Thomas E. EGAN, Petitioner, v. DEPARTMENT OF the NAVY, Respondent.
Appeal No. 86-579.
United States Court of Appeals, Federal Circuit.
Oct. 1, 1986.
William J. Nold, Nold, Mosley, Clare, Hubbard & Towns, Louisville, Ky., for petitioner.
Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C. argued for respondent. With him on the brief were Richard K. Willard, Asst. Atty. Gen. and
Stuart A. Kirsch and Mark Roth, Gen. Counsel, American Federation of Government Employees, AFL-CIO, College Park, Md., was on the brief, for amicus curiae, Ralph B. Bogdanowicz.
Before MARKEY, Chief Judge, PAULINE NEWMAN, Circuit Judge, and SWYGERT, Senior Circuit Judge.*
PAULINE NEWMAN, Circuit Judge.
Thomas E. Egan seeks review of a final decision of the Merit Systems Protection Board (“Board“), sustaining his removal from employment by the Department of the Navy (“agency“). Egan v. Department of the Navy, 28 M.S.P.R. 509 (1985). We vacate the Board‘s decision and remand for further proceedings.
Background
Mr. Egan was appointed to a Veterans Readjustment Appointment effective November 29, 1981 as a laborer, WG-3502-03, at the Trident Naval Refit Facility in Bremerton, Washington. A condition precedent to the retention of his employment was “satisfactory completion of security and medical reports“, as shown on his Standard Form (SF)-50. A National Agency Check Investigation was initiated at the time of Mr. Egan‘s appointment. Mr. Egan was thereafter assigned to the “noncritical-sensitive”1 position of laborer leader, WL-3502-03, on April 18, 1982.
On February 16, 1983 the Director of Naval Civilian Personnel Command issued a notice of the agency‘s intention to “deny/revoke” Mr. Egan‘s security clearance. The notice stated that agency regulations require[] this Command to adjudicate information on civilian personnel to determine their eligibility for a security clearance and/or assignment to sensitive duties. A determination is based on the individual‘s loyalty, reliability, trustworthiness, and judgment. Information contained in personal security investigations and from other relevant sources is used in making the determination.
The notice also stated that “[i]f a final adverse security determination is made by this Command, an individual will not be assigned to sensitive duties“, and that Mr. Egan‘s access to classified information was suspended until a final determination was made.
The stated reason for this action was the existence of various California and Washington state criminal records showing, inter alia, Mr. Egan‘s convictions for second degree assault and for being a felon in possession of a pistol. The agency stated that Mr. Egan had failed to list, on his Personnel Qualifications Statement (SF-171) of September 7, 1981, two previous convictions for carrying a loaded firearm. The agency also referred to Mr. Egan‘s sworn statement of August 5, 1982 concerning his past drinking habits, and to the fact that he had spent the final twenty-eight days of one sentence at an alcohol rehabilitation program.
Mr. Egan was given an opportunity to reply in writing “to explain, mitigate or refute” the stated reasons for the action. Mr. Egan‘s designated representative Richard A. Brown, President of the International Association of Machinists Nipsic Lodge No. 282, provided a written reply dated May 6, 1983. In brief, this reply stated that Mr. Egan did not list certain of the charges referred to by the agency because he had not been found guilty of the charges, because they had been dismissed, or because they had occurred outside of the
On May 27, 1983 the Director of Naval Civilian Personnel Command issued its final determination:
The information provided by you does not sufficiently explain, mitigate, or refute the reason(s) on which the intended denial/revocation action is based. Accordingly, your security clearance is denied/revoked effective today. As a result of this determination, you are not eligible to occupy a sensitive position with the Department of the Navy.
3. The activity head will annotate your OPNAV Form 5520/20 (Certificate of Personnel Security Investigation, Clearance and Access). . . .
On June 17, 1983 the agency issued a notice of proposed removal “for failure to meet the requirements of your position due to denial of your security clearance“. The notice stated that his position required “a security clearance due to access to classified information regarding arrival/departure of submarines and access to classified/restricted areas or equipment aboard the submarines” and that maintenance of a security clearance was a mandatory condition of employment “necessary to ensure the security of classified defense information from potential espionage efforts by hostile foreign powers“. Reassignment to a nonsensitive position was not feasible at the facility.
Mr. Egan did not respond orally or in writing to the notice of proposed removal, and on July 15, 1983 the agency issued its final decision to remove Mr. Egan.
Mr. Egan filed a timely appeal to the Board. On December 22, 1983, the presiding official reversed the agency‘s decision. The presiding official reviewed the standards for evaluating an agency‘s denial of an employee‘s security clearance:
As a logical first step the agency must initially establish the standard for obtaining a security clearance by showing the specific criteria used to determine whether to deny, grant, or revoke the security clearance. Additionally, in order to avoid arbitrary or perfunctory decisions, it must show that these criteria are rationally related with those concerns connected with our national security. See Schwartz v. United States Department of the Army, [16 M.S.P.R. 642 (1983)], citing Hoska [v. United States Department of the Army, 677 F.2d 131, 138 (D.C.Cir.1982)]. Any subsequent investigation of an employee should be evaluated within the framework of these criteria. As a result of its investigation an agency must be able to show how an employee‘s alleged misconduct has an actual or potentially detrimental effect on national security interests. The final decision made on the basis of such an evaluation must be “reasonable and warranted.” Schwartz, [16 M.S.P.R. at 644].
Applying these standards, the presiding official stated that it was “impossible” to determine whether the agency‘s decision was “reasonable” because the agency failed to “establish what specific criteria are used to determine whether to deny, grant, or revoke an employee‘s security clearance, or to prove that such criteria are rationally related to our national security“. Despite warnings by the presiding official concerning deficiencies in the evidence and the agency‘s burden of proof, the agency had elected to rely solely on the conclusory statements in its letters of proposed and final denial of clearance and on the allegations in its brief, unsubstantiated by evidence.
The presiding official also held that the agency “failed to present any evidence showing it conscientiously weighed the cir-
The agency petitioned for review of the presiding official‘s decision by (1) challenging the Board‘s authority to review the merits of a security clearance denial; (2) alleging error in the presiding official‘s assessment of the evidence submitted; and (3) assuming arguendo that the Board had authority to review the merits of the denial and that the agency had failed to meet its burden of proof, contending that the appropriate remedy was not to reverse the removal but to remand the case to the agency to correct any errors. Egan, 28 M.S.P.R. at 512.
The Board, having before it numerous petitions for review containing issues of law common to those in Egan, solicited amicus briefs on issues (1) and (3) above, 49 Fed.Reg. 48,623-24 (1984), and on the following supplemental question:
C. When an agency wishes to base an action listed in
5 U.S.C. 7512 on the revocation of security clearance, may it do so pursuant to5 U.S.C. 7513 , or is5 U.S.C. 7532 the exclusive basis for such an action?
50 Fed.Reg. 2,355 (1985).
Twelve amici filed briefs. The Board treated Egan as the lead case concerning the Board‘s authority in security clearance cases. After discussing the statutory framework, the relevant case law, and the arguments and policy considerations raised by the parties and the amici, the Board rejected its previous decision in Bogdanowicz v. Department of the Army, 16 M.S.P.R. 653 (1983), which in turn implemented the D.C. Circuit‘s decision in Hoska v. United States Department of the Army, 677 F.2d 131 (D.C.Cir.1982). The Board decided:
[I]n an adverse action over which the Board has jurisdiction and which is based substantially on the agency‘s revocation or denial of a security clearance, the Board has no authority to review the agency‘s stated reasons for the security clearance determination. However, the Board will review the procedures utilized by the agency to ensure that the agency afforded the appellant procedural due process.
Egan, 28 M.S.P.R. at 519. The Board continued:
We further hold that the minimal due process rights that must be afforded the employee upon the agency‘s denial or revocation of a security clearance are: notice of the denial or revocation; a statement of the reason(s) upon which the negative decision was based; and an opportunity to respond.
The nature of Board review in such cases, therefore, will be limited to determining that the agency has established the following: (1) the requirement of a security clearance for the position in question; (2) the loss or denial of the security clearance; (3) and the granting of minimal due process protections to the employee.
Id. at 519-20.
The Board held that it “has no authority to order reinstatement of a security clearance“, that
Applying this new standard to the facts of Mr. Egan‘s case, the Board held that the presiding official erred in reviewing the merits of the agency‘s denial of Mr. Egan‘s
The Board has applied the Egan standard in subsequent cases wherein an agency denied or revoked an employee‘s security clearance, the Board refusing to review the merits of the agency‘s action. Several of these cases are on appeal to this court and have been stayed pending resolution of this appeal. The petitioner in one such appeal, Bogdanowicz v. Department of the Army, Appeal No. 86-510, has filed an amicus brief in this court.
Analysis
I.
Review of the Board‘s decision starts with the statutes defining the Board‘s authority.
The Board is required to “hear, adjudicate, or provide for the hearing or adjudication, of all matters within the jurisdiction of the Board“.
The statute provides in
The statute provides no exclusion from Board review of removals under
Section 7532 of Chapter 75 provides an alternative mechanism, expressly excluded by
An employee removed in the interest of national security by application of section 7532 is entitled to certain procedures within the agency, including a hearing at the employee‘s request and review by the head of the agency or his designee. The determination of the head of the agency is final and is not reviewable by the Board. The basic procedures are set out in the statute:
§ 7532. Suspension and removal
(a) Notwithstanding other statutes, the head of an agency may suspend without pay an employee when he considers that action necessary in the interests of
national security. To the extent that the head of the agency determines that the interests of national security permit, the suspended employee shall be notified of the reasons for the suspension. Within 30 days after the notification, the suspended employee is entitled to submit to the official designated by the head of the agency statements or affidavits to show why he should be restored to duty. (b) Subject to subsection (c) of this section, the head of an agency may remove an employee suspended under subsection (a) of this section when, after such investigation and review as he considers necessary, he determines that removal is necessary or advisable in the interests of national security. The determination of the head of the agency is final.
(c) An employee suspended under subsection (a) of this section who—
(1) has a permanent or indefinite appointment;
(2) has completed his probationary or trial period; and
(3) is a citizen of the United States; is entitled, after suspension and before removal to—
(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 employee is made final; and
(E) a written statement of the decision of the head of the agency.
The Supreme Court stated in Cole v. Young, 351 U.S. 536, 551 (1956), that an employee can be dismissed under this section (its text was substantially identical under the predecessor Civil Service Act) only if he or she occupies a “sensitive” position and the agency head determines that the position “is one affected with the ‘national security.‘” Id.
Mr. Egan‘s position was classified as “noncritical-sensitive“. The letter of proposed removal stated that Mr. Egan‘s removal for failure to qualify for a security clearance was “necessary to ensure the security of classified defense information from potential espionage efforts by hostile foreign powers“. See Cole, 351 U.S. at 544 (“national security” is intended to cover “only those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression“). The agency does not argue that it could not have removed Mr. Egan pursuant to the provisions of
The agency chose, however, to remove Mr. Egan pursuant to
There is nothing in the text of section 7532 or 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, stating that the head of the agency “may” suspend and remove an employee under that section. The Court in Cole recognized that employees under the Lloyd-LaFollette and Veterans’ Preference Acts could be dismissed on loyalty grounds without proceeding under the earlier counterpart to section 7532. Cole, 351 U.S. at 543-44.
We conclude that Congress intended to provide the agencies with procedural flexibility in effecting the removal of government employees on national security grounds, and that such removal may be
Having chosen to remove Mr. Egan under section 7512 rather than section 7532, the agency has chosen the procedure that carries Board review under section 7513.3 We thus turn to the questions of the scope and standard of the Board‘s review.
II.
The Board held that it had no authority to review the agency‘s reasons for the security clearance determination. The Board held that it did have authority to review the procedures utilized by the agency, to the limited extent appropriate to determine whether the agency afforded Mr. Egan “minimal due process“, as this was defined by the Board. Egan, 28 M.S.P.R. at 519-20.
We have been directed to no statutory support for this new procedure. We agree that the Board is responsible for ensuring that an employee receives due process; however, the Board is also responsible for conducting, not abdicating, its other statutory responsibilities. This includes, absent contrary congressional authorization, the obligation under
In Hoska v. United States Department of the Army, 677 F.2d 131 (D.C.Cir.1982), that court reviewed on its merits a Board decision based on its full review of the agency‘s revocation of the petitioner‘s security clearance, wherein the Board had itself reviewed the agency‘s decision and held that the removal was supported by a preponderance of the evidence. The D.C. Circuit held that the evidence presented was inadequate to support the decision and remanded the case with instructions to order appropriate relief, including reinstatement, backpay, and reissuance of the petitioner‘s security clearance. The Board now repudiates Hoska, and its own precedent, not on the merits but on the procedural ground that the D.C. Circuit did not “expressly address the Board‘s authority to review the underlying reasons for the agency‘s security clearance determination“, and also that that opinion is not binding upon the Board. Egan, 28 M.S.P.R. at 516 & n. 4.
The Board, discussing its “misplaced” reliance on Hoska, stated:
[T]he Board . . . would inevitably be faced with agency exposition of highly sensitive materials and Board determinations on matters of national security. We find that the underlying national security considerations inherent in a security clearance determination involve such a degree of sensitivity that we should not infer jurisdiction over that determination, particularly in light of Executive Order 10450, which commits such actions to agency discretion.
Egan, 28 M.S.P.R. at 518 (footnote omitted). Exec. Order No. 10,450, 3 C.F.R. 936 (1953), reprinted as amended in
The head of each department . . . shall be responsible for establishing and maintaining . . . an effective program to insure that the employment and retention in employment of any civilian officer or employee within the department . . . is clearly consistent with the interests of national security.
The Executive Order does not address appellate review of an agency‘s grant or denial of security clearance, although it discusses the factors to be weighed to determine whether a person‘s employment is consistent with the interests of national security. Id. at § 8. The Executive Order establishes responsibilities within the executive branch, and is entirely consistent with the civil service laws before us. It does not purport to preclude the application of these laws.4
The Board observed in Egan that it generally “has the authority to review the merits of the case, including the merits of the underlying reasons upon which the adverse action is based“. Egan, 28 M.S.P.R. at 517 n. 5. Matters of agency administrative discretion have not been immune from Board review. For example, in Ketterer v. U.S. Department of Agriculture, 2 MSPB 459, 2 M.S.P.R. 294 (1980), the Board held that it would review the agency‘s basis for a reassignment where the employee‘s refusal to accept reassignment resulted in his removal. In Bavier v. Department of Transportation, 5 MSPB 73, 4 M.S.P.R. 548 (1981), the Board held that the agency must show the propriety of its decision to deny leave to sustain its charge of absence without leave. In Huber v. Merit Systems Protection Board, 793 F.2d 284 (Fed.Cir.1986), the Board reviewed the agency‘s denomination of its action as a reduction in force for jurisdictional and relief purposes. See also Losure v. Interstate Commerce Commission, 2 MSPB 361, 2 M.S.P.R. 195 (1980). In Brewer v. American Battle Monuments Commission, 779 F.2d 663 (Fed.Cir.1985), this court held that the Board had authority to review a reassignment that accompanied a reduction in grade. All of these cases involve Board review of intrinsically agency-committed discretionary decisions.
The Board correctly states that there are some actions that it is restrained from reviewing on the underlying merits, namely military assignments, criminal convictions, and bar decertifications.
In Zimmerman v. Department of the Army, 755 F.2d 156, 157 (Fed.Cir.1985), this court affirmed that “the Board does not have the jurisdiction to examine military assignments and transfers.” In Buriani v. Department of the Air Force, 777 F.2d 674, 677 (Fed.Cir.1985), we held that the Board could not review an Air Force refusal to promote a member of the Air Force Reserves, although failure to attain promotion resulted in the loss of active reserve membership, a condition of the employee‘s civilian employment. Zimmerman and Buriani turn on the long-established premise that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian” and that it is not the role of the judiciary to intervene in the orderly execution of military affairs. Orloff v. Willoughby, 345 U.S. 83, 94 (1953). The civil service laws do not cover military service, see
Security clearances of course are not limited to employees in the military departments; other agencies such as the Department of Commerce or the Department of Energy may also require such clearance. Neither the Executive Order nor the statutes draws a distinction between civilian employees of military and non-military agencies, and it is apparent from the panoply of laws and regulations that such distinction was not intended. Even in the military context, in Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir.1971), a case heavily relied on by the Board and the agency, the court in referring to the policy of nonreview of military matters recognized that internal military affairs could be reviewed by the courts upon allegation of the deprivation of a constitutional right or that the military had acted in violation of applicable statutes and regulations, after exhaustion of available intraservice corrective measures.
The Board also relies on cases relating to criminal convictions and bar decertification, where it refused to allow collateral attack on those underlying reasons for the agency‘s adverse action. See, e.g., Crofoot v. United States Government Printing Office, 21 M.S.P.R. 248, 252 (1984), rev‘d on other grounds, 761 F.2d 661 (Fed.Cir.1985) (Board does not examine reasons behind criminal conviction to determine guilt or innocence); McGean v. National Labor Relations Board, 15 M.S.P.R. 49, 53 (1983) (Board does not examine reasons for bar decertification where employee is removed for failure to maintain bar membership). These decisions are distinguished on the simple ground that they relate to collateral attack on the decisions of other tribunals. The criminal conviction in Crofoot and the bar decertification in McGean were not federal agency actions; they were actions of entirely separate regulation or enforcement, in which the agency removing the employee had no role.
A person can obtain review of the underlying facts pertinent to criminal conviction or loss of bar certification by appropriate judicial process. In Mr. Egan‘s case, as decided by the Board, the agency that removed him achieves a complete absence of appellate review of the underlying facts by any tribunal at all, merely by referring to the national security, whether or not that is a supportable reason for the removal.
It is apparent that where national security considerations are involved, safeguards of sensitive information, if sensitive information is critical to the case, may be required in reviewing the agency‘s decision. But overstatement infects the Board‘s position that “it would inevitably be faced with agency exposition of highly sensitive materials“. Egan, 28 M.S.P.R. at 518. No such materials were asserted in Mr. Egan‘s appeal before the presiding official. The Board‘s decision to refrain from review of all such actions taken under
Mr. Egan was not removed for national security reasons under section 7532 but for cause under section 7512. The basis for the agency‘s adverse determination as to his “loyalty, reliability, trustworthiness, and judgment” was not “unknown and unknowable“, as the agency now claims, but was pursuant to specific criteria in the agency‘s own regulations, viz.:
h. Criminal or dishonest conduct.
i. Deliberate false statement, deception or fraud in applying for enlistment or appointment or in providing information in connection with a security clearance or assignment to a sensitive position.
j. Habitual or episodic use of intoxicating beverages to excess.
k. Abuse of, or addiction to, narcotics, drugs, or other controlled substances.
*
m. Any facts, circumstances, or conduct that indicates poor judgment, unreliability, or untrustworthiness, thereby suggesting that the person concerned might fail to safeguard classified information, deliberately or inadvertently, or may not be suitable for assignment to sensitive duties.
*
p. Refusal or intentional failure to provide material facts in a personal history statement or security form....
OPNAVINST 5510.1F, paragraph 16-102.2. As in Hoska, 677 F.2d at 136, the agency‘s security determination was designed to be “an overall, commonsense determination based on all available information“. OPNAVINST 5510.1F, paragraph 16-102.1. There is no dearth of agency regulation, rule, or guideline for security determinations; and in Mr. Egan‘s case he was informed in lengthy detail of the reasons why his clearance was denied. As demonstrated in Bogdanowicz, supra, the Board is capable of reviewing the record to decide if the agency has established by appropriate standard that the employee should be denied security clearance.
Similarly, the Board‘s determination of a nexus between the criteria set out in the agency‘s regulations and the employee‘s ability to safeguard classified information is not unlike other nexus determinations. The Board has upheld the removal of employees found to have falsified employment applications or to have criminal or alcoholism records, in many contexts in addition to that of national security. The statute and regulations require the Board to review adverse actions, except for those taken under
In sum, the Board is required to review the agency action taken against Mr. Egan with the same full process and standards and scope of review, established by law and precedent, as any other adverse action taken under section 7512.
III.
The Board‘s decision in Egan creates the anomalous situation whereby employees removed for national security reasons under
The procedure designed by the Board, which the Board characterizes as “minimal due process“, is a departure from the Civil Service Reform Act‘s careful balance of employer and employee interests. This procedure would evict a large class of federal employees from the statutory safeguards that this Act provides. Minimum due process under this Act requires not only minimal pre-termination procedures, see Mercer v. Department of Health and Human Services, 772 F.2d 856 (Fed.Cir.1985), but also requires a post-termination hearing as provided in
This right to a hearing is particularly cogent in the security clearance context. In Mr. Egan‘s case, the agency‘s regulations provided that “[f]inal adverse personnel security actions based on Defense Investigative Service (DIS) investigations shall be reported to DIS for recording in the Defense Central Index of Investigations....” OPNAVINST 5510.1F, paragraph 16-105.6. This record will make it difficult, perhaps impossible, for Mr. Egan to obtain future government employment. See
Not in point is Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886 (1961), cited by the dissent, where the person involved was not a government employee, and was therefore not entitled to the statutory rights of government employees as set out in Title 5. The Court stated that this was “not a case where government action [exclusion from the premises] has operated to bestow a badge of disloyalty or infamy, with attendant foreclosure from other employment opportunity.” Id. at 898. The Court also observed that no one had accused the petitioner of being “disloyal“. Id. at 898-99. The same cannot be said for Mr. Egan.
Although the dissent justifies Mr. Egan‘s removal without either a pre-termination or post-termination hearing, on a catalog of Mr. Egan‘s alleged transgressions, the merits have not yet been reviewed by the Board, and are not before us. The facts of Mr. Egan‘s case may indeed lead the Board to affirm the agency‘s action. That decision has not yet been made.
The Board, by refusing to review an agency‘s reasons for refusal of security clearance, denies to those federal employees the minimal opportunity to correct agency error, or to be protected from specious, arbitrary, or discriminatory actions.6 The Board thus violates the congressional mandate that it “protect the rights of employees, recognized by the Supreme Court in Arnett v. Kennedy, 416 U.S. 134 (1974), to a full and fair consideration of their case“. S.Rep. No. 969, 85th Cong., 2d Sess. 51, reprinted in 1978 U.S.Code Cong. & Ad.News 2723, 2773.
IV.
The question raised by the agency as to remedies available to it should the Board order reinstatement, following reversal of an agency removal, is not ripe for judicial review. On remand from this court, the Board may affirm the agency‘s removal of Mr. Egan on the merits—a plau-
By no procedure is the Navy required to retain an established security risk in a sensitive position. We deplore that the Navy took fifteen months to investigate Mr. Egan, whose criminal past was not only on the public record but on his employment form, meanwhile converting him from a probationary employee, who was not entitled to the safeguards here invoked, to a permanent one, who is.
Appellate review may “punish” an agency (the dissent‘s word), if one so wishes to describe Congress’ power to make laws governing federal employment, but such laws are of no less statutory force. See, e.g., Vitarelli v. Seaton, 359 U.S. 535 (1959), wherein the Court held that a petitioner who could otherwise have been discharged was entitled to reinstatement when the national security exception procedures were not followed.
The dissent also maintains that our decision would entitle the Board to substitute its judgment for that of the employing agency as to which of its employees should be entrusted with our nation‘s secrets. This position misperceives the nature of the Board‘s role in Chapter 75 removal actions. The Board does not substitute its judgment for that of the employing agency, nor can the Board do so if the removal is based on the denial or loss of a security clearance. The Board is a review tribunal exercising appellate, not original, jurisdiction.
The determination that a given employee is a security risk is also committed to the sound discretion of the agency, in accordance with the standards set forth in its regulations. Where a nexus is not apparent, the agency‘s determination must not
This case presents no new issues of Board review, and the Board‘s procedures will be no different than they have been during the years the Board has exercised the authority it now seeks to abdicate. The record does not show that any of the problems posited by the dissent occurred during that period. To the extent that Congress has authorized such review, it must continue to be implemented.
Conclusion
We conclude that the heavy weight of law and precedent, congressional intent, and fundamental rights, require that the agency action taken in Egan receive the same appellate review as other adverse actions taken under
VACATED AND REMANDED.
MARKEY, Chief Judge, dissenting.
Convinced that the Merit Systems Protection Board (MSPB) was never constituted a “security clearance review board“, and that it should not by this court be so constituted, I most respectfully dissent.
A circumstance of grave import, ignored by the majority, is this: Egan does not challenge any fact in the listing of his 14 years of arrests and criminal acts and alcoholism—he simply disagrees with the Navy‘s evaluation, its judgment, made in light of those facts. Thus the majority is necessarily insisting that MSPB substitute its judgment on which employees should be entrusted with the Navy‘s nuclear submarine secrets and which should not. Indeed, the majority says MSPB has a “statutory responsibility” to do so (though no statute so states).1
Thus the majority here makes not an application of law but a choice of policy. That choice, I submit, is not only wrong but fraught with mischief. Further, I cannot find that the majority, in making that policy choice, engaged in the required balancing of Egan‘s interest in obtaining a clearance and the armed services’ interest in fulfilling their assigned role of protecting national security.
No one has a constitutional right to be hired by the government. No one, not even one whose slate is unmarked, has a constitutional right to be granted a security clearance. Egan was conditionally hired to help repair submarines. His retention on the job was conditioned, as he knew, on whether those responsible for Navy security would grant him a security clearance. After a thorough review, all the way to the Director, Navy Civilian Personnel Command (NCPC) and after Egan had a chance to respond and to appeal to higher authority within the Navy,2 the responsible office of the Navy declined to grant the security clearance.
Egan‘s immediate employing facility, Trident Naval Repair Facility (TNRF), because Egan did not get the required clearance and it had no other job for him, was forced to remove him, but Egan lost nothing to which he was entitled. If he had a property right in his job, it was a conditioned right.3 All that happened was that
It did not occur because the Navy exercised its judgment and responsibility by declining to disclose its secrets to an employee with a history that included imprisonment for possessing a firearm as a felon on probation following a conviction for assault.5
Fear of “Arbitrary” Denials
The majority decides a case not here. Like that of the presiding official, the majority‘s underlying rationale is a felt necessity to “protect” civilian employees against “arbitrary” denials of security clearances. Amicus and the majority see the boogymen of “specious, arbitrary, discriminatory” clearance denials, citing no evidence that those horror stories are factually based, supplying no description of how they could happen under OPNAVINST 5510.1F., and giving no reasons why those responsible for Navy security would want to engage in such chicanery, or why a due process review by MSPB would not serve to catch and rectify any denial of a clearance made without due process.6
Whence the fear of arbitrary denials? Whence the automatic refusal of even a modicum of at least initial trust in Navy officials? Whence the disregard of the process (denial response denial appeal final denial) conducted by the Navy under OPNAVINST 5510.1F before denying a clearance?
There is no evidence, and not even a claim, that any Navy official had any personal dislike of Egan. Indeed, he was hired and removed by TNRF, and his clear-
Egan does not, and could not, claim that the Navy acted in “bad faith” in denying him a clearance, and there is nowhere in the record even a whiff of the “well-nigh irrefragable proof” required to establish such bad faith. See Kalvar Corp., Inc. v. United States, 211 Ct.Cl. 192, 543 F.2d 1298, 1301-02 (1976), cert. denied, 434 U.S. 830 (1977).
The conjecture that Navy officials might act arbitrarily is not only unwarranted, it is far too weak a reed on which to rest a determination that MSPB must decide which employees of the armed forces should be granted security clearances. Given that the responsibility is the Navy‘s, and given the system of high level, objective, impersonal, decisionmaking employed by the Navy in carrying out that responsibility, including the employee‘s chance to respond and to appeal to higher authority within the agency, I can see no reason why, under those circumstances, the Navy should not be allowed to exercise its judgment in exercising its authority to grant or deny security clearances.
Moreover, the majority engages in no balancing of the potential risk it imagines (arbitrary denials) with the actual risk it creates (board and court interference in security decisions).
Egan is Already “Protected”
The majority slides too easily by the fully adequate due process protections provided Egan under the Navy‘s regulation, OPNAVINST 5510.1F, which, it is undisputed, the Navy followed to the letter. NCPC notified Egan in writing of the intent to deny him a security clearance, gave Egan all the reasons and access to all information on which that intent was based, and afforded Egan an opportunity to respond. Egan did so through a representative and in writing, not challenging the facts cited by the Navy but disagreeing with the Navy‘s judgment and arguing that he should be granted a clearance. NCPC considered Egan‘s response and notified Egan of his final decision to adhere to the denial, again citing reasons. Egan was notified in writing of his right to appeal to higher authority within the Navy (to the Assistant Deputy Chief of Naval Operations). From the record, Egan declined to file such an appeal, but proceeded promptly to MSPB.
The majority apparently believes Egan must have a full evidentiary hearing on whether he should be granted a security clearance, even though there is no material fact issue to resolve. In any case, due process does not require such a hearing. Cafeteria & Restaurant Worker‘s Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 894-99 (1961).
Moreover, the majority incorrectly implies that Egan would get more “process” if the Navy had proceeded under
In denying Egan a clearance, the Navy followed Executive Order 10450, which treates a security clearance for what it is, a grant of trust, requiring an affirmative determination that granting a clearance would be clearly consistent with the interests of national security, and requiring “an overall, common sense determination based on all available information.”
As would any judge, I join the majority‘s desire that Egan receive a “full and fair consideration of his case.” But, assuming he has a “case” for a security clearance, he
Egan had no “right” to receive a security clearance. Because a clearance was a condition precedent to his job retention, it can be argued that Egan had a right not to be denied a clearance without due process (i.e., “arbitrarily“). That right was fully protected here.
The Majority‘s Transfer of Authority and Responsibility
The authority to grant or deny a security clearance is committed to the sound discretion of executive agency heads. See Exec. Order 10450, 3 C.F.R. 936 (1953 Comp.) reprinted as amended in
Sec. 2 The head of each department and agency of the Government shall be responsible for establishing and maintaining within his department or agency an effective program to insure that the employment and retention in employment of any civilian officer or employee within the department or agency is clearly consistent with the interests of the national security.
It is to me clear that, if this court compels MSPB to determine the “reasonableness” of security clearance determinations, the result is to transfer the sound discretion to grant or deny security clearances from the head of the executive agency concerned (Navy) to another, and less qualified, executive agency (MSPB). The majority cites no authority, and none exists, for the notion that security decisions of one executive agency should be reviewed, and occasionally overturned, by another executive agency.
The majority‘s decision will necessarily, and grievously, impair not only an independent operation of the armed services and other executive agencies and departments, it will dilute the responsibility the President placed on them to insure that civilian employment is “clearly consistent with the interests of national security“. Indeed, as described below, the majority‘s decision will effectively gut Executive Order No. 10450.
MSPB properly understood the President‘s order committing security clearance matters to the sound discretion of the department or agency as requiring MSPB, as an administrative tribunal, to exhibit a deference to military judgments on security clearances not unlike that traditionally exhibited by courts in relation to matters within military purview. Cf. Williams v. Secretary of the Navy, 787 F.2d 552 (Fed.Cir.1986).
The majority‘s mandate that MSPB make its own judgment on whether a security clearance should be denied or granted transfers the right to judge from the expert, authorized agency to MSPB and this court, both of which lack the needed individual and institutional competence. It also runs clearly contrary to well-established principles of deference owed national security determinations of executive agencies. As below indicated, it also runs contrary to the jurisprudence of this court.
MSPB “Jurisdiction”
The majority‘s facile leap, from the board‘s general jurisdiction to review removals to the notion that the exercise of that jurisdiction must include authority to review the reasonableness of security judgments, is unnecessary and unwarranted.
Hence the majority‘s statement that there is “no indication that Congress intended this type of removal action to be exempt” is irrelevant.
The majority rests on the statutory jurisdiction of the board to review removals. But no one is arguing that question. That MSPB jurisdiction is present (because employment is affected), however, is not controlling.7 MSPB recognized that it had
As this court has so often said, MSPB has only the jurisdiction Congress granted it. See, e.g., Cowan v. U.S., 710 F.2d 803, 805 (Fed.Cir.1983). Having never never specifically granted MSPB jurisdiction to conduct hearings on security clearances, Congress has not signalled an intent that MSPB should use the jurisdiction it was granted as authority to inject itself into that sensitive area committed to the Executive branch. This court is not authorized, of course, to grant MSPB a jurisdictional scope so broad.
That a claim of denial of due process is within the scope of MSPB review in this case is undisputed. MSPB agreed that it should, and did, review Egan‘s removal to insure that it was accompanied by due process. Egan does not assert a failure of the Navy to follow its regulations or any statute. As MSPB correctly observed, “there is present within the agency or the applicable entity a procedure for affording at least minimal due process protections, i.e., notice of the agency‘s determination, a statement of its reasons in support of the determination, and an opportunity for the affected individual to be heard.” 28 M.S.P.R. at 519, citing inter alia DeSarno v. Department of Commerce, 761 F.2d 657, 660 (Fed.Cir.1985), and Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
The majority lists a first category of cases in which the scope of MSPB‘s review was not restrained, and a second category of cases in which that scope was restrained. The second category contained the only cases involving underlying decisions of the armed services. Yet the majority elects to drop the present case, involving an underlying decision of an armed service, into the first category, without telling us why (except fear of arbitrariness) it should not be placed in the second category.
This court has affirmed MSPB‘s recognition of restraints on the scope of MSPB‘s exercise of its jurisdiction in appropriate circumstances. See, e.g., Buriani v. Department of the Air Force, 777 F.2d 674, 677 (Fed.Cir.1985) (loss of employment-controlling active air reserve status because of failure to attain promotion not reviewable); Zimmerman v. Department of the Army, 755 F.2d 156, 157 (Fed.Cir.1985) (“the Board does not have the jurisdiction to examine military assignments and transfers“); see also Schaffer v. Department of the Air Force, 8 MSPB 631, 9 M.S.P.R. 305 (1981), aff‘d, 694 F.2d 281 (D.C.Cir.1982). Considerations compelling still greater restraint are implicated when it is suggested that MSPB should affirm or reverse on the merits decisions of military authorities made in a due process procedure in the interests of national security.
That no one contests the foundation on which the majority builds, i.e., that MSPB has jurisdiction to review all matters within its jurisdiction, including removal actions.
The facts and reasoning in Zimmerman and Buriani, make clear that there is no basis whatsoever for distinguishing them from the case before us.
Ms. Zimmerman sought reinstatement to her civilian position by arguing to the MSPB that the Army had erroneously denied a condition precedent to retention of that position (membership in her Reserve unit). This Court, however, gave short shrift to that argument. It flatly rejected the notion that the MSPB should have reviewed the reasons for the Army‘s denial of her Reserve status, saying “the Board does not have the jurisdiction to examine military assignments and transfers.” Zimmerman v. Department of the Army, 755 F.2d at 157. It would appear impossible, respecting MSPB authority, to distinguish the military‘s denial of Ms. Zimmerman‘s condition precedent (Reserve status) from the military‘s denial of Egan‘s condition precedent (security clearance).
Mr. Buriani was a civilian employee of the Air Force who was not militarily promoted, a condition precedent to his maintaining the grade of his civilian position. This court limited the MSPB inquiry to whether Mr. Buriani was promoted, holding that any other inquiry would be an inappropriate “wide ranging collateral inquiry into the selection board.” If MSPB may not
Zimmerman, Buriani, and Egan were all civilian employees against whom adverse actions were taken because, and solely because, the military refused them a status required for job retention. MSPB heard all three cases, yet only in Egan‘s does the majority say MSPB must inquire into the military‘s refusal to grant the necessary status. Principled decisionmaking requires more than a mention of Zimmerman‘s and Buriani‘s Reserve status as justification for the present departure from this court‘s precedents.
Separation of Powers
The majority ignores entirely the government‘s argument based on the constitutional principle of separation of powers. The protection of classified information is an executive responsibility flowing from the President‘s constitutional mandate to provide for the national defense.
[I]t is the constitutional duty of the Executive—as a matter of sovereign prerogative and not as a matter of law as the courts know law—through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibility in the fields of international relations and national defense.
New York Times Co. v. United States, 403 U.S. 713, 729-30 (1971) (Stewart, J., concurring); see United States v. Marchetti, 466 F.2d 1309, 1315 (4th Cir.1972), cert. denied, 409 U.S. 1063 (1972). In exercising his constitutional responsibility, the President reserved to heads of federal agencies, as above indicated, the decisions on who is entitled to hold a security clearance. Executive Order 10450, supra.8
Where, as here, no deprivation of a constitutional right or statutory violation is involved, the courts have declined to intrude into the sphere of Presidential responsibility for national defense, in recognition of the constitutionally mandated separation of powers. See, e.g., Haig v. Agee, 453 U.S. 280, 292 (1981); Gilligan v. Morgan, 413 U.S. 1, 7-11 (1973); Laird v. Tatum, 408 U.S. 1, 14-15 (1971); Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953); Buriani v. Department of the Air Force, 777 F.2d 674, 676 (Fed.Cir.1985), quoting Zimmerman v. Department of the Army, 755 F.2d 156, 157 (Fed.Cir.1985); Adams v. Laird, 420 F.2d 230, 239 (D.C.Cir.1969), cert. denied, 397 U.S. 1039 (1970); Greene v. McElroy, 254 F.2d 944, 953 (D.C.Cir.1958), rev‘d. on other grounds, 360 U.S. 474 (1959).
Because the Constitution assigns national security matters to the Executive Branch, the courts have not developed the institutional competence to decide them. In Greene v. McElroy, 254 F.2d at 953, the court explained why it should not review the merits of an agency‘s security clearance revocation:
There must be a “justiciable” controversy—one which the courts can finally and effectively decide, under tests and standards which they can soundly administer within their special field of competence. Here there is no such controversy. As we have seen, Greene makes no claim of lack of compliance by the Government with its own regulations. He attacks the Secretary‘s decision on its merits and as a matter of constitutional right. But for a court to hear de novo the evidence as to Greene‘s fitness to be assigned to a particular kind of confidential work would be a bootless task, involving judgments
remote from the experience and competence of the judiciary. Indeed, any meaningful judgment in such matters must rest on considerations of policy, and decisions as to comparative risks, appropriate only to the executive branch of the government.
The actual judgment on whether to grant or deny a security clearance requires specialized expertise, is predictive, is judgmental and neither factual nor legal, requires no knowledge of legal or Civil Service/Merit principles (because there “is no law to apply“), and rests on policy considerations and risk comparisons. The majority does not tell us why an MSPB presiding official, or MSPB itself, is better, or even equally, qualified to make that judgment than are the responsible military officials. “We are not in an area where absolutes obtain, and the grant or denial of security clearances is an inexact science at best. Those who have that responsibility have to do the best they can with what they have....” Adams v. Laird, 420 F.2d at 239.
What Now?
The majority‘s too-easy dismissal of the agency‘s concern over its remedies (if MSPB reinstates Egan) is unfair. When the law is clear, judicial decisions certainly must not be controlled by results. But where, as here, no statute authorizes or requires MSPB to review security clearance judgments of the armed services, a court should not render a decision that it must do so with no regard for the havoc the court may thereby create. In the present case, the court should not simply finesse the Navy‘s question “what now“?
A moment‘s thought to consequences establishes that the majority‘s approach will engender absurd results. The presiding official, believing herself so empowered and qualified, held that despite Egan‘s criminal record and a history of alcohol dependence, the Navy‘s judgment that he
Where shall MSPB say the Navy erred in its denial? What criteria for granting or denying security clearances should MSPB establish? If MSPB sets forth no clear, all-encompassing criteria, how shall the Navy, or any armed service, or any executive agency, know when its grant or denial of a security clearance will pass muster at MSPB? Should any such MSPB criteria supplant that employed now by the Navy in OPNAVINST 5510.1F CH 4, 16-102?
If MSPB and this court are to be the final decisionmakers on whether and which employees should be trusted with our nation‘s security, how could the officials of the armed services rely on their judgment of whether granting a clearance would be “consistent with the interests of national security“? What objective facts can those responsible officials correctly cite to “prove by a preponderance of the evidence” that this or that employee will reveal defense secrets? How does one prove his judgment that a particular employee might disclose secrets?
It must be remembered that the only remedy which MSPB can grant is reinstatement of Egan in his job. In this regard, this court has said it is appropriate to look to the authority Congress has provided in connection with relief. See Electronic Data Systems Federal Corp. v. General Services Administration Board of Contract Appeals, 792 F.2d 1569 (Fed.Cir.1986); United States v. Amdahl Corp., 786 F.2d 387 (Fed.Cir.1986). The majority unfairly avoids the limitation on the board‘s remedial authority by merely saying the issue of relief is not ripe.
If the presiding official‘s determination be reinstated on remand, it is clear that the Navy must either grant or again deny a security clearance to Egan. In light of the responsibility it bears, it is inconceivable that the Navy would grant Egan a clearance while remaining convinced of his unreliability. If the Navy may persist in denying Egan a clearance, must it nonetheless continue to employ him in the submarine repair work for which he was conditionally hired? How could the Navy do that (except by the impossible step of removing the security clearance requirement for all persons doing that work and thereby made privy to Navy secrets)? If the Navy retains a security clearance for the job, and does not give Egan his original job and a clearance, must the Navy find him an equal-pay job that does not require a clearance? Must it do so without regard for Egan‘s qualifications for such other job? It being established that there are no such other jobs, must the Navy pay Egan for not working (because he has no clearance)?
The foregoing and similar considerations make it impossible for me to imagine how the result reached by the majority can be seen as serving “to promote the efficiency of the service.” Together they force this dissent.
Conclusion
MSPB correctly held that “in an adverse action over which the Board has jurisdiction and which is based substantially on the