Salinas-Nix v. Department of the Army , 527 F. App'x 956 ( 2013 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    VELMA SALINAS-NIX,
    Petitioner,
    v.
    DEPARTMENT OF THE ARMY,
    Respondent.
    ______________________
    2012-3209
    ______________________
    Petition for review of Merit System Protection Board
    in No. DA-0752-10-0513-I-1.
    ______________________
    Decided: July 15, 2013
    ______________________
    VELMA SALINAS-NIX, of Boerne, Texas, pro se.
    NICHOLAS JABBOUR, Trial Attorney, Commercial Liti-
    gation Branch, Civil Division United States Department
    of Justice, Washington, DC, for respondent. With him on
    the brief were STUART F. DELERY, Principal Deputy Assis-
    tant Attorney General, JEANNE E. DAVIDSON, Director,
    and REGINALD T. BLADES, JR., Assistant Director.
    ______________________
    Before MOORE, LINN, and O’MALLEY, Circuit Judges.
    2                                VELMA SALINAS-NIX   v. ARMY
    PER CURIAM.
    Velma Salinas-Nix petitions for review a final order of
    the Merit Systems Protection Board (Board) affirming the
    Army’s indefinite suspension of Ms. Salinas-Nix. Salinas-
    Nix v. Dep’t of the Army, No. DA-0752-10-0513-I-1
    (M.S.P.B. July 19, 2012) (Final Order). For the reasons
    discussed below, we affirm.
    BACKGROUND
    Ms. Salinas-Nix is a Supervisory Contract Specialist
    employed by the Army. Her position requires her to
    maintain a top secret level security clearance. The Army
    suspended Ms. Salinas-Nix’s security clearance and
    indefinitely suspended her from her position pending an
    investigation that she may have engaged in tax fraud.
    Specifically, Ms. Salinas-Nix was accused of “structuring”
    bank deposits so as not to trigger a financial institution’s
    reporting requirements. Final Order, slip op. at 2; see 31
    U.S.C. § 5324. These allegations eventually led to an
    indictment of Ms. Salinas-Nix and her husband. See
    Appendix G. The charges include conspiracy and filing
    false tax returns.
    Ms. Salinas-Nix challenged her indefinite suspension
    before the Board. The Administrative Judge (AJ) ex-
    plained that, “[i]n order to support an adverse action
    based on the suspension of a security clearance, the
    agency must establish that (1) a security clearance was
    required for the position in question; (2) the appellant’s
    security clearance was suspended; and (3) the appellant
    was granted minimum due process protection.” Salinas-
    Nix v. Dep’t of the Army, No. DA-0752-10-0513-I-1, slip op.
    at 3 (M.S.P.B. Nov. 17, 2010) (citing Dep’t of the Navy v.
    Egan, 
    484 U.S. 518
    , 530–31 (1988)). The AJ found that
    the first two elements were not in dispute, and that the
    Army established the third element. Specifically, the AJ
    concluded that the Army complied with the procedural
    requirements of 5 U.S.C. § 7513(b). 
    Id. at 8. Therefore,
    VELMA SALINAS-NIX   v. ARMY                                3
    the AJ upheld the Army’s indefinite suspension of Ms.
    Salinas-Nix.
    The Board affirmed the AJ’s decision. The Board con-
    sidered “whether the [Army] afforded the appellant min-
    imum due process with respect to her constitutionally-
    protected property interest in her employment.” Final
    Order, slip op. at 5. It weighed “(1) [t]he private interest
    affected by the official action; (2) the risk of erroneous
    deprivation of the interest through the procedures used,
    and the probable value, if any, or additional or substitute
    procedural safeguards; and (3) the government’s interest.”
    Id at 6 (citing Gargiulo v. Dep’t of Homeland Sec., 118
    M.S.P.R. 137, ¶ 11 (2012) (citing Gilbert v. Homar, 
    520 U.S. 924
    , 931–32 (1997) (quoting Matthews v. Eldridge,
    
    424 U.S. 319
    , 335 (1976)))). The Board determined that
    the Army did not violate Ms. Salinas-Nix’s constitutional
    Due Process rights.
    Ms. Salinas-Nix appeals. We have jurisdiction under
    28 U.S.C. § 1295(a)(9).
    DISCUSSION
    We can only set aside the Board’s decision if it was
    “(1) arbitrary, capricious, an abuse of discretion, or other-
    wise not in accordance with law; (2) obtained without
    procedures required by law, rule, or regulation having
    been followed; or (3) unsupported by substantial evi-
    dence.” 5 U.S.C. § 7703(c) (2012); see Briggs v. Merit Sys.
    Prot. Bd., 
    331 F.3d 1307
    , 1311 (Fed. Cir. 2003). We
    review the Board’s legal determinations de novo.
    Welshans v. U.S. Postal Serv., 
    550 F.3d 1100
    , 1102 (Fed.
    Cir. 2008).
    The threshold issue in this case is whether an em-
    ployee is entitled to constitutional Due Process when the
    adverse action results from the suspension of the employ-
    ee’s security clearance. The Army contends that the
    Board erred when it afforded constitutional Due Process
    rights to Ms. Salinas-Nix. It argues that the Board’s
    analysis effectively entails a review of the underlying
    4                                 VELMA SALINAS-NIX   v. ARMY
    merits of the security clearance determination, which
    Egan prohibits. The Army contends that the Board
    should have considered only Ms. Salinas-Nix’s statutory
    due process rights under 5 U.S.C. § 7513(b).
    The Army’s position has merit. In order to assert a
    constitutional Due Process claim, an employee must have
    a “constitutionally protected ‘property’ interest” in contin-
    ued employment. 
    Homar, 520 U.S. at 928
    . We have
    repeatedly held, however, that “a federal employee does
    not have a . . . property interest in access to classified
    information, and therefore the revocation of a security
    clearance does not implicate constitutional procedural due
    process concerns.” See, e.g., Robinson v. Dep’t of Home-
    land Sec., 
    498 F.3d 1361
    , 1364–65 (Fed. Cir. 2007) (citing
    Jones v. Dep’t of the Navy, 
    978 F.2d 1223
    , 1225–26 (Fed.
    Cir. 1992) (citation omitted)); see also 
    Egan, 484 U.S. at 528
    (“It should be obvious that no one has a ‘right’ to a
    security clearance.”). Given our precedent, the Board’s
    approach is open to doubt. But we do not need to resolve
    the issue here. Under either standard, the Army did not
    violate Ms. Salinas-Nix’s rights.
    Ms. Salinas-Nix argues that the Board erred in con-
    cluding that the Army followed due process when it
    decided to suspend her indefinitely. She contends that,
    when the Army interviewed her about the suspected
    fraud, she was not aware that she was being investigated.
    Ms. Salinas-Nix argues that, in any event, there is no
    evidence that she ever admitted any wrongdoing. Fur-
    ther, Ms. Salinas-Nix argues that the Army did not give
    her an opportunity to review some of the materials that it
    relied upon to prepare the Notice of Proposed Suspension
    (the Notice). Specifically, she contends that the Army
    withheld a report prepared by its Criminal Investigation
    Division (CID) until after her indictment.
    Ms. Salinas-Nix also contends that the Army violated
    5 C.F.R. § 752.404(g), which prohibits agencies from
    considering reasons for a proposed action other than those
    specified in the Notice. She argues that the deciding
    VELMA SALINAS-NIX   v. ARMY                              5
    official improperly relied on information in the rescinded
    version of the Notice and on newspaper articles about the
    criminal accusations against Ms. Salinas-Nix. Ms. Salin-
    as-Nix contends that the procedural errors were harmful
    and requests a new proceeding before the Board.
    Ms. Salinas-Nix’s arguments largely challenge the ad-
    equacy of the evidence that led to the suspension of her
    security clearance. But the Army is correct that these
    issues implicate the merits of suspending the clearance,
    which the Board had no power to review under Egan.
    Because Ms. Salinas-Nix was undisputedly suspended
    due to a loss of the security clearance required by her
    position, the Board’s review was limited to whether the
    Army afforded her the due process protections of §
    7513(b). See 
    Egan, 484 U.S. at 530
    ; see also Hesse v. Dep’t
    of State, 
    217 F.3d 1372
    , 1376 (Fed. Cir. 2000). Like the
    Board, we have no authority to review the propriety of the
    suspension of Ms. Salinas-Nix’s security clearance.
    Accordingly, we consider her due process arguments.
    The applicable statute provides that “[a]n employee
    against whom an action is proposed is entitled to—
    (1) at least 30 days’ advance written notice . . .
    stating the specific reasons for the proposed ac-
    tion;
    (2) a reasonable time, but not less than 7 days, to
    answer orally and in writing and to furnish affi-
    davits and other documentary evidence in support
    of the answer;
    (3) be represented by an attorney or other repre-
    sentative; and
    (4) a written decision and the specific reasons
    therefor at the earliest practicable date.”
    5 U.S.C. § 7513(b) (2012); see also 5 C.F.R. § 752.404
    (2010). We have held that, in security clearance cases,
    “section 7513(b) entitles an employee to notice of the
    reasons for the suspension of his access to classified
    6                                 VELMA SALINAS-NIX   v. ARMY
    information when that is the reason for placing the em-
    ployee on enforced leave.” King v. Alston, 
    75 F.3d 657
    ,
    661 (Fed. Cir. 1996). The notice must contain “sufficient
    detail to allow the employee to make an informed reply.”
    Brook v. Corrado, 
    999 F.2d 523
    , 526 (Fed. Cir. 1993)
    (internal quotation marks omitted).
    The Army complied with § 7513(b). The Notice ex-
    plained in detail why the Army suspended Ms. Salinas-
    Nix’s security clearance and why the Army proposed to
    indefinitely suspend her from her position. See Appendix
    C. For example, the Notice set forth several alleged
    instances of Ms. Salinas-Nix’s structuring of bank depos-
    its so as “to avoid reporting requirements.” 
    Id. at 2. It
    further claimed that Ms. Salinas-Nix acknowledged
    engaging in this structuring and that this conduct “raises
    questions regarding [her] reliability, trustworthiness, and
    good judgment.” 
    Id. Finally, the Notice
    explained that
    Ms. Salinas-Nix’s position “is one of unique responsibility
    to supervise and provide procurement approvals . . . and
    requires . . . access to classified and confidential infor-
    mation.” 
    Id. Ms. Salinas-Nix’s detailed
    response to the Notice
    through her attorney reinforces the conclusion that the
    notice met the requirements of due process. See Supp.
    Appendix; see also 5 U.S.C. § 7513(b)(2), (3). The response
    reflects Ms. Salinas-Nix’s clear understanding of the
    reasons for the proposed indefinite suspension and the
    options available to her. Even if Ms. Salinas-Nix is cor-
    rect that the Army had more information about her
    financial transactions than it included in the Notice, the
    Army did not violate § 7513(b) because it adequately and
    timely apprised her of the reasons for the proposed action
    and gave her an opportunity to respond.
    The Army also provided an adequate and timely No-
    tice of Decision (the Decision), as required by § 7513(b)(4),
    setting forth the reasons for the indefinite suspension.
    See Appendix B. The Decision explained that a prepon-
    derance of the evidence showed that Ms. Salinas-Nix
    VELMA SALINAS-NIX   v. ARMY                              7
    engaged in criminal structuring of bank transactions,
    suggesting lack of trustworthiness. 
    Id. at 1. The
    Decision
    further noted that Ms. Salinas-Nix had “access to classi-
    fied and confidential information which might be used for
    improper personal gain by one who is not forthright and
    trustworthy.” 
    Id. The Decision explained
    that these
    concerns led to the suspension of Ms. Salinas-Nix’s securi-
    ty clearance and concluded that that Ms. Salinas-Nix’s
    indefinite suspension from her position “is fully warrant-
    ed based on . . . the security [clearance] suspension.” 
    Id. at 2, 3.
    These explanations and the documents prepared
    and relied upon by the CID, which were provided to Mr.
    Salinas-Nix, satisfy the statutory due process require-
    ments. See Appendices H, I.
    We also conclude that the Army did not violate 5
    C.F.R. § 752.404. That regulation, which implements 5
    U.S.C. § 7513(b), states that an agency may “consider only
    the reasons specified in the notice of proposed action and
    any answer of the employee or . . . her representative” in
    its final decision. 5 C.F.R. § 752.404(g). Although Ms.
    Salinas-Nix faults the Army for consulting various alleg-
    edly extraneous documents and newspaper articles, she
    does not explain why the reasons for her indefinite sus-
    pension differ from those given in the Notice. The Army
    is correct that the reasons are the same—structuring of
    bank transactions and the resulting suspension of Ms.
    Salinas-Nix’s security clearance. Because the Army did
    not violate the applicable statute and regulation, the
    Board’s affirmance of the Army’s indefinite suspension of
    Ms. Salinas-Nix was in accordance with law.
    Finally, the Board did not err in concluding that the
    Army afforded adequate constitutional Due Process rights
    to Ms. Salinas-Nix. In analyzing agency procedures for
    compliance with Due Process, we weigh the private inter-
    est affected by the official action; the risk of erroneous
    deprivation of the interest through the procedures used,
    and the probable value, if any, of additional or substitute
    procedural safeguards; and the government’s interest.
    8                                VELMA SALINAS-NIX   v. ARMY
    See Gilbert v. Homar, 
    520 U.S. 924
    , 931–32 (1997). With
    respect to the first Homar factor, the Board explained
    that the procedures that Ms. Salinas-Nix received proper-
    ly accounted for her significant private interest in not
    being suspended from her position. See Final Order, slip
    op. at 6. Because the Army provided Ms. Salinas-Nix
    with a detailed post-suspension notice and a meaningful
    opportunity to reply, we see no error in that determina-
    tion. With respect to the second Homar factor, the Board
    determined that the Army “had reasonable grounds to
    support the indefinite suspension action.” 
    Id. at 7. We
    see no error in the Board’s analysis of this factor because
    the Army explained that it was suspending Ms. Salinas-
    Nix due to loss of her security clearance, which resulted
    from a criminal investigation into Ms. Salinas-Nix’s
    structuring of bank transactions. With respect to the
    third Homar factor, the Board explained that the Army’s
    “compelling interest in withholding national security
    information from unauthorized persons . . . arguably
    weighs in favor of the government’s authority to take
    immediate action.” 
    Id. at 6–7 (citing
    Egan, 484 U.S. at
    527
    ). We agree. The compelling government interest at
    stake in this case reinforces the conclusion that the pro-
    cedures Ms. Salinas-Nix received were constitutionally
    adequate.
    CONCLUSION
    We have considered Ms. Salinas-Nix’s other argu-
    ments and find them to be without merit. Because the
    Board did not err in its conclusion that the Army complied
    with due process when it indefinitely suspended Ms.
    Salinas-Nix, we affirm.
    AFFIRMED
    COSTS
    No costs.