Gargiulo v. Department of Homeland Security , 727 F.3d 1181 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH T. GARGIULO,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
______________________
2012-3157
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752090370-I-1.
______________________
Decided: August 16, 2013
______________________
LAWRENCE BERGER, Mahon & Berger, of Glen Cove,
New York, New York, argued for petitioner.
ALLISON KIDD-MILLER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were STUART F.
DELERY, Principal Deputy Assistant Attorney General,
JEANNE E. DAVIDSON, Director, TODD M. HUGHES, Deputy
Director. Of counsel on the brief was STEVEN E. COLON,
TSA Office of Chief Counsel, United States Department of
Homeland Security, Arlington, Virginia.
2 GARGIULO v. DHS
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for intervenor. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
BRYSON, Circuit Judge.
Joseph T. Gargiulo appeals from a decision of the
Merit Systems Protection Board affirming his indefinite
suspension from the Transportation Security Administra-
tion (“TSA”), an agency within the Department of Home-
land Security. Mr. Gargiulo had served as a TSA Federal
Air Marshal, a position requiring a top secret security
clearance. The revocation of that security clearance, and
Mr. Gargiulo’s resulting indefinite suspension from his
position, stemmed from misconduct that he allegedly
committed in his previous positions as a local police officer
and deputy sheriff. 1
I
On August 1, 2008, the TSA sent Mr. Gargiulo a no-
tice that the Department’s Office of Security, Personnel
Security Division, had suspended his security clearance
with the intent to revoke his access to classified infor-
mation. The notice described the alleged improper con-
duct that was the basis for the suspension and proposed
revocation, and it gave Mr. Gargiulo 30 days from receipt
of the letter to respond. That letter was apparently sent
1 The Department had twice previously suspended
Mr. Gargiulo after suspending his security clearance
based on his prior conduct. The Department withdrew
the first suspension following Mr. Gargiulo’s appeal to the
Board, and a Board administrative judge reversed the
second based on the agency’s internal regulations.
GARGIULO v. DHS 3
to the wrong address. Accordingly, the TSA sent a second
notice to Mr. Gargiulo on November 13, which advised
him of the suspension and proposed revocation of his
security clearance, and gave him another 30 days to
respond. In response to that notice, Mr. Gargiulo re-
quested materials from the agency regarding the alleged
misconduct to assist him in contesting the security clear-
ance determination.
In the meantime, the TSA advised Mr. Gargiulo on
August 28, 2008, that it proposed to suspend him indefi-
nitely from his Federal Air Marshal position for failure to
maintain the required security clearance. The August 28
notice attached the August 1 letter advising him of his
security clearance suspension. Mr. Gargiulo answered
the proposed indefinite suspension from duty through a
letter from counsel; he waived his right to an oral re-
sponse. On February 10, 2009, the TSA suspended him
from his position without pay.
The security clearance determination proceeded while
Mr. Gargiulo was indefinitely suspended from his posi-
tion. On May 23, 2009, the agency provided Mr. Gargiulo
with documentary materials relating to the security
clearance suspension, and on June 24, Mr. Gargiulo
provided an oral response. The agency revoked his securi-
ty clearance on November 25, 2009.
Mr. Gargiulo appealed his suspension to the Board.
He argued that both constitutional due process and the
applicable agency regulations guaranteed him an oppor-
tunity to meaningfully respond to the decision to suspend
his security clearance before the TSA indefinitely sus-
pended him from his position. But Mr. Gargiulo did not
dispute that his security clearance had been suspended,
that a security clearance was a requirement of his posi-
tion, and that TSA internal regulations permitted the
agency to suspend him from duty indefinitely for failure
to maintain the required security clearance.
4 GARGIULO v. DHS
The administrative judge who heard Mr. Gargiulo’s
case upheld his indefinite suspension. To the extent Mr.
Gargiulo was arguing that the agency was required to
afford him procedural due process in connection with the
suspension and the proposed revocation of his security
clearance, the administrative judge noted that “it is well-
settled and has been often repeated that an employee has
no constitutional right to due process in connection with
the security clearance process.” As to Mr. Gargiulo’s
claims based on the applicable statutory and regulatory
provisions, the administrative judge held that Mr. Gar-
giulo was entitled to a sufficient explanation of the basis
for the suspension of his security clearance to enable him
to make an informed reply to the proposal to suspend him
from his position. However, the administrative judge
rejected Mr. Gargiulo’s contention that he was entitled to
respond to the reasons for the security clearance suspen-
sion before the initiation of any adverse action based on
the loss of his security clearance. Moreover, the adminis-
trative judge found that the notice of proposed indefinite
suspension and the notice of the security clearance sus-
pension provided sufficient details as to the reasons for
the security clearance suspension to satisfy the agency’s
responsibilities under its regulations.
The full Board upheld the administrative judge’s deci-
sion, but on different grounds. 2 Citing the Supreme
Court’s decisions in Mathews v. Eldridge, 424 U.S. 319(1976), and Gilbert v. Homar, 520 U.S. 924 (1997), the
Board held that Mr. Gargiulo “was entitled to constitu-
tional due process, i.e., notice and a meaningful oppor-
tunity to respond, upon being indefinitely suspended
2 The Board relied in part on its decision in another
case, which had been consolidated with Mr. Gargiulo’s
appeal, McGriff v. Dep’t of the Navy, 118 M.S.P.R. 89(2012). The Board remanded that case for further pro-
ceedings, and it is not before this court.
GARGIULO v. DHS 5
based on the agency’s security clearance decision.” Gar-
giulo v. Dep’t of Homeland Sec., 118 M.S.P.R. 137, 143
(2012). The Board then applied the three-part test from
Mathews to determine whether Mr. Gargiulo had been
denied due process in the proceedings leading up to his
suspension. The Board considered (1) the private interest
affected, in this case Mr. Gargiulo’s interest in continued
employment; (2) the risk of erroneous deprivation of that
interest; and (3) the government’s interest.
In assessing the first factor, the Board assumed that
the nine-month delay between Mr. Gargiulo’s suspension
without pay and the final revocation of his security clear-
ance resulted in a “significant deprivation” of a property
interest. Id. With regard to the third factor, the Board
recognized that “the agency undoubtedly has a compelling
interest in withholding national security information from
unauthorized persons.” Id. at 144. As to the second
factor, the Board found that “the totality of the evidence,”
including the November 2009 final revocation of Mr.
Gargiulo’s security clearance, showed that “the agency did
have reasonable grounds to support the appellant’s sus-
pension sufficient to avoid the risk that the appellant’s
property interest had been erroneously compromised as a
result of the procedures used.” Id. at 145.
The Board further held that the TSA had lawfully
suspended Mr. Gargiulo pending the final decision revok-
ing his security clearance and that he was not denied due
process as a result of his not having received the August
1, 2008, notification of the decision to suspend his security
clearance. The Board observed that a copy of the August
1 communication was attached to the August 28 notifica-
tion of the proposal to suspend Mr. Gargiulo from his
position, which he did receive. Those documents, the
Board held, “gave the appellant enough information to
enable him to respond meaningfully to the agency’s
proposed suspension.” Id. at 145–46. Because the agency
had given Mr. Gargiulo “a meaningful opportunity to
respond to someone with authority to change the outcome
6 GARGIULO v. DHS
of the security clearance determination in either the
security clearance proceeding or in the adverse action
proceeding” prior to his suspension in February 2009, the
Board concluded that the TSA had not violated Mr. Gar-
giulo’s due process rights. Id. at 147.
II
Mr. Gargiulo bases his appeal to this court entirely on
the Due Process Clause of the Fifth Amendment to the
Constitution. In particular, he argues that the agency
deprived him of constitutional due process by not timely
providing him with documentary materials that the
agency had relied upon in deciding to suspend his security
clearance. He complains that although he was given
notice of the reasons for the suspension of his security
clearance as early as August 2008, he was not provided
with copies of the documentary materials the agency
relied on in making that decision until May 2009, three
months after he was suspended from his position. The
delay in producing those materials, he contends, meant
that he was denied a meaningful opportunity to contest
his suspension, either before or promptly after it became
effective in February 2009.
A
The Supreme Court in Department of the Navy v.
Egan, 484 U.S. 518, 528 (1988), held that that “no one has
a ‘right’ to a security clearance,” which “requires an
affirmative act of discretion on the part of the granting
official.” Based on Egan, our cases have consistently held
that employees do “not have a liberty or property interest
in access to classified information, and the termination of
that access therefore [does] not implicate any due process
concerns.” Jones v. Dep’t of the Navy, 978 F.2d 1223, 1225
(Fed. Cir. 1992); see Hesse v. Dep’t of State, 217 F.3d 1372,
1381 (Fed. Cir. 2000) (“[T]he Due Process Clause of the
Fifth Amendment has no application to a proceeding to
review an employee's security clearance.”). Thus, Execu-
tive Branch security clearance decisions “are not reviewa-
GARGIULO v. DHS 7
ble for ‘minimum due process protection.’” Robinson v.
Dep’t of Homeland Sec., 498 F.3d 1361, 1364 (Fed. Cir.
2007).
Mr. Gargiulo argues that the property interest he en-
joys in his employment gives him a constitutional right to
procedures enabling him to challenge the suspension of
his security clearance that was the basis for his indefinite
suspension from his Federal Air Marshal position. This
court has repeatedly held, however, that the Board’s
review of an adverse action resulting from the suspension
of a security clearance is limited to “whether a security
clearance was denied, whether the security clearance was
a requirement of the appellant’s position, and whether the
procedures set forth in section 7513 were followed.”
Hesse, 217 F.3d at 1376; see Cheney v. Dep’t of Justice, 479
F.3d 1343, 1352 (Fed. Cir. 2007) (noting, in the context of
a pending security clearance determination, that the
steps in Hesse are “[a]ll the Board and this court may do”);
Lyles v. Dep’t of the Army, 864 F.2d 1581, 1583 (Fed. Cir.
1989) (“After determining that [Section 7513] procedures
were followed, the only other inquiry the Board may make
is whether the employee’s position was classified as
sensitive and whether he was discharged for failure to
maintain the required security clearance.”). 3
3 Because Mr. Gargiulo raises only a constitutional
due process claim before this court, we need not consider
whether the agency followed procedures required by
statute or regulation. As a general matter, 5 U.S.C.
§ 7513(b) provides employees facing an adverse action
with (1) “at least 30 days’ advance written notice”; (2) “a
reasonable time, but not less than 7 days, to answer orally
and in writing and to furnish affidavits and other docu-
mentary evidence in support of the answer”; (3) a right to
representation; and (4) “a written decision and the specific
reasons therefor at the earliest practicable date.” The
administrative judge noted that TSA employees such as
8 GARGIULO v. DHS
Mr. Gargiulo’s complaint that he was denied a mean-
ingful opportunity to respond to the agency’s decision to
suspend his security clearance therefore misses the mark.
Because Mr. Gargiulo had no due process rights with
respect to the procedures used to determine whether to
suspend or revoke his security clearance, he had no
constitutional right to receive the documentary evidence
underlying the security clearance suspension before his
indefinite suspension from employment took effect. He
had due process rights with respect to his indefinite
suspension, but they did not include the right to contest
the merits of the decision to suspend his security clear-
ance. See Cheney, 479 F.3d at 1352 (“Neither the Board
nor this court may review the underlying merits of an
agency’s decision to suspend a security clearance.”);
Drumheller v. Dep’t of the Army, 49 F.3d 1566, 1571 (Fed.
Cir. 1995). 4
Mr. Gargiulo are subject to the Federal Aviation Admin-
istration’s personnel management system, and not the
statutory protections of 5 U.S.C. § 7513(b). See 49 U.S.C.
§§ 114, 40122. As the administrative judge explained, the
agency’s personnel policies offer procedural safeguards
similar to those provided by section 7513. The adminis-
trative judge ruled that the agency’s procedures did not
violate its personnel rules, and Mr. Gargiulo has not
contested that finding on appeal.
4 Because Mr. Gargiulo’s complaint is limited to
what he considers an untimely opportunity to challenge
the suspension and proposed revocation of his security
clearance, we need not address what process would be
required if he were claiming entitlement to other relief,
such as assignment to a non-sensitive position within his
agency.
GARGIULO v. DHS 9
B
In this case and in the companion McGriff case, the
Board held that although it may not review the merits of
an agency’s decision to suspend an employee’s access to
classified material, it can review (1) whether the agency
provided the employee with the procedural protections set
forth in 5 U.S.C. § 7513(b) in taking an adverse action and
(2) whether the agency afforded the employee constitu-
tionally guaranteed due process with respect to that
action. After balancing what it perceived to be the com-
peting interests in this case, the Board concluded that
while Mr. Gargiulo’s suspension for nine months pending
the final decision revoking his security clearance may
have represented a significant deprivation of his property
interest in his job, that interest was outweighed by com-
peting factors: the agency’s compelling interest in with-
holding national security information from unauthorized
persons, and the reasonable grounds that the agency had
for denying a security clearance to Mr. Gargiulo.
This court has held that 5 U.S.C. § 7513(b) “entitles
an employee to notice of the reasons for the suspension of
his access to classified information when that is the
reason for placing the employee on enforced leave pending
a decision on the employee’s security clearance.” King v.
Alston, 75 F.3d 657, 661 (Fed. Cir. 1996). The statutory
notice “provides the employee with an adequate oppor-
tunity to make a meaningful reply to the agency before
being placed on enforced leave.” Id. at 662; see also
Cheney, 479 F.3d at 1352. That right, however, is statu-
tory, not constitutional. The Board’s characterization of
that right as a constitutional guarantee that the Board
may delineate and enforce is contrary to this court’s
decisions in Hesse, Robinson, and Jones, in which we held
that employees do not have constitutional due process
rights in connection with security clearance determina-
tions. As this court observed in Hesse, all the Board and
this court may do in the context of an adverse action
stemming from a security clearance suspension is to
10 GARGIULO v. DHS
“determine whether a security clearance was denied,
whether the security clearance was a requirement of the
appellant’s position, and whether the procedures set forth
in section 7513 were followed.” 217 F.3d at 1376.
In applying its due process analysis, the Board went
further than that. It held, as a matter of constitutional
due process, that Mr. Gargiulo was entitled to notice of
the reasons for the suspension of his security clearance
and an opportunity to make a meaningful response re-
garding those reasons to someone in the agency with the
authority to affect that decision. While this court’s cases
hold that section 7513 grants those rights to certain
employees, we have not held that those rights are guaran-
teed by the Fifth Amendment.
In addition, the Board cited the “need to ensure that
the procedures used provide adequate assurance that the
agency had reasonable grounds to support the adverse
action.” And in this case it concluded, based on “the
totality of the evidence,” that “the agency did have rea-
sonable grounds to support the suspension,” and that the
decision to revoke Mr. Gargiulo’s security clearance was
“not baseless or unwarranted.” 118 M.S.P.R. at 144.
While the Board disclaimed any intention to review the
merits of the security clearance suspension, the sole
ground for the decision to suspend Mr. Gargiulo from his
position was the suspension of his security clearance. The
Board’s conclusion that there were reasonable grounds to
support the adverse action therefore necessarily reflected
its view that the agency’s security clearance decision was
reasonable, based on what the Board referred to as “the
totality of the evidence.” In addressing the merits of the
security clearance determination in that manner, the
Board exceeded its authority in adverse decision cases
that are based on the suspension or revocation of an
employee’s security clearance.
Accordingly, we affirm the Board’s decision upholding
Mr. Gargiulo’s indefinite suspension. However, we agree
with the Department of Homeland Security that the
GARGIULO v. DHS 11
Board erred by holding that due process provides an
employee with procedural rights in connection with a
security clearance determination and justifies an inquiry
into whether the agency had reasonable grounds for
suspending or revoking the employee’s security clearance.
AFFIRMED