Carlucci v. Doe

PETITIONER:Carlucci
RESPONDENT:Doe
LOCATION:State University of New York Albany

DOCKET NO.: 87-751
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 488 US 93 (1988)
ARGUED: Oct 11, 1988
DECIDED: Dec 06, 1988

ADVOCATES:
John G. Gill, Jr. – on behalf of the Respondent
Michael K. Kellogg – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 11, 1988 in Carlucci v. Doe

William H. Rehnquist:

We’ll hear argument next in No. 87-751, Frank C. Carlucci v. John Doe.

Mr. Kellogg, you may proceed whenever you’re ready.

Michael K. Kellogg:

Thank you, Mr. Chief Justice, and may it please the Court.

Every employee of the National Security Agency has to have a high level security clearance.

That is a statutory requirement for employment at NSA.

The question at issue in this case is not what happens to an employee who loses his clearance, for it is clear that he has to be removed.

Nor is the question whether the clearance decision itself is subject to judicial review.

The application of this Court’s decisions in Egan and Webster v. Doe will remain open on remand.

The question at issue today is simply what procedures are to be followed by the agency in removing an employee who loses his clearance.

After briefly stating the background of this case, I will argue that there are three different ways to remove the employee, and the agency is charged with choosing the appropriate procedure in light of the individual circumstances.

First, the employee can be removed for cause for failure to maintain a required clearance after following all the ordinary procedures afforded to Federal employees dismissed for cause, including MSPB review if the employee is a preference eligible veteran.

Second, the employee can be suspended and then removed under the summary procedures of 5 U.S.C. 7532 following notice in a hearing if the Secretary of Defense determines that the suspension and the removal are in the interests of national security.

Finally, the employee can be removed without any procedures whatsoever under 50 U.S.C. 833 if the Secretary of Defense determines that that action is in the interest of the United States and that none of the other procedures can be invoked consistently with national security.

Well, Respondent was employed at the National Security Agency from 1968 until 1984.

In 1982 he disclosed to NSA security officials that while on vacation in foreign countries, he had engaged in homosexual relations with foreign nationals.

He subsequently received a notice of proposed removal on the grounds that his continued access to classified information was no longer clearly consistent with the national security.

Pursuant to NSA regulations governing for-cause removals, he was advised that he had a right to respond, to obtain counsel.

He was kept on paid status pending the outcome of his case, but was denied access to classified information.

Respondent requested and received a psychiatric evaluation in an effort to demonstrate that he did not pose a security risk.

A board of appraisal was convened to consider his case.

Based on the psychiatric report and Respondent’s own statements, the board concluded that Respondent had shown poor judgment, that he was emotionally unstable and that he was living beyond his means.

Accordingly, the board concluded that he was a poor security risk and recommended that his clearance be revoked.

Byron R. White:

What authority was the Secretary… or the agency acting under at this stage?

Michael K. Kellogg:

They were acting under dual authority.

The board of appraisal is provided for by statute.

Byron R. White:

Yes, but when the… when the agency first took action against him and started this procedure, what did it purport to act under?

Michael K. Kellogg:

It was acting under its statutory authority to hire employees without regard to the Civil Service laws.

That authority puts NSA employees in the excepted service for purposes of the Civil Service Reform Act.

Now–

Byron R. White:

And you say that that gave the agency the power to fire too.

Michael K. Kellogg:

–That’s correct.

And because Respondent was not–

Byron R. White:

And the agency had issued regulations?

Michael K. Kellogg:

–Yes.

The agency has issued regulations instituting that authority and, in fact, circumscribing its otherwise uncircumscribed authority–

Byron R. White:

And that is what they were acting under?

Their own regulations?

Michael K. Kellogg:

–That’s correct.

NSA has provided by regulation that NSA employees can only be removed for cause, and it has provided procedural protections to be used for for-cause removals including notice and opportunity to respond and be represented by counsel.

It is those procedures that were invoked in this case.

John Paul Stevens:

Mr. Kellogg, would you tell me what is the NSA regulation that required that the removal be for cause?

Michael K. Kellogg:

Chapter 370–

John Paul Stevens:

It’s 370.

Michael K. Kellogg:

–of the NSA regulations says that removals are to be for such cause as will promote the efficiency of the service.

John Paul Stevens:

And is that… is 370 in the appendix of the cert petition?

Michael K. Kellogg:

Yes, it is.

Sandra Day O’Connor:

Mr. Kellogg, doesn’t Chapter 371 of the regulations say that it applies to actions to limit access to classified information and to suspend or terminate personnel for reasons of national security?

Michael K. Kellogg:

That’s correct, Justice O’Connor.

Sandra Day O’Connor:

It looked to me reading through it, frankly, like this was a 371 proceeding or should have been.

Maybe they proceeded under 370, but were they violating their own regulations in doing that?

Michael K. Kellogg:

No, they were not, Justice O’Connor.

Chapter 371 implements procedures for clearing access of employees to classified information.

And it’s correct that the clearance portion of what happened to Respondent took place pursuant to Chapter 371.

But once the clearance is revoked, the question is how is the employee to be removed.

Byron R. White:

Then it becomes cause.

Michael K. Kellogg:

And then it becomes cause because possession of a clearance is a statutory requirement of employment at NSA.

Chapter 371 provides an alternative mechanism for removing the employee.

It implements 5 U.S.C. 7532, which permits the employee to be summarily suspended without pay and then subsequently removed if the director or if the head of the agency determines that it’s in the interest of national security.

Sandra Day O’Connor:

I was a little troubled because reading the regulations, it did seem to me that they just didn’t follow their own regulations.

Michael K. Kellogg:

Well, I think that’s not correct.

Michael K. Kellogg:

They were, in fact, very careful to state precisely which portion of the regulations they were following.

There are different paths here and which path you take depends upon the language you use in notifying the employee.

If they had said we propose to suspend and remove you in the interest of national security pursuant to 5 U.S.C. 7532, then they would have had to follow 371.

William H. Rehnquist:

So, you say this is not a national security case as defined in the preamble to the regulations.

Michael K. Kellogg:

That’s correct.

It’s certainly true that national security is implicated.

The reason he lost his clearance is that it was no longer clearly consistent with the national security for him to have a clearance.

But the reason he was removed was for cause for failure to satisfy his statutory condition of his employment.

Now, the Court of Appeals held that the authority of the Director of NSA to remove employees for cause is circumscribed by 5 U.S.C. 7532 which the court says expressly controls terminations in the interest of national security.

And we think the Court of Appeals reversed the proper relation between 7532 and ordinary for-cause procedures.

Seventy-five thirty-two by its own terms is an optional, not a mandatory, procedure.

It states that the Secretary may suspend and remove an employee pursuant to its procedures, but it does purport to lay down a mandatory procedure for every case.

It also says that 7532 can be used notwithstanding other statutes, but nothing precludes actions taken pursuant to other statutes.

And this reference to other statutes only makes sense… is referring to provisions like the CSRA that provide protections in ordinary for-cause removals that are not available under the summary procedures of 7532.

John Paul Stevens:

Mr. Kellogg, may I ask you another question?

Seventy-five thirty-two says you may suspend without pay.

Michael K. Kellogg:

That’s correct.

John Paul Stevens:

Does it… is every 7532 suspension one without pay?

Michael K. Kellogg:

Well, I don’t think it would have to be.

Because this one was not.

Michael K. Kellogg:

The statute seems to contemplate that.

For example, in part B, it says you remove… you can only suspended an employee.

And that would seem to indicate that the suspension is what starts the whole process going.

But if the agency were to choose to suspend him with pay or merely to suspend access to classified information, I don’t think anybody would object.

John Paul Stevens:

They might not object, but they wouldn’t be following the statute if they did that.

It seems to me that this is something… and doesn’t the agency head himself have to do the… invoke this procedure?

Michael K. Kellogg:

That’s correct.

The head of the agency has to make the decision himself.

John Paul Stevens:

Well, okay.

Michael K. Kellogg:

The point is that Section 7532 is not an employee protection statute.

Michael K. Kellogg:

It sets minimum standards to be used in suspending and removing employees.

Whether the agency could go beyond those in using 7532 is an open question, but not particularly germane to the question at issue.

Byron R. White:

Under 7532, isn’t the ultimate decision the Secretary rather than the agency?

Michael K. Kellogg:

Yes.

The head of the agency has to make the ultimate decision.

Now, subsequent to the Court of Appeals’ decision in this case–

Byron R. White:

But the Secretary doesn’t get into the act under the for-cause–

Michael K. Kellogg:

–No, that’s correct.

The Secretary does not.

Subsequent to the Court of Appeals’ decision in this case, the Director of NSA was designated by executive order as the head of an agency for purposes of 7532.

So, in any subsequent cases, the Director himself would be making the decision, not the Secretary of Defense.

William H. Rehnquist:

–In any subsequent cases brought under 7532.

Michael K. Kellogg:

That’s correct.

John Paul Stevens:

Of course, he did that because under the Court of Appeals’ holding, that’s all he could do–

Michael K. Kellogg:

That’s correct.

John Paul Stevens:

–because they eliminated the avenue of discharge that you rely on.

Michael K. Kellogg:

That’s correct.

John Paul Stevens:

Yes.

Michael K. Kellogg:

And so, it would have to go back and he would have to do it again under 7532 or under 833.

That’s an option as well.

Byron R. White:

But 833 has got that condition on its use that none of the other procedures would be adequate.

Michael K. Kellogg:

That’s correct.

It states… it’s sort of the most extreme, the most restrictive provision.

Byron R. White:

But what has happened here already would seem to indicate you never could satisfy that condition.

Michael K. Kellogg:

Not that you could never satisfy it.

Byron R. White:

Yes.

Michael K. Kellogg:

There could certainly be cases in which 833 would be appropriate.

For example–

Byron R. White:

Well, I agree with that, but in this case, I don’t see how you could ever use 833.

Michael K. Kellogg:

–Oh, I don’t think 833 would be appropriate in this case.

Michael K. Kellogg:

I don’t really think 7532 would be appropriate either unless–

William J. Brennan, Jr.:

Well, 833 is really an emergency dismissal provision.

Michael K. Kellogg:

–That’s correct, as is–

William J. Brennan, Jr.:

And we don’t… that’s why it’s not applicable here.

Michael K. Kellogg:

–No, we do not have an emergency.

Section 7532 is an emergency provision as well.

The legislative history of 7532 focused on the Lloyd-La Follette Act and the Veteran’s Preference Act and the procedures provided to Federal employees dismissed for cause under that statute.

It said this procedure is necessary in certain extreme and emergency circumstances to cut through–

William J. Brennan, Jr.:

You are speaking now of 7532.

Michael K. Kellogg:

–That’s correct.

William J. Brennan, Jr.:

And your position is that it also is only an emergency provision that’s not applicable here.

Michael K. Kellogg:

Well, I’m not saying that it couldn’t have been used here.

Certainly NSA’s mission is so sensitive that any employee for whom it is not clearly consistent with the national security for him to have a clearance, it is probably also in the interest of national security to remove that employee.

But I think the three provisions–

William J. Brennan, Jr.:

What were you suggesting when you answered Justice White earlier?

That there might have to be a remand for reconsideration under 7532?

Michael K. Kellogg:

–If the Court of Appeals were upheld.

That’s what they said.

You have to go back and do it again under 7532.

John Paul Stevens:

But really there’s a different standard under 7532 than there is under the National Security Agency.

In order to invoke that emergency… not the super emergency, 833, but the regular emergency… it has to be necessary in the interest of national security.

Michael K. Kellogg:

That’s correct.

John Paul Stevens:

But you can deny a security clearance without meeting that standard.

All you have to find is it’s not clearly consistent with national security that this man have access to NSA materials.

Michael K. Kellogg:

That’s correct.

Antonin Scalia:

But they’re different standards.

Michael K. Kellogg:

And once that you find that it’s not clearly consistent, the statute–

Antonin Scalia:

Then you have cause.

Michael K. Kellogg:

–requires the employee be removed.

But that doesn’t necessarily mean that you have to invoke Section–

Antonin Scalia:

Mr. Kellogg, you know you’re going to be arguing in another case that it’s not consistent with national security to give access to classified information to someone as to whom it is not clearly consistent that he can have that information.

I mean, the two really boil down to the same.

Michael K. Kellogg:

–Well, no, I don’t think they do.

For example, in a number of agencies, you don’t even have to have a clearance necessarily to work in that agency.

Every employee at NSA has to have a security clearance.

Antonin Scalia:

Yes, but where you have a security clearance, I’m sure you would say that unless someone clearly can be trusted with access to the classified information, it’s not… it’s necessary in the interest of national security not to let him have that classified information.

Michael K. Kellogg:

Well, I think that might well follow, Justice Scalia.

The three statutory procedures for removing employees in these circumstances form sort of a pyramid where the for-cause procedures are the base and cover the broadest ground.

Then comes Section 7532, and finally the smallest compass and the most extreme case, Section 833.

The lines of demarcation between those procedures are not clear-cut, and much is left to the discretion of the agency to choose which one is appropriate in an individual case, but as a general principle, the for-cause procedures are to be used unless there’s some reason why they shouldn’t be used such as, for example, the employee can’t be told the precise reasons why he’s being removed.

Perhaps it would reveal a source of information that must remain secret.

In those circumstances, Section 7532 would be appropriate because it provides for a statement of reasons only to the extent that national security permits; whereas, under the for-cause procedures you have to give him a complete statement of reasons.

The premise of the Court of Appeals’ decision and of Respondent’s argument appears to be that he would have received more procedures under 7532 than he received under the for-cause procedures.

Byron R. White:

xxx Secretary’s decision.

Michael K. Kellogg:

That’s correct.

The Secretary of Defense, under the prior procedures would have been involved if 7532 had been invoked, but he would also have been suspended without pay for 16 months.

He would have received notice only to the extent consistent with the national security.

He would have had no right to counsel.

He would have had a single hearing of unspecified scope.

And if a decision were made to remove him, he would have been ineligible for any other position in the Department of Defense and for any other job elsewhere in government without OPM specifically saying that he’s eligible.

Now, that contrasts sharply with what he actually received, which was 16 months of pay, notice and opportunity to respond, counsel, several layers of intra-agency review, including a personal meeting with the Director of NSA and a recommendation that the agency try to find his employment elsewhere where a clearance was not required.

Byron R. White:

When did his pay stop?

Michael K. Kellogg:

His pay stopped on the date of his removal when the final decision was made by the Director of NSA.

The only person who would be better off if Section 7532 became the standard means for removing people who lose their security clearance is Respondent because he got all the other procedures.

Everybody else would be worse off.

There are any number of reasons why the agency might determine that someone’s access to classified information is no longer clearly consistent with the national security.

It could depend on a number of mundane factors such as financial problems, alcohol abuse, mental health concerns, carelessness in the handling of classified material, or simply that a family member has close ties with a hostile country.

Now, in all of those circumstances, the employee may lose his clearance and his job at NSA because NSA cannot tolerate any unnecessary risk.

Its mission is too sensitive.

But we’re still dealing in those cases with a fairly run-of-the-mine clearance determination, not an emergency such that the procedures of 7532 have to be invoked.

Michael K. Kellogg:

There will, unfortunately, be more dangerous cases from time to time in which an employee has to be excluded from access to classified information and removed immediately and in which perhaps he can’t be given a full statement of the reasons.

In those cases, Section 7532 or even Section 833 would be appropriate.

But it’s important to note that it’s in the agency’s own interest to provide its employees with as much protection as possible to avoid any arbitrary or unnecessary removals and to give the employee himself a sense that he’s being treated fairly because a disgruntled ex-employee with classified information poses a grave security risk.

The ultimate irony of the Court of Appeals’ decision is that it seems to mandate a more severe procedure than the agency itself would want to use.

Unless there are any further questions, I’ll reserve the remainder of my time.

William H. Rehnquist:

Thank you, Mr. Kellogg.

We’ll hear now from you, Mr. Gill.

John G. Gill, Jr.:

Mr. Chief Justice, may it please the Court.

We respectfully submit that the decision by the District of Columbia Circuit be affirmed because of the plain language of the statute, its legislative history, a pertinent executive order, the pertinent Department of Defense directive, NSA’s own regulations, and the clear mandate of this Court’s trilogy of security cases in the 1950’s, Cole v. Young, Vitarelli v. Seaton, and Service v. Dulles, which we submit mandate calling a security case a security case.

First of all, I need to emphasize that the mandatory procedures that are at issue in this case are keyed to removal or termination.

Much is made in the government’s papers about suspension, and that, indeed, is discretionary when you’re dealing with security risks, tactical decisions as to whether to suspend now or perhaps watch a person and see what’s happening are proper.

But… and I think this is the answer to Justice Stevens’ question about was he suspended without pay and is that a mandatory procedure to trigger these rights.

The suspension is discretionary, but once you get to removal, these procedures are mandatory.

And the mere fact that the government paid him for some more months should not, we submit, obviate his congressionally mandated head-of-agency review rights.

And as is conceded, this was a termination case from the very beginning.

And in the words of 7532(3), an employee is entitled to the following procedures before removal.

And as the D.C. Circuit held, we were entitled, we complain, about not receiving a hearing at the agency authority duly constituted for this purpose, a review of the case by the head of the agency or his designee, and a written statement of the decision by the agency head.

William H. Rehnquist:

But before that carries the day for you, you’ve got to show that 7532 is the exclusive provision for removal.

John G. Gill, Jr.:

Yes, Your Honor.

We contend that when you terminate in the interest of national security, which I’ll get to the record and why this case is such a case, these rights are mandated.

We disagree with the mere option argument of the government.

When you have a security case, as this is, a termination in the interest of national security, these rights are mandated by Congress.

William H. Rehnquist:

And you’ll tell us why I suppose.

John G. Gill, Jr.:

Yes, Your Honor.

John Paul Stevens:

Certainly the plain language of 7532 doesn’t say that.

It says:

“Notwithstanding any other statutes, the following procedures may be employed. “

But you say–

John G. Gill, Jr.:

Then it starts with suspension, Your Honor.

John Paul Stevens:

–Suspension without pay.

John G. Gill, Jr.:

And suspension is discretionary.

John Paul Stevens:

Right.

John G. Gill, Jr.:

But then it gets to but when there’s removal, the employee is entitled.

John Paul Stevens:

But that’s an employee suspended under Subsection (a) of this section, so forth and so on, is entitled.

John G. Gill, Jr.:

Well–

John Paul Stevens:

That’s the only mandatory language I see.

John G. Gill, Jr.:

–Well, we respectfully say that this… if it is in the interest of national security, this is the only option if it’s truly an interest of national security case.

John Paul Stevens:

I understand that’s your position.

All I’m saying is the plain language of the statute doesn’t say that.

That’s all.

John G. Gill, Jr.:

Well, we point out in the… most of our record references are to the Court of Appeals’ appendix, which we understand has been filed with the Clerk and circulated to the Justices.

The initial notice at Court of Appeals 82 started out:

“This is a notice to remove you from your critical, sensitive position. “

Our point is that it was a removal on national security grounds from the very beginning.

The government’s entire for-cause argument depends on Chapter 370, which is their inherent authority for-cause procedures.

And, of course, the simplest answer to this, as Justice O’Connor has already pointed out, is it… they didn’t use the 370 standards.

Three seventy point three, which is found at Court of Appeals’ Appendix 67, Subsection 3-2 reads:

“This section does not apply to a suspension or removal taken in the interest of national security. “

The government’s position is anomalous in the light of Chapter 371.1.

That’s at Court of Appeals’ Appendix 228.

“This chapter prescribes policies and procedures governing actions to limit access to– “

Antonin Scalia:

Excuse me.

You wouldn’t have the references to the… to the petition rather than the Court of Appeals–

John G. Gill, Jr.:

–This is not in the petition.

I think this may be found in our brief in opposition to certiorari.

We set out 371… and I think that’s at 12(b).

No, I’m sorry.

That’s at 10(b) of our opposition to certiorari.

And the very first, 1.1 says:

“This chapter prescribes policies and procedures governing actions to limit access to classified information, suspend or terminate civilian personnel of NSA for reasons of national security. “

John G. Gill, Jr.:

Now, this is very important language because the government’s argument seems to intertwine cause with the taking away of a security clearance, the taking away of access to classified information.

This preamble to 371 says 371 applies when you either terminate or circumscribe someone’s access to classified information.

So, by NSA’s own regulation, this is the procedure that’s to be used, and this procedure later on mandates the 7532 procedures: appeal to the agency head, hearing by a duly constituted board, and a decision by the Secretary of Defense.

So, by its own regulation, 370 which they rely on is not applicable.

Three seventy-one, whether you consider it a mere taking away of a security clearance… they have to use 371 before they get to cause.

William H. Rehnquist:

–But is there any contest about the revocation of his security clearance?

That has been revoked, hasn’t it?

John G. Gill, Jr.:

Yes, Your Honor.

We–

William H. Rehnquist:

So, this isn’t… this isn’t a proceeding in which it was sought to take away his security clearance.

John G. Gill, Jr.:

–Well, it’s unclear.

It was always sought to remove him, out he was being removed because you can’t work there with a… without a security clearance.

And the government says this is cause.

We say you take away his security clearance in the interest of national security, which I think Justice Scalia said is the same standard as the 7532–

William H. Rehnquist:

Well, did he argue in these proceedings that his security clearance shouldn’t have been revoked?

John G. Gill, Jr.:

–Yes, Your Honor.

Yes.

William H. Rehnquist:

And was this the proper forum in which he should argue that?

John G. Gill, Jr.:

Well, we contend that there should have been 371 rights that gave us these rights plus appeal to the Secretary of Defense.

William H. Rehnquist:

That’s under–

John G. Gill, Jr.:

He was cut off.

Basically I think the proceedings would have been the same up through the Director of NSA, but then we would have had another hearing, a review by the designee of the Secretary of Defense and then a written–

Byron R. White:

–You would have had on top of this… if the agency said your security clearance is revoked, then you’re going to have a 7532 hearing.

John G. Gill, Jr.:

–Yes, Your Honor.

Byron R. White:

And in which that decision to revoke will be relitigated, wouldn’t it?

John G. Gill, Jr.:

“Reviewed and readjudicated” in the words of the executive order.

Now, there are certain standards set up in these regulations.

Three seventy sets up the familiar standard for such cause as will promote the efficiency of the service.

And that’s in Section 3-4.

That was never utilized.

John G. Gill, Jr.:

We never heard that term until we got to this Court.

What?

The for-cause?

John G. Gill, Jr.:

For-cause as it would promote the efficiency of the service.

There was a talismanic incantation of 370 a few times at the administrative level, but it was always whether his continued access to SCI’s, classified information–

Byron R. White:

But there was no doubt that the proceeding before the agency was under 370.

John G. Gill, Jr.:

–They said that.

There is a doubt.

This is my point, Your Honor.

Byron R. White:

Well, anyway–

–Talismanic incantation for the good of the service instead of a talismanic incantation of 370.

John G. Gill, Jr.:

No.

I asked this Court to follow the mandate of Cole v. Young, Vitarelli v. Seaton.

Is it really a security case?

What test was used?

The test was the 371 test.

Is his access clearly consistent with the interest of national security, which we respectfully submit, is the test in 7532.

Never did they use the 370 test even though they said that term, that number.

They never said for such cause as would promote the efficiency of the service.

Antonin Scalia:

But 371 covers not only policies and procedures to terminate civilian personnel for reasons of national security, it also prescribes policies and procedures governing access… governing actions to limit access to classified information.

And what the government says it was using 371 for, as I understand it, is to say that this person is not entitled to classified information.

Since he is not entitled to classified information, it is in the good of the service that he not hold his job.

Why isn’t that an adequate explanation of the use of 371?

John G. Gill, Jr.:

Because, Your Honor, I heard that for the first time in this Court.

And I’m very familiar with the record.

You will not find in the record any mention of 371.

That was never utilized.

I mean, the standard was utilized, but they never acknowledged they were utilizing it.

If you use 371–

Antonin Scalia:

So, for that, they did the wrong talisman.

Antonin Scalia:

That one they did use the standard and didn’t use the number.

The other one you were complaining about, they did use the number, but didn’t use the standard.

John G. Gill, Jr.:

–Well, Your Honor, yes, they used the 371 standard.

My point is that when you use 371, you get your 7532 procedures.

That’s in that regulation, and it mandates review at the Secretary of Defense level, which is why we’re here.

So, the fact that they used the 371 standard is very important.

That gives us these rights that we think Congress gave us.

If I could refer to the initial letter.

It had the standard of… it’s not your… your continued employment is not clearly consistent with the national security.

They then convened a board of appraisal.

Under the 1964 legislation, a purely security procedure, which deals with or impanels people who are… have expertise in the area of security and advises on national security matters.

And that body found that his access to classified information was clearly… clearly not consistent with national security.

Most significant is the Director of NSA’s own decision.

It’s at 192 of the Court of Appeals’ record, and I quote paragraph C.

“Doe’s record on the job evidences proper security awareness, but his lifestyle away from work is not similarly acceptable. “

We feel that under the for-cause standard promoting the efficiency of the service, this is almost a finding that it does not impair the efficiency of the service because his on-the-job performance is acceptable.

He then goes on.

“I find much attractive about Doe and his work record and performance. “

“I also find him significantly flawed in his off-duty behavior and a potential security risk. “

This was a security case.

This was not a for-cause case.

And when you… when it is a case in the interest of national security, the government has to contend with Executive Order 10450.

President Eisenhower, 1953.

We have cited in our papers and the government in its reply brief has quoted Section 6.

Now, this is at 250 of the Court of Appeals’ appendix.

Section 6 deals with the discretionary nature of suspensions.

And Executive Order 10450 is by its terms more broad than 7532.

Section 5, which is unrebutted in the reply brief, is mandatory in nature and mandates the 7532 procedures for any and all terminations in the interest of national security.

“Whenever there is developed information indicating the retention of employment may not be clearly consistent with the interest of national security, such information shall be forwarded to the head of the employing department or agency who shall review or cause to be reviewed and, where necessary, readjudicate in accordance with the Act of August 26, 1950. “

That is 5 U.S.C. 7532, which the Court of Appeals held we were entitled to.

John G. Gill, Jr.:

Why does the NSA regulations and the executive order seem to indicate that 7532 rights were mandated?

We feel that back in the early 1950’s, when the executive order came into being, when this legislation was passed, there was great concern… the Korean War, the cold war… about security risks.

There was also a great concern about witch hunts in government employment.

People wrongfully, frivolously being ferreted out as national security risks without basis.

We’ve set out at length the legislative history at pages 23 to 34 of our brief, both of the 1950 Act and the 1964 Act.

We have done that in footnote fashion.

On the whole, it clearly shows that the District of Columbia Circuit was right in this case.

There was a legislative compromise.

A part, a significant portion of Congress, wanted civil service review for the protection of employees.

Another part of Congress wanted additional power, not emergency power.

This is not an emergency act, although I can see it does away with outside the agency review, but greater power to the Secretary to terminate in the interests of national security.

A compromise was reached.

The politically responsible, often Cabinet-level officer, accountable to the President, accountable to Congress who could be called down to legislative hearings to say, what’s happening in your agency, why are there so many employees being terminated, why do you have security leaks there.

a high level that would show an impartial tribunal, not the people who were trying to get rid of the employee anyway, but someone removed but, again, consistent with the values preserved in this Court’s decision in Egan where there will not be outside the agency substantive review for a security clearance.

Antonin Scalia:

And you think Congress intended as a regular matter, whenever there’s a security problem, including a clearance problem like this for security information, that the head of the agency is going to be spending his time case by case determining these matters?

I think that–

John G. Gill, Jr.:

Your Honor–

Antonin Scalia:

–As a routine matter, not an emergency provision.

John G. Gill, Jr.:

–Your Honor, the statute clearly gives the authority to the head of the agency to delegate it to a duly constituted authority for a hearing and a designee for review.

He does have to sign off on the eventual order.

Antonin Scalia:

Don’t you think that means he has to personally understand the order?

John G. Gill, Jr.:

Oh, yes.

Antonin Scalia:

He has to give his personal attention to it.

John G. Gill, Jr.:

And he can take the advice of his subordinates, his designees.

I think the intent of Congress was that the office, insulated from direct connection with the people making the initial employment decision–

Right.

John G. Gill, Jr.:

–would have a review like an appellate court.

Antonin Scalia:

Like an appellate court.

And you think that that was the routine way in which Congress intended security problems to be handled in these agencies, personal attention of the head of the agency.

John G. Gill, Jr.:

If you read the legislative history–

Antonin Scalia:

Not an emergency.

That’s the routine way.

John G. Gill, Jr.:

–Yes, Your Honor.

Antonin Scalia:

Well, that would be extraordinary if that were the case.

John G. Gill, Jr.:

If you look at 2330, which was quoted by the Court of Appeals, the… it said right now there is no appeal to the head of an agency when you’re terminated in the interest of national security.

And it said this new legislation extends that right to employees.

Antonin Scalia:

The agency here is the Defense Department, and you’re talking about the Secretary of Defense who has a few other things to do–

John G. Gill, Jr.:

Yes, Your Honor.

Antonin Scalia:

–overseeing all security problems and clearances in the entire Defense Department.

John G. Gill, Jr.:

Yes, Your Honor.

Personally.

John G. Gill, Jr.:

However, I’d point out, as the government has in their reply brief, the President has now designated the head of NSA as the head of an agency for this purpose.

Antonin Scalia:

Good thing, but even that person I assume has other responsibilities that might better occupy his time.

John G. Gill, Jr.:

Well–

Antonin Scalia:

As a routine matter, I mean, I could understand as an emergency.

If you want to get rid of somebody quickly, which is how I understand this provision, you might make him, if you want to do it quickly… make him do it personally, but not as a routine matter.

Isn’t it… it’s such an implausible intent on the part of Congress.

John G. Gill, Jr.:

–I think if you read the legislative history, Your Honor, you’ll… so it was intended, specific reference, and we have set it our in our brief.

Anthony M. Kennedy:

Counsel, Section 832 and 833 both say that notwithstanding the section, Section 7512 and 7532, there may be terminations.

John G. Gill, Jr.:

Or any other legislation–

Anthony M. Kennedy:

Doesn’t… doesn’t that envisage that Section 7512 could on some occasions be used for national security cases?

John G. Gill, Jr.:

–No, Your Honor.

I–

Anthony M. Kennedy:

I mean, why else would Congress have mentioned 7512?

John G. Gill, Jr.:

–For the same reason they said nor any other legislation, which they–

Anthony M. Kennedy:

Well, they specifically said 7512.

John G. Gill, Jr.:

–And they specifically said 7532.

I think that at best is a mandate of Congress or an intent of Congress to say we want to make it clear.

There is no review of the extraordinary emergency power in 833.

No other statutes will get in the way of it.

John G. Gill, Jr.:

I don’t think you can read what the government read in that there exists an option.

In fact, the D.C. Court of Appeals took just… I mean, the D.C. Circuit took just the converse.

They said the mere mention of 7532 shows that they had to remove that to demonstrate that 833… that 7532 was not mandated.

Anthony M. Kennedy:

Well, and as I recall, the D.C. Circuit didn’t even cite 7512.

It did an ellipse of the statute.

John G. Gill, Jr.:

But my point is I don’t think it means an option.

And if you look at the legislative history of that Act, the 1964 Act, you see Congressmen saying as long as this new legislation doesn’t get in the way of the ordinary appeal rights.

And we’ve set that out by way of footnote in our brief.

To analyze the competing contentions in this case, the government argues that you have a general power to terminate which is inherent from the power to hire.

And they can use it if they rely on it.

We argue that Congress has given a specific focus to national security cases of termination in the interests of national security, and in those cases there shall be these procedural reviews.

William H. Rehnquist:

Seventy-five thirty-two starts out not by talking about removal at all.

It talks about suspension.

John G. Gill, Jr.:

Yes, Your Honor.

William H. Rehnquist:

And it only gets to removal in the second subsection.

That sounds to me like it is more designed to deal with an emergency where your first reaction is to suspend the guy and separate him, and then maybe later you’ll think about removal, rather than the comprehensive statute governing all removals.

John G. Gill, Jr.:

These are only removals in the interests of national security.

We have kind of an unusual situation here, Your Honor, because everyone has to be cleared at NSA to work there.

This is the 1964 legislation.

I don’t think we necessarily had this situation in 1950 when Congress acted.

But–

John Paul Stevens:

What about the period between 1959 and 1964?

They hired people… began hiring people in 1959.

John G. Gill, Jr.:

–Yes, Your Honor.

John Paul Stevens:

And your interpretation means that during that period, the ’59 Act, in effect, said you can appoint these people, but you cannot fire them without following the 7532 procedures.

John G. Gill, Jr.:

You can suspend, but you can’t–

John Paul Stevens:

It’s kind of a strange way to read the ’59 statute.

It surely doesn’t say that.

They’re not necessarily in the Civil Service or anything else.

John G. Gill, Jr.:

–The ’59 statute says nothing about termination.

John Paul Stevens:

It just gives them the power to appoint, and presumably they could appoint and say you’re hired at will or you’re hired on a one-year contract.

I don’t see how you read into the ’59 statute the limitations that you find in the earlier 1950 statute.

John G. Gill, Jr.:

Respectfully, Your Honor, I don’t do it; the Department of Defense does it.

And I’d like to quote 5100.23.

That’s the Department of Defense directive which gave–

John Paul Stevens:

Where do we find that?

John G. Gill, Jr.:

–It’s at the Court of Appeals’ record 62.

John Paul Stevens:

Well, we don’t have… is it–

–I think we have–

–the Court of Appeals’ record up here.

John G. Gill, Jr.:

Well, I was assured.

It was the Solicitor General’s idea, and I was assured it was distributed.

I’m sorry.

But in most brief… both briefs, most of the references are to that.

But that is the delegation of authority under the ’59 Act from the Secretary of Defense to the Director of NSA.

And if I can quote paragraph 10 where these are the different…

“authorize the suspension, but not to terminate the services of an employee in the interest of national security in positions within the NSA, in accordance with the provisions of. “

and it goes on and it cites statutory authority, including 7532.

Now, the government argues that–

John Paul Stevens:

Before you leave that, would you tell me again what the citation is to that, what you just read?

John G. Gill, Jr.:

–This is the Department of Defense directive 5100.23, and it’s at page 62 of the Court of Appeals’ appendix.

John Paul Stevens:

Thank you.

John G. Gill, Jr.:

And this is the delegation of authority in this regard from the Secretary of Defense to the Director of NSA pursuant to this Act.

And clearly, if we use principles of the English grammar, when something set off by commas, he withheld to himself the power to terminate the services of an employee in the interests of national security for positions at NSA.

And this defeats totally the government’s argument on inherent authority because of In re Hennen and all of those cases say the power is inherent unless circumscribed by regulatory… we think it’s also a recognition of the congressional mandate.

The principle we espouse here is not a startling one, we respectfully submit.

And that is when there’s a specific focus on legislation that overcomes and overrules general inherent powers, then you have to follow those procedures.

Byron R. White:

Was this the ground the Court of Appeals used?

John G. Gill, Jr.:

They did not focus on the Department of Defense directive.

They did say what I just quoted: the specific focus of legislation would control–

Byron R. White:

They said 7532 was the exclusive.

John G. Gill, Jr.:

–It’s mandated when there’s a termination in the interest of national security.

Byron R. White:

But they didn’t specifically rely on the argument you’ve just been making?

John G. Gill, Jr.:

The Department of Defense directive?

No, they didn’t mention it.

We argued it.

They did not mention it.

Byron R. White:

And the presidential… did you say a presidential proclamation?

John G. Gill, Jr.:

Yes, Your Honor.

Byron R. White:

Did they rely on that?

John G. Gill, Jr.:

No, I don’t think they did.

However, that’s repeatedly mentioned.

Vitarelli v. Seaton… this Court relied on it to mandate compliance with States’ regulations for security cases.

Byron R. White:

So, you would think you… even if the 7532 argument wasn’t good, you would win under the President’s proclamation?

John G. Gill, Jr.:

Your Honor, we win under the statute, the presidential order, the Department of Defense directive, and NSA’s own regulations.

Byron R. White:

Well, but you’re defending the ground that the Court of Appeals used.

John G. Gill, Jr.:

Absolutely, in addition to the others, yes.

Byron R. White:

Well, in addition, you usually start with that, and then you say even if the Court of Appeals was wrong, you win on these other grounds.

John G. Gill, Jr.:

Yes, Your Honor.

Byron R. White:

But we don’t have to deal with those other grounds if we don’t want to.

We could leave that to… for the Court of Appeals, couldn’t we?

We don’t have to entertain these respondents’ claims to defend the judgment on some other ground.

John G. Gill, Jr.:

I suppose not, but I think it would be wise to do so if there’s clear regulatory authority.

Byron R. White:

Well, it isn’t… it might help if the Court of Appeals gave us some aid on this other regulatory authority.

John G. Gill, Jr.:

Well, I also submit, Your Honor, this regulatory authority and the presidential orders are manifestations of what Congress intended and what the government itself thought Congress intended.

To get through the logical steps that the government makes in its for-cause argument, you have to say a security clearance is required at NSA.

We’re taking away a person’s security clearance.

So, he’s terminated for cause because he doesn’t fulfill a qualification of employment.

They come right up against the procedural wall that we’ve been discussing here when they take away the security clearance in the interest of national security, and it triggers these procedural rights.

I see I don’t have time to–

Antonin Scalia:

Why is that?

When they take away the security clearance in the interest of national security, what is triggered?

John G. Gill, Jr.:

–Termination in the interest of national security, 7532–

Antonin Scalia:

No.

We weren’t talking termination; we’re talking about taking away a security clearance.

John G. Gill, Jr.:

–That’s the equivalent of termination in this case.

That’s the equivalent of termination at NSA.

And they said that.

Antonin Scalia:

Now, what says that?

John G. Gill, Jr.:

The 1964 Act, 831.

You have to have a security clearance to work at NSA.

Antonin Scalia:

Well, I know, but–

John G. Gill, Jr.:

And this was recognized administratively, Your Honor, when they gave them the notice.

Antonin Scalia:

–What is crucial to your case is that taking away a security clearance is ipso facto treated by these statutes as the equivalent of termination.

John G. Gill, Jr.:

In these circumstances.

There might be other agencies where it wouldn’t amount to termination.

So, it wouldn’t… it wouldn’t amount to removal if they could put them somewhere else, but they can’t at NSA.

Antonin Scalia:

I don’t see that that’s self-evident to me that the two under the statutory scheme are to be treated the same.

Security clearance is one thing; termination is another.

John G. Gill, Jr.:

Except that the notice says we are terminating… we’re removing you because we’re revoking your security clearance.

That’s the facts of this case.

Antonin Scalia:

Well, I understand, but what we’re doing is revoking your security clearance, and since you don’t have a security clearance, you can’t hold this job.

John G. Gill, Jr.:

And that is, I think, to subvert the intent of Congress and the intent of these other regulations.

Antonin Scalia:

You have a regulation that says that, that revoking a security clearance is the same as termination?

John G. Gill, Jr.:

No.

We have the statutory requirement and we have 371 which triggers the 7532 procedures, NSA’s own regulation.

William H. Rehnquist:

Mr. Gill, section 7531 that precedes 7532 in the Code says what agency shall include when 7532 says the head of an agency.

And it lists State, Commerce, et cetera.

And then at the very end, it says:

“such other agency of the Government of the United States as the President designates in the best interest of national security. “

William H. Rehnquist:

Now, that doesn’t sound like an employee’s bill of rights really if the President can bring other agencies into it or not as he chooses depending on national security considerations.

John G. Gill, Jr.:

Well, two responses.

This Court did limit the President’s authority in Cole v. Young where they said that they could not… kind of the converse of this situation… they could not obviate a person’s veteran’s preference rights by making HEW one of these agencies.

And also the Court in Vitarelli, I believe, said that an employee is entitled to these procedures.

The Secretary of State in that case could not change the reasons for his removal by saying I now act in my absolute discretion.

You’re not going to get your rights under regulations 7532 type rights.

In further answer, Your Honor–

William H. Rehnquist:

But I’m curious.

If it was thought to be something where an employee’s right are to be protected, it was left to the President for national security consideration to expand it beyond the reach of the agencies that Congress had designated.

John G. Gill, Jr.:

–Absolutely true.

William H. Rehnquist:

I know it’s true, but it doesn’t seem–

John G. Gill, Jr.:

And I think… I think–

William H. Rehnquist:

–it’s consistent with your argument.

John G. Gill, Jr.:

–I think the initial motive for the legislation was to expand terminations of security risks, but Congress mandated a compromise: appeal in the agency for substantive review at the Secretary of Defense level.

John Paul Stevens:

May I ask one question to be sure I have your position?

Is it your position that in order to revoke a security clearance in the National Security Agency, they must follow the 7532 procedures?

John G. Gill, Jr.:

When it equates with termination.

John Paul Stevens:

Well, no.

John G. Gill, Jr.:

Yes, yes.

John Paul Stevens:

They must do it every time, okay.

John G. Gill, Jr.:

And that’s their own regulations, Your Honor.

Three seventy-one says that.

John Paul Stevens:

Well, I understand that’s your position.

Thank you.

Thank you, Mr. Gill.

Mr. Kellogg, you have 11 minutes remaining.

Michael K. Kellogg:

In the Court’s decision in Cole v. Young, the Court compared 7532… situations in which use of that statute was appropriate with ordinary removal procedures.

And the Court stated quite clearly:

“In the absence of an immediate threat of harm to the national security, the normal dismissal procedures seem fully adequate and the justification for summary powers disappears. “

Now, the MSPB and the Federal Circuit, which have wide responsibility for Federal personnel matters, also stated in the Egan case that the existence of Section 7532 does not affect the availability of for-cause removal procedures whenever the cause might implicate national security.

Michael K. Kellogg:

In lieu–

Antonin Scalia:

Part of Mr. Gill’s argument, Mr. Kellogg, is that even if you could have proceeded under one of these other provisions, you didn’t.

And I must say he does seem to make a point that you were proceeding under 371 which is not the for-cause removal procedure.

Is that correct?

Michael K. Kellogg:

–I think actually the agency was very careful in choosing the procedures that it followed here.

The notice of proposed removal to Respondent stated: your…

“it appears that your continued access to classified information is no longer consistent with the national security. “

“Therefore, you no longer meet a requirement of employment at NSA. “

“Therefore, you will be removed under Chapter 370. “

Now, it’s true that the notice didn’t say under the for-cause standard of Chapter 370, but Chapter 370 only allows removals for a cause.

The agency was quite careful to follow the 370 procedures.

Now, there are separate procedures under 371 for implementing Section 7532, but the agency did not follow the 7532 procedures for removals and dismissals in the interests of national security.

John Paul Stevens:

But it’s also true that Section 371 in its introductory sentence says:

“It purports to prescribe policies and procedures governing actions to limit access to classified information. “

That seems to support your opponent’s view that that section governs the procedure for taking away a security clearance.

Michael K. Kellogg:

It would only support the proponent’s… the opponent’s view if it followed that once you revoke a clearance, you have to continue and can only use Section 7532.

Now, it’s true that Chapter 371 implements the statutory authorization for using boards of appraisals to assess whether a person should have access to classified information.

And a board of appraisal was used in this case and determined that Respondent’s access was no longer clearly consistent with the national security.

Therefore, his clearance was revoked.

John Paul Stevens:

So, are you saying that insofar as they went through the revocation of access procedure, they did follow 371?

They didn’t violate it.

But then when they removed him, they were following 370?

Michael K. Kellogg:

That’s correct.

And there’s nothing in the regulations that precludes that.

In fact, it would be quite extraordinary if NSA in its own regulations were to bind its hands and give itself only the option of using the emergency procedure whenever a clearance is revoked.

Thurgood Marshall:

You maintain that you carefully tailored it for 371, but you never mention 371.

Michael K. Kellogg:

We carefully tailored it for 370.

Thurgood Marshall:

Well, did you carefully not mention 371?

Michael K. Kellogg:

I don’t recall if 371 is specifically mentioned.

A board of appraisal was convened.

Thurgood Marshall:

He said it wasn’t mentioned.

Michael K. Kellogg:

That’s true.

Respondent said that.

I’m frankly not sure if anywhere in the record there is or is not a mention of Chapter 371.

A board of appraisal was convened, and a board of appraisal is permitted under the procedures of Chapter 371, but the removal took place under Chapter 370.

And the fact that a procedure exists under 371 for removing an employee summarily, when it’s necessary in the interest of national security, does not affect whether loss of a clearance is cause for removal.

Antonin Scalia:

Yes, but unfortunately this combination of 370 and 371 is contradicted by the very first section of 371 which reads:

“Scope. “

“This chapter prescribes policies and procedures governing actions to limit access to classified information, suspend and/or terminate civilian personnel of the NSA, Central Security Service, for reasons of national security. “

“Such actions for reasons other than national. “

–other than national…

“security are processed in accordance with Chapter 370. “

And yet, you purport to be going under 371 and 370.

I mean–

Michael K. Kellogg:

That’s correct.

Antonin Scalia:

–this thing says it’s a dichotomy.

If it’s for national security, it’s under 371; if it’s other than national security, it’s under 370.

Michael K. Kellogg:

No.

If it’s implementing Chapter 75… or Section 7532, then you have to follow the procedures in Chapter 371.

Counsel is quite correct that the delegation of authority to the Director of NSA specifically withheld the power to suspend and terminate employees in the interest of national security pursuant to 7532.

As a consequence, NSA had to develop separate procedures for suspensions and removals in the interest of national security.

But a removal for cause is something quite different, and nothing in Chapter 371 says that loss of a clearance cannot be cause for removal.

But also a note to follow up on Justice White’s point.

The District Court was faced with the question of whether NSA followed its procedures in this case.

It found that it did, that the removal comported with NSA regulations.

The Court of Appeals, in light of its statutory holding, did not reach that question.

If the Court is troubled by the regulatory question but wishes to reverse on the statutory question, the Court could remand to the Court of Appeals for… to address the question of whether NSA followed its own regulations.

But the NSA regulations have been in place since the inception of NSA, and removals time and again take place for cause after revocation of a clearance.

The agency’s own interpretation of its regulations is surely entitled to some deference.

Unless there are any further questions–

William H. Rehnquist:

Thank you, Mr. Kellogg.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.