Salinas-Nix v. Department of the Army , 527 F. App'x 956 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VELMA SALINAS-NIX,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2012-3209
______________________
Petition for review of Merit System Protection Board
in No. DA-0752-10-0513-I-1.
______________________
Decided: July 15, 2013
______________________
VELMA SALINAS-NIX, of Boerne, Texas, pro se.
NICHOLAS JABBOUR, Trial Attorney, Commercial Liti-
gation Branch, Civil Division United States Department
of Justice, Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Principal Deputy Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and REGINALD T. BLADES, JR., Assistant Director.
______________________
Before MOORE, LINN, and O’MALLEY, Circuit Judges.
2 VELMA SALINAS-NIX v. ARMY
PER CURIAM.
Velma Salinas-Nix petitions for review a final order of
the Merit Systems Protection Board (Board) affirming the
Army’s indefinite suspension of Ms. Salinas-Nix. Salinas-
Nix v. Dep’t of the Army, No. DA-0752-10-0513-I-1
(M.S.P.B. July 19, 2012) (Final Order). For the reasons
discussed below, we affirm.
BACKGROUND
Ms. Salinas-Nix is a Supervisory Contract Specialist
employed by the Army. Her position requires her to
maintain a top secret level security clearance. The Army
suspended Ms. Salinas-Nix’s security clearance and
indefinitely suspended her from her position pending an
investigation that she may have engaged in tax fraud.
Specifically, Ms. Salinas-Nix was accused of “structuring”
bank deposits so as not to trigger a financial institution’s
reporting requirements. Final Order, slip op. at 2; see 31
U.S.C. § 5324. These allegations eventually led to an
indictment of Ms. Salinas-Nix and her husband. See
Appendix G. The charges include conspiracy and filing
false tax returns.
Ms. Salinas-Nix challenged her indefinite suspension
before the Board. The Administrative Judge (AJ) ex-
plained that, “[i]n order to support an adverse action
based on the suspension of a security clearance, the
agency must establish that (1) a security clearance was
required for the position in question; (2) the appellant’s
security clearance was suspended; and (3) the appellant
was granted minimum due process protection.” Salinas-
Nix v. Dep’t of the Army, No. DA-0752-10-0513-I-1, slip op.
at 3 (M.S.P.B. Nov. 17, 2010) (citing Dep’t of the Navy v.
Egan, 484 U.S. 518, 530–31 (1988)). The AJ found that
the first two elements were not in dispute, and that the
Army established the third element. Specifically, the AJ
concluded that the Army complied with the procedural
requirements of 5 U.S.C. § 7513(b). Id. at 8. Therefore,
VELMA SALINAS-NIX v. ARMY 3
the AJ upheld the Army’s indefinite suspension of Ms.
Salinas-Nix.
The Board affirmed the AJ’s decision. The Board con-
sidered “whether the [Army] afforded the appellant min-
imum due process with respect to her constitutionally-
protected property interest in her employment.” Final
Order, slip op. at 5. It weighed “(1) [t]he private interest
affected by the official action; (2) the risk of erroneous
deprivation of the interest through the procedures used,
and the probable value, if any, or additional or substitute
procedural safeguards; and (3) the government’s interest.”
Id at 6 (citing Gargiulo v. Dep’t of Homeland Sec., 118
M.S.P.R. 137, ¶ 11 (2012) (citing Gilbert v. Homar, 520
U.S. 924, 931–32 (1997) (quoting Matthews v. Eldridge,
424 U.S. 319, 335 (1976)))). The Board determined that
the Army did not violate Ms. Salinas-Nix’s constitutional
Due Process rights.
Ms. Salinas-Nix appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We can only set aside the Board’s decision if it was
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2012); see Briggs v. Merit Sys.
Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). We
review the Board’s legal determinations de novo.
Welshans v. U.S. Postal Serv., 550 F.3d 1100, 1102 (Fed.
Cir. 2008).
The threshold issue in this case is whether an em-
ployee is entitled to constitutional Due Process when the
adverse action results from the suspension of the employ-
ee’s security clearance. The Army contends that the
Board erred when it afforded constitutional Due Process
rights to Ms. Salinas-Nix. It argues that the Board’s
analysis effectively entails a review of the underlying
4 VELMA SALINAS-NIX v. ARMY
merits of the security clearance determination, which
Egan prohibits. The Army contends that the Board
should have considered only Ms. Salinas-Nix’s statutory
due process rights under 5 U.S.C. § 7513(b).
The Army’s position has merit. In order to assert a
constitutional Due Process claim, an employee must have
a “constitutionally protected ‘property’ interest” in contin-
ued employment. Homar, 520 U.S. at 928. We have
repeatedly held, however, that “a federal employee does
not have a . . . property interest in access to classified
information, and therefore the revocation of a security
clearance does not implicate constitutional procedural due
process concerns.” See, e.g., Robinson v. Dep’t of Home-
land Sec., 498 F.3d 1361, 1364–65 (Fed. Cir. 2007) (citing
Jones v. Dep’t of the Navy, 978 F.2d 1223, 1225–26 (Fed.
Cir. 1992) (citation omitted)); see also Egan, 484 U.S. at
528 (“It should be obvious that no one has a ‘right’ to a
security clearance.”). Given our precedent, the Board’s
approach is open to doubt. But we do not need to resolve
the issue here. Under either standard, the Army did not
violate Ms. Salinas-Nix’s rights.
Ms. Salinas-Nix argues that the Board erred in con-
cluding that the Army followed due process when it
decided to suspend her indefinitely. She contends that,
when the Army interviewed her about the suspected
fraud, she was not aware that she was being investigated.
Ms. Salinas-Nix argues that, in any event, there is no
evidence that she ever admitted any wrongdoing. Fur-
ther, Ms. Salinas-Nix argues that the Army did not give
her an opportunity to review some of the materials that it
relied upon to prepare the Notice of Proposed Suspension
(the Notice). Specifically, she contends that the Army
withheld a report prepared by its Criminal Investigation
Division (CID) until after her indictment.
Ms. Salinas-Nix also contends that the Army violated
5 C.F.R. § 752.404(g), which prohibits agencies from
considering reasons for a proposed action other than those
specified in the Notice. She argues that the deciding
VELMA SALINAS-NIX v. ARMY 5
official improperly relied on information in the rescinded
version of the Notice and on newspaper articles about the
criminal accusations against Ms. Salinas-Nix. Ms. Salin-
as-Nix contends that the procedural errors were harmful
and requests a new proceeding before the Board.
Ms. Salinas-Nix’s arguments largely challenge the ad-
equacy of the evidence that led to the suspension of her
security clearance. But the Army is correct that these
issues implicate the merits of suspending the clearance,
which the Board had no power to review under Egan.
Because Ms. Salinas-Nix was undisputedly suspended
due to a loss of the security clearance required by her
position, the Board’s review was limited to whether the
Army afforded her the due process protections of §
7513(b). See Egan, 484 U.S. at 530; see also Hesse v. Dep’t
of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000). Like the
Board, we have no authority to review the propriety of the
suspension of Ms. Salinas-Nix’s security clearance.
Accordingly, we consider her due process arguments.
The applicable statute provides that “[a]n employee
against whom an action is proposed is entitled to—
(1) at least 30 days’ advance written notice . . .
stating the specific reasons for the proposed ac-
tion;
(2) a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish affi-
davits and other documentary evidence in support
of the answer;
(3) be represented by an attorney or other repre-
sentative; and
(4) a written decision and the specific reasons
therefor at the earliest practicable date.”
5 U.S.C. § 7513(b) (2012); see also 5 C.F.R. § 752.404
(2010). We have held that, in security clearance cases,
“section 7513(b) entitles an employee to notice of the
reasons for the suspension of his access to classified
6 VELMA SALINAS-NIX v. ARMY
information when that is the reason for placing the em-
ployee on enforced leave.” King v. Alston, 75 F.3d 657,
661 (Fed. Cir. 1996). The notice must contain “sufficient
detail to allow the employee to make an informed reply.”
Brook v. Corrado, 999 F.2d 523, 526 (Fed. Cir. 1993)
(internal quotation marks omitted).
The Army complied with § 7513(b). The Notice ex-
plained in detail why the Army suspended Ms. Salinas-
Nix’s security clearance and why the Army proposed to
indefinitely suspend her from her position. See Appendix
C. For example, the Notice set forth several alleged
instances of Ms. Salinas-Nix’s structuring of bank depos-
its so as “to avoid reporting requirements.” Id. at 2. It
further claimed that Ms. Salinas-Nix acknowledged
engaging in this structuring and that this conduct “raises
questions regarding [her] reliability, trustworthiness, and
good judgment.” Id. Finally, the Notice explained that
Ms. Salinas-Nix’s position “is one of unique responsibility
to supervise and provide procurement approvals . . . and
requires . . . access to classified and confidential infor-
mation.” Id.
Ms. Salinas-Nix’s detailed response to the Notice
through her attorney reinforces the conclusion that the
notice met the requirements of due process. See Supp.
Appendix; see also 5 U.S.C. § 7513(b)(2), (3). The response
reflects Ms. Salinas-Nix’s clear understanding of the
reasons for the proposed indefinite suspension and the
options available to her. Even if Ms. Salinas-Nix is cor-
rect that the Army had more information about her
financial transactions than it included in the Notice, the
Army did not violate § 7513(b) because it adequately and
timely apprised her of the reasons for the proposed action
and gave her an opportunity to respond.
The Army also provided an adequate and timely No-
tice of Decision (the Decision), as required by § 7513(b)(4),
setting forth the reasons for the indefinite suspension.
See Appendix B. The Decision explained that a prepon-
derance of the evidence showed that Ms. Salinas-Nix
VELMA SALINAS-NIX v. ARMY 7
engaged in criminal structuring of bank transactions,
suggesting lack of trustworthiness. Id. at 1. The Decision
further noted that Ms. Salinas-Nix had “access to classi-
fied and confidential information which might be used for
improper personal gain by one who is not forthright and
trustworthy.” Id. The Decision explained that these
concerns led to the suspension of Ms. Salinas-Nix’s securi-
ty clearance and concluded that that Ms. Salinas-Nix’s
indefinite suspension from her position “is fully warrant-
ed based on . . . the security [clearance] suspension.” Id.
at 2, 3. These explanations and the documents prepared
and relied upon by the CID, which were provided to Mr.
Salinas-Nix, satisfy the statutory due process require-
ments. See Appendices H, I.
We also conclude that the Army did not violate 5
C.F.R. § 752.404. That regulation, which implements 5
U.S.C. § 7513(b), states that an agency may “consider only
the reasons specified in the notice of proposed action and
any answer of the employee or . . . her representative” in
its final decision. 5 C.F.R. § 752.404(g). Although Ms.
Salinas-Nix faults the Army for consulting various alleg-
edly extraneous documents and newspaper articles, she
does not explain why the reasons for her indefinite sus-
pension differ from those given in the Notice. The Army
is correct that the reasons are the same—structuring of
bank transactions and the resulting suspension of Ms.
Salinas-Nix’s security clearance. Because the Army did
not violate the applicable statute and regulation, the
Board’s affirmance of the Army’s indefinite suspension of
Ms. Salinas-Nix was in accordance with law.
Finally, the Board did not err in concluding that the
Army afforded adequate constitutional Due Process rights
to Ms. Salinas-Nix. In analyzing agency procedures for
compliance with Due Process, we weigh the private inter-
est affected by the official action; the risk of erroneous
deprivation of the interest through the procedures used,
and the probable value, if any, of additional or substitute
procedural safeguards; and the government’s interest.
8 VELMA SALINAS-NIX v. ARMY
See Gilbert v. Homar, 520 U.S. 924, 931–32 (1997). With
respect to the first Homar factor, the Board explained
that the procedures that Ms. Salinas-Nix received proper-
ly accounted for her significant private interest in not
being suspended from her position. See Final Order, slip
op. at 6. Because the Army provided Ms. Salinas-Nix
with a detailed post-suspension notice and a meaningful
opportunity to reply, we see no error in that determina-
tion. With respect to the second Homar factor, the Board
determined that the Army “had reasonable grounds to
support the indefinite suspension action.” Id. at 7. We
see no error in the Board’s analysis of this factor because
the Army explained that it was suspending Ms. Salinas-
Nix due to loss of her security clearance, which resulted
from a criminal investigation into Ms. Salinas-Nix’s
structuring of bank transactions. With respect to the
third Homar factor, the Board explained that the Army’s
“compelling interest in withholding national security
information from unauthorized persons . . . arguably
weighs in favor of the government’s authority to take
immediate action.” Id. at 6–7 (citing Egan, 484 U.S. at
527). We agree. The compelling government interest at
stake in this case reinforces the conclusion that the pro-
cedures Ms. Salinas-Nix received were constitutionally
adequate.
CONCLUSION
We have considered Ms. Salinas-Nix’s other argu-
ments and find them to be without merit. Because the
Board did not err in its conclusion that the Army complied
with due process when it indefinitely suspended Ms.
Salinas-Nix, we affirm.
AFFIRMED
COSTS
No costs.