In Diehl v. Dep’t of the Army, 112 F.M.S.R. 147 (2012), the Merit Systems Protection Board (Board) held that the agency had violated Diehl’s due process rights in the process of indefinitely suspending him and reversed the administrative judge’s (AJ) decision sustaining the adverse action.

The agency suspended his security clearance, which was required under the conditions of his employment as an intelligence specialist, until the U.S. Army Central Personnel Security Clearance Facility adjudicated the matter. As a result, Diehl received a notice proposing his indefinite suspension, to which he responded both orally and in writing. A few months later, the deciding official issued a decision indefinitely suspending him, which he appealed to the Board on the ground that the agency committed harmful procedural error and denied him due process.

The AJ sustained the indefinite suspension on the basis that the agency had not violated Diehl’s procedural due process rights because (a) the notice included the specific reasons supporting the proposed suspension; (b) Diehl, who was represented by counsel, presented detailed written and oral responses to the proposed suspension; (c) Diehl presented no evidence that his post-traumatic stress disorder symptoms denied him a meaningful opportunity to respond, and (d) the deciding official credibly testified that he had considered Diehl’s responses in deciding whether to indefinitely suspend him.

The Board, however, disagreed. First, it relied on McGriff v. Dep’t of the Navy, 118 M.S.P.R. 89 (2012), and Buelna v. Dep’t of Homeland Sec., 118 M.S.P.R. 115 (2012), which held that a tenured federal employee who is indefinitely suspended based on an agency’s security clearance determination is constitutionally entitled to due process, to determine that Diehl was entitled to notice and an opportunity to respond prior to being indefinitely suspended. The Board then considered (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of the interest through the procedures used, and the probably value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest to determine whether Diehl had received due process, as instructed by Gilbert v. Homar, 520 U.S. 924 (1997).

Under the first and third factors, the Board noted that the agency had provided Diehl with notice and the opportunity to respond prior to his indefinite suspension. Therefore, under the first factor, even if Diehl had a significant property interest in employment, the Board could not find that the timing of the notice and opportunity to respond rendered the process afforded constitutionally defective. In addition, in regards to the third factor, the Board held that, because the agency had provided notice and an opportunity to respond, its compelling interest in withholding national security information from unauthorized persons was inconsequential to the ultimate issue of due process.

However, under the second factor, the Board noted that due process requires that the deciding official have authority to take or recommend agency action based on the reply, especially when the employee did not have a meaningful opportunity to respond to the reasons for the suspension of the security clearance. Finding that this was exactly the situation in the instant case, the Board held that the procedures used in effecting Diehl’s indefinite suspension sufficiently run the risk of an erroneous deprivation of his property interest and, thus, the agency had violated due process. The Board, therefore, reversed the AJ’s decision affirming the indefinite suspension and ordered the agency to restore Diehl to his former position.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.  

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