Federal Employees’ Due Process Rights Include Right to be Provided with Deciding Official with Authority, MSPB Rules

Federal employees facing an indefinite suspension must be provided with notice and an opportunity to respond, which encompasses the right to be provided with a deciding official with authority to entertain arguments on the underlying merits of the agency’s decision, the Merit Systems Protection Board recently ruled in a precedential decision.

Alexander Buelna was a Federal Air Marshall at the Transportation Security Administration and was required to hold a Top Secret security clearance. In early 2009, the Office of Security, Personnel Security Division Deputy Associate Director issued to Assistant Special Agent in Charge David Ballinger and Buelna two memoranda which stated that Buelna’s security clearance was suspended effective immediately pending agency review. The notice explained that the suspension was predicated on information regarding fraudulent claims and and raised questions of Buelna’s honesty and trustworthiness, developed from the U.S. Army Criminal Investigation Division (CID) and the Department of Homeland Security (DHS) Office of Inspector General.

Based on the security clearance suspension and the investigation into his alleged misconduct, Ballinger proposed Buelna’s indefinite suspension and gave him seven days to respond to Jerry Patton, the deciding official. Ultimately, Patton issued a decision that sustained the indefinite suspension.

On review, the Board consolidated Buelna’s appeal with three other appeals to address the issues of whether the Board should apply the Gilbert v. Homar balancing test to assess whether an employee’s constitutional due process rights are violated when an agency indefinitely suspends him pending a security clearance determination and whether that right encompasses the right to have a deciding official with authority to alter the outcome of the proposed indefinite suspension.

Before the Board, Buelna argued that he had a property interest in his continued employment that was protected by his due process rights and that DHS violated that right by failing to provide him with the material relied on when suspending his security clearance or giving him an opportunity to contest the validity of the security clearance suspension after the agency proposed his indefinite suspension based on the security clearance suspension, which was summarily suspended based on information from the Army CID. Specifically, because Patton had no authority to change the agency’s decision to suspend Buelna’s security clearance, DHS failed to provide him with a meaningful opportunity to respond to the reasons for the indefinite suspension.

Ultimately, the Board concluded Buelna was entitled to due process when DHS indefinitely suspended him based on a suspension of access to classified information. Previously, in McGriff v. Department of the Navy, the Board explained that tenured federal employees who are indefinitely suspended following an agency’s security clearance determination are constitutionally entitled to due process, including a notice of the reasons for the suspension and a meaningful opportunity to respond. Whether that right includes notice and an opportunity to respond prior to the suspension hinges on the facts of the particular case, and the Supreme Court has explained that the Board must follow a balancing test and weigh the private interest at stake, the risk of erroneous deprivation of that interest through the procedures the agency used, the probable value of any alternative procedural protections and the government’s interest at hand.

In applying the balancing test, the Board found that a question existed as to whether DHS afforded Buelna with a meaningful opportunity, prior to his indefinite suspension, to reply to the reasons underlying his security clearance suspension.

As to the first factor, the Board explained that Buelna was ultimately suspended for 2 ½ years, a lengthy period of time which represents a significant deprivation of Buelna’s property interest in his continued employment. However, because Buelna was provided notice and an opportunity to respond to the reasons for revocation prior to the imposition of the suspension, the Board could not conclude that the timing of the notice and opportunity to respond violated his constitutional due process rights. The Board went on to explain that the third factor of the balancing test was not germane to the ultimate issue in this case because, although an agency does have a compelling interest in withholding national security information from unauthorized persons, which weighs in favor of the government’s authority to act without providing notice or an opportunity to respond prior to suspension, the agency did in fact give Buelna prior notice and an opportunity to respond in the case at bar.

In addressing the second factor, the Board must determine whether the procedures used provided adequate assurance that the agency had reasonable grounds to support the adverse action. Here, the Board concluded that, based on all of the evidence, DHS had reasonable grounds to support Buelna’s suspension. First, the memorandum to Buelna that suspended his security clearance explained that the suspension was based on information concerning fraudulent claims which raised questions of his honesty and trustworthiness. The subsequent notice that proposed Buelna’s indefinite suspension delineated the two charges against him and further explained the specifications that led to the charges. Because the memorandum and the notice informed Buelna of the basis for the revocation and suspension, the Board concluded that he was not denied a notice and a meaningful opportunity to respond by failing to give him the specific reasons for the action prior to his response to the removal notice.

However, the Board went on to explain that it was unclear whether Buelna was deprived a meaningful opportunity to respond to the indefinite suspension proposal when the agency provided him with a reply procedure that lacked a deciding official with any real authority to consider the merits of his security clearance suspension. Because Patton had stated that the Personnel Security Division had the exclusive authority to review the decision to suspend Buelna’s security clearance, it was unclear whether Buelna was given an actual meaningful opportunity to respond, or whether the agency had provided him with an empty formality. Therefore, the Board remanded the case for adjudication consistent with the Board’s reasoning.

The case, Buelna v. Department of Homeland Security, is available here.

Posted in Case Law Update

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