[Federal Register Volume 76, Number 185 (Friday, September 23, 2011)]
[Notices]
[Pages 59171-59172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24439]


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MERIT SYSTEMS PROTECTION BOARD


Notice of Opportunity To File Amicus Briefs

AGENCY: Merit Systems Protection Board.

ACTION: Notice.

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Overview Information

    Merit Systems Protection Board (MSPB or Board) Provides Notice of 
Opportunity To File Amicus Briefs in the Matters of Corry B. McGriff v. 
Department of the Navy, MSPB Docket Number DC-0752-09-0816-I-1; 
Alexander Buelna v. Department of Homeland Security, MSPB Docket Number 
DA-0752-09-0404-I-1; Joseph Gargiulo v. Department of Homeland 
Security, MSPB Docket Number SF-0752-09-0370-I-1; and John Gaitan v. 
Department of Homeland Security, DA-0752-10-0202-I-1.

SUMMARY: These cases involve employees who were required to have 
security clearances and were

[[Page 59172]]

indefinitely suspended from their positions pending determinations 
concerning whether their security clearances should be revoked. The 
Board has recognized that, under certain circumstances, an agency may 
indefinitely suspend an employee based upon the suspension of access to 
classified information or pending the agency's investigation regarding 
that access, where the access is a condition of employment. See, e.g., 
Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ] 13 
(2010); Jones v. Department of the Navy, 48 M.S.P.R. 680, 682, 689, 
aff'd as modified on recons., 51 M.S.P.R. 607 (1991), aff'd, 978 F.2d 
1223 (Fed. Cir. 1992). On appeal of such an action, the Board lacks the 
authority to review the merits of the agency's decision to suspend an 
employee's access to classified material. Department of the Navy v. 
Egan, 484 U.S. 518, 530-31 (1988).
    The Board may determine, however, whether the agency afforded an 
employee minimum due process with respect to the employee's 
constitutionally protected property interest in employment. See, e.g., 
Johnson v. Department of the Navy, 62 M.S.P.R. 487, 490-91 (1994); 
Kriner v. Department of the Navy, 61 M.S.P.R. 526, 531-35 (1994). In 
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985), 
the Court held that an agency's failure to provide a tenured public 
employee with an opportunity to present a response, either in person or 
in writing, to an appealable agency action that deprives him of his 
property right in his employment constitutes an abridgement of his 
constitutional right to minimum due process of law, i.e., prior notice 
and an opportunity to respond. In Gilbert v. Homar, 520 U.S. 924 
(1997), the Court explained, in a case involving the suspension of a 
state employee, how its due process analysis would apply to discipline 
short of termination.
    The Board may also review whether the agency provided the employee 
with the procedural protections set forth in 5 U.S.C. 7513 in taking an 
action. Egan, 484 U.S. at 530; see also Cheney v. Department of 
Justice, 479 F.3d 1343, 1344-45 (Fed. Cir. 2007); King v. Alston, 75 
F.3d 657, 661-63 (Fed. Cir. 1996). The Board applies a harmful error 
analysis in considering statutory violations. See, e.g., Ward v. U.S. 
Postal Service, 634 F.3d 1274, 1282 (Fed. Cir. 2011); Handy v. U.S. 
Postal Service, 754 F.3d 335, 337-38 (Fed. Cir. 1985).
    The cases thus present the following legal issues: (1) Should the 
Board apply the balancing test set forth in Homar, 520 U.S. 924, in 
determining whether an agency violates an employee's constitutional 
right to due process in indefinitely suspending him or her pending a 
security clearance determination; (2) If so, does that right include 
the right to have a deciding official who has the authority to change 
the outcome of the proposed indefinite suspension; (3) If the Board 
finds that an agency did not violate an employee's constitutional right 
to due process in this regard, how should the Board analyze whether the 
agency committed harmful procedural error in light of the restrictions 
set forth in Egan, 484 U.S. 518, on the Board's authority to analyze 
the merits of an agency's security clearance determination.
    Interested parties may submit amicus briefs or other comments on 
these issues no later than October 19, 2011. Amicus briefs must be 
filed with the Clerk of the Board. Briefs shall not exceed 30 pages in 
length. The text shall be double-spaced, except for quotations and 
footnotes, and the briefs shall be on 8\1/2\ by 11 inch paper with one 
inch margins on all four sides.

DATES: All briefs submitted in response to this notice shall be filed 
with the Clerk of the Board on or before October 19, 2011.

ADDRESSES: All briefs shall be captioned with the names of the parties 
and entitled ``Amicus Brief.'' Only one copy of the brief need be 
submitted. Briefs must be filed with the Office of the Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, 
DC 20419.

FOR FURTHER INFORMATION CONTACT: Matthew Shannon, Merit Systems 
Protection Board, Office of the Clerk of the Board, 1615 M Street, NW., 
Washington, DC 20419; (202) 653-7200; [email protected].

William D. Spencer,
Clerk of the Board.
[FR Doc. 2011-24439 Filed 9-22-11; 8:45 am]
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