{\rtf1\ansi\deff0\deftab720{\fonttbl{\f0\fswiss MS Sans Serif;}{\f1\fdecor\fcharset2 Symbol;}{\f2\fswiss\fprq2 System;}} {\colortbl\red0\green0\blue0;} \deflang1033\pard\plain\f0\fs17 \par No. 95-57 \par \par IN THE SUPREME COURT OF THE UNITED STATES \par \par OCTOBER TERM, 1995 \par \par NORMAN A. GERMINO, PETITIONER \par \par v. \par \par DEPARTMENT OF DEFENSE \par \par ON PETITION FOR A WRIT OF CERTIORARI \par TO THE UNITED STATES COURT OF APPEALS \par FOR THE FEDERAL CIRCUIT \par \par \par BRIEF FOR THE RESPONDENT IN OPPOSITION \par \par DREW S. DAYS, III \par Solicitor General \par \par FRANK W. HUNGER \par Assistant Attorney General \par \par FREDDI LIPSTEIN \par Attorney \par \par Department of Justice \par Washington, D.C. 20530 \par (202)514-2217 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par QUESTION PRESENTED \par \par Whether the Merit Systems Protection Board cor- \par rectly concluded that the National Security Agency \par complied with applicable procedural safeguards when \par it removed petitioner from employment because of the \par revocation of his required security clearance. \par \par (I) \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par TABLE OF CONTENTS \par \par Opinions below . . . .1 \par Jurisdiction . . . . 1 \par Statement . . . . 2 \par Argument . . . . 7 \par Conclusion . . . . 12 \par \par TABLE OF AUTHORITIES \par \par Cases: \par \par Department of Navy v. Egan, 484 U. S. 518(1988) .5,9 \par Jamil v. Secretary, Dep't of Defense, 910 F.2d 1203 \par (4th Cir. 1990) . . . . 10 \par United States v. Johnston, 268 U. S. 220 (1925) . . . . 8 \par Statutes and regulations: \par National Security Act of 1947,50 U.S.C. 403 . . . . 2 \par National Security Agency Act of 1959, Pub. L. No. \par 86-36, 73 Stat. 63 . . . . 3 \par 2,73 Stat. 63 . . . . 3 \par 6,73 Stat. 64 . . . . 7 \par 5 U.S.C. 7511(a)(l)(B) . . . . 4 \par 5U.S.C. 7512 . . . .4 \par 5 U.S.C. 7513 . . . . 5,6,7,9 \par 5 U.S.C. 7513(b) . . . . 8 \par 5 U.S.C. 7513(b)(l) . . . .8 \par 5 U.S.C. 7513(b)(2) . . . . 9 \par 5 U.S.C. 7513(b)(3) . . . .9 \par 5 U.S.C. 7513(b)(4) . . . . 9 \par 5U.S.C. 7701(a) . . . .4 \par 5 U.S.C. 7703(b)(l) . . . . 4 \par 50 U. S.C. 831 . . . . 2 \par 50 U. S. C. 832 . . . ..2,3 \par 50 U. S. C. 834 . . . . 2 \par Exec. Order No. 12,356, 3 C.F.R. 166(1982 comp.) . . .2 \par Exec. Order No.12,958, 60 Fed. Reg. 19,825(1995) . .2 \par \par (III) \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par IV \par \par Miscellaneous: \par \par Page \par \par Director of Central Intelligence Directive No. 1/14 \par (Nov. 1987) . . . . 2, 3, 10, 11 \par 60 Fed. Reg. (1995): \par p. 19,825 . . . . 2 \par p. 19,837 . . . . 3 \par p. 19,843 . . . . 2 \par National Security Agency/Central Security Service \par Personnel Management Manual 30-2 (Dec. \par 1991) . . . . 3, 4, 10 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par In the Supreme Court of the United States \par \par OCTOBER TERM, 1995 \par \par No. 95-57 \par \par NORMAN A. GERMINO, PETITIONER \par \par V. \par \par DEPARTMENT OF DEFENSE \par \par ON PETITION FOR A WRIT OF CERTIORARI \par TO THE UNITED STATES COURT OF APPEALS \par FOR THE FEDERAL CIRCUIT \par \par BRIEF FOR THE RESPONDENT IN OPPOSITION \par \par \par OPINIONS BELOW \par \par The opinion of the court of appeals (Pet. App. la- \par 8a) is unpublished, but the decision is noted at 52 \par F.3d 345 (Table). The decision of the Merit Systems \par Protection Board (Pet. App. 9a-32a) is reported at \par 61 M.S.P.R. 683. The decision of the administrative \par judge (Pet. App. 33a-49a) is unreported. \par \par JURISDICTION \par \par The judgment of the court of appeals was entered on \par April 5, 1995. The petition for a writ of certiorari was \par filed on July 3, 1995. The jurisdiction of this Court is \par invoked under 28 U.S.C. 1254(1). \par \par (1) \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 2 \par \par STATEMENT \par \par 1. The National Security Agency (NSA or agency) \par is an intelligence agency separately organized with- \par in the Department of Defense. The agency was \par established by Presidential Directive in October, \par 1952, and is responsible for conducting communi- \par cations and signals intelligence activities and for \par providing security for United States government \par communications. \par Congress has mandated that no person shall be \par employed by the agency or granted access to classi- \par fied information, unless such employment or access \par is "clearly consistent with the national security ." \par 50 U.S.C. 831. All NSA employees must, as a con- \par dition of NSA employment, be cleared for access to \par Sensitive Compartmented Information (SCI).1. The \par criteria for SCI access have been established by the \par Director of Central Intelligence (DCI) pursuant to \par the National Security Act of 1947, 50 U.S.C. 403, \par and Executive Order No. 12,356, 3 C.F.R. 166 (1982 \par comp.).2. See Director of Central Intelligence Director \par \par ___________________(footnotes) \par \par 1 SCI is not a statutory term, but instead describes a special \par access program developed by the Director of Central Intel- \par ligence. Congress recognized that NCI's mission involves \par highly sensitive cryptologic information (see 50 U.S.C. 832), \par and so it subjected that cryptologic information to restricted \par access programs designated by Executive Branch intelli- \par gence experts, including the Director of Central Intelligence \par (50 U.S.C. 834). Accordingly, the statute requires that all \par employees of NSA be eligible for access to classified informa- \par tion that, because of its sensitivity, is subject to restricted \par access programs. Ibid. \par 2 On October 15, 1995, Executive Order No. 12,958 will \par supersede Executive Order No. 12,356. See 60 Fed. Reg. \par 19,825, 19,843 (1995). Section 4.4 of Executive Order No. 12,958 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 3 \par \par tive No. 1/14 (Nov. 1987), Pet. C.A. Br. App. A43-A61 \par (DCI Directive).3. \par If questions are raised concerning an employee's \par suitability for continued access to classified informa- \par tion, the NSA Director or his designate must apply \par established criteria to evaluate the individual's clear- \par ance status. An employee whose access to SC I is \par revoked may be afforded an opportunity for appeal \par within the agency if the clearance authority deter- \par mines that such appeal would be "clearly consistent \par with the interests of the national security." DCI \par Directive Annex B, Pet. C.A. Br. App. A57. \par Because all NSA positions require access to SCI, \par NSA employees who lose their clearance for ac- \par cess to SCI must be removed from their positions. \par See 50 U.S.C. 832. Although the National Security \par Agency Act of 1959, Pub. L. No. 86-36, 73 Stat. 63, \par exempts NSA employees from the civil service laws \par (see 2, 73 Stat. 63), NSA employees faced with re- \par moval from their positions are afforded certain pro- \par cedural protections. Under the authority of Public \par Law No. 86-36, as delegated by the Secretary of \par Defense, the Director of NSA has promulgated \par regulations governing personnel matters. National \par Security Agency/Central Security Service Person- \par nel Management Manual (NSA/CSSPMM) 30-2. \par Chapter 370 of those regulations sets forth the \par general standards and procedures for removing an \par \par ___________________(footnotes) \par \par continues the authority of the DCI to establish special access \par programs pertaining to intelligence sources and methods. 60 \par Fed. Reg. 19,837 (1995). \par 3 "Pet. C.A. Br. App." refers to the appendix to the brief \par filed by petitioner in the court of appeals. "C.A. Jt. App. " \par refers to the joint appendix filed in the court of appeals. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 4 \par \par employee for cause. The regulations require that the \par employee be provided with notice of the proposed \par removal, including a statement outlining the specific \par charge; the opportunity to respond to the charge \par (including the right to representation by an attorney \par or other individual); and a written final decision \par outlining the reasons for the action if the employee \par is removed. NSA/CSSPMM 30-2, ch. 370, 4-7, 4-8, \par Pet. C.A. Br. App. A66-A68.4. \par Preference-eligible veterans, such as petitioner, \par who are employed by NSA are also entitled to appeal \par adverse NSA personnel actions to the Merit Systems \par Protection Board (MSPB). NSA/CSSPMM 30-2, ch. \par 370, 4-10.a, Pet. C.A. Br. App. A69; see 5 U.S.C. \par 7511(a)(l)(B), 7512, 7701(a). Final decisions of the \par MSPB are subject to review by the United States \par Court of Appeals for the Federal Circuit. 5 U.S.C. \par 7703(b)(l). \par 2. Petitioner was removed from employment as a \par language analyst at NSA following the agency's \par revocation of his clearance for access to SCI. The \par revocation of the clearance was based on petitioner's \par "unauthorized removal and subsequent storage of \par classified information in unsecured spaces, * * * \par disclosure of classified information to unauthorized \par persons, and * * * disclosure, to unauthorized \par persons, of the identities of several intelligence \par officers in sensitive assignments. " Pet. App. 2a-3a; \par see C.A. Jt. App. 845. Before removing petitioner, \par NSA provided him with written notice of his proposed \par removal, and attached supporting investigative memo- \par randa informing him of the specific reasons why his \par \par ___________________(footnotes) \par \par 4 Section 4, the pertinent section of Chapter 370, is repro- \par duced at Pet. C.A. Br. App. A64-A69. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 5 \par \par clearance had been revoked. Pet. App. 17a; see C.A. Jt. \par App. 829-830, 832-834, 842-846. The notice, which was \par dated March 19, 1991, afforded petitioner an opportu- \par nity to respond to both the clearance decision and the \par proposed removal. Id. at 829. Petitioner submitted a \par written response to the agency on November 21, 1991, \par and a hearing was held before Donald L. Parsons, the \par Chief of Staff of NSA, on December 3, 1991. On \par December 16, 1991, Parsons issued a final decision \par affirming the revocation of petitioner's clearance and \par sustaining petitioner's removal from employment at \par NSA. Id. at 724-729. \par 3. Petitioner appealed the agency's decision to the \par MSPB. On June 19, 1992, an administrative judge \par rendered the initial decision of the MSPB, sustaining \par the agency's action. Pet. App. 33a-49a. The admin- \par istrative judge noted that the MSPB "is without \par authority to review the merits of the agency's \par revocation of the security clearance," id. at 34a \par (citing Department of Navy v. Egan, 484 U.S. 518 \par (1988)), and that the MSPB'S inquiry is limited to \par determining whether petitioner received the appro- \par priate procedural protections governing his removal \par from employment, and whether he received "minimal \par due process protection" surrounding the revocation of \par his clearance. Pet. App. 34a-35a. The administrative \par judge found that a security clearance was a require- \par ment of petitioner's employment at NSA, that peti- \par tioner's clearance was revoked, and that the agency \par had complied with the procedural requirements of \par 5 U.S.C. 7513 (which governs termination for cause \par from government employment) and its own regula- \par tions in removing petitioner. Pet. App. 37a-43a. The \par administrative judge also found that, with respect \par to the revocation of his clearance, petitioner was \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 6 \par \par afforded basic due process, including notice of the \par action against him, a statement of reasons, and an \par opportunity to respond. Id. at 43a-49a. \par The MSPB sustained the decision of the adminis- \par trative judge. Pet, App. 9a-32a. The MSPB concluded \par that petitioner was afforded due process with respect \par to the revocation of his clearance, as the agency \par informed him of the basis for his clearance revocation \par and gave him the opportunity to respond to the \par clearance determination and the proposed removal. \par Id. at 17a. The MSPB also concluded that, the agency \par had "afforded [petitioner] his due process rights \par under 5 U.S.C. 7513" with respect to his removal. \par Id. at 19a. The MSPB ruled further that petitioner \par had not shown any prejudicial error from any alleged \par violation of agency regulations surrounding his \par removal, id. at 19a-23a, and it noted that the NSA \par regulations do not apply to the agency's decision to \par revoke petitioner's clearance, as distinguished from \par the removal action, id. at 22a.5. \par 4. The court of appeals affirmed in an unpublished \par opinion. Pet. App. la-7a. The court ruled that NSA \par had complied with Section 7513 with respect to peti- \par tioner's removal by providing petitioner with \par advance written notice of 1) the proposed removal, \par 2) the fact that the removal action was the result \par of the agency's denial of his security clearance, \par and 3) the specific offenses which resulted in his \par clearance being denied * * * [as well as] eight \par months to respond, an opportunity to be repre- \par \par ___________________(footnotes) \par \par 5 One member of the MSPB dissented in part, and would \par have held that the MSPB could not consider the constitutional \par adequacy of the procedures used in the revocation of peti- \par tioner's clearance. Pet. App. 28a-32a. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 7 \par \par sented by an attorney or other representative, and \par a written decision enumerating the reasons for \par his removal. \par \par Id. at 5a-6a. The court further held that any redac- \par tion of classified information by NSA from the \par documentation provided to petitioner was authorized \par by Section 6 of Public Law No. 86-36, 73 Stat. 64 .6. \par and did not violate any procedures to which peti- \par tioner was entitled. Pet. App. 6a-7a. In addition, the \par court found petitioner's contention that NSA violated \par its own regulations to be "without merit. " Id. at 7a. \par \par ARGUMENT \par \par 1. Petitioner contends (Pet. 16-17) that the court \par of appeals erred in affirming the MSPB's conclusion \par that NSA afforded him the process due under 5 U.S.C. \par 7513 when it terminated his employment. That fact- \par specific contention is incorrect. There is ample \par evidence in the record that NSA met the require- \par ments of Section 7513, which entitled petitioner to \par the following procedural protections in his removal \par action: \par \par (1) at least 30 days' advance written notice \par * * * stating the specific reasons for the pro- \par posed action; \par \par (2) a reasonable time, but not less than 7 \par days, to answer orally and in writing and to \par furnish affidavits and other documentary evidence \par in support of the answer; \par \par ___________________(footnotes) \par \par 6 Section 6 of Public Law, No. 86-36 protects from disclosure \par information with respect to the activities of NSA, and the \par names, titles, salaries, and number of persons employed by \par NSA. \par \par ---------------------------------------- Page Break ---------------------------------------- \par 8 \par \par (3) [the right to representation] by an \par an attorney or other representative; and \par \par (4) a written decision and the specific \par reasons therefor at the earliest practicable date. \par \par 5 U.S.C 7513(b). \par \par NSA provided petitioner with more than the 30 days' \par notice required under Section 7513(b)(1). By letter \par dated March 19, 1991, ten months prior to petitioner's removal, \par the agency notified petitioner that he had "been found to \par be ineligible for continued access to classified information \par and thereby fail[ed] to meet a mandatory condition of \par employment." C.A. Jt. App. 829-830. The letter specified \par the reasons for petitioners ineligibility, noting his involvement \par in "1) the unauthorized removal and subsequent storage \par of classified documents in unsecured spaces; 2) the \par divulgence of information to unauthorized indivi \par duals; and 3) the disclosure of the identities of several \par intelligence officers in sensitive assignments." Id. \par at 829. Attached to the letter were memoranda detailing the \par support for the reasons. See id. at 832-834, 842-846. Indeed, \par petitioner acknowledged his security violations. Id. at 727, \par 728, 729; Pet. App. 3a.7. \par \par ___________________(footnotes) \par \par 7 Although petitioner now denies that he acknowledged \par committing the security infractions, Pet. 18 n.8, petitioner \par admitted in his hearing before the administrative judge \par that he "let information get out of secure channels." C.A. \par Jt. App. 1431. The court of appeals agreed that the record \par demonstrated his acknowledgment. Pet. App 3a That \par factual dispute is not one that this court should resolve. \par See United States v. Johnston, 268 U.S. 220,227 (1925). \par In addition, the question whether petitioner committed \par the underlying infractions pertains to the merits of the security \par clearance decision] \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 9 \par \par The agency also met and exceeded the "reasonable \par time" requirement of Section 7513(b)(2), as NSA pro- \par tided petitioner with eight months to prepare his \par response-far more than the required seven days. \par Petitioner was represented by counsel throughout \par the proceeding, as authorized by Section 7513(b)(3). \par See Pet. 4-5. Finally, NSA complied with Section \par 7513(b)(4) by providing petitioner with a written \par decision, discussing his security violations in depth. \par See C.A. Jt. App. 724-725, 727-729. Accordingly, the \par MSPB properly concluded that NSA had complied \par with Section 7513, and the court of appeals correctly \par affirmed. \par 2. Petitioner also contends that NSA violated its \par own regulations in removing him from employment, \par and that the MSPB failed to address his argument on \par that ground. See Pet. 32-41. The contention that the \par MSPB did not consider the argument is clearly in- \par correct, as the MSPB engaged in a detailed analysis \par of the issue. See Pet. App. 19a-23a. After discussing \par the NSA's regulations and petitioner's allegations of \par noncompliance, the MSPB found that petitioner had \par failed to demonstrate any harmful error in any of \par the agency's actions that were alleged to violate the \par regulations. Id. at 21a-23a. \par Petitioner argues specifically that NSA violated \par Sections 4-6.a, b, and c of its regulations, which re- \par quire 30 days' advance written notice of the proposed \par action with a statement of specific reasons, and an \par opportunity to reply. Those requirements, however, \par merely duplicate the requirements of Section 7513, \par which NSA met, as discussed above, pp. 7-8, supra. \par \par ___________________(footnotes) \par \par and is not subject to review by the MSPB or the courts. See \par Department of Navy v. Egan, 484 U.S. 518, 529-532 (1988). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 10 \par \par Petitioner also asserts that NSA violated Section \par 4-7.b(2) of its regulations, which states that "[i]n- \par formation which may not be disclosed to the employee \par or his or her representative or designated physician \par may not be used to support the reasons in the notice \par [of proposed personnel action]." Pet. C.A. Br. App. \par A67; see Pet. 55. Petitioner contends that NSA vio- \par lated that regulation by redacting classified informa- \par tion from the supporting memoranda attached to the \par March 19, 1991, notice, while allowing the deciding \par official to see the unredacted memoranda, See Pet. \par 55-56; C.A. Jt. App. 832-834, 842-846, 905-909. That \par contention is incorrect. \par NSA made two, separate decisions about petitioner: \par First, it revoked his clearance for access to SCI; \par second, it terminated his employment because he no \par longer had the requisite clearance. See Jamil v. \par Secretary, Dep't of Defense, 910 F.2d 1203, 1208 (4th \par Cir. 1990) (distinguishing between the two decisions). \par As the MSPB held (Pet. App. 22a), Section 4 of the \par NSA regulations applies only to the agency's removal \par decision, and not to the clearance determination. See \par NSA/CSSPMM 30-2, ch. 370, 4-l.a, Pet. C.A. Br. \par App. A64 (Section 4 covers suspensions, enforced \par leave, pay and grade reductions, removals, separations \par for disability, and furloughs). The redacted memo- \par randa state the reasons for the revocation of peti- \par tioner's clearance, not the reason for the termination \par of petitioner's employment. \par Even if the redacted information was considered by \par the agency with regard to its decision to revoke \par petitioner's clearance, that use was governed, not \par by the NSA regulation cited by petitioner, but by \par DCI Directive No. 1/14. Under that Directive, when \par "clearly consistent with the interests of the national \par \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 11 \par \par security," the employee is entitled to notification of \par the revocation of his SCI access, the reasons for the \par revocation, and an opportunity to appeal to an agency \par official. See Pet. C.A. Br. App. A43, A57-A58. The \par procedures contain no requirement similar to that \par found in Section 4-7.b(2), the NSA regulation cited by \par petitioner. \par Petitioner does not contend that he was denied the \par process due him under DCI Directive No. 1/14. He \par received notification of the clearance revocation deci- \par sion, along with detailed information as to the reasons \par for the revocation. C.A. Jt. App. 829-830, 832-834, 842- \par 846. In addition to the redacted memoranda, NSA \par furnished petitioner with other materials to assist in \par the preparation of a response, including a list of the \par classified documents found in petitioner's home. See \par id. at 643-649. \par Finally, petitioner contends that NSA violated \par Sections 4-5.b and 4-7.d of its regulations. See Pet. \par 25-26, 61 n.36. Under Section 4-5.b, "the Deputy \par Director for Administration (DDA) shall dispose the \par [personnel] action," Pet. C.A. Br. App. A65, and un- \par der Section 4-7.d(l), "[t]he deciding official may not \par delegate the hearing of the [employee's] oral reply," \par Pet. C.A. Br. App. A67. Petitioner's argument ap- \par pears to be based on the mistaken notion that the \par Deputy Director must personally decide each per- \par sonnel action. As the MSPB correctly found, "[t]here \par is nothing in the regulation that prohibits delegation \par of the Dad's deciding authority." Pet. App. 21a. The \par language in Section 4-7.d prohibiting the deciding \par official from delegating the hearing of the oral reply \par means simply that the person who decides a case must \par also hear the oral reply. In petitioner's case, the \par DAD recused himself (see C.A. Jt. App. 827), and \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 12 \par \par the DDA's superior, the Chief of Staff, became the \par deciding official and also personally heard petitioner's \par oral reply, in accordance with NSA regulations. See \par Pet. App. 40a-41a. \par \par CONCLUSION \par \par The petition for a writ of certiorari should be \par denied. \par Respectfully submitted. \par \par DREW S. DAYS, III \par Solicitor General \par \par FRANK W. HUNGER \par Assistant Attorney General \par \par FREDDI LIPSTEIN \par Attorney \par \par SEPTEMBER 1995 \par \par \par }