Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
135838764
label
JGR/Office of Personnel Management
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
135838764
contentType
document
title
JGR/Office of Personnel Management
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
135838764
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
b80ca61b86112a45
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Office of
Personnel Management
Box: 35
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
OPM file
United States of America
Office of
Office of the General Counsel
Personnel Management
Washington, D.C. 20415
In Reply Refer To:
Your Reference:
August 12, 1985
MEMORANDUM FOR THE GENERAL COUNSELS OF ALL EXECUTIVE BRANCH
AGENCIES AND DEPARTMENTS
FROM:
JOSEPH A. MORRIS
GENERAL COUNSEL
Joseph A opin
OFFICE OF PERSONNEL MANAGEMENT
SUBJECT:
DECISION OF THE MERIT SYSTEMS PROTECTION BOARD
IN SECURITY CLEARANCE CASES
On August 8, 1985, the Merit Systems Protection Board (MSPB or Board) held
that it lacked the authority to review the security clearance determinations
underlying an agency decision to remove or to take other adverse action against an
employee under 5 U.S.C. § 7512 for failure to meet a condition of employment
(i.e., maintenance of a security clearance). In five unanimous decisions, the Board
ruled that the decision to deny or revoke a security clearance is a decision reserved
exclusively to Executive Branch agencies under the terms of Executive Order No.
10450. The Board held further that it lacked statutory authority to do any more
than review the removal to determine whether minimum due process had been
afforded to the employee during the security clearance denial or revocation
process.
The MSPB requested all interested parties to submit briefs on several issues
before it in a series of appeals involving adverse actions taken against Federal
employees for failure to obtain or keep a security clearance. That request for
amicus curiae briefs was set out in two Federal Register notices. See 50 Fed. Reg.
2355 (January 16, 1985); 49 Fed. Reg. 48623 (December 13, 1984).
In the lead case, Egan V. Department of the Navy, MSPB Docket No.
SE07528310257 (August 8, 1985), the Board set the limits on its review authority in
adverse actions based on security clearance determinations. Board review is
restricted to determining whether the agency has established "(1) the requirement
of a security clearance for the position in question; (2) the loss or denial of the
security clearance; (3) and the granting of minimal due process protections to the
employee." With regard to due process protections, the Board held that the
employee must be afforded "notice of the denial or revocation; a statement of the
reason(s) upon which the negative decision was based; and an opportunity to
respond." It will not inquire into the reasons relied upon by the agency to support
its determination to revoke or deny the clearance.
Even in those rare cases where the Board may find a lack of due process in
the security clearance determination process, the Board has limited its remedial
action to reversal of the adverse action and ordering the agency to restore the
employee to a pay status. However, the Board has expressly ruled that it lacks
authority to order reinstatement of the security clearance. Further, an agency
may elect to "re-initiate the adverse action based upon the negative security
CON 132-03-9 (2/2
-2-
clearance determination" and afford the minimal due process protections.
In four companion decisions issued simultaneously with Egan, the Board has
strictly applied the holdings in the lead case to appeals involving several different
positions and several different agencies. Copies of all five decisions are enclosed
for your convenience.
Importantly, the MSPB has clearly rejected the holding of the United States
Court of Appeals for the District of Columbia Circuit in Hoska V. Department of
the Army, 677 F.2d 131 (D.C. Cir. 1982). In Hoska, the Court of Appeals reviewed
the issues already decided by the Board's presiding official without specifically
determining the propriety of Board review of the underlying security clearance
determination. The Board holds here that Hoska does not stand for the specific
proposition that the Board has that review authority. Even if it did, the Board
notes that Hoska is persuasive authority only because the Court of Appeals for the
Federal Circuit now has exclusive judicial review authority over Board decisions.
The Board's decision in Egan is bold and will have an important and salutary
effect upon America's ability to protect the national security. It will improve our
counterintelligence capabilities and significantly enhance ourcapability to
guarantee the security of vital classified information. In this era of increased
security awareness, the Board has wisely deferred to the expertise of security
professionals in the area of security clearance determinations. I applaud the
Board's decisions in the Security Clearance Appeals and look forward to their
application in the future.
Enclosures
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
)
DOCKET NUMBER
SHELBY DRAKE,
)
AT07528310851
appellant,
)
)
V.
)
)
AUG 8 1985
DEPARTMENT OF THE ARMY,
)
DATE:
agency.
)
)
BEFORE
Herbert E. Ellingwood, Chairman
Maria L. Johnson, Vice Chair
Dennis M. Devaney, Member
OPINION AND ORDER
The agency has petitioned for review of the
presiding official's initial decision which, relying on
Schwartz V. Department of the Army, MSPB Docket No.
NY07528110226 (September 27, 1983), reversed on its merits
appellant's demotion for failure to obtain a security
clearance / The petition for review is GRANTED.
In Egan V. Department of the Navy, MSPB Docket No.
SE07528310257 at 12 (August 8, 1985), the Board held that
it had no authority to review the merits of an agency's
denial or revocation of a security clearance and overruled
those Board cases, including Schwartz, supra, which
relied on Hoska V. Department of the Army, 677 F.2d 131
(D.C. Cir. 1982), to support a contrary holding.
*/ The agency had initially proposed appellant's removal
but, prior to the effective date of the removal, established
a File Clerk position which did not require a security
clearance.
-2-
The Board further stated in Egan, supra, at 12-13,
that it will limit its review of security clearance determi-
nations to ascertaining that the agency has established the
following: (1) the requirement of a security clearance for
the position in question; (2) the loss or denial of the
security clearance; and (3) the granting of minimal due
process protections to the employee. Those minimal due
process rights to which the employee is entitled are: notice
of the denial or revocation; a statement of the reason(s)
upon which the negative determination was based; and an
opportunity to respond. Id.
A review of the record in the instant case reveals an
agency Disposition Form, which indicates that appellant was
denied a security clearance "after a thorough evaluation
of [his] response to CCF's Letter of Intent to Deny Security
Clearance" and that appellant was notified of the right to
an agency appeal of the denial. See Agency File, Tab I-5.
However, it does not appear from the record that the agency
submitted a copy of either the notice of intent or appellant's
response thereto. Further, it does not appear that the agency
stated a basis for its denial.
Nevertheless, because this case was decided by the
presiding official prior to the issuance of the Board's
decision in Egan, id., the agency could not have known
that it would be required to show that the appellant had
been afforded his procedural due process rights in the denial
of the security clearance.
-3-
Accordingly, the initial decision is VACATED, and the
case is REMANDED to the Atlanta Regional Office to allow
the parties to introduce further evidence and argument on
the issue of whether appellant had been afforded his due
process rights in accordance with Egan, id, and for
issuance of a new initial decision consistent with this
opinion.
FOR THE BOARD:
Clerk of the Board
Washington, D.C.
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
)
DOCKET NUMBER
RALPH B. BOGDANOWICZ,
)
PH07528110587REM
appellant,
)
)
V.
)
)
AUG 8 1985
DEPARTMENT OF THE ARMY,
)
DATE:
agency,
)
)
)
BEFORE
Herbert E. Ellingwood, Chairman
Maria L. Johnson, Vice Chair
Dennis M. Devaney, Member
OPINION AND ORDER
Appellant has petitioned for review of the remand
initial decision of January 18, 1984, which sustained his
demotion from the position of Electronic Equipment Worker,
Installer, Repairer, WB-6, to Warehouse Worker, WG-5.
For the reasons set forth below, the petition for review
is hereby DENIED.
-2-
Appellant was demoted for failure to meet the
requirements of his position because his security clearance
had been revoked. On appeal, the presiding official sustained
the agency action. In response to appellant's petition for
review, the Board remanded the case for consideration of
the propriety of the clearance revocation. On remand, the
presiding official again sustained the agency action.
Appellant has petitioned for review of the remand decision,
raising several issues concerning the relationship between
his alleged handicap, alcoholism, and the revocation.
The Board has recently held that in an adverse action
over which the Board has jurisdiction, and which is based
substantially on the agency's revocation of a security
clearance, the Board has no authority to review the agency's
security clearance determination. See Egan V.
Department of the Navy, MSPB Docket No. SE07528310257
( August 08, 1985 ). Thus, the security clearance being
required for appellant's position, and it having been
revoked, we find that the agency proved by preponderant
evidence that appellant failed to meet established standards
for continued employment in his position. /
.
This is the final order of the Merit Systems Protection
Board in this appeal. The initial decision shall become final
five (5) days from the date of this order. 5 C.F.R. §
1201.113(b).
1/ In Egan, supra the Board held that it will review
the procedures utilized by the agency in revoking the
security clearance to ensure minimum due process rights of
notice of the denial or revocation; a statement of the
reasons upon which the negative decision was based; and an
opportunity to respond. In the instant case, the record shows
that these due process rights were afforded appellant.
-3-
The appellant is hereby notified of the right under
5 U.S.C. § 7703 to seek judicial review, if the court has
jurisdiction, of the Board's action by filing a petition
for review in the United States Court of Appeals for the
Federal Circuit, 717 Madison Place, N.W., Washington, D.C.
20439. The petition for judicial review must be received
by the court no later than thirty (30) days after the
appellant's receipt of this order.
FOR THE BOARD:
Robert E. Taylor I.
Washington, D.C.
Clerk of the Board
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing ORDER
was sent by certified mail this date to:
Mr. Ralph B. Bogdanowicz
P.O. Box 477
Frederick, MD 21701
Stuart Kirsch, Esq.
Staff Counsel, AFGE
Airport Plaza
510 Plaza Drive, Suite 2510
College Park, Georgia 30349
by regular mail service to:
Mr. William Nazdin
National Representative, AFGE
Star Route 3, Box 135
La Plata, MD 21701
Jeffrey S. Morris
1LT(P), JAGC
Office of the Judge Advocate
Department of the Army
Legal Office, Building 715
Fort Detrick, MD 21701
Director of Civilian Personnel
Department of the Army
HDA (DAPE-CPL)
Washington, DC 20310
Merit Systems Protection Board
Philadelphia Regional Office
Office of Personnel Management
Appellate Policies Branch
1900 E Street, N.W.
Room 7459
Washington, D.C. 20415
by hand to:
Office of the Special Counsel
Merit Systems Protection Board
1120 Vermont Avenue, N.W.
Washington, D.C. 20419
(Date)
Robert E. Taylor
Clerk of the Board
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
)
DOCKET NUMBER
DAVID W. GRIFFIN,
)
SL07528410150
appellant,
)
)
V.
)
)
DEFENSE MAPPING AGENCY,
)
DATE:
AUG 8 1985
agency.
)
)
BEFORE
Herbert E. Ellingwood, Chairman
Maria L. Johnson, Vice Chair
Dennis M. Devaney, Member
OPINION AND ORDER
Appellant was removed from his position of Cartographer,
GS-7, on the basis that he was unable to obtain a top secret
security clearance upon which his continued employment was
conditioned. Appellant's position allowed him access to
sensitive compartmented information relating to the gathering
of intelligence, and appellant's work involved the production
of maps and charts and the "positioning" of data for use in
military operations. See Hearing Transcript at 13, 91-92.
The security clearance denial was based on allegations that
appellant intentionally falsified security documents by
failing to indicate a September 2, 1971 disorderly conduct
charge and a July 16, 1979 simple battery charge on a
Personnel Security Questionnaire and a Personal History
Questionnaire, and that appellant initially denied both
-2-
charges in an agency investigative interview Appellant
appealed his removal to the St. Louis Regional Office of
the Board, denying that he intentionally falsified the
documents as alleged and asserting the defense of disparate
treatment Relying on Schwartz V. Department of
the Army, 16 M.S.P.R. 642 (1983), as well as Hoska V.
Department of the Army, 677 F.2d 131 (D.C. Cir. 1982),
the presiding official raviewed the merits of the security
clearance denial, finding that the agency failed to prove its
charges by preponderant evidence. He therefore reversed the
agency action.
The agency petitions for review, challenging the Board's
authority to review security clearance determinations and
alleging various errors by the presiding official. The
agency's petition for review is GRANTED.
In Egan V. Department of the Navy, MSPB Docket No.
SE07528310257 at 12 ( August 8 , 1985), the Board found
that it had no authority to review the merits of an agency's
denial or revocation of a security clearance and overruled
those Board cases, including Schwartz, supra, which
relied on Hoska, supra, to support a contrary holding.
The Board further stated in Egan, supra, at 12-13,
that it will limit its review of security clearance deter-
minations to ascertaining that the agency has established
the following: (1) the requirement of a security clearance
for the position in question; (2) the loss or denial of the
security clearance; and (3) the granting of minimal due
process protections to the employee. Those minimal due
process rights to which the employee is entitled are: notice
1/ It is undisputed that the agency's investigation
discovered that appellant had been arrested and convicted
of both charges.
2/ Appellant had initially asserted the defense of reverse
race discrimination but withdrew that defense at the hearing.
See Hearing Transcript at 391.
-3-
of the denial or revocation; a statement of the reason(s)
upon which the negative determination was based; and an
opportunity to respond. Id.
Consistent with our holding in Egan, supra, that
the Board is without authority to review the merits of
security clearance determinations, we find that the presiding
official erred in reviewing the merits of the agency's denial
of appellant's security clearance.
Upon consideration of the relevant issues, we find that
the agency established that appellant's appointment was
clearly conditional upon obtaining a top secret security
clearance. See Agency File, Tab 8. Also, there is no
dispute that appellant was denied a security clearance and
that his removal was based on that denial. See Agency
File, Tab 32.
Further, the agency afforded appellant due process
rights in denying him the security clearance. The July 18,
1983 memorandum apprising appellant of the initial security
clearance denial stated that appellant was being afforded
procedural rights pursuant to Department of Defense Directive
5200.2-R, "DOD Personnel Security Program" (December 20,
1979). The memorandum set forth the specific charges of
appellant's falsification and his initial denial when
confronted in the course of an agency investigation into
the matter. The memorandum notified appellant that he would
be allowed fifteen days to submit a written reply and that
a fifteen day extension could be granted for good reason.
It further notified appellant that a written response would
be made to his submission and that, if dissatisfied with
the response, he had the right to appeal to the director
of the agency. Additionally, the memorandum informed
3/ Because of this finding, we deem it unnecessary to
address the agency's remaining allegations of error by the
presiding official.
-4-
appellant of the location of the information upon which the
agency relied in denying his security clearance and advised
him of how to obtain release of that information. See
Appeal File, Tab 2.
On October 12, 1983, appellant submitted a written
response to the charges. Id. On October 31, 1983, the
Director of Security affirmed the denial. Id. Appellant
then appealed on November 17, 1983, to the agency director,
who reaffirmed the denial on December 29, 1983. Id.
We conclude, therefore, that the agency's charge is
sustained.
Accordingly, the initial decision of the presiding
official is hereby REVERSED, and the agency's removal action
is SUSTAINED.
This is the final order of the Merit Systems Protection
Board in this appeal. 5 C.F.R. § 1201.113(c).
The appellant is hereby notified of the right under
5 U.S.C. § 7703 to seek judicial review, if the Court has
jurisdiction, of the Board's action by filing a petition
for review in the United States Court of Appeals for the
Federal Circuit, 717 Madison Place, N.W., Washington, D.C.
20439. The petition for judicial review must be received
by the court no later than thirty (30) days after the
appellant's receipt of this order.
FOR THE BOARD:
Robert E Taylor
Clerk of the Board
Washington, D.C.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing OPINION
and ORDER was sent by certified mail this date to the
following:
Louis Gilden
Attorney at Law
317 N. 11th Street, Suite 1220
St. Louis, Missouri 63125
by regular mail to:
David W. Griffin
1046-B Vuecrest Lane
St. Louis, Missouri 63101
Fredye L. Eckhart
DMA Aerospace Center (CO)
3200 South Second Street
St. Louis, Missouri 63118
Office of Personnel Management
Attn: Appellate Policies Branch
Room 7459
1900 E Street, N.W.
Washington, D.C. 20415
Merit Systems Protection Board
St. Louis Regional Office
by hand to:
Office of the Special Counsel
Merit Systems Protection Board
1120 Vermont Avenue, N.W.
Washington, D.C. 20419
(Date)
Robert E. Taylor
Clerk of the Board
Washington, D.C.
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
)
DOCKET NUMBER
J. DUDLEY REESE,
)
AT07528510163
appellant,
)
)
V.
)
)
DEPARTMENT OF THE ARMY,
)
agency.
)
DATE
AUG 8 1985
)
BEFORE
Herbert E. Ellingwood, Chairman
Maria L. Johnson, Vice Chair
Dennis M. Devaney, Member
OPINION AND ORDER
Appellant petitioned for appeal from an agency action
removing him from the position of General Engineer, GS-12,
at the United States Army Missile Command, Redstone Arsenal,
Alabama. The removal was effective November 9, 1984, and
was based on the revocation of appellant's security
clearance.
In an initial decision dated March 18, 1985, a presiding
official from the Board's Atlanta Regional Office upheld
the agency action. The presiding official determined that
the agency had valid reasons for revoking appellant's
security clearance, / and that such a clearance was
necessary for appellant's position. See Initial Decision
(I.D.) at 3-5.
/ The presiding official noted that the agency revoked
appellant's security clearance due to appellant's use of
intoxicating beverages to excess, and due to his medical
condition which could cause a defect in judgment. Initial
Decision (I.D.) at 3.
-2-
Appellant has petitioned for review of the initial
decision.
Subsequent to the issuance of the initial decision,
the Board issued its decision in Egan V. Department of
the Navy, MSPB Docket No. SE07528310257 ( August 08
1985), in which we considered the extent of Board
jurisdiction in cases involving the revocation of security
clearances. In Egan, supra, the Board determined that
it had limited authority to review adverse actions based
on the revocation or denial of a security clearance. We
held that the Board has no authority to review the agency's
security clearance determination. Egan, supra, at 12.
The Board further stated that it will limit its review of
security clearance determinations to ascertaining that the
agency has established the following: (1) the requirement
of a security clearance for the position in question; (2)
the loss or denial of the security clearance; and (3) the
granting of minimal due process rights to the employee.
The Board will review the procedures utilized by an agency
to ensure that the agency afforded an appellant the following
minimum due process rights: notice of the denial or
revocation; the reason(s) upon which the negative decision
was based; and an opportunity to respond. Id. at 12-13.
In the instant case, the appellant stipulated that a
security clearance was required for his position. I.D.
at 2. It is clear from the record that appellant's security
clearance was revoked, and appellant's removal resulted from
this revocation. Appeal File, tab 3, attachments G, J-7,
J-14. Further, the agency afforded appellant his due process
rights in revoking his security clearance. The agency
clearly provided appellant with notice of the revocation,
the reasons underlying the revocation, and an opportunity
to respond. See Appeal File, tab 3, attachments E, F,
G, J-2, J-4, J-5, J-6, J-7. Therefore, we find that the
agency charge is supported by the preponderance of the
evidence and that the agency removal action will promote
the efficiency of the service.
-3-
Accordingly, the petition for review is DENIED. This
is the final order of the Merit Systems Protection Board'
in this appeal. The initial decision shall become final
within five (5) days from the date of this order. 5 C.F.P. §
1201.113(b).
The appellant is hereby notified of the right under
5 U.S.C. § 7703 to seek judicial review, if the Court has
jurisdiction, of the Board's action by filing a petition
for review in the United States Court of Appeals for the
Federal Circuit, 717 Madison Place, N.W., Washington, D.C.
20439. The petition for judicial review must be received
by the court no later than thirty (30) days after the
appellant's receipt of this order.
FOR THE BOARD:
Robert E. Taylor
Clerk of the Board
Washington, D.C.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing OPINION
and ORDER was sent by certified mail this date to the
following:
Herbert A. Ivey
AFGE, Local 1858
Building 7132
Redstone Arsenal, Alabama 35898-0001
by regular mail to:
J. Dudley Reese
8003 Benaroya Lane, S.W.
Apt. L-104
Huntsville, Alabama 35802
Donald B. Hankins
U.S. Army Missile Command
Attn: AMSMI-JMG
Redstone Arsenal, Alabama 35898-5070
Office of Personnel Management
Attn: Appellate Policies Branch
Room 7459
1900 E Street, N.W.
Washington, D.C. 20415
Merit Systems Protection Board
Atlanta Regional Office
by hand to:
Office of the Special Counsel
Merit Systems Protection Board
1120 Vermont Avenue, N.W.
Washington, D.C. 20419
(Date)
Robert E. Taylor
Clerk of the Board
Washington, D.C.
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
)
DOCKET NUMBER
THOMAS M. EGAN,
)
SE07528310257
appellant,
)
)
V.
)
)
DEPARTMENT OF THE NAVY,
)
DATE:
AUG 8 1985
agency.
)
)
BEFORE
Herbert E. Ellingwood, Chairman
Maria L. Johnson, Vice Chair
Dennis M. Devaney, Member
OPINION AND ORDER
Appellant was removed from his position as Laborer
Leader with the Trident Naval Refit Facility on the basis
that he was unable to obtain a security clearance, which
was a requirement of his position. The agency specified
1/ The position description for Laborer Leader specifically
stated that the "TRIDENT Refit Facility Bangor, (TRIREFAC)
Bremerton, Washington - is an immediate maintenance
activity (IMA) developed to support quick turnaround repair,
replenishment and systems checkout of the TRIDENT submarine
over its extended operating cycle." See Agency Exhibit,
Tab 4. The responsibilities of appellant's position, which
fell under the auspices of the Repair Department of the
facility, included the inspection of work, the change of
"work plans, work assignments, and methods as necessary to
reduce or control costs and maintain schedule." Id. The
position description further stated that appellant's working
conditions included "work[ing] in shop and waterfront areas
and aboard ships/submarines." Id.
-2-
that maintenance of a security clearance was a mandatory
condition of employment and that the Naval Civilian Personnel
Command denied appellant's clearance based on the results
of a background investigation concerning appellant's
reliability, trustworthiness, and judgment. Appellant
appealed his removal to the Board's Seattle Regional Office.
Following the parties' submission of evidence in lieu of
a hearing, the presiding official found that the Board had
authority to review the propriety of the denial of the
security clearance under Hoska V. Department of the Army,
677 F.2d 131 (D.C. Cir. 1982), and Bogdanowicz V.
Department of the Army, MSPB Docket No. PH0 75 28110587
(September 27, 1983). The presiding official then found
that the agency failed to establish that its denial of
appellant's security clearance was reasonable and therefore
reversed the agency action.
In its petition for review, the agency: (1) challenged
the Board's jurisdiction and authority to review the merits
of the security clearance denial and the removal actions;
(2) alleged error by the presiding official in her assessment
of the evidence submitted; and (3) contended that, even
assuming arguendo that the Board had jurisdiction over
the merits of the case and determined that the agency failed
to support its action, the appropriate remedy was not to
reverse the removal but to remand the case to the agency
to correct any errors. In response to the agency's petition
for review, appellant asserts the correctness of the initial
decision.
The agency's petition for review is GRANTED.
ISSUES
This case and a number of others pending before the
Board raise significant issues of law relating to appeals
of actions taken under 5 U.S.C. § 7511 et seq. and based
-3-
on the agency's revocation or denial of the employee's
security clearance. Consequently, by notices published in
the Federal Register, the Board solicited amicus briefs
on those issues. See 50 Fed. Reg. 2355 (January 16,
1985); 49 Fed. Reg. 48623 (December 13, 1984). In response
to the Federal Register notices, some twelve briefs were
submitted for the Board's consideration. Requests for oral
argument by the Office of Personnel Management (OPM) and
the National Security Agency are hereby DENIED.
The issues on which amicus briefs were solicited were:
I. Scope of the Board's Authority in
Security Clearance cases:
A. Whether, in an adverse action case over
which the Board has jurisdiction, and which is
based substantially on the agency's revocation
or denial of a security clearance, the Board has
the authority to review the agency's stated reasons
for revoking or denying the security clearance.
Specifically address whether any law, rule, or
regulation concerning national security expressly
or impliedly restricts the Board from reviewing
the agency's stated reasons for revoking or denying
the security clearance.
B. Whether, if the Board has such authority,
the Board's scope of authority extends to ordering
the agency to reinstate the security clearance.
C. When an agency wishes to base an action
listed in 5 U.S.C. § 7512 on the revocation of
a security clearance, may it do so pursuant to
5 U.S.C. § 7513, or is 5 U.S.C. § 7532 the
exclusive basis for such an action?
II. Alternative Remedies
A. If the Board's authority does not extend
to ordering reinstatement of the security
clearance, what alternative remedies may the Board
order?
2/ However, the Board has accepted and considered the
June 25, 1985 supplemental amicus brief submitted by OPM.
-4-
DISCUSSION
I.
A. Whether, in an Adverse Action Case Over Which the Board
has Jurisdiction, and Which is Based Substantially on the
Agency's Revocation or Denial of a Security Clearance, the
Board has the Authority to Review the Agency's Stated Reasons
for Revoking or Denying the Security Clearance
The Washington Legal Foundation and all federal agencies
which responded to the Federal Register notices contend that
the Board has no authority to review the underlying reasons
upon which a negative security clearance determination is
based. They contend that while the Board has jurisdiction
over adverse actions which are taken under 5 U.S.C. § 75123
and which are based upon negative security clearance
determinations, the Board has no express or implied legal
authority to review security clearance determinations. They
further assert that review by the Board in those cases should
be limited to procedural due process concerns.
The American Civil Liberties Union (ACLU) of Washington
and the ACLU of Washington Foundation, as well as the federal
employee unions which responded, assert that the Board has
the authority to review security clearance determinations.
They urge that the Board review the underlying reasons for
the security clearance determination in order to ascertain
whether the agency has shown the necessary nexus between
the employee's conduct upon which the security clearance
determination was based and the employee's ability to
safeguard confidential information. They contend that if
Congress had intended to exclude security clearance determina-
3/ Section 7512 contains a list of those adverse actions
within the scope of Chapter 75: removal, suspension for
more than 14 days, reduction in grade, reduction in pay,
and furlough of 30 days or less.
-5-
tions from review under 5 U.S.C. § 7512, it would have so
stated. They assert that the Board must address the under-
lying reasons for the determination in order to afford the
employee meaningful due process.
Statutory Background
The Board has statutory jurisdiction over removal
actions taken pursuant to 5 U.S.C. Chapter 75, and regulatory
jurisdiction under 5 C.F.R. Part 752. Moreover, by 5 U.S.C.
§ 1205, the Board is mandated to adjudicate all matters
within its jurisdiction. Employees are given the right to
invoke the Board's jurisdiction over any appealable action
by virtue of 5 U.S.C. § 7701.
In addition, 5 U.S.C. § 7532 creates an expedited
procedure for termination of employees by an agency head
on national security grounds. While section 7512(A)
specifically excludes from Board review actions taken
pursuant to section 7532, it does not define the scope of
the Board's authority, if any, in adverse actions based on
security clearance considerations and not taken under that
section.
The provisions of 5 U.S.C. §§ 7512 and 7513 involve,
inter alia, the Board's jurisdiction over the ultimate
adverse action taken by an agency. They do not specifically
address the extent of the Board's review of the underlying
determinations upon which the adverse action is based. Thus,
these statutory provisions do not provide a sufficient basis
for the Board to determine the extent of its review of the
underlying security clearance determination over which it
is not plainly given jurisdiction.
The legislative history of the Civil Service
Reform Act of 1978 (hereinafter referred to as the "Reform
Act"), Pub. L. No. 95-454, 92 Stat. 1111 (codified in
various sections of title 5, United States Code), also
-6-
does not address the extent of the authority Congress
intended the Board to exercise in reviewing revocations or
denials of security clearances which result in Chapter 75
actions.
The legislative history of section 7512 states that
"[a]dditional exceptions conforming this section [7512]
to other provisions of title V cover employees subject to
section 7532 (national security)" as well as other categories
of employees. See S. Rep. No. 969, 95th Cong., 2nd Sess. 4,
reprinted in 1979 U.S. Code Cong. & Ad. News 2723, 2772.
The legislative history does not include an identification
of "other categories of employees" not covered by section
7512, and there is no mention of the coverage of security
clearance denials under that section. The legislative
history also makes it clear that certain agencies, positions,
and formerly appealable actions are excluded from the
coverage of various sections of the Reform Act, including
section 7512. See H.R. Rep. No. 1717, 95th Cong., 2d
Sess. 4, reprinted in U.S. Code Cong. & Ad. News 2860,
2861 and H.R. Rep. No. 1403, 95th Cong., 2d. Sess. (1978).
It contains no further exceptions or statements, however,
which address the security clearance issue, either directly
or indirectly. Thus, it cannot be determined from the
legislative history of the pertinent statutory provisions
to what extent Congress intended the Board to exercise
authority in section 7512 adverse actions based on security
clearance determinations.
Case Law
The only federal appellate court which has reviewed
a Board decision in an adverse action based on a security
clearance determination is the Court of Appeals for the
District of Columbia, in Hoska V. Department of the Army,
supra.
-7-
In Hoska, the employee was removed from his position
subsequent to the agency's revocation of his security
clearance. The presiding official reviewed the merits of
the revocation and sustained the agency action. The initial
decision became a final decision of the Board when the
employee failed to file a petition for review with the Board
within the 35-day time limit. On the employee's appeal,
the court found that the agency action was based on unsubstan-
tiated hearsay, which did not amount to substantial evidence,
and that the agency failed to show a rational nexus between
the employee's conduct and his ability to safeguard
classified information. Accordingly, the court reversed
the removal action and remanded the case to the Board "to
order appropriate relief, including reissuance of [the
employee's] security clearance, reinstatement, back pay,
and such other relief as may be warranted." Hoska, supra,
at 145.
It is significant to note that, at no point in the
Hoska decision did the court expressly address the Board's
authority to review the underlying reasons for the agency's
security clearance determination. The court merely reviewed
those issues already decided by the presiding official,
without specifically determining the propriety of that
degree of Board review, and decided the case under the
standard of review applicable to the court. Thus, to the
extent that appellant relies upon Bogdanowicz and other
Board cases which cite to Hoska 4 for the proposition
that the Board has the authority to review the propriety
Moreover, as a decision issued by the U.S. Court of
Appeals for the District of Columbia Circuit, Hoska is
persuasive authority only and not precedential for Board
decisions. See 5 U.S.C. § 7703, granting a right of appeal
from final Board decisions to the U.S. Court of Appeals for
the Federal Circuit.
-8-
of the agency's revocation or denial of a security clearance,
we find this reliance misplaced and, in light of our findings,
infra, now overrule that holding.
In sum, we find that neither the statutory framework,
nor previous case law resolves the issues raised in this
case. We turn now to a discussion of additional authorities.
Foremost among other considerations is the authority
to grant or deny a security clearance, which is committed
by law exclusively to the employing agencies within the
executive branch of government. Executive Order 10450,
reprinted in 5 U.S.C. § 7311 note, provides inter alia,
that "[t]he head of each department
shall be responsible
for establishing and maintaining
an effective program
to insure that the employment and retention in employment
of any civilian officer or employee within the department
or agency is clearly consistent with the interests of
national security."
The commitment of security clearance matters to agency
discretion is analogous to the deference with which courts
have treated matters tr:ditionally within military purview.
When faced with requests for review of such matters, courts
have deferred to the military's primary authority and have
refused review absent an allegation of the deprivation of
a constitutional right. In Mindes V. Seaman, 453 F. 2d
197 (1971), the Court of Appeals for the Fifth Circuit
reviewed those internal military affairs which would normally
not be subjected to judicial review. In doing so, the court
pointed to a number of considerations militating against
judicial review: peculiar military expertise; concern over
stultifying the vital missions of the military; and judicial
inclination to commit the matter in question to the
military. Id. at 200-201.
These considerations were weighed against the nature
and strength of the appellant's claim, and the potential
of injury if review were denied. On balance, the
-9-
court found that there was a "judicial policy akin to
comity". Id. at 199.
Other courts have adopted this same approach to military
matters. See, e.g., Oestereich V. Selective Service
Systems, 393 U.S. 233 (1968) (exemption from selective
service); Burns V. Wilson, 346 U.S. 137 (1953) (court
martial conviction); Orloff V. Willoughby, 345 U.S. 83,
93-94 (1953) (review of military assignments). See also
Zimmerman V. Department of the Army, 755 F.2d 156 (Fed.
Cir. 1985) (loss of reserve membership); Thornton V.
Coffey, 618 F.2d 686, 691 (10th Cir. 1980) (promotions);
Yee V. United States, 512 F.2d 1383 (Ct. Cl. 1975)
(promotions).
Despite the broad jurisdictional grants to the Board
in 5 U.S.C. Chapter 75, the Board has recognized restraints
in the extent of the exercise of this jurisdiction in appro-
priate circumstances. For example, the Board has declined
to consider the merits of military personnel decisions
resulting in an employee's loss of membership in the
active reserve. See Buriani V. Department of the Air
Force, MSPB Docket No. SF07528410637 at 2 n.2 (December 6,
1984), appeal pending, No. 85-1890 (Federal Circuit);
Schaffer V. Department of the Air Force, 8 MSPB 631
(1981), aff'd, 694 F.2d 281 (D.C. Cir. 1982). See
5/ Generally in adverse action cases, the Board, in
determining whether the agency has proved its case by prepon-
derant evidence as required by 5 U.S.C. § 7701 (c) (1) (B), has
the authority to review the merits of the case, including the
merits of the underlying reasons upon which the adverse
action is based. See Ketterer V. U.S. Department of
Agriculture, 2 MSPB 459, 462 (1980) (where the employee's
refusal to accept reassignment results in removal, the Board
will review the merits of the agency's stated basis for the
reassignment upon the employee's challenge of the agency's
basis); Cf. Losure V. Interstate Commerce Commission,
2 MSPB 361, 366 (1980) (Board will review the merits of the
agency's stated reasons for a reduction-in-force action upon
the employee's presentation of evidence challenging the
agency's reasons).
-10-
also Zimmerman, supra, ("the Board does not have the
jurisdiction to examine military assignments and transfers").
Similarly, in adverse actions based on criminal
conviction, the Board does not re-examine the reasons behind
the conviction to determine the appellant's inmocence or
guilt. See Crofoot V. United States Government Printing
Office, 21 M.S.P.R. 248, 252 (1984), rev'd on other
grounds, 761 F. 2d 661, 665 (Fed. Cir. 1985). Neither does
the Board examine the reasons for bar decertification where
an employee is removed for failure to maintain bar membership.
See McGean V. National Labor Relations Board,
15 M.S.P.R. 49 (1983). These Board decisions are based upon
similar considerations to those outlined in Mindes. We
find that those considerations are relevant in the security
clearance context. In all these contexts, the underlying
actions, i.e., termination of reserve status, conviction
of a crime, and bar decertification, are committed to
appropriate procedures within the respective entities and,
additionally, involve determinations wherein the Board lacks
a specific grant of jurisdiction. Moreover, Zimmerman
Buriani, and Schaffer manifest a proper Board concern
against treading into areas which are sensitive by virtue
of their national security implications.
Present also in these contexts is a mechanism by which
the employee could obtain review of the underlying actions.
In Rolles V. Civil Service Commission, 512 F. 2d 1319
(1975), for example, the Court of Appeals for the District
of Columbia remanded to the Civil Service Commission an
appeal by an employee who had been terminated after loss
of military reserve status. Stressing that the only issue
before it was the legality of the dismissal, and not the
employee's reserve status, the court nevertheless held that
what it found repugnant to due process was that "nowhere
in the military or civilian proceeding was Rolles afforded
the chance to refute the charges set forth in reputation-
damaging detail
11
Id. at 1321.
-11-
The application of these considerations to the Board's
review of security clearance issues leads us to conclude that
a similar approach is proper here. We begin with the fact
that an adverse action based on the loss of a security
clearance is a bifurcated proceeding in which the Board's
explicit authority extends only to the ultimate adverse
action. If the Board were to exercise complete review over
the underlying security clearance determination, it would
inevitably be faced with agency exposition of highly
sensitive materials and Board determinations on matters of
national security. We find that the underlying national
security considerations inherent in a security clearance
determination involve such a degree of sensitivity that we
should not infer jurisdiction over that determination,
particularly in light of Executive Order 10450, which commits
such actions to agency discretion
Further, in those determinations concerned with reserve
status, criminal culpability, and bar decertification, due
process procedures and related expertise are reposed in the
particular entity rather than the Board. In this regard,
the court in Greene V. McElroy, 254 F.2d 944, 949 (D.C.
Cir.), rev'd on other grounds, 360 U.S. 479 (1958),
pointed out:
[T]he Secretary of the Navy has, and of
necessity must have, wide latitude in designating
persons qualified for access to classified defense
information in situations like the present--
namely, where the problem relates to the selection
of persons to be given that information for the
purpose of designing or producing for the Government
weapons or other defense materials. Authority of
that sort is a necessary adjunct to the power and
duty to defend the security of the nation
6/ The employee, of course, is not precluded from pursuing
any available right to judicial review of the agency's
negative security clearance determination.
-12-
Moreover, as set out in Mindes, supra, the
countervailing factors relating to the nature of the claim
and potential for injury to the appellant are addressed to
the extent that there is present within the agency or the
applicable entity a procedure for affording at least minimal
due process protections, i.e., notice of the agency's
determination, a statement of its reasons in support of the
determination, and an opportunity for the affected individual
to be heard. See DeSarno V. Department of Commerce,
761 F. 2d 657, 660 (Fed. Cir. 1985) Doe V. Casey, 36
F.E.P. 1265, 1269 (D.D.C. 1985); Rolles, supra, at 1321.
See also Greene V. McElroy, 360 U.S. 474, 50 2 (1958).
Cf. Cleveland Board of Education V. Loudermill, 1 05
S.Ct. 1487, 1495 (1985), citing Arnett V. Kennedy,
416 U.S. 134, 170-71 (1974) (minimal due process protections
held applicable to termination of tenured state employees).
Finally, we must recognize, in construing the breadth
of the Board's jurisdiction under Chapter 75, that we are
not a court of general jurisdiction. The Board has no
Article III status and is purely a creation of statute. See
Douglas V. Veterans Administration, 5 MSPB 313, 316
(1981).
In sum, we hold that, in an adverse action over which
the Board has jurisdiction and which is based substantially
on the agency's revocation or denial of a security clearance,
the Board has no authority to review the agency's stated
reasons for the security clearance determination. However,
the Board will review the procedures utilized by the agency
to ensure that the agency afforded the appellant procedural
due process. We further hold that the minimal due process
rights that must be afforded the employee upon the agency's
denial or revocation of a security clearance are: notice
of the denial or revocation; a statement of the reason(s)
-13-
upon which the negative decision was based; and an
opportunity to respond.
The nature of Board review in such cases, therefore,
will be limited to determining that the agency has
established the following: (1) the requirement of a security
clearance for the position in question; (2) the loss or
denial of the security clearance; (3) and the granting of
minimal due process protections to the employee.
B. Whether the Board's Scope of Authority Extends to
Ordering the Agency to Reinstate the Security Clearance
Based on the premise that the Board lacks authority
to review security clearance determinations, the federal
agencies assert in their amicus briefs that the Board also
lacks authority to order reinstatement of a security clear-
ance. On the other hand, the federal employee unions contend
that if the Board can review security clearance decisions,
it necessarily follows that the Board may order reinstatement
where appropriate.
For the reasons which led the Board to find that it has
no authority to review the merits of security clearance
determinations, the Board likewise finds that it has no
authority to order reinstatement of a security clearance.
Ordering reinstatement of a security clearance presumes the
trustworthiness of the employee to hold a security clearance.
Since the Board has specifically held herein that it lacks
the authority to review the agency's security clearance
determinations, ordering reinstatement of the security
clearance would be clearly inconsistent with that holding.
We therefore hold that the Board's scope of authority
does not extend to ordering the agency to reinstate an
employee's security clearance.
-14-
C. When an Agency Wishes to Base an Action Listed in
5 U.S.C. $ 7512 on the Revocation of a Security Clearance,
may it do so Pursuant to 5 U.S.C. § 7513, or is 5 U.S.C.
§ 7532 the Exclusive Basis for Such Action?
The amici basically agree that an action described
in 5 U.S.C. § 7512 and taken pursuant to 5 U.S.C. $ 7513
procedures is distinguishable from an action taken under
5 U.S.C. § 7532. They contend that a section 7512 adverse
action based on a security clearance determination may not
be appropriate for disposition under section 7532.
Under section 7532(a), the head of an agency is
empowered to suspend an employee without pay whenever the
agency head determines that such action is necessary in the
interests of national security. The suspended employee is
entitled merely to notification of the reasons for the
suspension. In Cole V. Young, 351 U.S. 536, 546 (1956),
the Court held that, absent "an immediate threat of harm
to the 'National Security,'" normal removal procedures are
adequate, and the summary powers of section 7532 need not
be invoked. The Court interpreted the term "national
security" to apply "only to those activities of the
Government that are directly concerned with the protection
of the Nation from internal subversion or foreign aggression,
and not those which contribute to the strength of the Nation
only through their impact on the general welfare." Id. at
544.
The clear implication of the Court's holding in Cole
is that removals under both sections 7512 and 7532 can be
appropriate. The Board's conclusion above, that it will
not review the merits of the security clearance determination
when reviewing a removal under section 7513 also assumes
the existence of such action. We conclude, therefore, that
section 7532 is not the exclusive basis for removals based
upon security clearance revocations.
-15-
II.
A. If the Board's Authority Does Not Extend to Ordering
Reinstatement of the Security Clearance, What Alternative
Remedies May the Board Order?
In the event the Board finds that a security clearance
revocation occurred without the minimal procedural due
process protections set out above, it must determine the
nature of the relief to be afforded. Those amici who argue
that the Board has no authority to order reinstatement of
a security clearance propose that the Board order alternative
remedies including: directing the agency to reconsider its
decision in accordance with proper procedures; requiring
the agency to search for alternative non-sensitive positions
at the same or a lower grade level occupied by the appellant;
and compelling the agency to place the appellant in a
position which requires no security clearance. The amici
who contend that the Board has the authority to order
reinstatement argue that alternative remedies are inadequate
to restore the appellant to the status quo and seriously
compromise the Board's remedial authority.
However, consistent with our finding that our
jurisdiction is limited to the removal per se, and does
not extend to the security clearance determination, we
hold that where the agency has failed to afford an appellant
procedural due process rights in a negative security clear-
ance determination, its action is not in accordance with
law, and the appropriate remedy is to reverse the adverse
action and to order the agency to restore the appellant to
pay status / See 5 U.S.C. § 7701 (c) (2) (c). If the agency
7/ Cf. Karpoff V. United States, 142 Ct. Cl. 93, 98
(1958) (upon reversal of its earlier determination that the
[Footnote continued on next page. ]
-16-
elects to re-initiate the adverse action based upon the
negative security clearance determination, the agency must
demonstrate that the position in question required a security
clearance, that the security clearance was denied or revoked
and that it afforded the employee the minimal due process
protections consistent with this Opinion and Order. See
Doe V. Casey, supra, at 1272 (employee removed in
violation of agency's procedures ordered returned to
administrative leave status, which he occupied prior to
removal, until granted procedural due process).
APPLICATION
In the instant case, the agency challenged the presiding
official's authority to determine the merits of its denial
of the security clearance. Consistent with our holding that
the Board is without authority to review the merits of
security clearance determinations, we find that the presiding
official erred in reviewing the merits of the agency's denial
of the security clearance. / We further find that the agency
[Footnote continued from previous page. ]
the employee was unsuitable for government service, the Civil
Service Commission (the predecessor of the Merit Systems
Protection Board) should have either reinstated the employee
or restored him to duty). However, Karpoff is distinguish-
able from a security clearance case in two important respects:
(1) the Commission in Karpoff was acting pursuant to the
delegated authority of the employing agency in determining
the employee's suitability; and (2) Karpoff did not involve
the denial or revocation of a security clearance, merely
a determination of suitability for federal employment.
8/ Because of this finding, we deem it unnecessary to address
the agency's remaining allegations of error by the presiding
official.
-17-
satisfied its burden of proof consistent with this Opinion
and Order.
In this regard, we find that the agency designated
appellant's position as non-critical sensitive and thus
that the agency established the requirement of a security
clearance for the position in question. See Affidavit of
Richard J. Noreika, Appeal File, Tab 12.
Second, there is no dispute that appellant's security
clearance was denied by the agency and that his removal was
based on that denial. See Agency Exhibits, Tabs 7, 8.
The agency's notice of proposed removal dated June 17, 1983,
stated in part that "maintenance of a security clearance
is a mandatory condition of employment" and that appellant
had "not been able to perform the full scope of [his]
duties, including not being able to go aboard the submarines,"
because of his lack of a security clearance. Agency Exhibit,
Tab 7. The notice further stated that reassignment was not
possible because there were no other positions in the
facility which did not require access to classified materials
and that, base: on the nature of the facility's mission, "it
would not be possible to restructure or sanitize the job
environment to. eliminate the requirement for a security
clearance." Id. The agency's decision letter reiterated
these reasons for appellant's removal based on his failure
to meet the requirements of his position and further stated
that there was "no viable appropriate remedy other than
removal." See Agency Exhibits, Tabs 8, 12.
Third, the record establishes that appellant was given
due process protections consisting of notice of the denial
of the security clearance, a statement of reasons for the
denial, and an opportunity to be heard. By notice dated
February 16, 1983, the agency informed appellant that it
intended to deny his security clearance. See Agency
Exhibit, Tab 5. In the notice, the agency stated as the
-18-
bases for its action, court and police records, which
indicated that appellant had a lengthy history of problems
with the law, and appellant's signed, sworn statement, which
he furnished during an interview with a special agent of
the Defense Investigative Service. Id. Also, in the
notice the agency provided appellant with an opportunity
to reply to the proposed denial of his security clearance.
Id. Appellant availed himself of that opportunity and
submitted evidence in support of his explanation of the
incidents cited in the agency notice, character references,
and certificates indicating his participation in alcoholic
recovery programs. 10 / See attachments to petition for
appeal, Tab 1. The agency letter of May 27, 1983, notified
appellant of its determination that he was not eligible to
occupy a sensitive position and of its decision to deny the
security clearance. Id. It further notified appellant
of his right to appeal that decision to higher level agency
authority. Id.
We therefore find that the agency has sustained the
reasons for its action by a preponderance of the evidence
and that the removal action would promote the efficiency
of the service.
9/ Those records showed that for the period extending from
1966 to 1982, appellant was charged with a series of offenses
including: driving with a suspended or revoked license;
possession of stolen property; carrying a concealed weapon;
carrying a loaded firearm; disturbing the peace, resisting
arrest; assault; battery; disorderly conduct; failure to
comply with a court order; and failure to appear at a court
proceeding. Appellant was convicted of several of those
offenses and served terms of imprisonment.
10 / Although appellant submitted evidence indicating that
he was a recovered alcoholic, appellant did not assert the
affirmative defense of handicap discrimination based on
alcoholism, and the agency based neither the security
clearance denial nor the removal action on that condition.
Therefore, we are not presented with the issue of handicap
discrimination.
-19-
Accordingly, the initial decision is REVERSED, and the
agency's removal action is SUSTAINED.
This is the final order of the Merit Systems Protection
Board in this appeal. 5 C.F.R. § 1201.113(c).
The appellant is hereby notified of the right under
5 U.S.C. $ 7703 to seek judicial review, if the court has
jurisdiction, of the Board's action by filing a petition
for review in the United States Court of Appeals for the
Federal Circuit, 717 Madison Place, N.W., Washington, D.C.
20439. The petition for judicial review must be received
by the court no later than (30) days after the appellant's
receipt of this order.
FOR THE BOARD:
Taylor JuyS
Clerk of the Board
Washington, D.C.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing OPINION
and ORDER was sent by certified mail this date to the
following:
Kenneth G. Walsh
Business Representative
International Association of Machinists
and Aerospace Workers, District 160,
Local Lodge 282
822 Park Avenue
Bremerton, Washington
98310
by regular mail to:
Thomas M. Egan
2903 Greendale, S.E.
Port Orchard, Washington
98366
Harry K. Tebbott
Attorney Advisor
Department of the Navy
Office of the Chief of Naval Operations,
OP-143C
Washington, D.C.
20415
Joseph A. Morris
General Counsel
Office of Personnel Management
1900 E Street, N.W.
Washington, D.C.
20415
Charles M. Henderson
American Civil Liberties Union of
Washington and American Civil Liberties
Union of Washington Foundation
1720 Smith Tower
Seattle, Washington 98104
Stuart A. Kirsch
Staff Counsel
American Federation of Government
Employees, AFL-CIO
510 Plaza Drive, Suite 2510
College Park, Georgia 30349
Gregory E. Jackson, Attorney
Operations and Administration Division
Office of the Executive Legal Director
U.S. Nuclear Regulatory Commission
Washington, D.C.
20555
-2-
Vito T. Potenza
Deputy Assistant General Counsel
Administration
National Security Agency
Central Security Service
Fort George G. Meade, Maryland 20755
Robert M. White
White and Selkin
Attorneys and Counsellors at Law
1110 United Virginia Bank Building
Five Main Plaza East
Norfolk, Virginia 23510
Daniel J. Popeo
George C. Smith
1705 N Street, N.W.
Washington, D.C. 20036
Patrick J. Riley
Deputy General Counsel
National Federation of Federal Employees
1016 - 16th Street, N.W.
Washington, D.C. 20036
Leonard Niederlehner
Acting General Counsel
Department of Defense
Pentagon, Room 3E980
Washington, D.C. 20301-1620
Elizabeth R. Rindskopf
General Counsel
National Security Agency
9800 Savage Road
Fort Meade, Maryland 20755
Robert L. Fletcher
President
AFGE Local 1858
Building 7132
Redstone, Alabama 35809
Merit Systems Protection Board
Seattle Regional Office
Office of Personnel Management
Attn: Appellate Policies Branch
Room 7459
1900 E Street, N.W.
Washington, D.C.
20415
-3-
by hand to:
Office of the Special Counsel
Merit Systems Protection Board
1120 Vermont Avenue, N.W.
Washington, D.C.
20419
8/8/85
(Date)
Robert E. Taylor
Dink Chang for
Clerk of the Board
Washington, D.C.