Lulu B. Drumheller v. Department of the Army

PAULINE NEWMAN, Circuit Judge,

dissenting.

This case concerns the Board’s authority to require an agency’s compliance with its own regulations concerning procedural due process, when the issue relates to security clearance. The MSPB held that Ms. Drum-heller received all the process to which she was entitled, insofar as the procedures that were followed by the Army met the “minimum due process” requirements stated in 5 U.S.C. § 7513(b). Thus the Board did not decide whether the Army also complied with its own procedures, as set forth in Army Regulation 380-67. The Board held that this decision need not be made.

The panel majority, making its own findings on the merits of the revocation, an issue that the Board correctly held it was “foreclosed” to consider, and relying on Army procedures that the Board declined to consider, affirms the Board’s decision. However, these matters are not properly before us. The Board directed its due process analysis solely to the criteria of 5 U.S.C. § 7513(b), as it interpreted them.

Section 7513(b) requires, for example, that the employee be told “specific reasons for the proposed action”. The Board held that this requirement was met when Ms. Drumheller was told that she was being removed because her security clearance had been revoked.1 Citing Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the Board stated that it is “foreclosed from making further inquiries.” However, the panel majority has made extensive further inquiries.

As a result of these inquiries, using material in the Appendix that the Board was foreclosed from considering, the majority makes a wealth of interesting findings. For example, although the administrative judge made no mention of Ms. Drumheller’s illness, the majority reports the agency’s version in vivid and prejudicial detail. We are told of voices and delusions; of medications not taken; of medical advice unheeded; of negative prognosis; of a sympathetic agency; of the clear risk to national security. The majority opinion includes in the “Background” the evidence that was withheld from Ms. Drumheller and that she obtained only through three separate Freedom of Information requests, after the agency hearings at which adverse *1573decisions were made, considering this evidence.

The merits of the clearance revocation are indeed “foreclosed,” from the Board and from us. The only issue before us is procedural due process: must the agency comply with its own procedural regulations for security clearance revocation, and does “minimum due process” require timely access to the medical evidence obtained by the agency. Such aspects were not before the Court in Navy v. Egan, for there was no dispute about whether Mr. Egan received adequate process at the agency. The Court in Navy v. Egan did not reach the question of the agency’s procedural regulations, for they were not at issue in that case. Indeed, the Court remarked that Mr. Egan was given full access to the record against him. 484 U.S. at 533, 108 S.Ct. at 827. The court stated: “The narrow question presented in this case is whether the Merit Systems Protection Board has authority to review the substance of an underlying decision to deny or revoke a security clearance in the course of an adverse action.” 484 U.S. at 520, 108 S.Ct. at 820. Ms. Drumheller does not ask for review of the substance of the underlying decision to revoke her security clearance (although the majority reviews it).

The Agency Must Comply with its Own Procedural Regulations

Although an agency’s compliance with its employment regulations is routinely within the purview of the Board, the Board held that because security clearance is involved, the Board would not review the Army procedures, other than for meeting the “minimum” set forth in 5 U.S.C. § 7513(b). It is undisputed that Ms. Drumheller was not told of the medical evidence obtained by the agency. Whether the Army Regulation required that Ms. Drumheller be provided with this evidence is not before us, for the Board did not reach that question. The Board cited Rid-dick v. Department of the Navy, 41 M.S.P.R. 369 (1989) in support. However, the issue in Riddick was not whether the Navy met the requirements of due process, but whether the Navy properly imposed security clearance requirements on all shipyard positions. Neither Riddick nor any other case permits the agency to ignore its own regulations on security clearance revocation procedures.

We must review the Board’s decision on the grounds on which it was made. Securities and Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”) It is inappropriate for this court to decide issues that the Board held it had no authority to review, and did not review, and on such basis to affirm the Board’s decision.

Army Regulation 380-67 is a published procedure, binding as well as guiding the federal employer and employee. It is black letter law that an agency must comply with its employee regulations:

Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required.

Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974). See Fort Stewart Schools v. Federal Labor Relations Auth., 495 U.S. 641, 654, 110 S.Ct. 2043, 2051, 109 L.Ed.2d 659 (1990) (“It is a familiar rule of administrative law that an agency must abide by it own regulation.”)

In close point to the case at bar is Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), wherein the Court invalidated the dismissal of an Interior Department employee for security reasons when the agency’s regulations governing hearing procedures for national security dismissals were not followed. The Court stated that the Secretary is bound by the procedures he promulgated, even though without such regulations he could have discharged the petitioner summarily. 359 U.S. at 539-40, 79 S.Ct. at 972-73. See Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957) (invalidating Secretary of State’s dismissal of an employee in the interests of national security where regulations were not satisfied; while “the Secretary was not obligated to impose upon himself these more *1574rigorous substantive and procedural standards ... having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them”); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-67, 74 S.Ct. 499, 502-03, 98 L.Ed. 681 (1954) (holding habeas corpus relief proper where Government regulations “with the force and effect of law” governing the procedure for suspension of deportation were not followed). See also United States v. Nixon, 418 U.S. 683, 695-96, 94 S.Ct. 3090, 3101-02, 41 L.Ed.2d 1039 (1974) (regulations promulgated by the Attorney General have the force and effect of law, and bind the Executive Branch for so long as they remain in effect); Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963) (reversing contempt conviction when congressional committee had not complied with its own rules requiring it to reconsider a witness’ request to be heard in executive session).

The Federal Circuit has regularly held that agencies are charged with following their own regulations. E.g., Dodson v. United States, 988 F.2d 1199, 1204 (Fed.Cir.1993) (“The Secretary has prescribed Army regulations setting out the Qualitative Management Program (QMP) by which the Army determines whom it will reenlist. Although the Secretary was not required to promulgate QMP regulations, having done so, he is bound to follow them.”) (citation omitted); Sargisson v. United States, 913 F.2d 918, 921 (Fed.Cir.1990) (“once the Secretary promulgated regulations and instructions and made them the basis for Sargisson’s release, his action became the subject of judicial review for compliance with those regulations and instructions, even though he was not required to issue them at all”); Lyles v. Department of Army, 864 F.2d 1581, 1583 (Fed.Cir.1989) (“The Army must abide by its own regulation, even if it is more rigorous than necessary. And the Board, according to Egan, may review the Army’s efforts under this regulation to reposition Lyles.”) (citations omitted); Voge v. United States, 844 F.2d 776, 779 (Fed.Cir.1988) (“It has long been established that government officers must follow their own regulations, even if they were not compelled to have them at all, and certainly if directed to promulgate them by Congress, as is this case.”); Boddie v. Department of Navy, 827 F.2d 1578, 1588 (Fed.Cir.1987) (“Employing agencies are required to abide by their own regulations.”); Yuni v. Merit Systems Protection Board, 784 F.2d 381, 386 (Fed.Cir.1986) (‘“Where the rights of the individuals are affected, it is incumbent upon agencies to follow their own procedures.’ ”) (quoting Morton v. Ruiz, 415 U.S. at 235, 94 S.Ct. at 1074).

On this great weight of authority, Ms. Drumheller is entitled to the benefits of the Army’s procedural regulation. Her charge that the Army did not comply with the procedures set forth in Army Regulation 380-67 was not resolved by the Board. It is improper for this court to decide the merits of issues that the Board held were beyond its authority, without deciding the important question of that authority. I believe that the Board’s statutory assignment requires it to undertake that role, insofar as these procedural issues do not entail review of the merits of the agency’s revocation action: the subject matter removed from Board purview by Navy v. Egan.2

. Army Regulation 380-67 requires that the statement of reasons “shall be as comprehensive and detailed as the protection of sources afforded confidentiality ... and national security permit.” Section II 8-201. Overall, the Army's Regulation provides greater procedural safeguards to the employee than does 5 U.S.C. § 7513(b). Neither the Army nor the Board has stated that there is any issue of protection of sources or national security with respect to the medical evidence here at issue.

. The panel majority states that this dissent is "unfounded” because the board determined whether the agency complied with AR 380-67. The board held that "Under Egan she was entitled to nothing more, and the Board is foreclosed from making further inquiries.” The Board then stated "arguendo” that any error was harmless. I agree that under Egan the substance of the security clearance withdrawal is not before the board; the only question is whether the board was required to review whether the procedures of the regulation were followed.

Had the board conducted the due process analysis that has been performed by the majority, this issue would not have arisen. However, the majority's thorough review of the applicability of AR 380-67 does not replace the board's position that it has no authority to ascertain whether AR 380-67 was compiled with.