Hornseth v. Dep't of the Navy , 916 F.3d 1369 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
SHAWN A. HORNSETH,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2018-1188
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-17-0271-I-1.
______________________
Decided: February 27, 2019
______________________
JEREMY AARON MORRIS, Glisson & Morris, PS, Port Or-
chard, WA, argued for petitioner.
NATHANAEL YALE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
ALLISON KIDD-MILLER, ROBERT EDWARD KIRSCHMAN, JR.,
JOSEPH H. HUNT.
______________________
Before LOURIE, BRYSON, and DYK, Circuit Judges.
LOURIE, Circuit Judge.
2 HORNSETH v. NAVY
Shawn A. Hornseth petitions for review of the final de-
cision of the Merit Systems and Protection Board (“the
Board”) affirming the decision of the United States Navy to
suspend him indefinitely without pay. Hornseth v. Dep’t of
Navy, No. SF-0752-17-0271-I-1, 2017 WL 3980894(M.S.P.B. Sept. 8, 2017). For the reasons that follow, we
affirm.
BACKGROUND
Hornseth was an employee of the Puget Sound Naval
Shipyard and Intermediate Maintenance Facility (“Ship-
yard”), where he worked as a combined trade supervisor.
The Shipyard is a secure facility that houses nuclear pow-
ered vessels, and every position at the Shipyard, including
Hornseth’s, requires a security clearance. During his em-
ployment, Hornseth attended rehabilitation for alcoholism
and provided the Navy with documents regarding his treat-
ment. From Hornseth’s rehabilitation facility discharge
letter, the Navy learned that Hornseth had used marijuana
during his employment.
On December 12, 2016, Hornseth received a letter in-
forming him that the Commander of the Shipyard intended
to suspend his access to classified information and his as-
signment to a sensitive position. Three days later, the
Commander issued a letter notifying Hornseth that his se-
curity clearance was suspended. On the same day,
Hornseth was notified via letter from the Operations Pro-
gram Manager that the Navy proposed to indefinitely sus-
pend his employment. Hornseth filed a reply to the
proposal, and the Navy assigned Charlie Combs, a super-
visor at the Shipyard, to be the deciding official regarding
the proposed suspension.
While the proposed suspension was pending before
him, Combs engaged in a series of communications with
the Human Resources (“HR”) staff at the Shipyard. Upon
receipt of Hornseth’s reply, a Shipyard HR employee sent
an e-mail to Combs stating that she would “research the
HORNSETH v. NAVY 3
case law” cited in those communications for further discus-
sion. J.A. 240. The employee then sent an e-mail to Combs
stating that Hornseth’s “attorney cites the employee’s due
process,” and asking whether Combs had “the delegated
authority on behalf of the Commander to offer/find an in-
terim job [for Hornseth].” J.A. 229. In that e-mail, the em-
ployee asked Combs to respond concerning his availability
to “discuss this case so [Combs could] make a decision.” Id.Combs responded via e-mail, stating that he was a “desig-
nated/qualified hiring official.” J.A. 231.
The employee then e-mailed Combs and asked whether
he had “made a decision,” J.A. 231, to which Combs re-
sponded that “[t]he operations department has no positions
that do not require a security clearance” and that “it [would
be] fiscally irresponsible to generate an unneeded position
to accommodate the request for work without a clearance,”
J.A. 239. The employee responded to Combs’s e-mail, in-
forming him that “there are three concerns [Combs had] to
consider in a Security case” and that Combs should “[k]eep
this in mind, should the employee pursue this further.” Id.No response to the employee’s e-mail is in the record. The
HR department then drafted a five-page “Decision on Pro-
posed Indefinite Suspension” and forwarded it to Combs.
Combs signed the decision, and it issued on January 20,
2017. J.A. 46–50. Hornseth appealed the decision to the
Board.
Hornseth argued that he was denied minimum due
process of law in that (1) the reply process was an empty
formality because Combs did not have the ability to take or
recommend alternative agency action and (2) Combs and
the Shipyard HR staff engaged in an improper ex parte
communication.
The Board’s administrative judge (the “AJ”) disagreed.
He concluded in an initial decision on September 8, 2017
that a due process violation may occur when a reply process
is an empty formality, for example, if a deciding official
4 HORNSETH v. NAVY
lacks the ability to take or recommend alternative agency
action based on an appellant’s reply, J.A. 21 (citing McGriff
v. Dep’t of Navy, No. DC-0752-09-0816-I-1, 2012 WL
1434869, ¶¶ 33–36 (M.S.P.B. Apr. 26, 2012)), and he found
that administrative leave would be inadequate to satisfy
due process. J.A. 22. Regardless, however, the AJ here sua
sponte determined that investigative leave was an availa-
ble alternative, and, because Combs could have provided
Hornseth with investigative leave, the process afforded
Hornseth due process. J.A. 22–26.
The AJ also concluded that, while Combs engaged in
certain ex parte communications, those communications
“were not so substantial and prejudicial such that no em-
ployee could fairly be required to be subjected to a depriva-
tion of property under these circumstances.” J.A. 18–19.
Before the AJ, Combs testified that in his decision he con-
sidered only the proposal letter, some references cited in
the letter, and Hornseth’s written reply. J.A. 16. Combs
also testified that his ex parte contacts were only made to
clarify the arguments raised in the reply or other material
in the record and procedural matters. According to Combs,
none of the communications yielded additional information
and, even though the Shipyard HR staff had drafted the
five-page decision, it only did so after he had made his de-
cision, and he signed it as his own. J.A. 17. The AJ cred-
ited Comb’s testimony as “direct, forthright, basically
unrebutted, and plausible” to find no due process violation
or harmful procedural error. Id. at 18.
Finding no violations of due process or harmful proce-
dural errors, the AJ affirmed the Navy’s suspension deci-
sion. His decision became the decision of the Board
because Hornseth did not appeal to the full Board, which
at that time lacked a quorum. Hornseth appealed to this
court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
HORNSETH v. NAVY 5
DISCUSSION
Our scope of review in an appeal from a decision of the
Board is limited. We must affirm a Board decision unless
we find it to be “(1) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by sub-
stantial evidence.” 5 U.S.C. § 7703(c).
Hornseth raises two arguments on appeal: (1) that the
AJ erred in finding no due process violation, and (2) that
Combs’s ex parte communication constituted a due process
violation. We address each argument in turn.
I.
Hornseth first argues that due process requires that a
deciding official have authority to change the outcome of an
adverse action and that neither administrative nor inves-
tigative leave were available alternative penalties.
Hornseth relies primarily on Board precedent for the prop-
osition that a deciding official must have the authority to
change the outcome of an adverse action for the process to
comport with due process. J.A. 23–25 (citing McGriff, 2012
WL 1434869). According to Hornseth, an employee’s op-
portunity to respond would be meaningless “if the deciding
official lacked the authority or discretion to weigh the em-
ployee’s response or if the official’s decision was automatic
or predetermined in favor of the agency[,] no matter how
compelling the employee’s case or how severely his inter-
ests would be affected [by] the action.” Appellant’s Br. 22.
Hornseth claims that, as a result, because Combs did not
have authority to change the outcome of the proposed ac-
tion, he has been subjected to a lack of due process.
The government responds that this court’s review of an
adverse action arising out of a security clearance determi-
nation is limited. It asserts that the Navy provided
Hornseth with all the procedural protections he was
6 HORNSETH v. NAVY
entitled to when it indefinitely suspended him for failing to
maintain a security clearance and eligibility to occupy a
sensitive position. Appellee’s Br. 13. According to the gov-
ernment, our review should be limited to determining
whether the agency provided minimal due process, which
requires evaluating only whether a security clearance is re-
quired, whether the clearance was revoked, and whether
Hornseth received the procedural protections of 5 U.S.C.
§ 7513. The government submits that Hornseth received
such protections here. Id. at 17.
We agree with the government that an alternative ac-
tion need not be available in a security-clearance case. It
is well-settled that a government employee has no “right”
to a security clearance. Dep’t of Navy v. Egan, 484 U.S.
518, 528 (1988). Although the Board does not have broad
authority to review a security-clearance determination,
“[a]n employee who is removed for ‘cause’ under § 7513,
when his required clearance is denied, is entitled to the
several procedural protections specified in that statute.”
Id. at 530.
As a result, we have held that review of adverse actions
stemming from security clearance determinations is lim-
ited to determining (1) “whether a security clearance was
denied,” (2) “whether the security clearance was a require-
ment for appellant’s position,” and (3) “whether the proce-
dures set forth in [§] 7513 were followed.” Hesse v. Dep’t of
State, 217 F.3d 1372, 1376 (Fed. Cir. 2000).
Here, the parties do not dispute that Hornseth’s secu-
rity clearance was revoked and that maintaining it was a
requirement for his position. We therefore turn to the pro-
cedures required by § 7513(b), which read as follows:
(b) An employee against whom an action is pro-
posed is entitled to--
(1) at least 30 days’ advance written notice,
unless there is reasonable cause to believe
HORNSETH v. NAVY 7
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 documen-
tary evidence in support of the answer;
(3) be represented by an attorney or other
representative; and
(4) a written decision and the specific rea-
sons therefor at the earliest practicable
date.
5 U.S.C. § 7513(b). Section 7513 thus requires the agency
to provide “notice of denial or revocation [of the security
clearance]; a statement of the reason(s) upon which the
negative decision was based; and an opportunity to re-
spond.” Lyles v. Dep’t of Army, 864 F.2d 1581, 1583 (Fed.
Cir. 1989) (quoting Egan v. Dep’t of Navy, 28 M.S.P.R. 509,
519 (1985), vacated, 802 F.2d 1563 (Fed. Cir. 1986), rev’d
on other grounds, 484 U.S. 518 (1988) (alteration in origi-
nal).
Those procedures were met in this case. Hornseth re-
ceived notice, had an opportunity to respond and to be rep-
resented, and was provided with a written decision with
reasons. Thus, he received the procedural protections pro-
vided by law.
However, the AJ’s review deviated from this frame-
work. Specifically, the AJ concluded that an alternative
position must be available to comport with due process. See
J.A 21 (“[A] due process violation may be present when the
reply process is an empty formality because the deciding
official lacks the ability to take or recommend alternative
agency action based on an appellant’s reply (i.e., do any-
thing but affirm the proposed action).”)
8 HORNSETH v. NAVY
Such a conclusion is at odds with our case law, which
makes clear that an employee has a right to be transferred
to a nonsensitive position only if that right is conferred by
a statute or regulation. Lyles, 864 F.2d at 1583 (“When one
is hired for a position he is expected to meet the require-
ments of that position. If he does not, he may be dismissed
unless additional rights are available from some other
source.” (emphasis added)). Indeed, when an employee
who is hired for a position requiring a security clearance
fails to possess one, “not even reasonable accommodation
is due,” Griffin v. Def. Mapping Agency, 864 F.2d 1579,
1581 (Fed. Cir. 1989) (“When one who is hired for a position
fails to meet the essential requirement of that position that
he secure a security clearance, not even reasonable accom-
modation is due.”), and § 7513 contains no obligation for
the agency to transfer an employee to a nonsensitive posi-
tion, even if that is possible, id. If there is no alternative
position authorized by statute, a deciding official is not re-
quired to create one. Id. Accordingly, we conclude that the
AJ erred in requiring the deciding official to have available
an alternative position.
Although a deciding official need not have available an
alternative penalty, the statute certainly contemplates
that the deciding official have authority to act on behalf of
the agency. The adverse-action procedure described in
§ 7513 is effected by the agency. See § 7513(a) (“Under reg-
ulations prescribed by the Office of Personnel Manage-
ment, an agency may take an action covered by this
subchapter against an employee only for such cause as will
promote the efficiency of the service.” (emphasis added)); 5
C.F.R. § 752.404(g)(1) (“In arriving at its decision, the
agency will consider only the reasons specified in the notice
of proposed action and any answer of the employee or his
or her representative, or both, made to a designated official
and any medical documentation reviewed under paragraph
(f) of this section.” (emphasis added)).
HORNSETH v. NAVY 9
As applied in this case, the requirement that the decid-
ing official have authority to act on behalf of the agency is
clear from the Navy’s own instructions regarding the ad-
verse-decision process. U.S. Dep’t of Navy, SECNAV In-
struction 12752.1A (May 3, 2016) § 12(a)(1)(b) (stating that
an employee is entitled to a “written notice,” which must
include “[t]he name and title of the official designated to
hear an oral reply and/or receive a written reply,” and re-
quiring such designated official to “have authority to either
make or recommend a final decision on the proposed ac-
tion.”), § 12(a)(2)(d) (entitling an employee to a written de-
cision that “[i]s signed by an official in a higher level
position than the official who proposed the action, unless
the activity head/commander issued the advance notice, in
which case the activity head/commander may issue the
written decision.”). Here, Combs’s authority to act is un-
disputed. Therefore, Combs’s action did not violate any ap-
plicable statute or regulation.
Because we conclude that the AJ erred in requiring a
supervisor to have available an alternative position, we
need not reach whether investigative leave would have
been such an adequate alternative. Moreover, we regard
this statement by the AJ of the requirement of an available
position to be harmless error because Hornseth was pro-
vided with all the procedural protections provided by law.
II.
Hornseth also challenges the AJ’s findings regarding ex
parte communication between the deciding official, Combs,
and the Shipyard’s HR department.
The introduction of new and material information via
ex parte communication to a deciding official deprives an
employee of a guarantee of notice and opportunity to re-
spond. Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999).
But “not every ex parte communication is a procedural de-
fect so substantial and so likely to cause prejudice that it
undermines the due process guarantee and entitles the
10 HORNSETH v. NAVY
claimant to an entirely new administrative proceeding.”
Id. at 1376–77.
In evaluating the effect of ex parte communication, we
consider whether the communication introduced “cumula-
tive information;” “whether the employee knew of the error
and had a chance to respond to it; and whether the ex parte
communications were of the type likely to result in undue
pressure upon the deciding official to rule in a particular
manner.” Id. at 1377. The inquiry is “whether the ex parte
communication is so substantial and so likely to cause prej-
udice that no employee can be fairly required to be sub-
jected to a deprivation of property under such
circumstances.” Id. The test is an objective one.
The AJ applied these factors and found that the ex
parte communication here did not deprive Hornseth of due
process because upon reviewing the evidence, the AJ found
that Combs’s ex parte communications involved only cumu-
lative material. J.A. 17. The AJ also credited Combs’s tes-
timony that his ex parte contacts were to clarify the
arguments raised in the reply and that, although the HR
department drafted the decision letter, it did so after he
had made his decision. Id. The AJ “credit[ed] that testi-
mony as forthright, plausible, reasonable, and consistent
with or at least not contradicted by other evidence.” Id.We can reverse the Board’s findings only if they are un-
supported by substantial evidence. 5 U.S.C. § 7703. More-
over, “evaluation of witness credibility is within the
discretion of the Board and . . . in general, such evaluations
are ‘virtually unreviewable’ on appeal.” King v. Dep’t of
Health & Human Servs., 133 F.3d 1450, 1453 (Fed. Cir.
1998) (quoting Clark v. Dep’t of Army, 997 F.2d 1466, 1473
(Fed. Cir. 1993)).
Although Hornseth had not seen the communication to
Combs prior to the discovery process in the appeal, the AJ
reasoned that the information it contained was already
known to Hornseth or cumulative. These findings are
HORNSETH v. NAVY 11
supported by substantial evidence and are subject to defer-
ential review. Considering the findings in light of our case
law, we conclude that the AJ did not err in concluding that
the ex parte communication here did not amount to a due
process violation.
We have considered Hornseth’s remaining arguments
and find them unpersuasive.
CONCLUSION
The AJ incorrectly required the deciding official in a
case involving an adverse action based on a security-clear-
ance determination to have an alternative, available pen-
alty. Although we hold this requirement to be inconsistent
with our case law, we affirm the final decision of the Board
because its ultimate conclusion—that Hornseth’s suspen-
sion did not violate due process—was correct.
AFFIRMED