Federal Circuit's Take on Board Analysis of Indefinite Suspensions Based on Security Clearance Determinations

Gargiulo v. DHS, 2012-3157 (Fed. Cir. 2013)

by Natania Davis

Last week, the Federal Circuit did away with the Board's constitutional due process approach to indefinite suspensions based on security clearance determinations as articulated by the Board in McGriff v. Dept. of Navy, 118 MSPR 89 (2012), and Gargiulo v. DHS, 2012 MSPB 64 (2012).

On appeal from his indefinite suspension due to suspension of his security clearance, Gargiulo argued that the agency failed to afford him due process when it indefinitely suspended him before he had an opportunity to review the materials used to suspend his security clearance. The Board held that although it may not review the merits of the security clearance determination, it could review (1) whether the agency provided Gargiulo with the statutory procedural protections of 5 USC 7513 in indefinitely suspending him, and (2) whether the agency afforded Gargiulo consitutionally guaranteed due process with respect to the indefinite suspension.

Though the Federal Circuit agreed with the Board's ultimate outcome (affirming the indefinite suspension), it found that the Board exceeded its authority with respect to its analysis. Noting the protections afforded by 5 USC 7513, the court reminded:

That right, however, is statutory, not constitutional. The Board's characterization of that right as a constitutional guarantee that the Board may delineate and enforce is contrary to this court's decisions in Hesse, Robinson, and Jones, in which we held that employees do not have constitutional due process rights in connection with security clearance determinations. As this court observed in Hesse, all the Board and this court may do in the context of an adverse action stemming from a security clearance suspension is to "determine whether a security clearance was denied, whether the security clearance was a requirement of the appellant's position, and whether the procedures set forth in section 7513 were followed."

In applying its due process analysis, the Board went further than that. It held, as a matter of constitutional due process, that Mr. Gargiulo was entitled to notice of the reasons for the suspension of his security clearance and an opportunity to make a meaningful response regarding those reasons to someone in the agency with the authority to affect that decision. While this court's cases hold that section 7513 grants those rights to certain employees, we have not held that those rights are guaranteed by the Fifth Amendment.

In addition, the Board cited the "need to ensure that the procedures used provide adequate assurance that the agency had reasonable grounds to support the adverse action." And in this case it concluded, based on "the totality of the evidence," that "the agency did have reasonable grounds to support the suspension," and that the decision to revoke Mr. Gargiulo's security clearance was "not baseless or unwarranted." 118 M.S.P.R. at 144. While the Board disclaimed any intention to review the merits of the security clearance suspension, the sole ground for the decision to suspend Mr. Gargiulo from his position was the suspension of his security clearance. The Board's conclusion that there were reasonable grounds to support the adverse action therefore necessarily reflected its view that the agency's security clearance decision was reasonable, based on what the Board referred to as "the totality of the evidence." In addressing the merits of the security clearance determination in that manner, the Board exceeded its authority in adverse decision cases that are based on the suspension or revocation of an employee's security clearance.

For more on due process, indefinite suspensions and security clearances, see MSPB Case Summaries by Peter Broida and Natania Davis and Security Clearance Law and Procedure by Elizabeth Newman.

MSPB Decisions of Note

by Natania Davis

King v. Dept. of Air Force, 2013 MSPB 62 (2013)

The Board again visited the issue as to the temporal reach of the Whisteblower Protection Enhancement Act. The provision at issue was Section 107(b)-the provision of the WPEA, adding compensatory damages to the relief available to whistleblowers. This time, though, the Board held that retroactive application of Section 107(b) would be impermissible because it would alter the parties' respective liabilities. The Board's reasoning follows:

Congress did not expressly provide that the terms of the WPEA would apply retroactively to conduct occurring before its enactment.

The Board noted, as it did in Day v. DHS, 2013 MSPB 49 (2013), that when Congress intends for statutory language to have retroactive application, it is capable of doing so, but Congress did not expressly include such language in the Act.

Section 107(b) of the WPEA cannot be given retroactive effect under Landgraf.

Following its decision in Day, the Board noted that the analytical approach set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994), is the "appropriate framework for determining whether provisions of the WPEA should be given retroactive effect." Under Landgraf, the relevant inquiries are whether the WPEA impairs the parties' respective rights, increases a party's liability for past conduct, or imposes new duties with respect to past transactions. The Board noted that the WPEA added compensatory damages to the relief available to whistleblowers and explained:

We agree with the agency that section 107(b) is an important change in the law that attaches new legal consequences for events completed before its enactment.

...

Here, the appellant's protected disclosures and the agency's retaliatory personnel actions took place several years before the effective date of the WPEA. The addition of compensatory damages significantly alters the consequences of these relevant past events and would undeniably attach an important new legal burden to the agency's past conduct that did not previously exist.

Section 107(b) cannot be retroactively applied because Congress did not expressly waive sovereign immunity for pre-enactment conduct.

Quoting FAA v. Cooper, 132 S.Ct. 1441 (2012), the Board noted that "the scope of Congress' waiver [must] be clearly discernible from the statutory text in light of traditional interpretative tools. If it is not, then we take the interpretation most favorable to the Government." Nothing in the express language of the Act suggests congressional intent to waive sovereign immunity with respect to making compensatory damages available to whistleblower violations that preceded the enactment of the WPEA.

The Board also concluded that Section 107(b) does not clarify the WPA, and the law of the case doctrine did not apply in this case. The Board was also careful to note the limited scope of the King decision and reminded readers that this decision does not necessarily apply to other provisions of the WPEA.

For more on whistleblower law, see A Guide to Whistleblower Protection Act and Whisteblower Protection Enhancement Act of 2012 by Fowler and Vitaro and A Guide to MSPB Law and Practice by Broida.

Bennett v. Dept. of Justice, 2013 MSPB 64 (2013)

Relying on Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011), the Board noted that "[a] deciding official's knowledge of information only raises due process or procedural concerns where that knowledge is a basis for the deciding official's determinations on either the merits of the underlying charge or the penalty to be imposed."

For more on agency charges and penalties, see Charges and Penalties by Fowler and Vitaro.

EEO Decisions of Note

by Natania Davis

Suttles v. USPS, Appeal No. 0120121071 (July 17, 2013)

The Commission affirmed an award of $10,000 in compensatory damages where the appellant suffered embarrassment, anger, sleeplessness, weight gain, depression, and despair and worry over a several-month period.

For more on compensatory damages awards, see Dewey's new release Compensatory Damages and Other Remedies, 2013 by Gary Gilbert.

Sipriano v. DHS, Appeal No. 0120120264 (July 11, 2013)

The Commission affirmed the agency's final decision finding discrimination against complainant (a Student Aide) on the bases of his disability but limiting complainant's entitlement to back pay to when funding for the position ended.

Featherstone v. USPS, Appeal No. 0120113188 (July 9, 2013)

The Commission affirmed the agency's final decision concluding that the complainant failed to establish the necessary nexus between her alleged disability and the requested accommodation of working the day shift where the doctor's note provided "no explanation of why it would be problematic for her to take the medication at night while she is working and not during the day while she is working."

For more on remedial relief involving disability discrimination claims, see A Guide to Federal Sector Disability Discrimination Law and Practice by Hadley and Federal Sector Disability Discrimination Law Deskbook by Gilbert.

Watson v. USPS, Appeal No. 0120121195 (July 11, 2013)

The Commission affirmed the agency's final decision finding no discrimination when the agency sent complainant for a fitness for duty examination. The agency articulated a legitimate, non-discriminatory reason for requesting that complainant attend a FFDE where complainant's supervisor "observed, on the occasion preceding the referral, that Complainant was exhibiting unusual behavior and that he was more agitated than he usually was when speaking with her about incidents in the workplace" and "other employees had identified complainant as a cause of problems in the workplace in response to a work climate assessment survey."

For more on fitness for duty examinations, see Consolidated Federal Sector EEO Update 2004-2013 by Goodfriend, Vitaro and Gilbert, and Administration of Leave and Medical Documentation Requests and Federal Sector Workers' Compensation by Laws.

Contreras v. Dept. of Army, Appeal No. 0120131026 (June 20, 2013)

The Commission reversed the agency's final decision dismissing a National Guard technician's discrimination complaint as a military complaint of discrimination. The Commission acknowledged the "unique dual-status" of technicians and noted that those individuals are considered both uniformed military personnel as well as federal civilian employees. The Commission noted that dual-status technicians are covered by Section 717 of Title VII when the alleged discriminatory action arises from the individual's capacity as a federal civilian employee. Contreras was functioning as an EEO Specialist when she sought reasonable accommodation in her civilian position, bringing her complaint within the EEOC's purview.

For more on EEO procedure, see A Guide to Federal Sector Equal Employment Law and Practice by Hadley.