No. 97-5604 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 CALVIN J. WEBER, PETITIONER v. MERIT SYSTEMS PROTECTION BOARD, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION SETH P. WAXMAN Acting Solicitor General FRANK W. HUNGER Assistant Attorney General WILLIAM KANTER PETER R. MAIER Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the Merit Systems Protection Board lacked jurisdiction over petitioner's appeal, in which he alleged that the Army and the Board had engaged in a prohibited personnel practice by failing to give petitioner the opportunity to question the individuals who provided information upon which the revocation of his security clearance was based. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 No. 97-5604 CALVIN J. WEBER, PETITIONER v. MERIT SYSTEMS PROTECTION BOARD, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1A-3A) is reported at 113 F.3d 1258 (table). The decision of the administrative judge of the Merit Systems Protection Board (Pet. App . 1B-3B) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 13, 1997. The petition for a writ of certiorari was filed on August 11, 1997. The jurisdiction of this Court is invoked under U.S.C. 1254(1). STATEMENT 1. Petitioner, a former civilian employee of the Department the Army, challenges the procedures that the Army followed in ---------------------------------------- Page Break ---------------------------------------- 3 revoking his security clearance and removing him from his position as a general engineer: He also challenges the procedures that the Merit Systems Protection Board followed in reviewing his challenges to the Army's actions. Petitioner was employed by the Army as a general engineer, GS- 12, in Granite City, Illinois a position requiring a security clearance. On February 22, 1993, the Army revoked petitioner's security clearance based upon charges that he had released classified information to the media. In taking that action, the Army relied on an FBI report concerning the disclosures. On June 4, 1993, the Army removed petitioner from his position because he no longer had a security clearance. 1. Petitioner challenged those actions by seeking corrective action from the Board's Office of Counsel. The Special Counsel notified petitioner that, his allegations did not involve evidence that the Army had in a prohibited personnel practice, the Special Counsel lacked jurisdiction over his request for corrective action. 2. ___________________(footnotes) 1 The Army removed petitioner pursuant to 5 U.S.C. 7513 (a) , the general provision authorizing dismissals for "such cause as will promote the efficiency of the service. " Although 5 U.S.C. 7532 provides a separate procedure for suspension and removal of employees based on loss of their security clearances, this Court has recognized that Sections 7513(a) and 7532 authorize alternative routes to the same end, and that Section 7513(a) should in fact provide the more common basis for carrying out dismissals based on lack of a required security clearance. See Carducci v. Doe, 488 U.S. 93, 100-104 (1988). 2 Petitioner has brought numerous other actions that arise from the same subject matter. See Weber v. Department of the Army, 117 F.3d 1423 (8th Cir. 1997) (table); Weber v. Department of the Army 104 F.3d 375 (Fed. Cir. 1996) (table); Weber v. Merit Systems Protection Board, 101 F.3d 716 (Fed. Cir. -1996) (table);Weber v. United States, 99 F.3d 1144 (8th Cir. 1996) (table); Weber v. ---------------------------------------- Page Break ---------------------------------------- 4 Among other challenges, petitioner filed with the Board individual right of action (IRA) appeals challenging the revocation of his security clearance and his dismissal. An administrative judge dismissed the IRA appeal concerning revocation of petitioner's security clearance, holding that the Board lacked jurisdiction to review the matter. The administrative judge concluded that revocation of a security clearance is not a personnel action defined-by 5 U.S.C. 2302(a) (2) and therefore may not constitute grounds for an allegation that an agency has committed a Prohibited personnel practice. The Board upheld the dismissal of that claim, and the court of appeals affirmed that decision. Weber v. Department of the Army, 59 M.S.P.B. 293 (1993), aff'd, 26 F.3d 140 (Fed. Cir. 1994), cert. denied, 513 U.S. 999 (1994). In petitioner's separate IRA appeal challenging his removal from his job based upon loss of his security clearance, an administrative judge affirmed the Army's action o-n the merits and dismissed the appeal. Guided by this Courts decision in Department of the Navy v. Egan 484 U.S. 518 (1988) , the administrative judge refused to review the Army's reasons for revocation of petitioners security clearance, but determined that 1) the clearance had in fact been revoked; 2) the Army required ___________________(footnotes) Buhrkuhl, 72 F.3d 134 (8th Cir. 1995) (table); Weber v. Named Federal Officials, 68 F.3d 479 (8th Cir. 1995) (table); Weber v. Department of the Army, 9 F.3d 97 (Fed. Cir- 1993); Weber v. Merit Systems Protection Board, 5 F.3d 1504 (Fed Cir. 1993) (table); and Weber v. Merit Systems Protection Board, 989 F.2d 1203 (Fed. Cir. 1993) (table). ---------------------------------------- Page Break ---------------------------------------- 5 such a clearance for the performance of petitioner's job; and 3) the army had afforded petitioner the procedural protections required by 5 U.S.C. 7513. The Board denied petitioner's petition to review the administrative judge's decision, and the court of appeals affirmed that determination. Weber v. Department of the Army, 39 F.3d 1197 (Fed. Cir. 1994) (table). 2. On April 11, 1996, petitioner filed a complaint with the Office of Special Counsel alleging that the procedures followed by the Army in revoking his security clearance and in terminating his employment violated his Sixth Amendment right to confront and cross-examine persons who had provided information upon which the Army based its actions. According to the complaint, that constitutional violation was a prohibited personnel practice actionable under the Whistleblower Protection Act because it contravened merit system. principles. See 5 U.S.C. 2302(b) (11). The Office of Special Counsel declined to act on petitioner's complaint. It determined that the Army's failure to provide for cross-examination and confrontation of persons who provide information that leads to revocation of a security clearance is not a Personnel action and therefore cannot serve as the predicate for I an alleged prohibited personnel practice. Petitioner filed an IRA appeal with the Board, but an administrative judge dismissed the appeal for failure to allege a prohibited personnel practice. Petitioner did not seek review by the Board. Once the administrative judge's decision became final, petitioner-appealed the decision to the Court of Appeals for the ---------------------------------------- Page Break ---------------------------------------- 6 Federal Circuit. The court of appeals agreed with the administrative judge that the Board lacked jurisdiction over the claim because an executive agency's alleged violation of a Sixth Amendment right to confrontation and cross-examination of witnesses is not a personnel action under the Whistleblower Protection Act. 113 F.3d 1258 (Fed. Cir. 1997). ARGUMENT The court of appeals correctly determined that the Board lacked jurisdiction over petitioner's individual right of action appeal. Petitioner does not raise a legal question of general importance, their is no conflict among the courts of appeals on the matter, and the decision below is consistent with the decisions of this Court. Therefore, further review is not warranted. 3. 1. The Civil Service Reform Act of 1978 (CSRA) establishes "an integrated scheme of administrative and judicial review" of personnel decisions affecting federal workers. United States v. Fausto, 484 U.S. 439, 445 (1988). Under the Act, the appellate jurisdiction of the Merit Systems Protection Board is limited to those actions "made appealable to the Board under any law, rule or regulation. " 5 U.S.C. 7701(a); see, e.g., Serrao v. United States, 95 F.3d 1569, 1573 (Fed- Cir- 1996). Chapter 75 of the Act sets out the general procedures for ___________________(footnotes) 3 Although all the bodies that considered petitioner's complaint below treated it as challenging the Army's alleged violation of petitioners Sixth Amendment rights, the petition for certiorari challenges the Board's alleged delinquency on this score as well. See Pet. 4("Par" 1), 6 ("Par" 10). Our argument applies equally to claims directed at the conduct of either agency. ---------------------------------------- Page Break ---------------------------------------- 7 federal agencies to take various "adverse actions" against employees. Section 7513(d) authorizes the Board to hear appeals by federal employees who have experienced the more serious of these adverse actions, including removal from a job. 5 U.S.C. 7513(d). Chapter 23 of the Act, as amended by the Whistleblower Protection Act, additionally defines a group of "prohibited personnel practices. " 5 U.S.C. 2302. The prohibited practices include taking or failing to take a "personnel action" against an employee because the employee made a protected disclosure of information concerning an agency's illegal, dangerous, or grossly wasteful actions, 5 U.S.C. 2302(b)(8), and taking or failing to take "any other personnel action" that "violates any law, rule or regulation implementing, or directly concerning, the merit system principles, " 5 U.S.C. 2302(b) (11). One of the merit system principles is- that "[all employees should receive fair and equitable treatment in all aspects of personnel management * * * with proper regard for their privacy and constitutional rights." 5 U.S.C. 2301(b) (2). Section 2302(a)(2) (A) enumerates the "personnel actions" that can form the predicate for a prohibited personnel practice. These include actions "under chapter 75 of this title or other disciplinary or corrective action." 5 U.S.C. 2302(a) (2) (A) (iii). For all but one of the prohibited personnel practices, an employee's only administrative remedy is to file a complaint with the Office of Special Counsel. See 5 U.S.C. 1212, 1214-1215. If the Office of Special Counsel determines that the complaint lacks ---------------------------------------- Page Break ---------------------------------------- 8 merit, the Board does not have jurisdiction to review that determination. See Serrao, 95 F.3d at 1574, 1575. In the case of personnel practices prohibited by Section 2302(b) (8) (those that are taken in reprisal for whistleblowing disclosures) , however, an employee may take an IRA appeal to the Board once he has exhausted his administrative remedies with the Office of Special Counsel. 5 U.S.C. 1221 (a). Petitioner's claim fails in two respects to meet the jurisdictional requirements for IRA appeals. First, petitioner does not allege that the Army failed to allow him to question certain informants "because of" his supposedly whistleblowing disclosures. In fact, he concedes that the practices he challenges --- the Army's failure to follow procedures permitting confrontation and cross-examination of adverse informants -- are broadly applicable and are not confined to instances involving whistleblowing activities. Pet. 8. Thus, petitioner acknowledges that his own participation in whistleblowing activities has no bearing upon his challenge to the procedures followed by the Army. Pet. 10. Second, as the court of appeals found, the failure to afford petitioner the opportunity to question certain informants was not itself a personnel action within the meaning of 5 U.S.C. 2302. In Bush v. Lucas, 462 U.S. 367 (1983), this Court held that a federal employee' s First Amendment challenge to his reassignment was cognizable under the CSRA's remedial framework. The Court noted, however, that many types of unconstitutional conduct by federal ---------------------------------------- Page Break ---------------------------------------- 9 agency supervisors against federal employees, "such as wiretapping, warrantless searches, or uncompensated takings, would not be defined as 'personnel actions' within the statutory scheme." Id. at 386 n.28. As Lucas indicates, a prohibited personnel practice may be predicated on an alleged constitutional violation. For example, if a supervisor takes a personnel action that allegedly infringes constitutional rights, such as reassigning an employee in retaliation for the employee's exercise of his right to freedom of speech, such conduct may be a prohibited personnel practice. But a prohibited personnel practice does not encompass constitutional violations in the abstract. Here, petitioner would have to rely on the revocation of his security clearance or his removal as the personnel action upon which his claim is based. Because he has already unsuccessfully challenged these actions before the Board, however, principles of res judicata prevent him from relying on them as the basis for Board jurisdiction in his present challenge. 2. The Federal Circuit's decision does not conflict with any decision of another court of appeals. Despite this Court's statement in Lucas, petitioner argues that Saul v. United States 928 F.2d 829 (9th Cir. 1991), supports his claim that the Army's alleged Sixth Amendment violation constituted a "personnel action" within the meaning of the CSRA. To be sure, in determining the preemptive scope of the CSRA, several courts of appeals have suggested that the term "other disciplinary or corrective action" in the definition of "personnel action" should be read broadly, see Roth v. United States, 952 F.2d 611, 614 (1st Cir. 1991) (comments ---------------------------------------- Page Break ---------------------------------------- 10 and actions by supervisor reflecting badly on plaintiff's job performance); Saul v. United States, 928 F.2d 829, 833-834 (9th Cir. 1991) (letter and comments by one supervisor criticizing plaintiff's job performance and another supervisor's opening of plaintiff's mail); Spagnola v. Mathis, 859 F.2d 223, 225 n.3, 229 nn. 11-12 (D.C. Cir. 1988) (denials of employment and promotion), and have held that certain sorts of constitutionally improper actions would therefore qualify as prohibited personnel practices, see Hill v. United States Air Force, 884 F.2d 1318, 1321 (10th Cir. 1995) (disseminating false information affecting plaintiffs security clearance and eavesdropping on plaintiff's phone conversations); Saul 928 F.2d at 834. None of these courts, however, has recognized generally applicable review procedures like those at issue here as "personnel practices" within the meaning of the Act. Moreover, even if such procedures did constitute personnel actions and even if the Army's conduct thus arguably constituted a prohibited personnel practice, the Board would lack jurisdiction over petitioner's claim. Because the claim would arise under 5 U.S.C. 2302 (b) (11) , petitioner's only administrative recourse would be to the Office of Special Counsel. 3. The decision of the court of appeals is consistent with the decisions of this Court. Petitioner relies upon Greene v. McElroy 360 U.S. 474 (1958) for the proposition that the government may not deprive a person of the right to pursue his chosen profession without providing a hearing in which he may confront and cross- examine witnesses against him. In Greene, however, this Court held ---------------------------------------- Page Break ---------------------------------------- 11 only that the Department of Defense could not proceed under regulations that limited an individual's access to information adverse to him in the absence of explicit authorization from either the President or Congress empowering the agency to take such action in a proceeding that lacks procedures for confrontation and cross- examination of witnesses. Greene, 360 U.S. at 508. The Court declined to address whether the process followed by-the Department met the requirements of the Constitution or whether the President had inherent power to authorize such procedures. Thus, Greene does not support petitioner's claim that the procedures he challenges violate the Sixth Amendment. More important for the purposes of the present petition, Greene does not address whether petitioner's claim is one within the Board's jurisdiction. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. SETH P. WAXMAN Acting Solicitor General FRANK W. HUNGER Assistant Attorney General WILLIAM KANTER PETER R. MAIER Attorneys OCTOBER 1997