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by Shaw, Bransford & Roth, P.C.
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A federal employee whose security clearance was suspended was provided minimum due process by the agency, the Federal Circuit concluded in a recent decision. In this case, the employee was a GS-15 Senior Reliability & Risk Engineer for the Nuclear Regulatory Commission (NRC). That position, as do all NRC positions, requires a national security clearance. Effective August 22, 2006, the NRC indefinitely suspended the employee from his position because his security clearance had been suspended. The employee appealed to the U.S. Merit Systems Protection Board (MSPB), but the Administrative Judge sustained the suspension. The employee then appealed to the Federal Circuit.
Before the Federal Circuit, the employee conceded that his position requires a security clearance, and that without a clearance he cannot work. He argued, however, that the NRC did not provide the minimum due process required by statute because the NRC did not allow him a meaningful opportunity to respond to the reasons it asserted for the suspension of his security clearance.
The Federal Circuit began its decision by explaining that the requirements of minimum due process are met where the employee receives notice providing sufficiently specific reasons for the suspension of the security clearance, so that the employee has an adequate opportunity to make a meaningful response to the agency's allegations. Here, the employee contended that the agency withheld information that he needed to prepare a meaningful response to the agency's proposed suspension of his security clearance. The evidence, however, showed that the employee was specifically informed of the relevant allegations in a July 21, 2006 memo, which set forth "in detail" the "fifty-five separate alleged incidents." The appeals court noted that the July 21st memo contained 19 pages setting forth the exact dates and the conduct alleged in connection with each allegation. Additionally, the memo informed the employee of the various procedures that were available for responding to the allegations.
The Federal Circuit pointed out that in response to the allegations, the employee made an oral reply in August 2006, and submitted numerous documentary exhibits. Therefore, the Federal Circuit found that the record showed that the employee was provided adequate notice specifically describing the basis for his proposed suspension, as well as the specific procedures available for responding. Moreover, the court emphasized, the employee did in fact respond, as evidenced by his oral reply and submission of exhibits. Accordingly, the Board did not err when it concluded that the employee received the minimum due process required by statute, the Federal Circuit ruled.
The case is Dey v. Nuclear Regulatory Commission, U.S. Court of Appeals for the Federal Circuit, No. 2007-3308, January 14, 2008.
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