Hesse v. Dept. of State

• Decision Date: 06 July 2000
• Citation: 217 F.3d 1372
• Parties: (Fed. Cir. 2000) RAYBURN F. HESSE, Petitioner, v. DEPARTMENT OF STATE, Respondent. F. Douglas Harnett, of Washington, DC, argued for petitioner. 99-3387
• Court: U.S. Court of Appeals — Federal Circuit

Page 1372

217 F.3d 1372 (Fed. Cir. 2000)

RAYBURN F. HESSE, Petitioner, v. DEPARTMENT OF STATE, Respondent F. Douglas Harnett, of Washington, DC, argued for petitioner.

99-3387

United States Court of Appeals for the Federal Circuit

July 6, 2000

Appealed from: Merit Systems Protection Board

F. Douglas Harnett, of Washington, DC, argued for petitioner.

Todd M. Hughes, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Of counsel was Thomas H. Alphin, Jr., Attorney, Office of the Legal Advisor, Department of State, of Washington, DC.

Before MICHEL, SCHALL, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

The Department of State suspended Rayburn F. Hesse's Top Secret security clearance and then indefinitely suspended him from his position with the agency. He appealed the suspension from his position to the Merit Systems Protection Board. The Board first held that it lacked jurisdiction to consider the propriety of the agency's decision to suspend Mr. Hesse's security clearance. Because the agency suspended Mr. Hesse from his position based entirely on the suspension of his security clearance and because the Board found that the agency's action suspending Mr. Hesse from his position was not procedurally flawed, the Board upheld the indefinite suspension. We agree with the Board's conclusions as to the scope of its jurisdiction and as to the procedural challenges to the agency action, and we therefore affirm the Board's decision.

I

Mr. Hesse served as a GS-15 Foreign Affairs Officer with the Department of State. His position required him to have and maintain a Top Secret security clearance. In 1997, following a series of alleged security violations by Mr. Hesse, the agency proposed to suspend Mr. Hesse's security clearance.

Mr. Hesse was given an opportunity to respond to the agency's charges, and he did so in writing. After receiving Mr. Hesse's response, the deciding official suspended Mr. Hesse's security clearance for two years. The notice advising Mr. Hesse of the suspension informed him that he could appeal the decision to an appeals panel within the Department of State and present his case orally to the panel.

Mr. Hesse requested review by the appeals panel and submitted a letter setting forth the grounds for his appeal. When the appeals panel convened, it heard oral presentations from both Mr. Hesse and his counsel. The panel subsequently issued a written decision sustaining the two-year suspension. Based on the suspension of Mr. Hesse's security clearance, the agency suspended him from his position for failure to maintain the security clearance required for the performance of his job.

Mr. Hesse appealed to the Merit Systems Protection Board seeking review of the decisions to suspend his security clearance and to suspend him from his position. In his submissions to the Board, he argued that the agency had violated his procedural rights and had acted in reprisal for acts of whistleblowing on his part.

The administrative judge assigned to Mr. Hesse's case held that the Board did not have jurisdiction to review his contention that his security clearance was suspended for whistleblowing. As to Mr. Hesse's procedural claims regarding the suspension of his security clearance and his objection to his indefinite suspension from his position, the administrative judge rejected Mr. Hesse's claims as being without merit. Mr. Hesse then petitioned the full Board for review of the administrative judge's initial decision. The Board denied the petition but reopened the case on its own motion, vacated the initial decision, and affirmed the agency's actions.

The Board considered Mr. Hesse's case together with Roach v. Department of the Army, 82 M.S.P.R. 464 (1999), in which the Board held that it lacks jurisdiction to review the denial, revocation, or suspension of a security clearance, whether raised in an individual right of action (IRA) filed with the Board after seeking corrective action from the Office of Special Counsel, see 5 U.S.C. § 1221(a), (b), or as an affirmative defense in an appeal directly to the Board from an adverse agency action, see 5 U.S.C. § 7513. The Board based its conclusion on the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988). In that case, the Court held that the Board did not have authority to review security clearance determinations in appeals from agency actions under 5 U.S.C. § 7513(d). Noting that security clearance decisions are not well-suited for review by generalist boards and courts and that Executive Branch agencies enjoy broad discretion in making such decisions, the Court in Egan held that, in order to confer jurisdiction on the Board to review security clearance determinations, Congress would have had to state explicitly that it intended for the Board to review such decisions.

The Board concluded that the 1994 amendments to the Civil Service Reform Act, which made the whistleblower protection provisions of the Act applicable to "any other significant changes in duties, responsibilities, or working conditions," did not constitute the kind of unmistakable expression of congressional intent to allow review of security clearance determinations that the Court required in Egan. The Board therefore held that it lacked jurisdiction to address Mr. Hesse's claim that the State Department suspended his security clearance in retaliation for whistleblowing on his part. In addition, the Board rejected Mr. Hesse's claims that he was entitled to reassignment to a nonsensitive position and that he was denied procedural rights to which he was entitled under 5 U.S.C. § 7513(b) and the Due Process Clause of the Fifth Amendment.

II

In his petition to this court, Mr. Hesse first argues that the action the State Department took against him was in reprisal for whistleblowing. Mr. Hesse asserts that he is not challenging the Executive Branch's prerogative to determine who is qualified for a security clearance, but instead is arguing that suspension of a security clearance cannot be used to punish whistleblowing employees. The Board and this court have jurisdiction over such actions, Mr. Hesse urges, because 5 U.S.C. § 1221(a) authorizes appeals of allegations of whistleblowing and does not exclude appeals involving the suspension of a security clearance.

The only other court to consider the question whether an adverse decision on an issue of security clearance is subject to the whistleblower protection provisions of the Civil Service Reform Act has ruled that it is not. See Weber v. United States, 209 F.3d 756, 759 (D.C. Cir. 2000). Although that case arose in a different procedural posture, as a mandamus action directed at the Office of Special Counsel, we agree with the legal conclusion reached by the court in that case, for the reasons set forth below.

To decide this case requires us to review in some detail the Supreme Court's decision in the Egan case. Egan was a civilian employee at a Navy submarine refit facility. As a condition of his continued employment, Egan was required to maintain a security clearance. Following a security investigation, the Navy denied Egan a security clearance, and for that reason he was subsequently removed from his position. He sought to appeal his removal to the Merit Systems Protection Board pursuant to 5 U.S.C. § 7513(d). The Board held that it did not have the authority to review the agency's denial of a security clearance as the basis for a removal action. This court reversed the Board's decision, holding that the Board was authorized to review the merits of the underlying agency decision to deny Egan a security clearance and thus could properly decide his claim that he was improperly removed. The Supreme Court then reversed this court, holding that the Board was correct in ruling that its jurisdiction under section 7513(d) did not include the authority to review an agency decision to withhold a security clearance.

The Supreme Court noted that although there was no express provision in section 7513(d) limiting the Board's competence to decide matters such as the denial of security clearances, general principles of law barred the Board from exercising jurisdiction over such matters. The question whether to grant a security clearance to a particular employee, the Court held, is "a sensitive and inherently discretionary judgment call," which is "committed by law to the appropriate agency of the Executive Branch." Egan, 484 U.S. at 527. The Court noted that it is "obvious that no one has a 'right' to a security clearance," and that the "grant of a clearance requires an affirmative act of discretion on the part of the granting official. The general standard is that a clearance may be granted only when 'clearly consistent with the interests of the national security.'" Id. at 528.

Because each agency must have broad discretion to determine who may have access to classified information, the Court explained that

it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction [that a particular individual might compromise sensitive information] with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk.

Egan, 484 U.S. at 529. The Court noted that "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs," and it pointed out that the Civil Service Reform Act of 1978 "by its terms does not confer broad authority on the Board to review a security-clearance determination." Id. at 530....