standards § in listed 5 U.S.C. “inappro- he specific statement than of more is a actions listed queried be queried or caused to priately Thomas v. Gen. days. See Servs. fourteen (Fed.Cir.1985) Data and abused Bases Law Enforcement Admin., 756 F.2d process,” did action); Subpoena the Administrative (indefinite is a covered him with the information is not an § 752.401. When 5 C.F.R. meaningful and in- make a needed to under section subject of an action charges against response formed entitled to he or she is him. (1) no- days’ advance written at least 30

tice, there is reasonable cause unless responds by pointing to government The has committed the employee believe 7513(b). argues It “[a]s 5 U.S.C. imprison- for which a sentence crime suggests, ‘notice’ the term stating spe- may imposed, be ment enough receive only need action; proposed cific reasons for underlying security clearance about time, than (2) but not less permit a reasonable the preparation determination writing orally and days, to answer indefi- reply an informed docu- and other gov- to furnish suspension.” affidavits [employment] nite of the an- support mentary evidence that the notice ernment asserts swer; him “to focus his Cheney allowed to Mr. rather personal on his (3) attorney or conduct, represented in his may acts he have undertaken than representative; other legality of that and on the capacity, official (4) and the specific a written decision Further, argues, conduct.” at the earliest practi- therefore including meaningful reply, did make date. cable orally to November responding 7513(b). may An § 5 U.S.C. Johnson. 2004 memorandum to the suspension appeal an indefinite by looking explains that government The 7513(d). In a section 7513 Board. Id. Cheney made arguments Mr. at the § 7701 of 5 U.S.C. provisions the appeal, enough have that he agency, it is clear did Board, the proceedings the apply to reply. make an informed to hearing to a right include which the government argument, oral the Finally, at kept and the transcript must be which a pro- and due all section 7513 argued that attorney. by an represented to right be. that Mr. proving require cess argu- the Cheney renews appeal, Mr. On clearance, that security a position requires He made before the Board. ments he clearance, and security a he does not have although the Board summa- states notice of the given was it correctly, apply it failed the law rized en- process that due argues He properly. pertinent the law consider first We “specific him to a statement titled this case. of his the underlying reasons” a and that without such II. make a mean- he was unable to statement the Egan, v. Navy the Department pro- response to

ingful and informed of has no Board held that the Supreme chiefly on deci- Court Relying posed action. 1350

authority to review the merits of a security denied, fact clearance was and whether 529, transfer position nonsensitive determination. 484 U.S. at was Act, however, feasible. Nothing in the case, Egan 108 S.Ct. 818. In that was empowers directs or the Board to go by Department Navy hired further. a security condition he obtain 520, 530, 108 at Id. at clearance. Id. 108 S.Ct. 818. The S.Ct. 818.

Navy Egan security denied Subsequent Egan, we rendered our because of criminal convictions and alcohol King case, decision in v. Alston. In that 521, problems. Id. 108 S.Ct. 818. Due Alston’s security clearance was required his failure to receive the secu- because employing agency determined clearance, rity Egan placed “may on admin- that he suffer from a medical condi- tion 522, requires istrative which investigation leave. Id. at 108 further S.Ct. 818. Alston, and evaluation.” Egan 75 F.3d at appealed Navy’s refusal grant A security clearance was a him condition security Board, clearance to the employment. Alston’s Accordingly, when it held could not review the suspended, clearance was Al- a security merits of clearance determina- ston placed leave, on enforced an ac- tion. It therefore sustained the action of tion that Alston appealed to the Board. Navy placing Egan on administrative The Board held that process Alston’s due leave because concluded that the re- rights were violated when the did quirements of minimal process due not provide him with an opportunity to been Egan Dep’t satisfied. v. the Navy, reply concerning (1985). 28 M.S.P.R. 523 Egan appeal- clearance. Al- court, ed to this which held that the Board Dep’t ston v. Navy, 48 M.S.P.R. should treat a clearance determi- (1991). 699 petitioned OPM for reconsid- any nation “as other adverse action taken eration, decision, and in a split that Board under section 7512” with the “same full reversed its earlier decision and held that process review, and scope standards Alston was not any entitled to notice of established law precedent.” Egan process because due rights do not Dep’t Navy, 802 F.2d attach to the suspension of a security (Fed.Cir.1986). Following this court’s de- clearance. Alston v. Dep’t Navy, cision, Supreme granted Court (1993). M.S.P.R. Finally, in an- government’s petition for a writ of certio- split decision, other again Board recon- rari and reversed. Court held that sidered and held that Alston was denied the Federal Circuit had erred conclud- process due because he was never ing that jurisdiction the Board had to con- reasons for suspension sider security the merits of a clearance with enough specificity respond. to Alston Egan, 530-31, determination. 484 U.S. at Dep’t v. Navy, 19, the 62 M.S.P.R. 24 108 explained S.Ct. 818. The Court that (1994). appealed OPM to this court. Al- ston, 75 F.3d at 660. An employee who is removed for “cause” 7513, § under required when his clear- We limited our in review Alston to denied, ance is is entitled to the several whether agency provided “the Alston with procedural protections specified in that procedural the protection guaranteed by 5 may statute. The Board then 7513(b) determine § U.S.C. placed when it him on existed, whether such cause in whether enforced leave.”2 Id. at 662. We ex- 5.2(a)(1), 2. (1995), Under Executive Fed.Reg. Order 60 employ- 40252 an appealed Hesse Id. at 1374. ployment. “re- neither we were noted that pressly Board, upheld which suspension agency’s of the decision the merits viewing State, Dep’t Hesse v. in- the to classified Alston’s access suspend to (1999). The Board 492-93 agency the M.S.P.R. procedures nor “the formation” into only inquire that it could explained access.” We such Id. denying in followed by sec- procedures required the whether that stated Proceeding on met. tion 7513 been 7513(b) to employee an entitles section basis, require- the Board held suspension for the the notice of reasons met of the statute were because ments classified information access to appel- here twice advised the agency “the the placing is reason when that security for his specific lant of a pending leave on enforced employee and twice clearance security employee’s decision respond to to that opportunity him an em- provides clearance. Such Thereafter, Hesse Id. at 491. action.” adequate opportunity an ployee with af- court for review. We petitioned this agency reply meaningful make a Board. In so the decision of the firmed leave. on enforced being placed three doing, explained principles we in- with Merely providing deci- Supreme Court’s we drew from that his access classified formation Egan: sion being suspended, without is (1) no presumption there is more, does subject determinations will clearance make sufficient information review, judicial as administrative or agency before be- reply informed are committed those determinations leave. on enforced ing placed responsible of the the broad discretion However, we concluded at 661-62. Id. (2) unless agency; Branch Executive process all of the had received Alston otherwise, provides Congress specifically to focus he was “able due he was because Systems Board the Merit Protection status, medical rather on his security clear- to review not authorized guess whether to have to than agency actions or ance determinations disloyalty, unreliabili- action was based on security clearance determina- based on ground for ty, possible or other (3) tions; action is when an Id. at information.” access to classified chap- provisions under challenged agen- Alston met with noted that We may deter- title the Board ter 75 of evidence, medical cy officials and offered mine whether placed he was considered before denied, security clearance whether re- Id. therefore We on enforced leave. appellant’s requirement awas of the Board because the decision versed set procedures and whether position, all of Alston received determined that we followed, but 7513 were forth in section at 663. he was due. Id. process underly- may not examine the the Board growing out case decided another We de- ing merits suspension of termination. State, 217 F.3d Department Hesse Hesse, at 1376. F.3d case, (Fed.Cir.2000). In that Hesse’s glean teaching we suspended, result- security clearance was in a case Alston, is this: and Hesse Egan, em- suspension from ing in an indefinite as conclusion explanation of the basis for that security revoked- —-as ee whose security of the United interests provid- ... national opposed be —"shall permit.” applicable other law States and comprehensive a written ed as detailed involving suspension resulting from the describe the manner in which [Mr. Che- clearance, suspension security of a both ney] abused the subpoena administrative the Board’s and this court’s review is limit- process.” [JA 7] Initial Decision at 4. ed. Board nor may Neither the this court findings by These the Board are undisput- underlying merits of an agen- review ed. cy’s suspend security decision to clear- view, In our the Board’s own find 529-32, Egan, ance. at 484 U.S. 108 S.Ct. ings demonstrate that requirements 818; Hesse, 1376; Alston, at 217 F.3d Alston, explained section as were All the F.3d 661-62. Board and this Indeed, not met this case. argu at oral may court do is “determine whether a ment, government counsel for the forth denied, security clearance was whether the rightly acknowledged giv security requirement clearance was a en to Mr. appellant’s position, suspension whether the procedures security set forth in section “vague.” First, 7513 were clearance were Hesse, followed.” 217 F.3d at 1376. Un- the DEA told Mr. Cheney security that his der section employee must re- being suspended “based on stating ceive “written ... specif- allegations of potentially derogatory per ic reasons” for the of his or her sonal possible conduct and violations of law “when is the rea- and DEA standards of conduct.” The no son” for suspending employee “pend- tice of also stated that Mr. ing a decision on the employee’s security Cheney had “failed to comply with Alston, clearance.” 75 F.3d at 661. The regulations” and that he had “demonstrat requirements if, of section 7513 are met as a pattern ed of dishonesty rule and/or Alston, “provides we stated in the notice violations.” We fail to see how Mr. Che employee adequate opportuni- with an ney could have meaningful made a re ty meaningful to make a reply agen- to the sponse to such unspecific broad and allega cy” being suspended. before Id. In other tions when there was no indication of when words, the employee given enough must be alleged conduct took place or what it information him to enable or her to make a involved. Nor do we think that it was meaningful response pro- possible for Mr. to make a mean posed suspension clearance. ingful response upon based the informa “Merely providing with in- tion that he was in Mr. Johnson’s formation that his access to in- classified memorandum of November being suspended, formation is without memorandum, Mr. Johnson stated that more, does not Mr. had “inappropriately queried sufficient information to make an informed or caused to queried Law Enforcement reply agency” being suspend- before Bases,” Data had “abused the Administra ed. Id. at 662. Subpoena tive process,” and had acted “in

III. violation” confidentiality agreement into which he had entered with OPR dur us, Turning to the case we hold ing investigation. view, its In our procedural requirements of sec- November 17 memorandum akin to tion 7513 were not met. The Board itself informing Mr. that his found that the DEA did not provide any clearance was being suspended specific because he regarding the time bank, had robbed a misconduct, telling frame of without him Cheney’s alleged and “did identify any specific queries where the bank was and when he had it, the data base [sic] nor did the particularly robbed in view of the fact However, Cheney, while he action. Mr. Cheney reg- that Mr. undisputed that it is general allega- nature of the the database to was told to cause ularly had reason him, not mini- Cheney clearly against given was was not tions queried. Mr. respond the detailed mal information he needed entitled clearly bars Egan requested. allegations. those discovery that HRM case kind of civil Finally, agree gov- do not with the we Cheney, Mr. how- Cheney. sought for Mr. Cheney’s acceptance ernment that Mr. more information ever, entitled to amount to a arguments appeal would him than he against allegations about the prove DEA had to that Mr. holding that received. Cheney committed the acts under investi- limited informa- is that the problem The po- him from his suspending gation in him the put to Mr. provided tion today is that DEA All we hold sition. where, pur- for all intents position Cheney with the in- failed to Mr. for at the reason “guess” he had poses, meaning- needed to make “a formation he Al- suspension. See his him. charges against ful to the response” (“[The ston, employee] was F.3d at 662 provided Had DEA Mr. with ... rather response ... to focus his able information, his to the considered agency’s guess whether than have him, suspended then charges against disloyalty, unreliabili- based on action was clearance, have Egan would suspension possible ground other ty, or agency’s action. barred review (em- information.” access to classified that, reasons, we hold foregoing For the added)). Cheney was Mr. While phasis Cheney, DEA failed suspending in Mr. told, terms, for the the reasons general of 5 requirements the procedural to meet clearance, he of his suspension Cheney’s indefinite 7513.3 Mr. U.S.C. suppos- was not and he improper, therefore that he those reasons so edly supported pay back for the entitled to recover is meaningful response could make suspension. See period improper example, he suspension. For Serv., 451 F.3d v. Postal Gose U.S. alleged nature of his what the was not told (Fed.Cir.2006) (“Accordingly, Gose is conduct was. Neither derogatory personal posi- to his immediately reinstated to be and DEA standards laws was he told what credit, for all tion, pay back violated, he had or when of conduct he had improper period for the purposes, the database improperly caused allegedly Service.”); Postal from the removal Thus, is Mr. case queried. to be Navy, 62 Dep’t McFarland employee from that of the distinguishable (1994) (ordering back 165-66 M.S.P.R. in Alston was in Alston. of section 7513 protections pay when being security clearance was that his told an em- suspending were “possibly suffered because he ployee). requires a medical condition evaluation.” 75 investigation and further CONCLUSION thus at 659. The knew F.3d Board sustain- decision of the The final condi- own medical had to focus on his is Cheney’s indefinite ing Mr. respond in order to tion plainly at odds with conclusion that 3. The Board's F.3d at 661— was entitled Alston. See 75 to which he what we said in received the notice he was told that section 7513 because under suspension was based on reversed. The case is remanded to the suspension definite employment, proceedings Board for further consistent Cheney requested thirty-day extension opinion. with this respond of time to to the notice of suspen- sion of his employment. Cheney was and REMANDED. REVERSED granted an extension until November MCKINNEY, Judge, dissenting. Chief 2004, to submit his response written proposed employment suspension. This case illustrates the tension that ex- ists between clearance determina- 4, 2004, On October Consulting, HRM tions, which are not by reviewable (“HRM”) Inc. wrote a letter on Cheney’s court, Board or the employ- adverse behalf that was copied to Johnson. In that ment governed by § actions 5 U.S.C. letter, expressed HRM Cheney “has a situation that implicates process due con- any not received information which identi- cerns. The issue before the court fies the of allegations basis nor does he Cheney whether received the statutory have substantive factual information which procedural protections mandated supports the reasons of investigation.” specifically Cheney whether re- requested that supporting documen- ceived sufficient notice of the reasons for tation be Cheney. proposed employment suspension so Between October 19 and October meaningful that he had a opportunity to 2004, Cheney and his counsel wrote mul- respond to proposal. I Because be- tiple letters attempting to obtain the evi- application lieve that of the narrow stan- dence underlying dard of review to the circumstances of this for suspending Cheney’s security clear- compels case a conclusion that the minimal Specifically, ance. those request- letters requirements process of due were satis- ed “detailed information relative to the fied, respectfully I dissent. suspension [Cheney’s] security clear- I. ance;” BACKGROUND requested “the information and ev- upon idence relied [Cheney’s] revoke majority While the many has noted security clearance;” inquired about necessary the facts for consideration of “any existence of material upon relied case, following this additional facts propose suspension,” indefinite re- provide a complete context for un- questing copies of the same. derstanding parties’ contentions: 8, 2004, On November Cheney’s counsel Shortly Cheney after was notified that submitted a written being placed pro- duty limited be- posed ongoing cause of an investigation, the local on Cheney’s print and broadcast behalf. urged media ran stories Counsel allegations about the against Cheney, ref- indefinite be rescinded because erencing particular his use of crimi- there was “a lack of a preponderant evi- nal database. complained about dence showing that suspen- the indefinite the media stories to the DOJ. After the sion ... promote will ... efficiency reported media against Drug Enforcement Administration.” Cheney, investigators two from the Office requested Counsel further and reserved (“OPR”) of Professional Responsibility in- right to respond orally to Cheney. terviewed charges against him at a later date. argued

After Counsel then September received the had not 22, 2004, letter from supervisor, process” John been afforded “minimal due be- (“Gilbride”), P. Gilbride proposing an in- cause had never been

1355 may underly not the that this court review “derogato- the questioned about or been agency had obtained of an decision to sus ing the merits ry information” Cheney’s securi- suspend Indeed, to caused it it is security a clearance. pend that by the efforts noted ty clearance. Counsel “right” that one has a repeating no worth to determine and his office both and that decisions security to a clearance information; what bit scrap of “what “a sensitive such matters involve regarding by Agency the evidence, utilized has been discretionary judgment inherently and security clearance Cheney’s suspend” to by that is “committed law call” those “materi- inability to obtain the agency the Executive appropriate letter re- Counsel concluded als.” Navy Egan, the 484 Dep’t Branch.” agency re- request that the peating 818, 527-28, 108 98 L.Ed.2d S.Ct. U.S. its scind (1988). majority, I Thus, like the 918 a letter wrote January HRM On on whether the agree that this case turns official deciding behalf on § 7513 fol set forth in were procedures the de- disappointment with its express to lowed, of the no adequacy the specifically that conclusion ciding official’s to provided were of the reasons that tice HRM indefinitely suspended. be should security suspen Cheney for his authority sign to that noted However, majority the this is where sion. the criminal data- subpoenas and cause company. I part duties to as of his queried part to be bases require- that the majority The states activity, posited and it criminal investigate if “the notice 7513 are met ments of time on occur this could thousands adequate an employee the with ‘provides it Acknowledging yearly basis. a reply to meaningful make a opportunity to databases for the illegal use be would Op. being suspended.” pur- agency’ enforcement before other than the anything law Alston, Cheney had ever 75 F.3d King v. (quoting HRM denied that poses, check, claim- inquiry (Fed.Cir.1996)). a database It to me conducted seems pass- even have a Cheney did not ing that To is taken out of context. quote Indeed, system. accessing the for word fully, the court stated Alston quote suggested that HRM following: the result of Cheney could be against 7513(b) employee an entitles [S]ection Therefore, HRM disgruntled subordinate. the reasons for notice of about who detailed information requested information access to classified system so that had accessed placing for the reason when that is because this information review could pending leave on enforced employee individual(s) who “identify [had] could employee’s decision the database.” queried inappropriately the em- provides Such notice clearance. information should asserted that adequate opportunity an with ployee ‘alle- “the because agency reply to meaningful make a changing his for gations’ are basis leave. being placed on enforced basis for his employment, [the] condition in- employee with Merely providing the suspension, [the] to classified that his access formation security violations.” for basis being suspended, without II. DISCUSSION more, does make an sufficient information notes, correctly majority As the be- agency before reply to the informed More- is limited. scope court’s of review leave. ing placed on enforced over, clearly has established precedent Alston, Thus, 75 F.3d at 661-62. the court theless reversed the Board’s decision. Id. unique noted the Alston situation that at 661. court based its decision suspen- occurs when fact that the had informed Alston are the employ- sions basis adverse being clearance was sus- against ment actions covered pended condition, on based his medical by § 7513: that is entitled permitted which Alston “to focus his re- notice of the reasons for the suspension of sponse on his medical status.” Id. at 662. his access to classified information. But Moreover, permitted Alston was to re- language does not explain this the level of spond agency by submitting medical detail this notice provide must in cases evidence that agency before considered involving security suspensions, clearance placed it on him enforced leave. Id. Based precise question which is the that this case circumstances, on these this court conclud- involves. ed that Alston had pro- received sufficient To understand how the notice of detailed cedural protection being placed on this, the reasons must be in cases such as leave. at 663. Id. only need look at paragraph pre- one my opinion, the result in Alston dic- ceding quoted the one above from Alston. affirming tates the Board in Cheney’s case. There, emphasized this court that a notice By count, my a received total of “is ... sufficient when it the em- apprises seven different for security ployee of the nature of charges ‘in suspension: sufficient detail to allow the 1. “[Allegations of potentially deroga- reply.’” make informed Id. at 661 (Gilbride’s tory personal conduct” Corrado, (quoting Brook v. F.2d 999 22, 2004, letter; September John- (Fed.Cir.1993) (internal citation omit- 1, 2004, son’s October memoran- ted)). The facts of Alston shed additional dum); light question. on this majority As the notes, “[Pjossible clearance, Alston’s a condi- violations of law and employment, tion of his (Gil- was DEA Standards of Conduct” agency because the that concerns September 2004, letter); bride’s “may suffer from a medical condition 3. Failure “to comply with security requires investigation further (Gilbride’s regulations” September Alston, evaluation.” F.3d 659. The 22, 2004, letter); agency did not identify any specific medi- 4. A “demonstrated ... pattern of dis- cal condition. Id. With his clear- (Gil- honesty rule violations” and/or suspended, ance Alston longer no had ac- September 22, 2004, letter); bride’s to his work site placed cess and he on 5. Allegations “inappropri- administrative leave. Id. After reconsider- ately queried or quer- caused ing occasions, the case on two different ied Law Enforcement Data Bases ultimately Board found Alston had (Johnson’s 17, 2004, November [sic]” been denied meaningful due process and memorandum); the procedural protections § 7513 be- 6. Allegations that Cheney “abused the cause concluded that the agency had not Subpoena Administrative process” provided adequate notice of the reasons (Johnson’s 17, November for the Id. agency ap- memorandum); and pealed. While this court agreed with the 7. A Board that an belief “must some “in viola- provide indication of the reasons” its tion of the confidentiality agreement decision suspend clearance, a security it never- entered into during [he] with [OPR] system. password not have access these issues” investigation into

[its] could, 17, 2004, (Johnson’s reveals that This letter November memorandum). did, on that he had focus inappro- subpoena process abused at oral ar- counsel conceded As queried the criminal databases priately Cheney for given to the reasons gument, Thus, response. the context of render suspension were any reason to case does not this reason than the specific reasons, precedent from the established depart Indeed, four the first Alston. informed Alston. conjunction, Che- viewed when was not based ney majority misses It seems to me but rather issue performance work some from the mark. This is most evident the noncompliance and personal conduct on his inapt analogy likening an this case use of Moreover, the regulations. and rules Cheney that robbed a allegation an to Cheney with three reasons last majority would Op. bank. at 1352.1 The he upon which three concrete situations more detailed Cheney that be insist response to the to focus his invited

was information, such as when dates employment action. occurred, some notion who violations Nonetheless, argued Cheney’s counsel etc., were, notwithstanding the accusers that case shows context of this that the are that matters fact an informed re- not make Cheney could sensitive, highly can and discretionary, be more information. absent detailed sponse investigation that ongoing was an there clearly shows disagree. The record I must by revealing jeopardized have been could of the aware Cheney adequately that not a many But case is too details. this to against as he was able allegations him particu- a bill of requiring criminal matter response to meaningful a formulate matter, Cheney only lars; it a civil and is January agency. Specifically, on information to given enough to be needed Cheney’s on agency wrote Indeed, response. him to focus his enable that he allegations regarding behalf that he circumstances of this case show process and in- subpoena had abused billowing through some traversing not criminal data- queried the appropriately in fact aware fog of confusion but was that essentially argued Che- base. HRM allegations were.2 what authority with not ney had abused Moreover, ap- majority’s position events, it of these and respect to either Cheney was seek- disregard what pears conduct- Cheney ever even denied that had requests for agency by his ing from the because he did inquiry a check ed database "guilt depend employee’s on adopted analogy notice would majority may this have 1. The allegations. of the counsel, or innocence” argument Cheney’s at oral who from rob- suggested Cheney was arrested for that if understanding example Cheney's prime A2. security clear- bing had his a bank and later database by evinced HRM's focus bank,” “robbing he a ance reports inquiries, basis for the media meant, agency and the what the would know Cheney complained to the DOJ. about which argument that he at his world would scoff argued had Specifically, HRM con- information. In needed more detailed authority database to to cause the criminal trast, argued had not that if counsel happen thousands queried, that this could bank, basis, more informa- he would need robbed yearly times on a analogy is itself inquiry Counsel’s use of the check be- tion. a database never conducted because, password to access from the criminal he did not have flawed borrow cause context, system. sufficiency suggests Op. “additional information.” agency Cheney’s 1345. discussing behalf seeking was not information to the allegations requesting copies of were; light shed on what materials, suggests file indeed, seeking he was evidence— Cheney discussed the matter with HRM. details — himself on the order defend merits of There is no evidence that HRM was Che- clearance suspension, which ney’s counsel, retained and the terms of Egan, See are not reviewable. U.S. at the confidentiality agreement forbade Che- 528-30, fact, Cheney’s S.Ct. ney speaking anyone from except re- point very counsel made this clear in the Moreover, tained counsel. unlike the alle- 8, 2004, November written when gations queries for the database and abuse indicated efforts determine subpoena process, Cheney never information; scrap “what what bit of complained that he needed more details evidence, utilized the Agency has been such as a period allegation. time for this suspend” Cheney’s security clearance.3 Indeed, clearly this is not a matter that he cry saying This is a far might could claim have occurred “thou- had no idea to what the was refer- short, sands of times.” In this reason did ring or that he not any could formulate require explanation, fact response allegations against him. Cheney chose respond not to to it sum, In Cheney’s arguments that he need- does not mean that he was unable to do so. relate, ed more detailed information not to case, In deciding to in reverse this requirements, the notice but to the merits majority departs from Alston and the determination, standard of review therein because it re- argument that this court should not enter- quires more information than necessary is tain.4 satisfy process due concerns in the Furthermore, Johnson’s November unique cases that involve clear- 2004, memorandum advised ances. Such matters are left to the dis- the suspension part was based in agency, cretion of the and a clear- agency’s belief that had breached ance something is to which has no confidentiality agreement signed he right or entitlement. majority The there- by when he was interviewed two inves- fore territory treads into left agen- tigators from OPR. This reason for sus- cy’s discretion and opinion contrary its pending Cheney’s security clearance was to the principle that this court does not by adequately sufficient itself to apprise review the basis for or adequacy of securi- Cheney why being suspended. ty so, doing determinations. In require The reason does not much elabora- majority upsets the delicate balance tion; put simply, one breaches a confiden- according between agen- deference to the tiality agreement by subject discussing the cy on security clearance determinations matter with an unauthorized individual. case, satisfying process In this due supports agen- the record concerns of the cy’s just requirement § concerns that done under 7513 that that. Specifically, HRM Egan wrote letters to and cases like Alston have struck pleas 3. HRM made similar for more detailed Decision that was affirmed the Board. behalf, Cheney's pleas information on Moreover, previously rejected this court has majority acknowledges were "civil case dis- arguments very similar for this reason. See covery” to which was not entitled. Dep’t Navy, Fed.Appx. Parker v. Op. at 1353. (Fed.Cir.2004). 417-18 fact, exactly 4. this is the conclusion that judge the administrative reached in his Initial In con- discretion.

favor respects that del-

trast, here an affirmance balance, unsavory results like avoids

icate investigations, and jeopardizing

potentially in- in cases process due concerns

satisfies and the notice security clearances

volving under

requirement

III. CONCLUSION case, of this on the circumstances

Based Cheney had sufficient find that

I would response.

information to formulate for the certainly specific

suspension were Fur- provided Alston.

than the reason Alston,

ther, facts reveal that just as in to make

Cheney was able Therefore, I believe allegations. sustaining Board decision of the

the final should be indefinite respectfully I must Accordingly,

affirmed.

dissent. B.

In re Arnold SERENKIN. 06-1242, 10/134,

Nos. 10/550. Appeals, States Court

United

Federal Circuit. 6, 2007.

March

Case Details

Case Name: Cheney v. Department of Justice

Court Name: Court of Appeals for the Federal Circuit

Date Published: Mar 2, 2007

Citation: 479 F.3d 1343

Docket Number: 2006-3124

Court Abbreviation: Fed. Cir.