King v. Alston

In King v. Alston, 75 F.3d 657 (Fed.Cir.1996), the Board and the Court mistakenly justified expansive security clearance review by finding that 5 U.S.C. 7513 "entitles an employee to notice of reasons for suspension of his access to classified information when that is the reason for placing the employee on enforced leave pending a decision on the employee's security clearance." Id., at 661. In Alston, the agency temporarily suspended the employee's security clearance and placed the employee on unpaid leave pending completion of an investigation and adjudication as to whether his security clearance should be revoked. The employee challenged the action, and the Merit Systems Protection Board ("MSPB"), after some indecision, held that the employee had been denied the statutory protections of 7513(b), governing adverse employment actions, because of the agency's failure to provide adequate notice of the reasons for the suspension of the security clearance. On appeal, the Court agreed with the MSPB that the agency must provide some indication of the reasons for an agency's decision to suspend access to classified information before placing an employee on enforced leave. The Court found authority for this requirement in 7513(b), which we said "entitles an employee to notice of the reasons for the suspension of his access to classified information when that is the reason for placing the employee on enforced leave pending a decision on the employee's security clearance." Alston, 75 F.3d at 661. The point was, as the MSPB had noted, to provide the employee with an adequate opportunity to make a meaningful reply to the agency before an adverse employment action was taken, even though that meant looking into the security clearance itself. However, the Court disagreed with the MSPB on the facts of the case and held that the employee had sufficient notice. Id. at 662.