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

Media for Carlucci v. Doe

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.