Merit Systems Protection Board September 2011 – Federal Register Recent Federal Regulation Documents

These cases involve employees who were required to have security clearances and were indefinitely suspended from their positions pending determinations concerning whether their security clearances should be revoked. The Board has recognized that, under certain circumstances, an agency may indefinitely suspend an employee based upon the suspension of access to classified information or pending the agency's investigation regarding that access, where the access is a condition of employment. See, e.g., Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ] 13 (2010); Jones v. Department of the Navy, 48 M.S.P.R. 680, 682, 689, aff'd as modified on recons., 51 M.S.P.R. 607 (1991), aff'd, 978 F.2d 1223 (Fed. Cir. 1992). On appeal of such an action, the Board lacks the authority to review the merits of the agency's decision to suspend an employee's access to classified material. Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988). The Board may determine, however, whether the agency afforded an employee minimum due process with respect to the employee's constitutionally protected property interest in employment. See, e.g., Johnson v. Department of the Navy, 62 M.S.P.R. 487, 490-91 (1994); Kriner v. Department of the Navy, 61 M.S.P.R. 526, 531-35 (1994). In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985), the Court held that an agency's failure to provide a tenured public employee with an opportunity to present a response, either in person or in writing, to an appealable agency action that deprives him of his property right in his employment constitutes an abridgement of his constitutional right to minimum due process of law, i.e., prior notice and an opportunity to respond. In Gilbert v. Homar, 520 U.S. 924 (1997), the Court explained, in a case involving the suspension of a state employee, how its due process analysis would apply to discipline short of termination. The Board may also review whether the agency provided the employee with the procedural protections set forth in 5 U.S.C. 7513 in taking an action. Egan, 484 U.S. at 530; see also Cheney v. Department of Justice, 479 F.3d 1343, 1344-45 (Fed. Cir. 2007); King v. Alston, 75 F.3d 657, 661-63 (Fed. Cir. 1996). The Board applies a harmful error analysis in considering statutory violations. See, e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1282 (Fed. Cir. 2011); Handy v. U.S. Postal Service, 754 F.3d 335, 337-38 (Fed. Cir. 1985). The cases thus present the following legal issues: (1) Should the Board apply the balancing test set forth in Homar, 520 U.S. 924, in determining whether an agency violates an employee's constitutional right to due process in indefinitely suspending him or her pending a security clearance determination; (2) If so, does that right include the right to have a deciding official who has the authority to change the outcome of the proposed indefinite suspension; (3) If the Board finds that an agency did not violate an employee's constitutional right to due process in this regard, how should the Board analyze whether the agency committed harmful procedural error in light of the restrictions set forth in Egan, 484 U.S. 518, on the Board's authority to analyze the merits of an agency's security clearance determination. Interested parties may submit amicus briefs or other comments on these issues no later than October 19, 2011. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 30 pages in length. The text shall be double-spaced, except for quotations and footnotes, and the briefs shall be on 8\1/2\ by 11 inch paper with one inch margins on all four sides.