## United States Court of Appeals for the Federal Circuit

06-3124

REGINALD CHENEY, Petitioner,

v.

DEPARTMENT OF JUSTICE, Respondent.

Arthur B. Spitzer , American Civil Liberties Union of the National Capitol Area, of Washington, DC, argued for petitioner. Allison Kidd-Miller , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, ar gued for respondent. With her on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Donald E. Kinner , Assistant Director. Of counsel on the brief was Elizabeth C. Burke , Office of Chief Counsel, Drug En forcement Administration, United States Department of Justic e, of Washington, DC. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

06-3124 REGINALD CHENEY, Petitioner,

v.

DEPARTMENT OF JUSTICE, Respondent.

__________________________ DECIDED: March 2, 2007

__________________________ Before SCHALL and GAJARSA, Circuit Judges , and MCKINNEY, Chief Judge

. * Opinion for the court filed by Circuit Judge SCHALL. Dissenting opinion filed by Chief Judge MCKINNEY. SCHALL, Circuit Judge

. Reginald Cheney petitions for review of the final decis ion of the Merit Systems Protection Board (“Board”) that sustained the action of the Drug Enforcement Administration (“DEA” or “agency”) indefinit ely suspending him from employment. Cheney v. Dep’t of Justice , CH0752050326-I-1 (M.S.P.B. Nov. 7, 2005) (“ Final Decision ”). Because we conclude that Mr. Cheney did not rece ive the statutory procedural protections to which he was entit led before his suspension, we reverse the

* Honorable Larry J. McKinney, Chief J udge of the United States District Court for the Southern District of Indiana, sitting by designation.decision of the Board and remand the c a s e to the Board for comput ation of the bac k pay to which Mr. Cheney is entitled by reason of his improper suspension. BACKGROUND
I. At the time of his s u s pension, Mr. Cheney was a GS- 14 criminal investigator and the Resident Agent in Charge (“RAC”) of D EA’s Cleveland office. Mr. Chene y had been employed by DEA for approximatel y 18 y e ars. His position, as do all pos itions within DEA, required a security clearance. The DEA is a component of the Department of Justi c e (“DOJ”). On July 27, 2004, DOJ’s Office of Professional Respon sibility (“OPR”) requested that Mr. Cheney be plac ed on limited duty because it was alleged that he had ab used his authority. Mr. Cheney was informed on August 3, 2004, that OPR had reques ted that he be placed on limited duty because of an ongoing investigation. Subsequently , on Septembe r 1, 2004, Mr. Cheney was int e rviewed by two inspec tors from OPR concerning “abuse of authority.” The inspectors questioned Mr. Cheney about whether he had approached witnesses during the OPR inv e s t igation. As part of the interview process, Mr. Cheney signed a confidentialit y agreement in whic h he agreed that, other than to retained counsel, he would not disclose that he had been interviewed or that OPR was conducting an investigation. On September 9, 2004, Mr. Cheney’s supe rvisor was notified that Mr. Cheney’s security clearance had been s u spended “bas ed on allegations of derogatory personal conduct,” and would remain sus pended “until the completion of an investigat ion into this matter.” Thereafter, by lette r dated September 22, 2004, J ohn P. Gilbride, the Special

06-3124 2Agent in Charge of D EA’s Detroit Field Div ision (“SAC Gilbride”), informed Mr. Cheney that he was proposing that Mr. Cheney be indefinitely suspended from employment because of the suspension of his security clear ance. The letter stated: “The decision to suspend y our security clearanc e is based on allegations of potentially derogatory personal c onduct and possible v i olations of law and DEA Standards of Conduct. You have failed to comply with sec u rity regulat ions and you have dem onstrated a pattern of dishonesty and/or rule violations.” The letter informed Mr. Cheney that he had ten days from the date he rec e ived the notice of pr oposed suspensio n to reply to it. The letter further informed Mr. Cheney that as soon as possible after his answer was received, or after the expiration of the t en-calendar day limit if he chos e not to answer, he would be provided with a written decis ion regarding the proposed su spension. Mr. Cheney received the notice of proposed s u spension on September 27, 2004. On September 28 and 29, 2004, Mr. Cheney c ontac ted the Chief of the Employee Relations Unit and SAC Gilbride, r equesti ng additional information concerning the suspension of his security clearance. From the Employee Relation s Unit, Mr. Cheney sought “review of all ma terial regarding the proposed action for indefinite s u spension.” From SAC Gilbride, Mr. Cheney sought to obtain “the material” on which the proposed indefin ite s u spension “was based.” 1

1 On September 29, 2004, HRM Consul ting Inc. (“HR M”), a self-described “Human Resource Management Company whic h targets human capital performance issues,” wrote John Driscoll, Deputy Ch ief Inspector at DEA Headquarters in Washington, on Mr. Cheney’s behalf that Mr. Cheney had not been provided information about the allegations against hi m. On October 4, 2004, HRM wrote a letter on Mr. Cheney ’s behalf that was copied to Mark S. Johnson, Deputy Chief Inspector of DEA’s Office of S e curity Programs. The letter stat ed that Mr . Cheney had “not received any information which identifies the basis of allegations nor does he have substantive factual information which supports the reasons of the investigation. ”

06-3124 3Following his inquiry, on October 5, 2004, Mr. Cheney received a memorandum dated October 1, 2004 from Mark S. Johnson, Deputy Chief In spector of DEA’s Office of Security Programs. The letter again notifi ed Mr. Cheney that the suspension of his security clearance was “bas ed upon allegations of derogatory personal conduct.” The memorandum stated that the su spension would remain in effect until the in vestigation into the matter was completed and that Mr. Cheney c o uld contact Mr. Johnson if he had any questions or required further i n formation. Mr. Cheney requested a 30-day extension of time to respond t o the notic e of suspension, and on October 7, 2004 he wrote Mr. Johnson, stating: On October 5, 2004, I received y our letter dated October 1, 2004, whic h stated that the decision to sus pend my security clearance was based upon alle gation [sic] of derogatory personal c onduct, and the sus pension of my clearance would remain in effect until the completions [sic] of an investigatio n. Howe ver, I did not receive any facts, documentation or information rela tive to the allegations in this matter. Even though I have the right to respond, it is difficult if not impos sible to respond to an iss ue without information. I am therefore, requesting all of the information and evidence relied upon to revoke my security clearance. On October 19, 2004, the Federal Law En forcement Officers Association (the “Association”), which at the time was r epresenting Mr. Cheney, wrote Mr. Johnson and requested that the information t hat Mr. Cheney had sought in his letter of October 7 b e provided. In addition, betw een O c tober 19 and 29, 2004, Mr. Cheney and his counsel wrote letters seeking to obtain the evid ence underlying the agency’s reasons for suspending his security clearance. On November 8, 2004, the Associati on responded t o the notice of proposed suspension on Mr. Cheney’s behalf, ass e rti ng that the DEA had not afforded Mr.

06-3124 4Cheney due process. The Assoc i ation a sserted that Mr. Cheney had never been giv e n notice of the apparently derogatory information that formed the basis for the suspension of his sec u rity clearance. Specifically, the Assoc i ation stated that “[n]either the proposing official nor the decid ing official have been able to pr ovide any materials to RAC Cheney other than the notice whic h s u spended Mr. Cheney’s clearance” and th at OPR and the Office of Security Program s had “yet to respond to requests for information as to the reasons for the suspensi on of RAC Cheney’s security clearance. ” In due course, DEA gave Mr. Cheney an ext ension of time through November 29, 2004 to respond further to the propos ed indefinite s u spension. On Novem ber 17, 2004, Mr. Johnson s ent M r . Cheney a memorandum informing him that his security clearance was su spended. T he memorandum provided the following information to Mr. Cheney about t he reasons for his security clearance suspension: The dec ision to suspend your securi ty clear ance is bas ed upon allegations that you inappropriately qu eried or caused to be queried Law Enforcement Data Bas e s and abused t he Administ rative Subpoena process. Additionally , it is believed that you ar e in violation of the confidentiality agreement you entered into wit h the Offi ce of Professiona l Res ponsibility during their investigation into these issues. On November 29, 2004, hav ing submitted a writt en response through the Association on November 8, Mr. Cheney res ponded orally to the proposed indefinite suspension. That same day, in a handwri tten “Disciplinary Action Summary” Kevin Michael Donnelly, the deciding official, conc luded that Mr. Cheney should be suspended indefinitely from empl oyment without pay. Mr. Donnelly wrote that although M r . Cheney had been “unable t o review [ t he] underlying reasons for [the] security clearance suspension .

. . minimal due process was f o llo wed in that [Mr. C heney] was notified of

06-3124 5[his security clearanc e] suspension, was gi ven .

. . the reason for the suspension, and was given an opportunity to resp ond in writing and orally.” On Decem ber 3, 2004, Lawrenc e A. Ber ger, general counsel of the Association, called Mr. Johnson to appeal Mr . Cheney’s sus pension. This phone call resulted in a letter, dated December 16, 2004, in which Mr. Johnson uphe ld the indefinite suspension of Mr. Cheney’s sec u rity clearance until “com pletion of [the] ongoing [OPR] case.” In his letter, Mr. Johnson stated that Mr. Cheney had received all the process that was due because he was “fully informed of the r eason for [the] clearance s u spension.” On January 4, 2005, HRM wrote a letter on Mr. Cheney’s behalf to Mr. Johnson. In the letter, HRM stated that Mr. Cheney h ad authority to sign subpoenas and to cause the criminal databases to be queried as part of his duties to investigate criminal activity, and it suggested that this could occur thous ands of times on a year ly basis. At the same time, HRM requested information about who had accessed the system so that Mr. Cheney could review this information becaus e it could “identif y the individual(s) who [had] inappropriately queried the database.” Finally, HRM asked that Mr. Cheney’s case be re-examined, that he be provided with “specificity and detail with r egard to the allegations, and that H R M be permitted to examine the case file.” Therefore, on January 14, 2005, Mr. Cheney was formally notified of the agency’s final dec ision to suspend his empl oyment indefinit ely because of the suspension of his security clearance. Mr. Cheney also was informe d of his right to appeal to the Board.

06-3124 6II. Mr. Cheney timely appealed his suspension to the B oard. On May 25, 2005, following a telephonic hearing, the administrative Judge (“A J”) to whom the appeal was assigned issued an initial decis ion sustai ning DEA’s action sus pending M r . Cheney. Cheney v. Dep’t of Justice , CH0752050326-I-1 (M.S.P .B. May 25, 2005) (“ Initial Decis i on ”). Noting that “[t]he Boar d’s authority to review ma tters relating to security clearance determinations is limited,” id. at 4, the AJ explained nevertheless that “if an adverse ac tion results from a decision to deny a sec u rity clearance, an employee is entitled to the procedural protecti ons set forth in 5 U.S.C. § 7513,” id. at 8. The AJ cited Lebray v. Department of the Navy , 62 M

. S.P.R. 468, 473 (1994), and Kriner v. Department of the Navy , 61 M.S.P.R. 526 (1994), and stated that where an indefinite s u spension is bas ed on the sus p ension of a security clearance, the agency must provi de the appellant with a meaningful opportunity to respond to the reasons for the indefinite suspension by ensuring that either in the advance not ice of the action, or in the earlier access det ermination, the appellant was notified of the cause that led to the security clearance determination. Initial Dec i sion at 5-6. The AJ also stated that in Kin g v. Alston , 75 F.3d 657, 662 (Fed. Cir. 1996), this court stated that “‘merely providing th e employ ee with infor m ation that his access to classified information is being suspended, without more, does not provide the employ ee with suf f icient informa tion to make an informed reply.’” Initial Decis i on at 9. Before the Board, Mr. C heney challenged the DEA’s decision to suspend him on the ground that he had not been able to pr epare a meaningful response because the agency had given him only “a generalized vague notice of the reasons for suspending his sec u rity clearanc e.” Id. at 3. Mr. Cheney argued that it was not enough for the DEA

06-3124 7to describe his alleged misconduct as (1 ) derogatory personal conduct, (2) possible violations of law and t he DEA’s s t andards of conduct, (3) failure to comply wit h security regulations , and (4) a pattern of di shonesty and rule v i olations. Id. Mr. Cheney acknowledged that, in Mr. Johnson’s Nov e mber 17, 2004 memorandum, the agenc y “expressed more particularly than it had befo re” its reasons for su spending his securit y clearance. This further explication wa s not helpful, however, Mr. Cheney argued , because “[s]till, there was no par ticularizatio n of what the specific prohibited queries o f the Agenc y data base [sic] were and in what way the Appellant abused th e administrative subpoena process

. ” Mr. Cheney pointed out that, i n his position as RAC of DEA’s Cleveland O ffice, he had reason to query the DEA databa ses “thousands of times” over the course of his career and t hat he also h a d “frequent occasions” to utilize the administrative subpoena pr ocess. U nder thes e circumstances, Mr. Cheney contended, he “could not meaningfully prepare an appeal since he did not know which queries or which subpoenas were allegedly inappropriate.” Thus , he argued that he was depriv ed of the procedural prot ections to which he was entitled under 5 U.S.C. § 7513(b). The AJ rejected Mr. Cheney ’s arguments, st ating first that “providing gr eater detail of the agency’s reasons for its decisi on could jeopardize the integrity of the investigation.” Initial Decis i on at 6. The AJ continued by stating that Mr. Cheney’s argument that “he could not f ile a meaningful response to the proposal not ice goes to the merits of the security-clearance determi nation, which, as the Supreme Court has clearly ruled, is not reviewable.” Id. at 7 (citing Dep’t of the Navy v

. Egan , 484 U.S. 518, 528-30 (1988)). The AJ conc luded that because Mr. Cheney ’s security clearance had

06-3124 8already been suspended when his employ m ent suspension was proposed, DEA had satisfied the notice requirem ent of section 7513(b) by in forming Mr. Cheney that his employment suspens ion wa s based on his security clearance suspension. Id. H a vi ng thus found the procedural require ments of section 7513(b) sati sfied, the AJ affirmed Mr. Cheney ’s indefinite suspension. Id. The Initial Decis i on became the final dec ision of the Board on November 7, 2005, when the Board denied Mr. Cheney ’s petition for review. F i na l Decis i on . This appea l followed. We have jurisdiction to review the B oard’s final dec is ion under 28 U.S.C. § 1295(a)(9). DISCUSSI ON
I. Our scope of review in an appeal from a decision of the Board is limited. Specifica lly , we must affirm the Board’s d e ci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evid ence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health & Human Servs. , 153 F.3d 1357, 1361 (Fed. Cir. 1998). The DEA suspended Mr. Cheney from em ployment under 5 U.S.C. § 7513, which provides that “[u]nder regulations prescribed by the Office of Personne l Management, an agency may take an action cover ed by [subchapter II of chapter 75].” The actions covered by subchapter II are lis ted in 5 U.S.C. § 7 512, and one of the actions list ed is a sus pension of more than fourteen days. See T homas v. Gen. Servs. Admin. , 756 F.2d 86, 88 (Fed. Cir. 1985) (indefinite suspension is a cover ed action);

06-3124 95 C.F.R. § 752.401. W hen an employee is the subject of an action under section 7513, he or she is entitled to (1) at least 30 days’ advance writt en notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidenc e in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefore at the earliest practicable date. 5 U.S.C. § 7513(b). An employ ee may appeal an indefinite su s pension to the Board

. Id. § 7513( d). In a section 7513 appeal, the provisions of 5 U.S.C. § 7701 apply to the proceedings before the Board, which include t he right to a hearing for which a transcript must be kept and the right to be represented by an attorney. On appeal, Mr. Cheney r enews the arguments he m ade bef ore the Bo ard. He states that although the Board summarized the law co rrectly, it failed to apply it properly. He argues that due process entitl ed him to a statement of the “specific reasons” underlying the suspension of his se curity clearance and that without such a statement he was unable to ma ke a meaningful and informed response to t he proposed action. Relying chiefly on t he decision of this court in King v. Alston , Mr. Cheney contends that the broad stat ement that he engaged in “ der ogatory personal c onduct and possible violations of law a nd DEA Standards of Conduct” and even the more specific statement that he “ina ppropriately queried or caused to be queried La w Enforcement Data Bases and abus ed the Administrative Subpo ena process,” did not provide him with

06-3124 10the information he needed to make a meaning ful and informed response to the charges against him

. The government responds by pointing to 5 U.S.C. § 7513(b). It argues that “[a]s the term ‘notice’ suggests, the employee need only r e ceive enough information about the underly ing sec u rity clearance determination to permit the preparation of an informed reply to the proposed indefinite [employm ent] suspension.” The government asserts that the notice provided to Mr. Cheney a llowed him “to focus his response on his personal c onduct, rather than ac ts he may have under taken in his official capacity, and on the legality of that conduct.” Further, it argues, Mr . Cheney did make a meaningful reply, including responding orally to t he N o vember 17, 2004 memorandum from Mr. Johnson. The government explains that by looking at the arguments Mr. Cheney made to the agency, it is c l ear that he did hav e en ough information to make an informed reply. Finally, at oral argument, the government argued that all sectio n 7513 and due process require is proving that Mr. C heney’s pos ition requires a security clearance, that he doe s not have a security clearance, and that he was given notice of the proposed employment suspension. We consider first the l a w pertinent to this case.
II.
In Department of the Navy v. Egan , the Supreme Cou r t hel d that the Board has no authority to review the merits of a security clearance determi nation. 484 U.S. at 529. In that case, Egan was hired by the Departm ent of the Navy on th e condition that he obtain a security clearance. Id. at 520. The Navy denied Egan his security clearanc e because of criminal c onvicti ons and alc ohol problems. Id. at 521. Due to his failure t o

06-3124 11receive the required s e curity clearance, Egan was plac ed on administrative leave. Id. at 522. Egan appealed the Navy ’s r e fusal to gr ant him a s e curity clearance to the Board, which held that it could not review the meri ts of a security clearance determination. It therefore sustained the acti on of the Navy placing E gan on administ r ative leav e because it concluded t hat the requirements of minimal du e process had been satisfied. Egan v. Dep’t of the Navy , 28 M.S.P.R. 509, 523 (1985). Egan appealed to this court, which held that the Board should treat a security cl earance determination “as any other adverse action taken under section 7512” wit h the “same full process and standards and scope of review, establis he d by law and precedent.” Egan v. Dep’t of the Nav y , 802 F.2d 1563, 1572 (Fed. Cir. 1986). Following this court’s decision, the Supreme Court granted the gov ernment’s pet ition for a writ of certiora ri and reversed. The Court held that the Federal Circuit had erred in concluding that the Board had jurisdiction to consider the merits of a security clearance determination. Egan , 484 U.S. at 530-31. The Court explained that An employ ee who is removed for “cause” under § 7513, when his required clearance is denied, is entitled to the several procedural protections specified in that statut e. The Board then ma y determine whet her such cause existed, whether in fact cl earance was denied, and whether transfer to a nonsensitive position was feasible. Nothing in the Act, however , directs or empowers the Board to go further. Id. at 530. Subsequent to Egan , we rendered our decis ion in Kin g v. Alston . In that ca se, Alston’s s e curity clearance was suspend ed because his employ ing agency determined that he “may suffer from a m edical condition whic h requires further investigation and evaluation.” Alston , 75 F.3d at 659. A security cl earance was a condition of Alston’s employment. Accordingly, when his sec u ri ty clearance was s u spended, Alston wa s

06-3124 12placed on enforced leave, an act i on that Als t on appealed to the Board. T he Board held that Alston’s due proc ess rights were violat ed when the agency did not provide him wit h an opportunity to reply to the agency’s notice concerning the suspension of his security clearance. Alston v. Dep’t of the Navy , 48 M.S.P.R. 694, 699 (1991). OPM petitioned for reconsideration, and in a split decision, that Board reversed it s earlier decision and held that Alston was not entitled to any not ic e of reasons because due proces s rights do not attach to the suspension of a security clearance. Alston v. Dep’t of the Navy , 58 M.S.P.R. 158, 163 (1993). Fi nally, in another split de c i sion, the Board again reconsider ed and held that Alston was deni ed due process becau se he was never given reasons for his employment suspension with enough specific it y to respond. Alston v. Dep’t of the Navy , 62 M.S.P.R. 19, 24 (1994). OPM appealed t o this c ourt. Alston , 75 F.3d at 660. We limited our review in Alston to whether “the agency provided Alston with the procedural protection guaranteed by 5 U.S.C. § 7513(b) when it placed him on enforced leave.” 2 Id. at 662. We expres sly noted that we wer e neither “reviewing the merits of the agency ’ s decision to suspend Alston’s acce ss to classified in formation” nor “the procedures the agency followed in denying s u ch access.” Id. We stated that

2 Under Executive Order 12968, § 5.2( a)(1), 60 Fed. Reg. 40245, 40252 (1995), an employee whose s e c u rity clearance is revoked—as opposed to s u spended— “shall be . . . provided as comprehensive and det ailed a written explan ation of the basis for that conclusion as the national securit y interests of the United States and other applicable law permit.”

06-3124 13section 7513(b) entitles an employee to notice of the reasons for the suspension of his acc e ss to clas sifi ed information when that is t he reason for placing the employee on enforced leav e pending a decision on the employee’s security clearance. Such notic e provides the employee with an adequat e opportunity to make a meani ngful reply to the agency before being plac ed on enf orced leav e. Me rely provid ing t he employee with information that his access to cla ssified inf o rmation is being sus pended, without more, does not provide the empl oyee with sufficient infor m ation to make an informed reply to the agen cy before being plac ed on enforced leave. Id. at 661- 62. However, we co ncluded that Alston had receiv ed all of the process he was due because he was “able to focus his re sponse on his medical status, rather than to have to guess whether the agency’s action wa s based on disloyalty, unreliability, or other possible ground for suspension of access to classified information.” Id. at 662. We noted that Alston met with agency official s and off e red medic a l evidence, which was considered before he was pl aced on enforced leave. Id. We therefore reversed the decision of the Board because we determined that Alston receiv ed all of the process he was due. Id. at 663. We decided another case growing out of the suspension of a s e curity clearanc e in Hesse v. Department of State , 217 F.3d 1372 (Fed. Cir. 2000) . In that case, Hesse’s security clearance was sus p ended, resultin g in an indefinite s u spension from employment. Id. at 1374. Hesse appealed his suspen sion to the Board, which upheld the suspension. Hesse v. Dep’t of State , 82 M.S.P.R. 489, 492- 93 (1999). The Board explained t hat it could only inquir e into wh ether the procedures required by s e ction 751 3 had been met. Proceeding on that basis, the Board held that t he requirements of the statute were met because “the agency here t wice advised the appellant of the spec ific reasons for his securit y clearanc e suspension and twice provid ed hi m an opportunity to respond to that action.” Id. at 491. Thereafter, Hesse petitioned this court for review.

06-3124 14We affirmed the decis ion of the Board. In so doing, we explained th ree principles that we drew from the Supreme Court’s decision in Egan : (1) there is no presumption that secu rity clearance determinations will be subject to administrative or judicial review, as those determinations are committed to the broad di scretion of the responsib le Executiv e Branch agency; (2) unless Congress specifica lly provides otherwise, the Merit Systems Protection Board is not authorized to review security clearance determinations or agency actions based on security clearanc e determinations; and ( 3 ) when an age ncy action is c hallenged under the provisions of chapter 75 of title 5, the Board may determine whether a security clearance was denied, whet her t he securit y clearanc e was a requirement of the appellant's positi on, and whether the proced ures set forth in section 7513 were followed, but t he Board ma y not examine the underlying merits of the secu rity clearance determination. Hesse , 217 F.3d at 1376. The teaching we glean from Egan , Alston , and Hesse is this: in a case inv o lvin g a suspens ion resulting from the suspension of a security clearance, both the Board’s and this c ourt’s review is limited. Neither the Board nor this c ourt may review the underlying merits of an agency’s decision t o suspend a security clearance. Egan , 484 U.S. at 825-26; Hesse , 217 F.3d at 1376; Alston , 75 F. 3d at 661-62. All the Board and this court may do is “determine whether a security clearance was denied, whether the security clearance was a requirement of the appellant’s positi on, and whether the procedures set forth in section 7513 were followed.” Hesse , 217 F.3d at 1376. Under section 7513, the employee mu st receive “written notice .

. . stating the specific reasons” for the suspension of his or her secu rity clearance “when that is the reason” for suspending the employee “pendi ng a decis ion on the employee’s security clearance.” Alston , 75 F.3d at 661. The require ments of section 7513 are met if, as we stated in Alston , the notice “pr o vides the employee with an adequate opportunity to make a meaningful reply to the agenc y ” before being sus p ended. Id. In other words, the

06-3124 15employee must be given enough information to enable him or her to make a meaningful response to the agency’s proposed suspension of the security cl earanc e. “Merely providing the employ ee with info rmation that his acces s to cl assified information is being suspended, without m o re, does not provide t he employee with s u fficient inf o rmation to make an informed repl y to t he agency” before being sus pended. Id. at 662.
III. Turning to the case before us, we hold that the procedural r equirement s of section 7513 were not met. The Board it se lf found that the DEA did not provide any specific information regarding the time fr ame of Mr. Cheney ’s alleged misc onduct, and “did not identify any specific queries of the data base [ s ic] nor did the agenc y describe the manner in whic h [Mr. Cheney] abus ed the adminis trative subpoena proc ess.” [JA 7] Initial Dec i s i on at 4. These findings by the Board are undisputed. In our view, the Board’s own findings demonstrate that t he requirements of section 7513, as explained in Alston , were not met in this case. Indeed, at oral argument, counsel for the gover nment forthrightly acknowle dged that the reasons given to Mr. Cheney for the suspension of his secu rity clearance were “vague.” First, the DEA told Mr. Cheney that his security clearanc e was being suspended “based on allegations of potentially derogat ory personal conduct and possible violations of law and DEA standards of conduct

. ” The notice of sus pension also stated t hat Mr. Cheney had “failed to c o mply with security regulations ” and that he had “demonstrated a pattern o f dishonesty and/or rule violat ions .” We fail to see how Mr. Cheney could have made a meaningful response to such broad and unspecific allegat ions when there was no indic a tion of when his alleged c onduct took place or what it inv o lved. Nor do we think

06-3124 16that it was possible for Mr. Cheney to make a meaningful response base d upon the information that he was given in Mr. Johnson’ s memorandum of November 17, 2004. In his memorandum, Mr. Johnson stated that Mr. Cheney had “inappropriately queried or caused to be queried Law Enfo r c ement Data Bases,” had “a bus ed the Administrative Subpoena process,” and had act ed “in violation” of the conf identiality agreement into which he had entered wit h OPR during its invest igation. In our view, the November 17 memorandum was akin to informing Mr. C heney that his security clearanc e was being suspended because he had robbed a bank, without telling him where the bank was and when he had robbed it, particularly in view of the fact that it is undis puted that Mr. Cheney regularly had reason to cause the database t o be quer ied. Mr. Cheney clearly was not entitled to the detailed information that HRM requested. Egan c l early bars the kind of civ i l case disc overy that HRM s ought for Mr. Cheney. Mr. Cheney, however , was entitled to more information about the allegations against him than he received. The problem is that the lim ited information provided to Mr. Cheney put him in the position where, for all int ents and purpos es, he had to “guess” at the reason for his security clearance suspension. See Alston , 75 F.3d at 662 (“[The employee] was .

. . able to focus his response .

. . rather than have to guess whether the agency’s action was based on disloyalt y , unreliability, or ot her possible ground for suspension of access to classified information.” (emphasis added)). While Mr. Cheney was told, in general terms, the reasons for the suspension of hi s security clearance, he was not given the allegations that supposedly s upported those reas ons so that he could make a meaningful response t o the pr oposed suspension. For exam ple, he was not told what the nature of his alle ged derogatory personal conduct was. Neit her was he told what

06-3124 17laws and DEA standards of conduct he had violated, or when he had allegedly improperly caused the database to be queried. Thus, Mr. Cheney’s case is distinguishable from t hat of the employee in Alston . The employee in Al ston was tol d that his security clearance was being s u sp ended bec ause he “possibly s u ffered from a medical condition which requires further invest igation and evaluation.” 75 F.3d at 659. The employee thus knew that he had to focus on his own medic a l condition in order to respond to the agency’s action. However, Mr. Cheney, while he was told the genera l nature of the allegations agai ns t him, was not given t he mi ni mal i n formati on he needed to respond to those allegations. Finally, we do not agree with the governm ent that acceptance of Mr. Cheney’s arguments on appeal w ould amount to a holdi ng that DEA had to prove that Mr. Cheney committed the acts under investi gation before suspending him fr om his position. All we hold today is that DEA fail ed to provide Mr. Cheney wit h the information he needed t o make “a meaningful response” to the char ges against him. Had DEA provided Mr. Cheney wit h that information, considered his response to the charges against him, and then suspended his s e curity clearance, Ega n would have barred review of the agency’s action. For the foregoing reasons, we hold t hat, in suspending Mr. Cheney, the DEA failed to m eet the procedural re quirements of 5 U.S.C. § 7513. 3 Mr. Cheney’s indefinit e suspension was therefore improper, and he is ent itled to recover back pay for the period of the improper suspension. See Gose v. U.S. Postal Serv. , 451 F.3d 831, 840 (Fed.

3 The Board’s conclusion that Mr. C heney received the not ice to which he was entitled under section 7513 because he was told that his employment suspension was based on his security clearance plainl y is at odds with what we said in Alston

. See 75 F.3d at 661-62.

06-3124 18Cir. 2006) (“Accordingly, Gose is to be imme diately reinstated to hi s position, with bac k pay and credit, for all purposes, for the period of his improper removal from the Postal Service.”); McFarland v. Dep’t of the Navy , 62 M.S.P.R. 161, 165- 66 (1994) (ordering back pay when the protections of section 7513 wer e not provided in sus pending an employee). CONCLUS ION The final decision of t he Board s u staini ng Mr. Cheney’s indefinite suspens i on is reversed. The case is remanded to the B oard for further proceedings consistent with this opinion. REVERSED and REMANDED

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## United States Court of Appeals for the Federal Circuit

06-3124

REGINALD CHENEY, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent.

MCKINNEY, Chief Judge , dissenting. This case illustrates the tension that exists between security clearance determinations, which are not reviewable by the Board or the court, and adverse employment actions governed by 5 U.S.C. § 7513, a situat ion that implicates due process concerns. The issue before the court is whether Cheney received the statutory procedural protections mandat ed by § 7513, specifically whether Cheney received sufficient notice of the reasons for his pr oposed employment sus pension so that he had a meaningful opportunity to respond to the pr oposal. Because I believe that application of the narrow standard of review to the circum stances of this case compels a conclusion that the minimal requirement s of due process were satisf ied, I respectfully dissent.I. BACKGROUND While the majority has noted many of the facts necessary for consideration of this case, the following additional fac t s provide a more comple te context for understanding the parties’ contentions: Shortly after Cheney was notified t hat he was being pl aced on limited duty because of an ongoing investigation, the lo cal print and broadcast media ran stories about the allegations against C heney, referencing in particula r his use of the criminal database. Cheney c o mplained about the media stories to t he DOJ. After the media reported on the allegations ag ainst Cheney, two investi gators from the Office of Professional Respons i bility (“OP R ”) interviewed Cheney. After Cheney received the September 22, 2004, letter from his s upervisor, John P. Gilbride (“Gilbride”), proposing an indef inite suspension from employment, Cheney requested a thirty-day extens i on of time to respond to the notice of suspens i on of his employment. Cheney was grant ed an extension until November 8, 2004, to submit his written response to the proposed employment suspension. On October 4, 2004, HRM C onsulting, Inc. (“HRM”) wr ote a letter on Cheney’s behalf that was copied to Johnson. In that l e tter, HRM expressed that Cheney “has not received any information which identifies t he basis of allegations nor does he hav e substantive factual information which s upports the reasons of the investigation.” HRM requested that supporting docum entat ion be provided to Cheney. Between October 19 and October 29, 2004, Cheney and his counsel wrote multiple let t ers attempting to obtain t he evidence underlying the agency ’ s r e asons for suspending Cheney ’s security clearance. Spec ifically, those letters requested “detailed

06-3124 2information relative to the su spension of [Cheney’s] sec u ri ty clearance;” requested “the information and evidence relied upon to revo ke [Cheney’s] s e curity clearance; and inquired about the exis tenc e of “any material relied upon to propose the indefinite suspension,” requesting copies of the same. On November 8, 2004, Cheney’s counsel submitted a written response to the proposed employment suspen sion on Cheney’s behalf. Counsel urged that the proposed indefinite suspens ion be rescinded bec ause there was “a lack of a prepondera n t evidenc e showin g that the indefinit e suspensio n . . . will . . . promote the efficiency of the Drug Enforcement Admini stration.” Counsel further requested and reserved the right for Cheney t o respond ora lly to the charges against him at a later date. Counsel then argued t hat Cheney had not been afforded “minimal due process” because Cheney had nev er been given notice of or been questioned about the “derogatory information” the agency had obtai ned that caused it to suspend Cheney’s security clearance. Counsel noted the e fforts by both Cheney and his office to determine “what scrap of information; what bi t of evidence, has been utiliz ed by the Agency to suspend” Cheney ’s security clear ance and the inability to obtain those “materials.” Counsel concluded his letter by repeating his request that the ag ency rescind its proposed employment suspension. On January 4, 2005, HRM wrote a letter on Cheney ’s behalf to the deciding official to express its disapp oint ment with the dec iding offici al’s conclus i on that Cheney should be indefinitely suspended. HRM noted that Cheney had author ity to sign subpoenas and to cause the crim inal databases to be queried as part of his duties t o investigate criminal activity, and it posited t hat this could occur t housands of time on a

06-3124 3yearly bas is. Acknowledging that it would be il l e gal to use the databases for anything other than law enforcement purposes, HRM denied t hat Cheney had ever conducted a database inquiry check, claiming that Cheney did not even have a password for accessing the system. Indeed, HRM suggested that the allegations agains t Cheney could be t he result of a disgruntled subor dinate. Therefore, HRM requested detailed information about who had acc e ssed the system so that C heney could r e view this information because it could “identify the i ndividual(s) who [had] inappropriat e ly queried the database.” HRM assert ed that the information should be provided to Cheney because “the ‘allegations’ are th e basis for changing his condit ion of employ ment, [the] basis for his security clearance s u spension, and [the] basis for security violations.” II. DISCUSSI ON As the maj o rity correctly notes, the cour t’s scope of re view is limited. Moreover, precedent has clearly establishe d that this court may not review the underlying merits of
an agency ’ s decision to suspend a security clear ance. Indeed, it is worth repeating that no one has a “right” to a security clearanc e and that decisions regarding s u ch matters involv e “a sensitive and inherently discretiona ry judgment call” that is “committed by law to the appr opriate agency of the Executiv e Branch.” Dep’t of t he Navy v. Egan , 484 U.S. 518, 527-28, 10 8 S. Ct. 818, 98 L. Ed. 2d 918 (1988). Thus, like the majority, I agree that this case t u rns on whether the pr ocedures set forth in § 7513 wer e followed, specifically the adequacy of t he notice of the reasons t hat we re pr ovided to Cheney for his securit y clearanc e suspension. However, this is where the majority and I part
company.

06-3124 4The majority states that the require ments of § 7513 are met if “the notice ‘provides t he employ ee with an adequate opportunity to make a meaningful reply to the agency’ before being suspended.” Slip Op. at 16 (quoting King v. Alston , 75 F.3d 657, 662 (Fed. Cir. 1996)). It seems to me that the quote is taken out of context. To quote more fully, the Alston court stated the following: [S]ection 7513(b) entitles an employee to notice of the reasons for the suspension of his acc e ss to clas sifi ed information when that is t he reason for placing the employee on enforced leav e pending a decision on the employee’s security clearance. Su ch notic e provides the employee with an adequat e opportunity to make a meani ngful reply to the agency before being plac ed on enf orced leav e. Merely prov iding the employee with information that his access to cla ssified inf o rmation is being sus pended, without more, does not provide the empl oyee with sufficient infor m ation to make an informed reply to the agen cy before being plac ed on enforced leave. Alston , 75 F.3d at 661-62. Thus, the court in Alston noted the unique sit uation that occurs when security clearance suspensions are the basis for adverse employment actions against an employee c o vered by § 7513: t hat employee is ent itled to notice of the reasons for the suspension of his acce ss to classified info rmation. But this language does not explain the le vel of detail this notice must provi d e in cases involving security clearance suspensions, which is the precise ques tion that this case i n vo lves. To understand how detailed the notice of t he reasons must be in cases such as this, one need only look at the par agraph preceding the one quot ed above from Alston

. There, this court emphasized that a notice “is suffi cient . . . when it apprises the employee of the nature of the charges ‘in s u fficient detail to allow the emplo y ee to mak e an informed reply.’” Id. at 661 (quoting Br ook v. Corrado , 999 F

. 2d 523, 526 (Fed. Cir. 1993) (internal citation omitted)). The fac t s of Alston shed additiona l light on this question. As the majority notes, Alston’ s securit y clearanc e, a condition of his

06-3124 5employment, was suspended because the agen cy had concerns that he “may suffer from a medical condition which r equires fu rther investigation and evaluation.” Alston , 75 F.3d at 659. The agency did not ident ify any spec ific medical condition. Id. W i t h h i s security clearance sus pended, Alston no longer had ac cess to his work site and he was placed on administrative leav e. Id. After reconsidering th e case on two different occasions, the Board ultimately found t hat Alston had been denied meaningful due process and the procedural pr otections of § 7513 because it concluded that the agenc y had not provided adequate notic e of t he reasons for the suspension. Id. The agenc y appealed. While this court agreed with t he Board that an agency “must provide som e indic a tion of the reasons” for its decisi on to suspend a security clearance, it nevertheless reversed t he Board’s dec ision. Id. at 661. The court based its decis ion on the fact that the agency had informed Alston that his security clearance was being suspended based on his medical condition, which permitted Alston “to focus his response on his medic a l status.” Id. at 662. Moreover, Alston was permitted to respond to the agency by submitting medical evidenc e that the agency considered before it placed him on enforced leave. Id. Based on these circumstances, this court conclude d that Alston had receiv ed suffici ent procedural protection befor e being plac ed on leav e. Id. at 663. In my opinion, the result in Alsto n dictates affirming the Board in Cheney ’s case. By my count, Cheney received a total of seven different reasons for the security clearance s u spension:
1. “[A]llegations of pot entially derogatory perso nal conduc t” (Gilbride’s September 22, 2004, letter; Johnson ’s October 1, 2004, memorandum);

06-3124 62. “[P]ossible violations of la w and DEA Standards of Con d uct” (Gilbride’s September 22, 2004, letter);
3. Failure “to comply wit h security regulations ” (Gilbride’s September 22, 2004, letter);
4. A “demons trated . . . pattern of dishonesty and/or rule violations” (Gilbride’s September 22, 2004, letter);
5. Allegations that Cheney “inappropr iately queried or caused to be queried Law Enforcement Data Ba ses [sic] ” (Johnson’s November 17, 2004, memorandum);
6. Allegations that Cheney “ abus ed the Administrative Subpoena process” (Johnson’s Novem ber 17, 2004, memorandum); and
7. A belief t hat Cheney was “in violation of t he c onfidentialit y agreement [he] entered into with [OPR] durin g [its] inves t igation int o these issues” (Johnson’s Novem ber 17, 2004, memorandum). As Cheney ’s counsel conceded at oral argument, the reasons given to Cheney for his security clearance suspension were more specific than the reason given in Alston

. Indeed, the first four reasons, when viewed in conj unction, inf o rmed Cheney that the suspension was not based on some work perfo rmance issue but rather on his personal conduct and noncompliance with rules and regul ations. Moreover, the last three
reasons pr ovided Cheney with t h ree concr e te situations upo n which he was inv i ted to focus his response to the proposed employment action. Nonetheles s , Cheney ’s counsel argued that the context of this c a se shows that Cheney could not make an informed response abs ent more detailed information. I must disagree. The record clearly shows th at Cheney was adequat ely aware of the allegations against him as he was able to formulate a meaningful response to the agency. Specifically, on January 4, 2005, HRM wrote to the agency on Cheney’s behalf regarding t he allegations that he had abused the subpoena pr ocess and ina p propriately

06-3124 7queried the criminal database. HRM essent ially argued that Cheney had not abused his authority with respect to either of these event s, and it denied that C heney had ever even conducted a database inquiry check becaus e he did not have a password to access the system. T h is letter re veals that Cheney could, and did, focus on the allegat ions that he had abus ed the subpoena process and inappropr iately queried t he criminal databases to render a response. Thus, the context of this case does not provide any reason to depart from the precedent establis hed by Alston

. It seems to me that th e ma jority misses the mark. Thi s is most evident from the use of an inapt analogy likening this case to an allega tion that C heney robbed a bank

. Slip Op. at 17. 1 The majority would insist t hat Cheney be given m o re detailed information, such as dates of when his v i ol ations oc curred, some notion of who his accusers were, etc., notwithstanding the fa ct that security clearance matters are discretionary, can be highly sens itive, and t here was an ongoing investigation that could have been jeopardized by revea ling too m any details . But th is case is not a criminal matter requiring a bill of particulars; it is a civil matter, and Chen ey only needed to be given enough information to enable him to focus his response. Indeed, the

1 The majority may hav e adopted this analogy from Cheney’s couns e l, who at oral argument suggested that if Cheney was arres t ed for robbing a bank and later had his security clearance suspended for “r obbing a bank,” he would know what the agency meant, and the world would scoff at hi s argument that he needed more detailed information. In contrast, counsel argued that if Cheney had not robbed a bank, he would need more information. Counsel’s us e of the analogy is itself flawed because, t o borrow from the criminal context, it suggest s that the sufficiency of the notice would depend on an employ ee’s “guilt or i nnocenc e” of the allegations.

06-3124 8circumstances of this case show that he was not traversing through some billowing fog of confusion but was in fact awar e of what the allegations were. 2 Moreover, the majority’s position appears to disregard what Cheney was seeking from the agency by his requests for “additional information.” Slip Op. at 3. Cheney wa s not seeking information to shed light on w hat the allegations were; he was seeking details— i ndeed, evidence—in order to defend himself on the merits of the security clearance suspension, which are not reviewable. Se e Egan , 484 U.S. at 528-30. In fact, Cheney’s couns el made this point very clear in the November 8, 2004, written response when he indicated Ch eney’s efforts to determine “what scrap of information; what b i t of evid ence, has be en utilize d by the Age n c y to suspe nd” Che n e y ’s security clearance. 3 This is a f a r cry from saying that Cheney had no idea to what the agency was referring or that he could not formulate any response to the allegations against him. In sum, Cheney’s arguments t hat he needed more det ailed information relate, not to the notice requirements, but to the merits of the security clearance determination, an argument that this court should not entertain. 4

2 A prime example of Cheney’s underst anding is evinc e d by HRM’s focus on the database inquiries, the basis for the media reports about which Cheney complained to the DOJ. Specifically, HRM argued that Cheney had authority to cause the criminal databas e to be queried, that th is could happen thousands of times on a yearly basis, and that Cheney had never c onducted a database inquiry check becaus e he did not have a password to access the system. 3 HRM made similar pleas for mo re detailed information on Cheney ’s behalf, pleas that the majority acknowledges were “civil cas e discover y ” to which Cheney was not entitled. Slip Op. at 17. 4 In fact, this is exactly the conc lu sion that the administrative judge r eached in h i s Initial Decis i o n that wa s affirmed by the Board. Moreover, this court ha s previously rejected similar argu ments for this very reason. See Parker v. Dep’t of the Navy , 86 F. App’x 415, 417-18 (Fed. Cir. 2004).

06-3124 9Furthermore, Johnson’s November 17, 200 4, memorandum advised Cheney that the suspension was based in par t on the agen cy’s belief that Cheney had br eached the confidentiality agreement he s i gned when he was inter v iewed by the two inv e stigators from OPR. This reason fo r suspending Cheney’s security clearance was sufficient by itself to adequately apprise Cheney why he was being suspended. The reason doe s not require much elaboration; put simply, one breaches a co nfidentiality agreement b y discussing the subject matter wit h an unauthorized individual. In this case, the record supports the agency ’ s concerns that Cheney had done just that. Specifically, HRM wrote letters to the agency on Cheney’s behalf discussing the allegations and requesting copies of the file materials, which suggests that Cheney discussed the matter with HRM. There is no evidence that HRM was Cheney ’s retained c o unsel, and the terms of the confident iality agreement forbade Cheney from speaking to anyone except retained couns el. Moreov er, unlike the allegations for th e database queries and abuse of the subpoena process, Cheney never complained that he needed more details such as a time period for this allegation. I ndeed, this is c l early not a matter that he could c l aim might have occurred “thousands of times.” In short, this reason did not require more explanat ion, and the fact that Cheney c h ose not to respond to it does not mean that he was unable to do so. In deciding to reverse in this case, the majority departs from Alston and the standard of review therein because it requi res more information than is necessary to satisfy due process concerns in the unique cases that involve security clearances. Such matters are lef t to the discretion of the agency, and a security c l earance is something to which Cheney has no right or entitlement. The majority therefore treads

06-3124 10into territory left to the agency ’ s discretion and it s opinion is c ontrary to the principle that this court does not review the basis for or adequacy of security clearanc e determinations. In doing s o , the majority upsets the delic ate balanc e between according deference to the agency on security clearance determinations and satisfying due proces s concerns of the notic e requirement under § 7513 that Egan and cases like Alston hav e struck in favor of the agency ’ s discr etion. In contrast, an affirmance her e respects that delicat e balanc e, avoids un savory results like potentially jeopardizin g investigations, and satisfies due proces s concerns in cases involv ing security clearances and the notice requirement under § 7513. III. CONCLUS ION Based on the circumstances of this case , I would find that Cheney had suffi cient information to formulate a response. The reasons given for the security clearance suspension were certainly more s pecific than the reason provided in Alsto n . Further, just as in Alston , the facts reveal that Cheney was able to make a response to the allegations. Therefore, I belie ve that the final decis ion of the Board sustaining Cheney ’s indefinite suspension should be affirmed. Accordingly, I must respectfully dis s ent.

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