[00:01:00] Speaker 01: Okay, the next case before the court is a series of cases actually, 14, 3181, 3182, and 3183, Ryan versus Department of Homeland Security. [00:01:14] Speaker 01: You were seeking to reserve Mr. Breuda, is that who you're looking at? [00:01:19] Speaker 01: Yes, Your Honor. [00:01:20] Speaker ?: Two minutes? [00:01:21] Speaker 01: Yes. [00:01:22] Speaker 01: Okay, you may proceed. [00:01:23] Speaker 06: Thank you, Your Honor. [00:01:24] Speaker 06: As it may please the Court, I have the honor to represent Joan Ryan in these three consolidated appeals. [00:01:29] Speaker 06: The issues are [00:01:30] Speaker 06: moderately complex, the resolution is extremely important in civil service law. [00:01:34] Speaker 06: This is another case involving the intersection of the Civil Service Reform Act and national security involves an indefinite suspension. [00:01:41] Speaker 06: They're rather prolonged when several appeals to the board. [00:01:45] Speaker 06: The principal concern here is the board's treatment of the alternatives available to the agency when the indefinite suspension was proposed. [00:01:55] Speaker 06: What the board decided [00:01:57] Speaker 06: was that there is a constitutional due process right of the appellant, my client, Ms. [00:02:02] Speaker 06: Ryan, for the agency's deciding official, Ms. [00:02:05] Speaker 06: Tierney, who is the regional administrator of FEMA Region 3, to consider alternatives to the indefinite suspension. [00:02:12] Speaker 06: The alternatives were several administrative leave, detailed to unclassified duties, and particularly a demotion to a position that Ms. [00:02:21] Speaker 06: Ryan could have filled which was open, funded, vacant, and under recruitment. [00:02:28] Speaker 06: that Ms. [00:02:28] Speaker 06: Ryan had a constitutional right to the deciding official's consideration of those alternatives. [00:02:34] Speaker 06: But then the board decided that it had no authority to review the agency's exercise of discretion, which in this case was to impose an indefinite suspension. [00:02:45] Speaker 06: Now, the reasoning of the board is somewhat curious. [00:02:51] Speaker 06: They actually offered two reasons. [00:02:55] Speaker 05: So you'd agree she wasn't entitled to be transferred to a non-self? [00:02:59] Speaker 06: I agree. [00:03:00] Speaker 06: It was a matter of discretion. [00:03:02] Speaker 06: It's a matter of mitigation authority. [00:03:04] Speaker 06: And since 1981, in the Douglas decision, the board has been exercising mitigation review in adverse actions before the board, which constitute about 45% to 50% of their case load. [00:03:17] Speaker 01: In terms of what that mitigation should be, though, can you point to any [00:03:22] Speaker 01: statute, regulation, or even internal policy that said that they have to consider reassignment to a non-security clearance position? [00:03:31] Speaker 06: There is no statute, no regulation, and no policy of which I'm aware that requires it. [00:03:35] Speaker 06: But the board requires that as a matter of constitutional due process. [00:03:39] Speaker 06: Can't get better than that as far as I'm concerned. [00:03:41] Speaker 06: But what the board said here at page 23 of the appendix, we find that ordering the appellant's restoration to duty or paid administrative leave status [00:03:51] Speaker 06: before the agency reinstates their access to classified information would intrude upon the agency's authority to regulate and manage employees' access to classified information. [00:04:02] Speaker 01: But didn't the board say that what she had a right to was to have a decider with discretion to consider mitigating punishments? [00:04:12] Speaker 01: But isn't our case law say that whether that mitigation punishment would always include [00:04:19] Speaker 01: reassignment to a non-classified position depends on the existence of some statute, regulation or policy? [00:04:25] Speaker 06: The case law, the answer is yes and the answer is no. [00:04:31] Speaker 06: The case law comes from removal cases, not indefinite suspension cases with the exception of one footnote in the Biggers decision which involved a claim for back pay. [00:04:42] Speaker 06: It was not an issue in the case. [00:04:43] Speaker 06: It was a footnote. [00:04:45] Speaker 06: But the case law started with Egan versus Department of Navy in 1988. [00:04:49] Speaker 06: And the Supreme Court there never came up with a notion. [00:04:54] Speaker 06: And that case involved, by the way, a review of the MSPB decision that it had authority to look behind the security clearance. [00:05:02] Speaker 06: That's not the issue here. [00:05:03] Speaker 06: But aside from that, what the Supreme Court said there. [00:05:06] Speaker 05: It's been a long time since I read Egan, but wasn't he suspended at the start [00:05:12] Speaker 06: Oh, I'm sure he was. [00:05:14] Speaker 06: And then the case, however, involved a removal. [00:05:17] Speaker 06: And the removal was what was considered by the board. [00:05:20] Speaker 06: And then that went to the Supreme Court eventually after it came here over a strong dissent by the then Chief Judge and then went to the court. [00:05:28] Speaker 06: But what the Supreme Court held was that although the board had no right to review the merits of a security clearance denial or revocation, [00:05:41] Speaker 06: The board certainly had the right to apply due process considerations under its organic statute, 5 U.S.C. [00:05:46] Speaker 06: 7513, and the feasibility of a reassignment of Mr. Egan, the unfortunate mechanic, to another job. [00:05:56] Speaker 06: What then happened, now remember this is a removal case not involving indefinite suspension. [00:06:00] Speaker 06: Indefinite suspension is a much different penalty against an employee. [00:06:05] Speaker 06: But then in the decisions in Griffin and Wiles, decided on the same day, [00:06:10] Speaker 06: This court decided that what the Supreme Court really meant was that the board need not consider a reassignment unless there's an agency regulation requirement. [00:06:21] Speaker 06: That's not what Egan said. [00:06:23] Speaker 06: That's not what the solicitor argued. [00:06:24] Speaker 06: But that's what this court interpreted. [00:06:26] Speaker 06: So to answer your question, the answer is yes. [00:06:29] Speaker 06: But we distinguish that. [00:06:31] Speaker 01: So you want us to disagree with our own case law? [00:06:35] Speaker 06: No. [00:06:36] Speaker 06: I want you to distinguish your case law, Your Honor. [00:06:39] Speaker 06: and Griffin were removal cases. [00:06:42] Speaker 06: Egan was a removal case. [00:06:44] Speaker 06: The only time this court has mentioned anything related to a penalty and an indefinite suspension, as far as I can recall, is the footnote in the Biggers case, which didn't even involve a question of discretionary agency action, involved an entitlement to back pay when Mr. Biggers finally got reinstated to his position, when his clearance was reinstated. [00:07:05] Speaker 06: So. [00:07:06] Speaker 01: Okay, so you want us to say that if you're removed, [00:07:10] Speaker 01: We don't have to consider an alternative reassignment to a non-classified position, but if you're indefinitely suspended, we do. [00:07:19] Speaker 06: The case law suggests that result. [00:07:22] Speaker 06: I recognize that this panel cannot overrule Griffin and Lyles. [00:07:25] Speaker 06: I can't ask you to do it. [00:07:27] Speaker 06: I have to live with that result, but I can certainly distinguish it. [00:07:30] Speaker 06: Indefinite suspension is a much different penalty. [00:07:33] Speaker 06: And when the Merit Assistance Protection Board comes up with the idea that there is constitutional due process involved [00:07:40] Speaker 06: and are responsible to the agency to consider alternatives, and then throws up its collective hands and says, we're not going to review the agency's discretion on a matter of constitutional due process. [00:07:51] Speaker 06: The board is abnegating jurisdiction to review penalties that have been asserted by agencies since 1981 in the Douglas case and applied to indefinite suspensions since 1982 in Martin v. Customs Service. [00:08:05] Speaker 04: Go ahead. [00:08:06] Speaker 04: Let me move on to another question, counsel. [00:08:08] Speaker 04: Is it your position [00:08:09] Speaker 04: that the ultimate acquittal on the criminal charges gives rise to a right or entitlement to receive a return of the security clearance? [00:08:19] Speaker 06: No, Your Honor, I do not. [00:08:21] Speaker 06: Thank you. [00:08:22] Speaker 06: That brings us to the second part of the case, which I would have forgotten with my excitement about the first. [00:08:27] Speaker 06: The second part of the case involves the duration of the indefinite suspension. [00:08:32] Speaker 06: Miss Ryan was indicted. [00:08:33] Speaker 06: She was tried before a federal jury in Philadelphia, Eastern District of Pennsylvania. [00:08:37] Speaker 06: She was acquitted. [00:08:38] Speaker 06: The indictment essentially dissolved with the acquittal. [00:08:43] Speaker 06: Goodbye indictment. [00:08:44] Speaker 06: The agency did nothing. [00:08:46] Speaker 06: Ms. [00:08:47] Speaker 06: Ryan was then before the Merit Assistance Protection Board on her original appeal. [00:08:50] Speaker 06: She filed another appeal saying, the time is right to do something about this indefinite suspension. [00:08:56] Speaker 06: Either give some justification for it and continue it or stop it and return her to duty. [00:09:01] Speaker 06: Well, the board said, we don't have jurisdiction to consider this. [00:09:06] Speaker 06: Your appeal is premature. [00:09:07] Speaker 01: What is the board's authority to review the internal timing of the assessment of a security clearance? [00:09:17] Speaker 06: It has no authority to review the timing of a security clearance. [00:09:20] Speaker 06: It has all the authority in the world to review the timing of a suspension, which is a disciplinary measure. [00:09:26] Speaker 06: That's what the board does. [00:09:27] Speaker 01: Right, but the board said the problem is that the suspension was indefinite, subject to a condition subsequent, which was return of security clearance. [00:09:37] Speaker 01: Isn't your real avenue of relief to the extent one exists through a mandamus proceeding or an APA proceeding that addresses the timing of the security clearance assessment? [00:09:49] Speaker 06: That would be a possibility. [00:09:51] Speaker 06: I'm representing a client who is your informal purpose. [00:09:54] Speaker 06: turn to the Merit Citizens Protection Board, they can't be expected to be running the district court, and then we'd have preclusion issues in district court, and it's much too complex to have multiple judicial avenues for disputes that Congress said were supposed to be at the MSPB. [00:10:08] Speaker 06: There's no doubt that the MSPB has jurisdiction over a suspension, a statutory, no question. [00:10:15] Speaker 05: How long has the security clearance been suspended at this point? [00:10:20] Speaker 06: Oh, Your Honor, the security clearance [00:10:24] Speaker 06: I assume it's still there. [00:10:27] Speaker 06: There's more, Your Honor. [00:10:29] Speaker 06: The security clearance was suspended on March 28, 2012. [00:10:33] Speaker 06: That continued until October, actually continued after that, October 8, 2014. [00:10:42] Speaker 06: Ms. [00:10:43] Speaker 06: Ryan's removal was proposed. [00:10:45] Speaker 06: That was after the submission of most of the briefing in this case, although I noted it in a footnote someplace. [00:10:50] Speaker 06: And the removal of Ms. [00:10:51] Speaker 06: Ryan was December 15, 2014. [00:10:53] Speaker 06: So her clearance was suspended a good long time. [00:10:57] Speaker 05: And it's been revoked now. [00:10:59] Speaker 05: Oh, yes, sir. [00:10:59] Speaker 05: That's right. [00:11:00] Speaker 05: That's right. [00:11:00] Speaker 05: So that was my question. [00:11:02] Speaker 05: When was it revoked? [00:11:19] Speaker 06: Security clearance was revoked. [00:11:21] Speaker 06: subject to appeal on July 28, 2013. [00:11:23] Speaker 06: There was an internal appeal on the security clearance side. [00:11:29] Speaker 06: So to return to your question, Judge O'Malley. [00:11:31] Speaker 01: If I can understand, because it's nowhere in the record as to what the additional reason was, but that there was a reference that there was additional reason for the denial of the security clearance. [00:11:40] Speaker 01: So was that reason separate and apart from what gave rise to the underlying criminal charges of which she was acquitted? [00:11:49] Speaker 06: The clearance suspension started with the indictment, without reference to the facts. [00:11:55] Speaker 06: It was not based on the facts. [00:11:57] Speaker 06: It was based on the indictment. [00:11:59] Speaker 06: She gets acquitted. [00:12:00] Speaker 06: The clearance suspension continues. [00:12:03] Speaker 06: With the notice of revocation, the notice of revocation depended on two things. [00:12:08] Speaker 06: One, the facts supporting the indictment, all the facts. [00:12:12] Speaker 06: Secondly, some interaction between Ms. [00:12:14] Speaker 06: Ryan and a general services administration deputy ethics official, which was not included [00:12:19] Speaker 06: in the indictment, so there was new material. [00:12:23] Speaker 06: Now, under the court's cases in the Cheney case and in the Romero case and, oh yes, King versus Alston, this court has held that an employee is entitled to more than just notice that their clearance has been suspended when they have the opportunity to reply on the management side to the deciding official. [00:12:47] Speaker 06: They're entitled to know why was the clearance suspended. [00:12:49] Speaker 06: Not every fact, not every document, but certainly the basics. [00:12:53] Speaker 06: And under the Ward case, which this court decided, and I think it was in 2011, the court has been pretty clear that due process includes notice of new information that relates to an adverse action. [00:13:03] Speaker 06: So it seems to me that when the government changed the basis for the clearance suspension to include factual information from the indictment plus the interchange with the GSA Deputy Ethics Official, [00:13:16] Speaker 06: that it should have put my client on notice. [00:13:18] Speaker 06: I said, look, we're changing the basis of this. [00:13:20] Speaker 06: It wouldn't have taken much. [00:13:21] Speaker 06: Come on in and talk to the deciding official and see if you can persuade that deciding official, now that you've been acquitted, to take you off the indefinite suspension. [00:13:30] Speaker 01: Are you saying that Ms. [00:13:31] Speaker 01: Ryan was not even afforded the opportunity to address the new matters? [00:13:35] Speaker 01: I mean, I thought the government's argument was that these are separate determinations. [00:13:42] Speaker 01: One was a suspension, the other was [00:13:46] Speaker 01: ultimate denial of security clearance and a removal. [00:13:49] Speaker 01: And are you saying Ms. [00:13:50] Speaker 01: Ryan didn't have the opportunity to object to reliance on the new matters? [00:13:56] Speaker 06: Not before the board. [00:13:57] Speaker 06: Let's try that again. [00:13:58] Speaker 06: Not before FEMA on the management side. [00:14:02] Speaker 06: She had the opportunity to respond on the security clearance side. [00:14:05] Speaker 06: Remember, the agency separates security clearance functions from other management functions. [00:14:10] Speaker 06: It has to, so one doesn't influence the other. [00:14:13] Speaker 06: So when the agency [00:14:15] Speaker 06: told her her clearance was revoked, they gave her the opportunity to appeal. [00:14:19] Speaker 06: She appealed. [00:14:19] Speaker 06: But that's on the security claim side, not on the management side. [00:14:23] Speaker 06: Her suspension, her indefinite suspension, was on the management side. [00:14:27] Speaker 01: The deciding official... That was the removal, correct? [00:14:30] Speaker 06: Well, it led to the removal eventually. [00:14:32] Speaker 06: Yes, but that's not before the court. [00:14:34] Speaker 06: That's now before the American Assistance Protection Board, but not here. [00:14:37] Speaker 06: We're only concerned with the indefinite suspension. [00:14:40] Speaker 06: So our concern here is the board's self-imposed limitation on its ability [00:14:45] Speaker 06: to review the duration of an indefinite suspension. [00:14:48] Speaker 06: The way the board looks at it, the sun could run out of hydrogen, and one of these indefinite suspensions could continue, and they wouldn't do a thing about it. [00:14:56] Speaker 01: OK. [00:14:56] Speaker 01: Enter your rebuttal time. [00:14:58] Speaker 01: Thank you. [00:14:58] Speaker 01: We'll restore the full two minutes. [00:15:00] Speaker 01: Give the government an extra 30 seconds if they need it. [00:15:13] Speaker 00: May it please the court? [00:15:15] Speaker 00: Mr. Ryan appears to concede at this point that if we were faced with a removal case, then Griffin and Lyles would apply, and Ms. [00:15:24] Speaker 00: Ryan would have no right to have the board consider alternatives to the indefinite suspension. [00:15:29] Speaker 00: She neglects to address this court's presidential decision in Hess, which we cited in our brief. [00:15:36] Speaker 00: Hess did involve an indefinite suspension, and just as in Griffin and Lyles, and in fact the court cited to Griffin and Lyles in Hess, [00:15:44] Speaker 00: and said, I'm quoting, Mr. Hess claims that he should have been reassigned to a nonsensitive position rather than be suspended from employment with the agency. [00:15:54] Speaker 00: This court, however, has held that an employee has a right to be transferred to a nonsensitive position only if that right is manifested in statute or regulation. [00:16:03] Speaker 00: There is no dispute in this case that the agency did not have a regulation providing that Ryan with a right to transfer. [00:16:10] Speaker 00: So the Hess decision pertaining to indefinite suspensions, along with Drift and Lyles, were under the board's decision. [00:16:18] Speaker 01: What about a policy? [00:16:19] Speaker 01: Did FEMA have a policy to consider these alternatives? [00:16:22] Speaker 00: It did not, Your Honor. [00:16:24] Speaker 00: There is no evidence on the record that there was such a policy. [00:16:28] Speaker 00: Ms. [00:16:29] Speaker 00: Ryan is confusing to issues when she talks about the due process right. [00:16:35] Speaker 00: to have a deciding official with authority to consider alternatives. [00:16:39] Speaker 00: I believe Dr. Malley picked up on that with her question. [00:16:44] Speaker 00: That is different than the penalty and mitigation argument that was the gist of Ms. [00:16:49] Speaker 00: Ryan's argument for the board and in her brief. [00:16:51] Speaker 00: The due process right goes to the notice aspect and the rights make a meaningful response to a deciding official with authority to reach a different decision than was proposed. [00:17:02] Speaker 00: And there's no dispute in this case that the deciding officials did have authority to make an independent decision to either go ahead and impose the penalty that was suggested by the proposing official or not. [00:17:14] Speaker 00: She could have decided, for example, that it was a case of mistaken identity and that Ryan wasn't the person whose security clearance system had been suspended and therefore the result should be different. [00:17:24] Speaker 01: Would that deciding official have had the discretion to reassign to a non-security clearance position or non-security [00:17:32] Speaker 01: secure position, even if we concluded they didn't have the obligation to do so? [00:17:38] Speaker 00: She did actually testify that she did consider reassignment of Ms. [00:17:41] Speaker 00: Ryan, so I have to assume from that that she believed that she had that discretion. [00:17:45] Speaker 00: However, there were no other positions to which Ms. [00:17:48] Speaker 00: Ryan could be reassigned at her grade that didn't require the same security clearance, so it wasn't feasible to reassign her. [00:17:54] Speaker 05: In her grade, does that matter? [00:17:57] Speaker 05: Mr. Breuder's argument was, well, she could have been reassigned below her grade. [00:18:01] Speaker 00: Right, and the society officials testified about that also and said that it would be a waste of government resources to have an employee be paid at a GS-15 or a GS-15 employee working at a GS-14 position. [00:18:13] Speaker 00: But I think it's also important to lose sight of the fact that it's not this court or even the board's responsibility to look at the penalties that the agency didn't select. [00:18:22] Speaker 00: What the board does is review the penalty that was imposed to see whether it promotes the efficiency of the service. [00:18:30] Speaker 00: and whether it exceeds the tolerable boundaries. [00:18:32] Speaker 05: Nevertheless, just tolerate my curiosity for a minute and tell me if a GS-15 is reassigned to a GS-14 position, they're still paid GS-15? [00:18:45] Speaker 00: It depends how it's affected. [00:18:46] Speaker 00: If it's a detail, then they would still be paid at their GS-15. [00:18:49] Speaker 00: If it's a demotion, they'll be paid at a GS-14. [00:18:53] Speaker 05: So the deciding official could have demoted her. [00:18:56] Speaker 00: If she believed that she had that discretion, theoretically she could have, to a position that didn't involve security clearance. [00:19:03] Speaker 00: But again, as this court has held in-house, Griffin and Lyles, there certainly was no right or obligation for the agency to do that. [00:19:11] Speaker 00: And this court has, innumerable times, upheld the penalty of an indefinite suspension for a loss of the security clearance. [00:19:18] Speaker 00: So clearly it does not exceed the tolerable bound for reasonableness. [00:19:22] Speaker 01: The board certainly does have the authority to determine whether or not an indefinite suspension is actually indefinite, right? [00:19:29] Speaker 01: Absolutely, Your Honor. [00:19:30] Speaker 01: In other words, if it lasts forever, the board would have the authority to take some action, would it not? [00:19:36] Speaker 00: The board certainly does have authority, I would agree, to determine whether an indefinite suspension is in fact indefinite or temporary, meaning that it's not permanent. [00:19:44] Speaker 00: Where an indefinite suspension is tied to a condition subsequent [00:19:48] Speaker 00: that will lead to determination of that indefinite suspension, it is by definition not a permanent suspension. [00:19:54] Speaker 01: Regardless of whether that condition subsequent ever occurs? [00:19:58] Speaker 00: Well, as long as there is a condition subsequent that will theoretically occur at some point, it is not a permanent suspension. [00:20:06] Speaker 00: The duration, the fact that something takes a long versus a short time, doesn't render the indefinite suspension not indefinite or not temporary in nature. [00:20:15] Speaker 00: In this case, the record actually doesn't indicate that it took an extremely long amount of time. [00:20:19] Speaker 00: The agency waited until after the acquittal, then investigated as it said it would because the agency, of course, has a different standard of review than a criminal decision. [00:20:29] Speaker 00: And within a relatively short amount of time, they went ahead, revoked permanently Ms. [00:20:34] Speaker 00: Ryan's security clearance, and then based on their application, proposed her removal and effectively did remove her. [00:20:39] Speaker 00: In the meantime, she had [00:20:41] Speaker 00: She took advantage of every opportunity within the agency to appeal the security clearance determinations within that adjudicatory process, and of course, she was also appealing the employment action. [00:20:51] Speaker 00: So, I mean, even if theoretically there could be a case that really drags on for a very long amount of time, this isn't that case. [00:20:58] Speaker 00: But frankly, even if there was, the board would not have jurisdiction to look at that because it doesn't have jurisdiction to look at the adjudicatory process. [00:21:05] Speaker 00: And as long as there is a condition subsequent, then the indefinite suspension is, by and [00:21:10] Speaker 00: by definition, indefinite. [00:21:12] Speaker 04: You say that the proper inquiry or the proper review is of the action imposed and that we shouldn't focus or there shouldn't be any focus on the options that weren't taken advantage of or implemented. [00:21:25] Speaker 04: How can you make a proper evaluation of what did happen without considering what could have happened? [00:21:31] Speaker 04: Well, the court... You're saying we should evaluate that in a vacuum without any reference to what the other possibilities were? [00:21:37] Speaker 00: No, not at all, Your Honor. [00:21:38] Speaker 00: And I think it's important, of course, to recognize exactly what kind of case this is, because I don't want my words to at all to take into apply to every adverse action case. [00:21:46] Speaker 00: This is a very unique case. [00:21:48] Speaker 00: We're talking about, I mean, this type of case is a unique case. [00:21:51] Speaker 00: We're talking about a case where the employee loses their eligibility to hold their position. [00:21:55] Speaker 00: It would be like a lawyer who lost his [00:21:58] Speaker 00: his law license. [00:21:59] Speaker 00: The agency doesn't have an obligation in those cases to assign that employee to a different position. [00:22:05] Speaker 00: We're not talking about something where someone committed some misconduct and perhaps there are mitigating circumstances that will sort of counterbalance that. [00:22:12] Speaker 00: There's no amount of mitigating circumstances that will counterbalance the fact that someone has lost their eligibility to hold their position. [00:22:20] Speaker 00: This court has said in the greater context of penalties that it will defer to an agency's choice of penalty unless it exceeds the tolerable balance of reasonableness. [00:22:28] Speaker 00: In a non-loss of eligibility situation, yes, maybe there is, it makes some sense to look at these sort of counterbalancing factors, but in this situation where the individual has lost their eligibility, again, there's really no amount of mitigating factors that will restore the eligibility and there's no way that this court can order the agency [00:22:46] Speaker 00: to maintain someone in a position for which they have lost their eligibility, particularly a loss of security clearance. [00:22:52] Speaker 00: So it is a very unique situation. [00:22:54] Speaker 00: And I think that's what the court was recognizing in Griffin and Lyles and Hatton. [00:22:57] Speaker 05: Mr. Stern, let me ask you a hypothetical. [00:23:01] Speaker 05: We cut a lot of slack in national security areas underneath in its progeny. [00:23:09] Speaker 05: But supposing the security clearance is pulled and the investigating agency [00:23:17] Speaker 05: comes back and says, we just can't find the evidence to go either way. [00:23:23] Speaker 05: And so we're stuck on, we revoked it and we can't, we're stuck on, or we suspended it and we're stuck on whether to revoke it or not. [00:23:34] Speaker 05: At some point does the board then have jurisdiction? [00:23:40] Speaker 00: No, your honor. [00:23:41] Speaker 00: No, because first of all, I, [00:23:45] Speaker 00: With respect to security clearance, the burden is actually shifted to the, not so much shifted to the employee, but the, no one has a right to the security clearance. [00:23:54] Speaker 00: And so unless there is an affirmative reason to grant them a security clearance, then they don't have security clearance. [00:24:00] Speaker 00: So I would actually say in that situation where there's maybe they're stuck, there's a balance, then the person doesn't get a security clearance. [00:24:06] Speaker 00: And that's what Egan says, that's the law of security clearance. [00:24:10] Speaker 00: Also, I would like to suggest, and perhaps this is, I know there's some concern that [00:24:14] Speaker 00: security clearance, adjudications may drag on. [00:24:17] Speaker 00: It's really not in the interest of the agency to have it drag on either. [00:24:20] Speaker 00: It's clearly not in the interest of the employee. [00:24:22] Speaker 00: They want to have their situation resolved. [00:24:24] Speaker 00: But really, it's not in the interest of the agency either. [00:24:26] Speaker 00: On the employment side, the agency has an interest in figuring out who is going to be holding a certain position. [00:24:31] Speaker 00: During the time that an employee is, for example, indefinitely suspended, the agency still needs that job done. [00:24:37] Speaker 00: So they're trying to find another employee to temporarily put in that position, and then that person's position is empty. [00:24:43] Speaker 00: So it's really not in the agency's interest on the employment side to just have this adjudicatory process going forever. [00:24:50] Speaker 00: On the security side, it's also not really in the agency's interest. [00:24:53] Speaker 00: I mean, people that do these adjudicatory jobs take their jobs seriously. [00:24:58] Speaker 00: They're only interested in people having security clearances that [00:25:03] Speaker 00: are entitled and require security clearances. [00:25:06] Speaker 00: So they're also interested in resolving it. [00:25:09] Speaker 00: Yes, sometimes it may appear to take longer than we would like it to, certainly than the employee would like it to. [00:25:15] Speaker 00: But I think that fears that it will go on forever or never be resolved are probably unwarranted. [00:25:20] Speaker 00: And I don't know that there's been any evidence of that. [00:25:23] Speaker 02: OK. [00:25:24] Speaker 00: Thank you. [00:25:25] Speaker 00: I'm sorry. [00:25:26] Speaker 00: I ran out of time. [00:25:26] Speaker 00: I was going to address the notice issue. [00:25:28] Speaker 00: But unless the current question is for me on that, I'll leave it to my colleagues. [00:25:32] Speaker 00: OK. [00:25:32] Speaker 00: Thank you. [00:25:36] Speaker 03: Just a few things to add to the board's role in these cases. [00:25:52] Speaker 03: Some of the problem in the petitioner's argument has to do with the confusion between the separate processes of the security clearance process and the adverse action process. [00:26:02] Speaker 03: For example, the [00:26:06] Speaker 03: the agency's decision to revoke the clearance during the course of the indefinite suspension would have been a final decision that ended it if the petitioner had not appealed. [00:26:20] Speaker 03: But because she did, the indefinite suspension continued based on the same lack of clearance which continued. [00:26:28] Speaker 03: So that it would have been inappropriate to find that it had ended at that point because [00:26:35] Speaker 03: condition subsequent is a final adjudication of the clearance. [00:26:40] Speaker 03: Similarly, the additional evidence relied on in that case because it was in the security clearance process is not subject to due process and the right to respond, although she did have a chance to respond because she appealed it to a higher level in that process. [00:27:01] Speaker 03: It would only be when she came to the board with an adverse action, when the adverse action started, then she would have the rights to notice. [00:27:12] Speaker 01: Right. [00:27:12] Speaker 01: So the new adverse action, though, is removal, right? [00:27:15] Speaker 03: Right. [00:27:16] Speaker 03: And in fact, she has been removed. [00:27:18] Speaker 03: And I assume that she had an opportunity to challenge this if she wished in that removal appeal. [00:27:25] Speaker 01: And there were due process rights that would attach as it relates to that removal. [00:27:29] Speaker 03: Yes, exactly. [00:27:31] Speaker 01: And that appeal is where? [00:27:33] Speaker 01: Before the board right now? [00:27:34] Speaker 03: It's now before the board, yes. [00:27:37] Speaker 01: An indefinite suspension, once there is a removal, the condition subsequent to the indefinite suspension, essentially when the indefinite suspension ends, it's over. [00:27:48] Speaker 01: So the condition subsequent never occurs, right? [00:27:50] Speaker 03: Well, the condition subsequent is the final adjudication, that permanent revocation of the clearance, because that was the stated [00:28:00] Speaker 03: basis for the indebtedness suspension was that her clearance had been suspended, which in turn was based on the indictment. [00:28:09] Speaker 03: Although I would also note that the indictment, the notice that she received also notified her that the agency, once the criminal case was disposed of, that the agency would then investigate what its position was and whether to grant or deny clearance. [00:28:30] Speaker 03: so that it was clear from the notice that the acquittal would not be the determining factor, mainly probably because the different standards of proof in a criminal case and what the agency would want to take account of in its own proceedings. [00:28:50] Speaker 01: So it's your position that as it relates to notice, that the notice of additional factors only related to the new [00:28:59] Speaker 01: adverse action, and not to the indefinite suspension? [00:29:02] Speaker 03: And not to the indefinite suspension, because the indefinite suspension continued because the new thing was considered in the revocation, which would have ended it had it not been appealed. [00:29:15] Speaker 03: And in that appeal, she did have the opportunity to challenge that. [00:29:19] Speaker 01: Do you agree that the board would have jurisdiction over an indefinite suspension to the extent that an argument was made that the suspension wasn't really indefinite because there was [00:29:29] Speaker 01: there wasn't a condition subsequent that could meaningfully occur? [00:29:34] Speaker 01: In other words, if it took forever to assess the security clearance? [00:29:40] Speaker 03: Essentially, the temporary nature of the indefinite suspension is established by the condition subsequent. [00:29:49] Speaker 03: So the only thing really that could end it would be [00:29:55] Speaker 03: if there was evidence that the agency never intended to issue the final decision. [00:30:02] Speaker 03: In a situation like that, perhaps the board could treat it as a constructive removal because there was whichever. [00:30:11] Speaker 01: But in a normal case, there wouldn't be. [00:30:13] Speaker 01: What if the condition subsequent is something that's still there or that ultimately couldn't occur? [00:30:18] Speaker 01: You know, monkeys could fly or whatever. [00:30:20] Speaker 01: In other words, doesn't the board have the ability to assess whether the condition subsequent is meaningfully attainable or at least determinable? [00:30:28] Speaker 03: Every case, every indefinite suspension must have an ascertainable ending. [00:30:35] Speaker 03: It's not definite because you won't know when it occurs, but there has to be one. [00:30:38] Speaker 03: And if there was something preposterous or impossible stated at it, of course that couldn't be accepted as an indefinite suspension. [00:30:47] Speaker 03: It couldn't be upheld as an indefinite suspension. [00:30:49] Speaker 03: so that the board can look at it to see if it's pretextual. [00:30:53] Speaker 03: Yes, I think in that sense that that would be the case. [00:30:57] Speaker 03: With respect to the board's authority, however, to review the agency's process for having gone on too long, there's just no authority for that at all. [00:31:13] Speaker 01: Is there a remedy, like an APA remedy or a mandamus remedy? [00:31:17] Speaker 03: There might be, but there would not be at the board. [00:31:20] Speaker 03: And that's because the board, under EGAN, the board is strictly limited to procedural matters, guaranteeing that the employees have whatever procedures and statutes or the agency's own regulations provide. [00:31:33] Speaker 03: But the board cannot reach the merits of the clearance. [00:31:37] Speaker 03: Here, if the agency, if the board were to say, well, this has gone on a long time, we think that we're going to call the agency in and have them defend what's going on. [00:31:48] Speaker 03: as was suggested in the board's Wicard case and the dissent to the Wicard case by one of the board members picking up on something that the petitioner raised. [00:32:00] Speaker 03: Such a review would necessarily reach into agency issues like what are your workloads and how many resources are you providing to decide these cases. [00:32:15] Speaker 03: and so on, the board would have to second guess many agency matters that would clearly intrude on the agency's discretion over security clearances and access to classified information. [00:32:30] Speaker 03: It just would be, and it is a merits process that's going on. [00:32:34] Speaker 03: They're determining the merits of the clearance issue. [00:32:37] Speaker 03: So the board could hardly take jurisdiction to decide whether they were deciding it fast enough. [00:32:44] Speaker 03: too intrusive under Egan. [00:32:47] Speaker 01: I think your time is up. [00:32:49] Speaker 01: Any more questions? [00:32:51] Speaker 01: We'll give three minutes for rebuttal. [00:32:59] Speaker 06: Twenty-five years ago, my honorable colleague Mr. and I were arguing an indefinite suspension case in this court, Engdahl versus [00:33:08] Speaker 06: Department of Navy, 25 years ago. [00:33:10] Speaker 06: It's still not going on. [00:33:11] Speaker 06: It's still going on. [00:33:15] Speaker 04: It's been indefinitely suspended. [00:33:17] Speaker 06: Mr. Engdahl was indefinitely suspended, but he was also removed. [00:33:20] Speaker 06: So first of all, I don't concede anything. [00:33:23] Speaker 06: I don't concede that if Ms. [00:33:25] Speaker 06: Ryan's removal is reviewed by the board, for example, that the board won't apply the same constitutional due process consideration to alternatives to the removal. [00:33:35] Speaker 06: That still is very much an issue. [00:33:37] Speaker 06: The board says that the constitutional due process issue is not for me to waive that. [00:33:42] Speaker 01: With respect to the administrative procedure... Well, I mean, I don't think that there's an argument that she wouldn't be entitled to the same due process to the extent that there's some limited process due under Egan. [00:33:52] Speaker 06: I think the course decision in Griffith and Lyle present much greater difficulties on a removal case than they do here on the indefinite suspension case. [00:34:04] Speaker 01: I mean, I see your effort in the gray brief to distinguish it, and I'm not buying it. [00:34:10] Speaker 06: This was about whistleblowing, and whether you could use whistleblowing as an affirmative defense to an indefinite suspension. [00:34:20] Speaker 06: You can't do it. [00:34:20] Speaker 06: Hess said so. [00:34:22] Speaker 01: But there was very firm language about the indefinite suspension in the context of revoking of a security clearance, was there not? [00:34:28] Speaker 06: The result was very clear, but the issue was very limited. [00:34:33] Speaker 06: Can you assert an affirmative defense to the indefinite suspension that would intrude upon the agency's ability to make security clearance determinations? [00:34:41] Speaker 06: The answer is no. [00:34:42] Speaker 06: You can't assert an EEO defense. [00:34:45] Speaker 06: You can't assert an unfair labor practice defense. [00:34:48] Speaker 06: You just can't reexamine the clearance process. [00:34:50] Speaker 06: But we're not asking the board or the court to examine the clearance process. [00:34:54] Speaker 06: We're asking the board to make sense of its discretionary ability to review a disciplinary action. [00:35:02] Speaker 06: An indefinite suspension is not even a disciplinary action. [00:35:05] Speaker 06: The disciplinary action came as a result of a phrasing by this court in Thomas v. General Services Administration. [00:35:11] Speaker 06: An indefinite suspension is a protective measure. [00:35:14] Speaker 06: Who does it protect? [00:35:15] Speaker 06: My friends, the government. [00:35:16] Speaker 06: It protects the government. [00:35:17] Speaker 06: It's not meant to punish the employee. [00:35:20] Speaker 06: But at some point, there comes a balance. [00:35:22] Speaker 06: Who are you trying to protect? [00:35:23] Speaker 06: And when does this really become a punishment? [00:35:26] Speaker 06: Again, my client here is informal paupress. [00:35:28] Speaker 06: This is not a good situation. [00:35:29] Speaker 06: be without pay, without being able to be permanently employed for two years. [00:35:34] Speaker 06: It's horrific for the, you can have all sorts of appeals. [00:35:38] Speaker 06: You can have lawyers all over the place, but it doesn't improve your financial circumstances. [00:35:41] Speaker 06: Again, on a protective measure, there should be some balance that's struck. [00:35:45] Speaker 01: But there's no right to a security clearance. [00:35:47] Speaker 06: No right to a security clearance, but there is a right, Your Honor, to the board, as they said, to require the agency to review alternatives to the indefinite suspension. [00:35:57] Speaker 06: And yes, it's true that a [00:35:59] Speaker 06: A condition of your job has been removed, but there were lots of other jobs, and I see I'm in, I should stop if I can complete my sentence, sir. [00:36:08] Speaker 06: There were lots of other jobs which were available at the time at FEMA Region 3, which the deciding official, Ms. [00:36:16] Speaker 06: Tierney, could have placed my client in that did not require a clearance. [00:36:20] Speaker 06: That was the essence of our case. [00:36:22] Speaker 06: Thank you. [00:36:22] Speaker 01: Okay. [00:36:23] Speaker 01: Thank you. [00:36:23] Speaker 01: The case will be submitted.