THE UNTIED STATES LAW WEEK

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000300500001-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 22, 2016
• Document Release Date: September 4, 2012
• Sequence Number: 1
• Publication Date: February 23, 1988
• Content Type: MISC

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56 Lib 415U the United Jtates LAN' wl 2-23-88
41a. In 1973, Mississippi passed the Coastal Wetlands Pro-
tection Law. Miss. Code Ann. ??49-27-1 to 49-27-69
(Supp. 1987). This statute directed the Mississippi Marine
Resources Council to prepare maps identifying state-owned
wetlands. The maps, drawn from aerial photographs, were
intended to show the probable scope of state-owned wetlands
In order to aid state agencies in planning to protect them.
?49-27-65. But the Mineral Lease Commission decided to
use the maps as a basis for issuing oil and gas leases on what
appeared -to be state-owned lands. The Commission leased
600 acres to respondent Saga Petroleum U. S., Inc.
Petitioners, holders of record title, filed a complaint in
Chancery Court to quiet title to the 600 contested acres and
an additional 1800 acres in the area. The Chancery Court
decided that the public trust included lands underlying all tid-
ally influenced waters. Even under this test, only 140.863
acres of the land belonged to the State of Mississippi. On
appeal, the Supreme Court of Mississippi reduced Mississip-
pi's claim by another 98 acres to account for land underlying
two artificial lakes. The land now claimed by Mississippi
consists of slightly more than 42 acres underlying the north
branch of Bayou LaCroix and 11 small drainage streams.
These waterways are not used for commercial navigation.
None of the drainage streams is more than a mile long; all are
nameless. Mississippi is not pressing its claim for the sake
of facilitating commerce, or even to protect the public's inter-
est in fishing or other traditional uses of the public trust. In-
stead, it is leasing the land to a private party for exploitation
of underlying minerals. Mississippi's novel undertaking has
caused it to press for a radical expansion of the historical lim-
its of the public trust.
The Court's decision today could dispossess thousands of
blameless record owners and leaseholders of land that they
and their predecessors in interest reasonably believed was
lawfully theirs. The Court concludes that a decision favor-
ing petitioners would be even more disruptive, because titles
may have been adjudicated on the assumption that a tidal
test defines the public trust. Ante, at 12-13. There is no
way to ascertain, as a general matter, what assumptions
about the public trust underlie existing property titles.
What evidence there is suggests that the majority's rule is
the one that will upset settled expectations. For example,
the State of New Jersey has decided to apply the Court's
test. It now claims for its public trust all land underlying
non-navigable tidal waters, and all land that has been under
tidal waters at any time since the American Revolution.
"Due to this attempted expansion of the (public trust]
doctrine, hundreds of properties in New Jersey have
been taken and used for state purposes without com-
pensating the record owners or lien holders; prior home-
owners of many years are being threatened with loss of
title; prior grants and state deeds are being ignored;
properties are being arbitrarily claimed and conveyed
by the State to persons other than the record owners;
and hundreds of cases remain pending and untried before
the state courts awaiting processing with the National
Resource Council." Porro & Teleky, Marshland Title
Dilemma: A Tidal Phenomenon. 3 Seton Hall L. Rev.
323, 325-326 (1972) (footnotes omitted). See also Brief
for the City of Elizabeth, New Jersey, et al. as Arnici
Curiae 17-20 (confirming that these problems have not
abated).
The Court's decision today endorses and encourages such ac-
tion in other States.
Although there is no way to predict exactly how much land
will be affected by the Court's decision, the magnitude of the
problem is suggested by the fact that more than nine million
acres have been classified as fresh or saline coastal wetlands.
S. Shaw & C. Fredine, Wetlands of the United States,
United States Department of interior, Fish & Wildlife Serv-
ice, Circular 39 p. 15 (1956). The Federal Government con-
veyed these lands to the States, which have conveyed many
of them to individuals. To the extent that the conveyances
to private parties purported to include public trust lands, the
States may strike them down, if state law permits. Illinois
Central R. Co. v. Illinois, 146 U. S., at 452-454; see Coastal
Petroleum Co. v. American Cyanamid Co., 492 So. 2d 339,
342-343 (Fla. 1986), cert. denied, sub nom. Mobil Oil Corp.
v. Board of Trustees of Internal Improvement Trust Fund of
Fla., 479 U. S. - (1987); Brief for the American Land
Title Association as Amicus Curiae 2-3. The Court's broad
defirdtion of public trust lands will increase the amount of
land that is vulnerable to such challenges.
The Court 's suggestion, ante, at 13, that state law might
honor the equitable considerations that support individual
claims to public trust lands, is not persuasive. Certainly the
Mississippi Supreme Court's decision in this case attached lit-
tle weight to petitioners' equitable claims. Although Missis-
sippi collected taxes on. the land and made no mention of its
claim for over 150 years, the Mississippi Supreme Court held
that Mississippi was not estopped from dispossessing peti-
tioners. Cinque Bambini Partnership v. State, 491 So. 2d
508, 521 (1986). The stakes are high when the land lies over
valuable oil, gas, or mineral deposits.
The Court's decision departs from our precedents, and I
fear that it may permit grave injustice to be done to innocent
property holders in coastal States. I dissent.
EUGENE GRESSMAN, Newark, N.J. (JOEL BLASS. MIZE.
THOMPSON. & BLASS. WILLIAM G. PAUL, JOHN L. WILLI-
FORD. and ELIZABETH A. HARRIS, on the briefs) for petitioners;
KATHY D. SON ES, Mississippi Special Assistant Attorney General
(EDWIN LLOYD PITTMAN, Miss. Atty. Gen., ROBERT FRANK-
LIN SPENCER, Miss. Asst. Atty. Gen.. and JEAN R. SWIFT. on
the briefs) for respondents.
CDEPART`fEN_T0F_THE NAVY, PETITIONER t'.
fTHOMXS-E. -EGAN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
Syllabus
No. 86-1552. Argued December 2. 1987-De ideEebcuan? 23 ,1988'
Title 5 U. S. C., Ch. 75, provides a'two-track" system for undertaking
"adverse actions" against certain Government employees. An employee
removed for "cause," ?? 7511-7514. has a right of appeal to the. exit
Systems Protection Board (Board), ?7513(d). that includes a hearing.
The Board reviews such removals under a preponderance of the evidence
standard. ? 7701. An employee is also subject to summary removal
based on national security concerns. Such a removal is not appealable
to the Board, but the employee has certain specified procedural rights.
including a hearing by an agency authority. ? 7532. Respondent was
removed from his laborer's job at a submarine facility after the Navy de-
nied him a required security clearance. Without a security clearance.
respondent was not eligible for any job at the facility. Upon respond-
ent's appeal of his removal under ? 7513(d). the Board's presiding official
reversed the Navy's decision, holding that the Board had the authority
to review the merits of the underlying security-clearance determination
and that the Navy had failed to show that it reached a reasonable and
warranted decision on this question. The full Board re
versed and sus-
tained the Navy's removal action, but the Court of Appeals reversed and
remanded, holding that, since the Navy had chosen to remove respond-
ent under ? 7512 rather than ? 7532. review under 7513 applied, including
review of the merits of the underlying security-clearance determination.
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2-23-88 lJ The United States LAW WEEL J 56 LW 4151
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to review the substance of an underlying security-clearance determina-
tion in the course of reviewing an adverse action.
(a) The grant or denial of security clearance to a particular employee
is a sensitive and inherently discretionary judgment call that is commit-
ted by law to the appropriate Executive Branch agency having the nec-
essary expertise in protectin
classified informati
It i
n
n
g
on
s
.-
ot reaso
ably possible for an outside, nonexpert body to review the substance of
such a judgment, and such review cannot be presumed merely because
the statute does not expressly preclude it.
(b) The statute's express language and structure confirm that it does
not confer broad authority on the Board to review. security-clearance
determinations. A clearance denial is not one of the enumerated "ad-
verse actions" that are subject to Board review, and nothing in the Act
directs or empowers the Board to go beyond determining whether
"cause" for a denial existed, whether in fact clearance was denied, and
whether transfer to a nonsensitive position was feasible. The applica-
tion of ? 7701's preponderance of the evidence standard to security-clear-
ance determinations would inevitably alter the "clearly consistent with
the interests of the national security" standard normally applied in mak-
ing such determinations and would involve the Board in second-guessing
an agency's national security determinations, a result that it is ex-
tremely unlikely Congress intended. Respondent's argument that the
availability of the alternative ? 7532 summary removal procedure com-,
pals a conclusion of reviewability, since an anomalous situation would
otherwise exist whereby the more "drastic" ? 7532 remedy would actu-
ally entitle a removed employee to greater procedural protections-par-
ticularly to a preremoval trial-type hearing-than would ? 7513, is un-
persuasive. Section 7532 provides a procedure that is harsh and drastic
both for the employee and for the agency-head, who must act personally
in suspending and removing the employee, and removal thereunder,
even as envisioned by respondent, would not have amounted to "more"
procedural protection than respondent received under ? 7513. The pro-
cedures under the two sections are not anomalous, but merely different.
Bt.ACIacUN, J., delivered the opinion of the Court, in which REHNQuisT,
C. J., and STEVENS, O'CONNOR, and SCAUA, JJ., joined. WHrrE, J.,
filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined.
KENNEDY, J., took no part in the consideration or decision of the case.
JusrlcE BLACRMUN delivered the opinion of the Court.
Respondent Thomas M. Egan dost.hi laborer=sjobTat the
Trident Naval Refit Facility in Bremerton, Wash., h-e`
.was denied as required-security clearance. EThenarrow ques-
tio piesented:iby ttfl~`case-is=wh her-theMe?it Systems
(Prot~ tc ionBoard=(Board),has authority bystatute?to review
(the-,sub-s7 ce.of.anunderlying decision-to-deny_or-revoke-a,
security clearance irl the_course of_[eviewingan adverse.ar>
(tlom The Board ruled that it had no such authority. The
Court of Appeals for the Federal Circuit, by a divided vote,
reversed. We granted certiorari because of the importance
of the issue in its relation to national security concerns. -
U. S. - (1987).
Respondent Egan was a new hire and began his work at
the facility on November 29, 1981. He served as a veteran's-
preference-eligible civilian employee of the N$vy subject to
the provisions of the Civil Service Reform Act of 1978 (Act),
? 202, 92 Stat. 1121, 5 U. S. C. ? 1201 et seq.
The mission of the Refit Facility is to provide quick-turn-
around repair, replenishment, and systems check-out of the
Trident submarine over its extended operating cycle. The
Trident is nuclearpowered and carries nuclear weapons. It
has been described as the most sophisticated and sensitive
weapon in the Navy's arsenal and as playing a crucial part in
our Nation's defense system.. See Concerned About Trident
v. Schlesinger, 400 F. Supp. 454, 462-466 (DC 1975), modi-
fied, 180 U. S. App. D. C. 345, 555 F. 2d 817 (1977). As a
consequence,t IL_employee_positions_at_the_Refit_Facility are?
tS!assified-as--sensitive: Thus-as_sho on`his-Standard]
f,orm,_a-condition-precedent-Ao Egan's-retention-of-his-em-
ployment was "satisfactory_completion=of security and-medi-
cal reports
In April 1982, respondent gained the "noncritical-sensitive"
poa:tion of labor leader.' .Pending the outcome of his secu-
rity investigation, however, he performed only limited duties
and was not permitted to board any submarine.
On February 16, 1983,' the Director of the Naval Civilian
Personnel Command issued a letter of. intent to deny re-
spondent a security clearance. This was based upon Califor-
nia and Washington state criminal records reflecting re-
spondent's convictions for assault and for being a felon in
possession of a gun, and further based upon his failure to dis-
close on his application for federal employment two earlier
convictions for carrying a loaded firearm. The Navy also re-
ferred to respondent's own statements that he had had drink-
ing problems in the past and had served the final 28 days of a
sentence in an alcohol rehabilitation program.
Respondent was informed that he had a right to respond to
the proposed security-clearance denial. On May 6, he an-
swered the Navy's letter of intent, asserting that he had paid
his debt to society for his convictions, that he had not listed
convictions older than seven years because he did not inter-
pret the employment form as requiring that information, and
that alcohol had not been a problem for him for three years
preceding the clearance determination. He also provided fa-
vorable material from supervisors as to his background and
character.
The Director, after reviewing this response, concluded
that the information provided did not sufficiently explain,
mitigate, or refute the reasons on which the proposed denial
was based. Accordingly, respondent's security clearance
was denied.
Respondent took an appeal to the Personnel Security Ap-
peals Board, but his removal was effected before that board
acted (which. it eventually did by affirming the denial of
clearance).
Without a security clearance, respondent was not eligible
for the job for which he had been hired. Reassignment to a
nonsensitive position at the facility was not possible because
there was no nonsensitive position there. Accordingly, the
Navy issued a notice of proposed removal, and respondent
was placed on administrative leave pending final decision.
Respondent did not reply to the notice. On July 15, 1983, he
was informed that his removal was effective July 22.
Respondent, pursuant to 5 U. S. C. ? 7513(d), sought re-
view by the Merit Systems Protection Board.' Under
? 7513(a), an agency may remove an employee "only for such
cause as will promote the efficiency of the service." The
statute, together with ? 7701 to which ? 7513(d) specifically
refers, provides the employee with a number of procedural
'A "noncritical-sensitive" position is defined to include "(aiccess to Se-
cret or Confidential Information." Chief of Naval Operations Instructions
(OPNAVINST) 5510.1F, 116-101-2.b (June 15, 1981). OPNAVINST
5510.1F was amended in April 1984 and is now OPNAVINST 5510.1G.
'This date is of some significance for by then respondent had been em-
ployed at the facility for more than a year. Title 5 U. S. C. ? 7511(1XA)
defines an "employee" as "an individual in the competitive service who is
not serving a probationary or trial period under an initial appointment or
who has completed 1 year of current continuous employment under other
than a temporary appointment limited to 1 year or less." There is no dis-
pute concerning respondent's status as an employee within the meaning of
? 7511(1)(A).
'Section 7513(d) reads: "An employee against whom an action is taken
under this section is entitled to appeal to the Merit Systems Protection
Board under section 7701 of this title."
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protections, including notice, an opportunity to respond and
be represented by counsel, and a decision in writing. The
employee, unless he is a nonveteran in the excepted service,
may appeal the agency's decision to the Board, as respondent
did, which is to sustain the action if it is "supported by a pre-
ponderance of the evidence." ? 7701(c)(1)(B).' The-stated
t'cause"-for_respondent's-removal-was-Ma-failure_to-meet-tfie.
y
e un
er
y
ng reasons for
Lrequirements.for-his P sition_due tothe denial-of-security,: the agency's security clearance determination." 28
?clearance. Before the Board, the Government argued that M. S. P. B., at 516. Thus, earlier Board cases that had re-
th
B
d'
e
oar
s review power was limited to determining
whether ' :ie required removal procedures had been followed
and whether a security clearance was a condition for respond-
ent's position. It contended that the Board did not have the
authority to judge the merits of the underlying security-
clearance determination.
The Board's presiding official reversed the agency's deci-
sion, ruling that the Board did have authority to review the
merits. She further ruled that the agency must specify the
precise criteria used in its security-clearance decision and
must show that those criteria are rationally related to na-
tional security. App. to Pet. for Cert. 62a-63a. The agency
then must show, by a preponderance of the evidence, that the
employee's acts precipitating the denial of his clearance actu-
ally occurred, and that his "alleged misconduct has an actual
or potentially detrimental effect on national security inter-
ests." Id., at 63a. The official then held that the ultimate
burden was upon the agency to persuade the Board of the ap-
propriateness of its decision to deny clearance. Id., at 64a.
The official concluded that it was not possible to determine
whether the Navy's denial of respondent's security clearance
was justified because it had not submitted a list of the criteria
it employed and because it did not present evidence that it
had "conscientiously weighed the circumstances surrounding
(respondent's) alleged misconduct and really balanced it
against the interests of national security." Id., at 65a. She
accordingly concluded that the Navy had "failed to show it
reached a reasonable and warranted decision concerning the
propriety of the revocation of [respondent's] security clear-
ance." Id., at 66a. The decision to remove respondent,
therefore, could not stand.
The Navy petitioned for full Board review of the presiding
official's ruling.' In a unanimous decision, the Board re-
versed the presiding official's ruling and sustained the agen-
cy's removal action. 28 M. S. P. B. 509 (1985). It observed
that ?? 7512 and 7513 "do not specifically address the extent
of the Board's review of the underlying determinations." 28
M. S. P. B., at 514. Neither did the legislative history of
the Act "address the extent of the authority Congress in-
tended the Board to exercise in reviewing revocations or de-
nials of security clearances which result in Chapter 75 ac-
' we note at this point the presence of 5 U. S. C. ? 7532. Under
175=a). the "head of an agency," "(n)ot withstanding other statutes,"
may suspend an employee 'hen he considers that action necessary in the
interests of national security." After complying with specified proce-
dures, the agency head may remove the suspended employee when "he de-
termines that removal is necessary or advisable in the interests of national
security." His determination then is 'final." I 7532(b). Removal under
17532 is not subject to Board review. ? 7512(A). In respondent's case
the Navy did not invoke 67532; his removal, therefore, presumably would
be subject to Board review as provided in ? 7513.
'The Solicitor General informs us. see Brief for Petitioner 6, that the
Board had before it numerous petitions for review raising similar issues of
law, and treated the present litigation as the lead case. The Board had
invited and received briefs from interested agencies. employee organiza-
tions. and others concerning the proper scope of its review and whether
? 7532, see n. 4, rupra, is the exclusive authority for a removal based upon
national security concerns. See 49 Fed. Reg. 48623-48624 (1984); 50 Fed.
Reg. 2355 (1985).
tions." Id., at 515. The Board. found no binding legal
precedent. It acknowledged the presence of the decision in
Hoska v. Department of the Army, 219 U. S. App. D. C. 280,
677 F. 2d 131 (1982) (security clearance revocation leading to
dismissal reviewed on its merits), but explained that case
away on the ground that the court did not "expressly address
the Board's authorit
to review th
d
l
i
lied upon Hoska, see, e. g., Bogdanowicz v. Department of
the Army, 16 M. S. P. B. 653 (1983), involved a "reliance
misplaced," and the holding that they stood "for the proposi-
tion that the Board has the authority to review the propriety
of the agency's denial of a-security clearance" was "now
overrule[d]." 28 M. S. P. B., at 516. It went on to say that
"section 7532 is not the exclusive basis for removals based
.upon security clearance revocations." Id., at 521.
Respondent, pursuant to ? 7703, appealed to the. Court of
Appeals for the Federal Circuit. By a divided vote, that
court reversed the Board's decision that.it had no-authority
to review the merits of a security-clearance determination
underlying a ren*val. 802 F. 2d 1563 (1986). It agreed
with the Board that ? 7532 is not the sole authority for a re-
moval based upon national security concerns. 802 F. 2d, at
1568. It noted, however, that the agency had chosen to re-
move respondent under ? 7512 rather than ? 7532 and thus
that it chose the procedure "that carried Board review under
section 7513," 802 F. 2d, at 1569, including review of the mer-
its of the underlying agency determination to deny a security
clearance. The court then remanded the case to the Board
for such review, stating that the question of an appropriate
remedy, should the Board now rule that a security clearance
was improperly denied, was not yet ripe. Id., at 1573-1575.
The dissenting judge in the Court of Appeals concluded
that respondent had received all the procedural protections
to which he was entitled, id., at 1577-1578; that the majority
in effect was transferring a discretionary decision vested in
an executive agency to a body that had neither the respon-
sibility nor the expertise to make that decision; that the rul-
ing raised separation-of-powers concerns; and that the Board
would be unable to provide an appropriate remedy. Id., at
1578, 1580-1583.
II
We turn first to the statutory structure. LChapter 75-07
Title 5> of the United States Code is entitled "Adverse_Ac7-3
c hors:" Its -subchapter II, (?.?_7511-1514)rtelate5 to r movals
ifor "cause." Subchapter-1V (?$_7531=7533)--relates_to re nm vo
rals b-ased_uponnational-security concerns> .An-employee-re-
moyed-for "cause"-has_t_he-r ght, hider ? 7513d)-to-appeal-to
the =Board tin-contrast; an ,_employee-suspended-under
? 75n(a)is not .entitled-to-appeal-to-the-Board. That-em-
fploy"7 however; is--entitle --tospecified-preremova)-pro
zdural rights, including_a-hearing by-an-=agency-authority
?7532(7(3).
Chapter 77 of Title 5 (?? 7701-7703) is entitled "Appeals,"
and Chapter 12 (?? 1201-1209) relates to the "Merit Systems
Protection Board and Special Counsel." Section 1205(a) pro-
vides that the Board shall "hear, adjudicate, or provide for
the hearing or adjudication of all matters within the jurisdic-
tion of the Board" and shall "order any Federal agency or em-
ployee to comply with any order or decision issued by the
Board." In the present litigation, there is no claim that the
Board did not have jurisdiction to hear and adjudicate re-
spondent's appeal.
0
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0
(Iti.apparent-that the-statu -pro
vide=a "two-track"_sys
Clem. A removal for "cause" embraces a right of appeal to
the Board and a hearing of the type prescribed in detail in
? 7701. Suspension and removal under ?7532, however, en-
tail no such right of appeal. Respondent takes the straight-
forward position that, inasmuch as this case proceeded under
? 7513, a hearing before the Board was required. The Gov-
ernment agrees. What i9 dispirte~-is-the-subject_matter_o
thathe"ingardthe-extent-to which--the $oard-may-e-MM se
reviewing-authority. In particular, may the Board, when
? 7513 is pursued, examine the merits of the security-
clearance denial, or does its authority stop short of that
point, that is, upon review of the fact of denial, of the. posi-
tion's requirement of security clearance, and of the satisfac-
tory provision of the requisite procedural protections?
III
The Court of Appeals' majority stated: "The absence of any
statutory provision precluding appellate review of security
clearance denials in section 7512 removals creates a strong
presumption in favor of appellate review," citing Abbott Lab-
oratories v. Gardner, 387 U. S. 136, 141 (1967). 802 F. 2d,
at 1569. One perhaps may accept this as a general proposi-
tion of administrative law, but the proposition is not without
limit, and it runs aground when it encounters Icon erns ofna-
tional.security; as in this case, ;Fbere the-grant of-se2urity>-
earan oo -g ticuiar?employee-a: sensitive,-w d-inherentiy
d4iscretionary judgment ca-1; is~cmmitted-by~law~to the ap-
propriate-agency:of_th Executive_Brach.
The President-after-all; is_the=Commander-in-C- pef-of.thei,
Army-and-Navy~of.the_Uiited-States:?" tU-S.-Const.;'At.
III?=2? Fiis-at ity_ta classify,and-controliaccess~to_in,
efformationbearing on-national -security and-to-determine.
whether-an-individual-is-suf faentl3~:trnstworth
Y,to, occupy_'a
position-in:th Executive Branch--thatwill-give-thhat person
accessto such infortnatian_flows primarily_from:this2anstitu-,
t onal-invest Tien f_pc+wer * ;-4. e P-esident;and-e t:uite
apart-fr_omany_expicit_congressional-giant? See Cafeteria
Workers v. McElra, . 367 U. S. 886, 890 (1961). This?C in
h~as~i a aniued-the-Government's-"compeftgJ terest_"-in
.~it`hholding,national' zurityinformation-f om-unuthorizedz
(persons-in-the-course_oof executive business. Y
n1w V_
United states, 444 U. S. 507, 509, n. 3 (1980). See also
United States v. Robel, 389 U. S. 258, 267 (1967); Wiled
States v. Reynolds, 345 U. S. 1, 10 (1953); Totten_v. United
States, 92 U. S. 105, 106 (1875). Adams v.
Laird, 136 U. S. App. D. C. 388, 397, 420 F. 2d 230, 239
(1969), cert. denied, 397 U. S. 1039 (1970).
-.o----?-.~....~.-"b1 this-land-must be-made bv'those3.
with-the-necessaryerp~rhse in- rotectin classified infnrn,a
min? r= .ns.._._ toob~tous_to:call`for=enlarged dis>
si7 CIAO Sims, 471 U. S. 159, 170 (1985),e pr ec
tion-o: classified-information-must-be,committed-to-the-broad.
discretion oft.`he agency responsible,-and-this-must:include
bread-:dis -l etion-to:determine-who-may-have-access-to-it:
Certainly--it`is-not-reason-ly-possible for anyoutside-nonex-
pert-body-to-review-the-substance--of such: a_jud-gn ent:and:to
decide-whether-the-a-gency..shouid-have-beenable t-6--make--the
necessarylaf irma4ve-predietion7:~with-confidence. tNorcan
s ch abody determine whatconstitutesanacceptable-margin
of:error in-assessing_the-potentigl_risk' The-Court accord-
mgfy_has aclmowle-lged=thatiwith_resp t-to::employeesTin-
Lsensitive positions there is-a-reasonable_basis-for=te_view?
that-an-agency--head-who-must.bear-We--responsibiiity for the
protection-9fclassified-inform_ation_commuted-to_}iis_custodv
should-have the final-say_ndeciding_whether to repose_his-
ttrust in-an-employ-ee--whuhas_access=to-such-mform atio
Cole v You 351 U. S. 536. 546 (1956). As noted above.
this must a judgment call. The Court also has recognized
"the generally accepted view that foreign policy was the
province and responsibility of the Executive." Haig v.
Agee, 453 U. S. 230, 293-294 (1981). "As to these areas of
Art. II duties the courts have traditionally shown the utmost
deference to Presidential responsibilities." United States v.
Nixon, 418 U. S. 683, 710 (1974). (Thus, -ununless-Congress
specifically-has provided otherwise,co-urts traditionally-hav_ee> (
been-r-eluctant to.mtrude-upon-the authority-ofahe:ExecutiN_e
ut-mili - - -and-national7security affairs? See e. a.. Orloff v.
0illoughby, 345 U. S. 83, 93-94 (1955), Burns v. Wilson, 346
U. S. 137, 142, 144 (1953), Gilligan v. Morgan, 413 U. S. 1,
10 (1973), Schlesinger v. Councilman, 420 U. S. 738, 757-758
(1975), Chappell v. Wallace, 462 U. S. 296 (1983).
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l ne Unrtea Mates LAW W LE'?) 2-23-88
We feel that the contrary conclusion of the Court of Ap-
peals' majority is not in line with this authority.
Iv
Finally, we are fortified in our conclusion when we con-
sider generally the statute's "express language" along with
"the structure of the statutory scheme, its objectives, its leg-
islative history, and the nature of the administrative action
involved." Block v. Community Nutrition Institute, 467
U.' S. 340, 345 (1984).
The Act-by-its-terms-does-not`cenfer broadauthority" ontfie
Board-to_eviea _securiy_cleace -determination. As
noted above, the Board does have jurisdiction to review "ad-
verse actions," a term, however, limited to a removal, a sus-
pension for more than 14 days, a reduction in grade or pay,
and a furlough of 30 days or less. ?? 7513(d), 7512. A--denial,
of-al security dearan-ce-is-not-such_an-"adverse-action;" and-by,
its own-force_is-not-subject-to-Board=reviewer An employee
who is removed for "cause" under ? 7513, when his required
clearance is denied, is entitled to the several procedural pro-
tections specified in that statute. The Board then may de-
termine whether such cause existed, whether in fact clear-
ance was denied, and whether transfer to a nonsensitive
position was feasible. Nothing in the Act, however, directs
or empowers the Board to go further. Cf. Zimmerman v.
Department of the Army, 755 F. 2d 156 (CA Fed. 1985);
Buriani v. Department of the Air Force, 777 F. 2d 674, 677
(CA Fed. 1985); Bacon v. Dept. of Housing & Urban Devel-
opment, 757 F. 2d 265, 269-270 (CA Fed. 1985); Madsen v.
Veterans Admin., 754 F. 2d 343 (CA Fed. 1985).'
As noted above, security ctearance-normally`will-be
granted only lf-it-IS=clearly_consient with the interests-of
'he national-security." The_Board, however-reviews-ad=
v e-actions-under pr-eponderan ee-of=thc =vidence-stand-
a~rd ? i701(c)(1XB). These t sta~lcn ids.seem-lnconsis
enter It-is-difficult to seehow3he_Board_w'ould7b ble_t
ereview ecurity~clearance deternunations=under-apreponder-
ance-of-the-evidence standard wnthou - epart5ng from_the
"clearly-consiste t-wath the-interests-of-the national security"
testy The=clearl consistent-standard=indicates-that
securit 'cl c erminatiins should err if-the- --must,
on tJ e side of denials Placing-t e-burden_on t e-Govern-
ment-to-support-the-denial-by-a-preponderance -of_ttle-e3i-
dence-wouid1nevitably shif3=tliis_emphasis_and:involve_the
Board-in_second-guessig::the-agency's-national security
,determinations: W,-consider-it-eextremely unlikely-that
Congress-intended-such-aesult-when.it -the Act and
created-the-Board.
Respondent presses upon us the existence of ? 7532 with its
provision for an employee's summary removal. The Court of
Appeals' majority concluded that ? 7532 was not the exclusive
means for removal on national security grounds. 802 F. 2d,
' Prior to the Act's passage in 1978. most federal employees dismissed
for cause could pursue an appeal to the Civil Service Commission. The
parties here appear to agree that the old Commission never exercised ju-
risdiction over a security-clearance determination. We fail to see any indi-
cation that Congress intended to grant the Board greater jurisdiction in
this respect than that possessed by the Civil Service Commission. The
Board was created to assume the adjudiatory functions of the old Commis-
sion and, with certain exceptions, those functions passed unchanged from
the Commission to the Board. When the Senate and House committees
_sted the changes effected by the Act, they gave no indication that an
agency's security-clearance determination was now to be subject to review.
See S. Rep. No. 95-969, pp. 46 and 52 (1978): H. R. Rep. No. 95-1403,
pp. 21-22 (1978). Such changes as were made did not bear upon the issue.
If there be any contrary implication in the legislative history, as respond-
ent would suggest. it is much too frail for us to conclude that Congress in-
tended a major change of that kind.
at 1568.' The parties to the present litigation are in no dis-
pute about the alternative availability of ? 7513 or 17532.
They assume, as the Federal Circuit h tld, that 17532 does
.not pre-empt ? 7513, and that the two statutes stand sepa-
rately. and provide alternative routes for administrative ac-
tion. There is no reason for us to dispute that conclusion
here for, in this respect, we accept the case as it comes to us.
Respondent points out the Government's acknowledgment
that the remedy under ? 7532 is "drastic" in that the em-
ployee may be suspended summarily and thereafter removed
after such investigation and review as the agency head con-
siders necessary; in that neither the suspension nor the re-
moval is subject to outside review; in that the employee is not
eligible for any other position in the agency and may not be
appointed to a position elsewhere in the Government without
consultation with the Office of Personnel Management; and in
that the section requires the head of the agency to act person-
ally. At the same time, respondent would say, as did the
Court of Appeals, 802 F. 2d, at 1572, that the Board's deci-
sion in the present case suggests an anomaly in that an em-
ployee removed under ? 7513 is entitled to less process than
one removed under ? 7532. The argument is that the avail-
ability of the ? 7532 procedure is a "compelling" factor in
favor of Board review of a security-clearance denial in a case
under ? 7513. We are not persuaded.
W~ -e-do-sot-agree-t-hatresporadent-would-have-received
greater prose tir protections-under-? 7532-than-he-received
in-the-present'. Respondent received notice of the rea-
sons for the proposed denial, an opportunity to inspect all rel-
evant evidence, a right to respond, a written decision, and an
opportunity to appeal to the Personnel Security Appeals
Board. Until the time of his removal, he remained on full-
provided important protections outlined above. (In contrast;
ha i'he~beenn-MMPvedunder ? 7532; he~would have-received M 's
notice-to-"the extent--that-the-head-oof theagency determines q
that tkle interests of nationalcurity-~.r,it ^-~ k~;n~ -;d -~ rt:
iore~a7~aigenoy~board-anzl-a_decisian-byJthe-head-of tile.
agency He eotild have:been sus
en~e~l_
ith
t-
di
p
ou
pay pen
w
ng
th"ixtcome rHe- woulli not have been entitled-to any review eta
outside the-agency,-and,once:removed,he_would-have-ben ?10 4 14-
barr-c-d7from employment-with-the-agency: In short, ?7532,
instead, provides a procedure that is harsh and drastic both
for the employee and for the agency head, who must act
personally in suspending and removing the employee. See
V =a) and (b).
Respondent's argument that the Board's decision in this
case creates an anomaly seems to come down to his conten-
tion that, had he been removed under ? 7532, he would have
been entitled to a trial-type hearing prior to his removal.
Even assuming he would be entitled to such a hearing under
? 7532, however, we would still consider the two procedures
not anomalous, but merely different. As explained above,
we doubt whether removal under ? 7532, even as envisioned
'But cf. Doe v. Weinberger, - U. S. App. D. C. -, -. 820 F.
2d 1275, 1280 (1987), cert. pending sub. nom. Carlucci v. Doe, No. 87-751.
If the District of Columbia Circuit's holding in Doe (to the effect that 175.32
is not merely "an extra option," 820 F. 2d. at 1280. for the removal of an
employee of the National Security Agency, to which 50 U. S. C. 44831 and
832 apply) is pertinent with respect to the Navy's power to dismiss an em-
ployee for cause under 117513. that ruling would conflict with the Federal
Circuit's, holding in the present case that the Navy may proceed under
? 7513. This Court will meet the issue in Doe when it comes to it. We
decide the present case on the parties' assumption that ? 7513 was available
to the Navy in this case and that it proceeded thereunder.
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40
40
by respondent, would have amounted to "more" procedural
protection.
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or de-
cision of this case.
JUSTICE WHITE, with whom JUSTICE BRENNAN and Jus-
TICE MARSHALL join, dissenting.
It cannot be denied that the Government has a "compelling
interest" in safeguarding the Nation's secrets. See ante, at
& I see no necessity for this Court to rewrite the civil serv-
icestatutes in the name of national security, however, since
those statutes already provide a procedure that protects sen-
sitive information without depriving federal employees such
as respondent of a hearing into the underlying reasons for
their discharge.
The parties do not dispute that respondent was discharged
from his civilian "laborer leader" position with the U. S.
Navy pursuant to subchapter II of the Civil Service Reform
Act, 5 U. S. C. ??7511-7514. A federal agency may dis-
charge an employee under those statutory provisions "only
for such cause as will promote the efficiency of the service."
? 7513(a). The employee is entitled to appeal the agency's
action to the Merit Systems Protection Board. ? 7513(d).
The Board must afford the employee "a hearing for which a
transcript will be kept." ? 7701(a)(1). The employee's dis-
charge is to be sustained by the Board only if "supported by a
preponderance of the evidence." ? 7701(c)(1XB).
There is nothing in these statutory provisions to suggest
that the Board is to scrutinize discharges on national security
grounds any less comprehensively than other discharges for
"cause." Nor does the legislative history of these provisions
suggest that the Board is foreclosed from examining the rea-
sons underlying the discharges of employees who are alleged
to be security risks.
If Congress had remained silent on the subject of national
security discharges throughout the Civil Service Reform Act,
I might feel compelled to read into the foregoing provisions
some restrictions on the scope of Board review of such dis-
charges. It might be appropriate in such circumstances to
assume that Congress intended that such restrictions be in-
ferred by the Board and the courts.
Congress did not remain silent, however, with regard to
national security discharges. Rather, Congress carefully
provided an alternative procedure to be used when the Gov-
ernment determines that an employee's removal is "neces-
sary or advisable in the interests of national security." 5
U. S. C. ? 7532(b). The employee is entitled under this pro-
cedure to "a written statement of the charges against him,"
.an opportunity ... to answer the charges and submit affida-
vits," "a hearing ... by an agency authority duly constituted
for this purpose," "a review of his case by the head of the
agency or his designee," and "a written statement of the deci-
sion of the head of the agency." ? 7532(c). The decision of
the agency head is "final." ? 7532(b). It is not disputed that
the Navy could have proceeded. against respondent under
? 7532.
The sensible inference to be drawn from Congress' enact-
ment of the procedural protections of ? 7532 for employees
discharged "in the interests of national security" and its si-
lence with regard to the procedures applicable to similarly
motivated discharges under other sections of the civil service
statutes is that Congress intended to guarantee every dis-
charged employee a hearing into the "cause" for his removal.
If the employee is discharged under ? 7532, he is entitled to a
hearing before his own agency; if the employee is discharged
under other provisions of Title 5, he is entitled to a hearing
before the Board.
Yet, the majority's decision frustrates this congressional
intent by denying any meaningful hearing to employees such
as respondent who are discharged on national security
grounds under provisions other than ? 7532. In such cases,
the employing agency has no statutory obligation to afford
the employee a hearing, and the Board now need determine
only "whether in fact [a security] clearance was denied, and
whether transfer to a nonsensitive position was feasible."
Ante, at 11-12. Hence, the employee cannot demand a hear-
ing into.claims that he was branded a security risk based on
false allegations or on reasons that lack any rational nexus to
national security concerns.
It is difficult to reconcile today's decision with the Court's
discussion in Greene v. McElroy, 360 U. S. 474 (1959), of the
procedural protections available to an employee of a govern-
ment contractor who had been denied a security clearance
based on his alleged Communist associations and sympathies:
"Before we are asked to judge whether, in the context of
security clearance cases, a person may be deprived of
the right to follow his chosen profession without full
hearings where accusers may be confronted, it must be
made clear that the President or Congress, within their
respective constitutional powers, specifically has decided
that the imposed procedures are necessary and war-
ranted and has authorized their use. Such decisions
cannot be assumed by acquiescence or non-action. They
must be made explicitly not only to assure that individ-
uals are not deprived of cherished rights under proce-
dures not actually authorized, . . . but also because
explicit action, especially in areas of doubtful constitu-
tionality, requires careful and purposeful consideration
by those responsible for enacting and implementing our
laws." Id., at 507 (citations omitted).
It is far from clear in the instant circumstances that Congress
or the President has decided that discharging alleged secu-
rity risks without any sort of hearing is "necessary or war-
ranted" or has explicitly authorized such a procedure. In-
stead, the majority assumes such a result from congressional
"non-action." For example, the majority emphasizes that
"[n]othing in the (Civil Service Reform] Act ... directs or
empowers to Board to go further" than to determine whether
a security clearance was indeed denied and whether transfer
to a nonsenstive position was possible. Ante, at 12. There
is likewise nothing in the Act, however, that directs the
Board not to "go further."
Today's result is not necessary to protect the Nation's se-
crets. If an agency fears that the Board will not be suffi-
ciently sensitive to the national security implications of a dis-
charge decision,' the agency may foreclose external review
'There is no reason to assume that the Board would be insensitive to
national security concerns. It is questionable whether the Board would
often have to consider sensitive information in determining whether an
agency had cause to discharge an employee on national security grounds.
No such information appears to have been at issue in the instant case.
Moreover, in those cases in which sensitive information would have to be
considered, the Board could be expected to adopt procedures (e. g.. in
camenn inspection of classified documents) similar to those utilized by the
courts in similar circumstances. It appears that the courts have previ-
ously adjudicated cases involving denials of security clearances without any
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of that decision by proceedingainst the employee under
? 7532. The agency would be required in such circum-
stances, however, to afford the employee an internal hearing
into the reasons for his termination. The agency could not
discharge the employee, as the Navy did here, without af-
fording him any hearing into the merits of his discharge.
The majority suggests that respondent would have re-
ceived no more procedural protection under ? 7532 than
under ? 7513 notwithstanding that he was guaranteed a hear-
ing on the merits under the former provision but not under
the latter. Ante, at 14-15. This conclusion does not show
sufficient regard for our many decisions recognizing the par-
ticularly important role of the hearing in assuring that indi-
vidm : are not wrongfully deprived of their livelihoods or
other significant interests. See, e. g., Wolff v. McDonnell,
418 -TJ. S. 539, 557-558 (1974); Perr0r. Sindermann, 408
U. S.' 593, 603 (1972); Stanley v. Illinois, 405 U. S. 645,
652-658 (1972); Goldberg v. Kelly, 397 U. S. 254, 269-270
(1970). I cannot assume that the proceedings required
under ? 7532 would not provide an employee with a meaning-
ful opportunity to be heard simply because they are con-
ducted by an agency authority rather than by the Board.'
In sum, absent any indication that Congress or the Presi-
dent intended to deny federal employees discharged on na-
tional security grounds a full hearing before either the Board
or their employing agency into the merits of their removal, I
respectfully dissent.
LOUIS R. COHEN, Deputy Solicitor General (CHARLES FRIED,
Sol. Gen., RICHARD K. WILLARD, Asst. Atty. Gen., MICHAEL
K. KELLOGG, Asst. to the Sol. Gen., BARBARA L. HERWIG. and
FREDDI LIPSTEIN, Justice Dept. attys., on the briefs) for petitioner;
WILLIAM J. NOLD, Louisville, Ky. (NOLD, MILLER, MOSLEY,
CLARE. HUBBARD and TOWNES, on the briefs) for respondent.
LABORERS HEALTH AND WELFARE TRUST FUND
FOR NORTHERN CALIFORNIA, ET AL., PETI-
TIONERS v. ADVANCED LIGHTWEIGHT
CONCRETE CO., INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
documented harm to national security. See. e. g., Hoska v. United States
Department of Army, 219 U. S. App. D. C. 280, 677 F. 2d 131 (1982);
Gayer v. Schlesinger, 160 U. S. App. D. C. 172, 490 F. 2d 740 (1973);
McKeand v. Laird, 490 F. 2d 1262 (CA9 1973). Finally, given the require-
ment of Executive Order No. 10450, 3 CFR 937 (1949-1953 Comp.), that
security clearances be granted only if "dearly consistent with the interests
of the national security," I would assume that the Board's review of na-
tional security discharges would be suitably deferential to the employing
agency even under the preponderance of the evidence standard prescribed
by ? 7701(cX1XB). It is questionable whether the Board's inquiry into
such discharges would be qualitatively different from its inquiry into dis-
charges for other varieties of "cause." The Board routinely evaluates such
factors as loyalty, trustworthiness, and judgment in determining whether
an employee's discharge will 'promote the efficiency of the service."
' The 4 7532 procedure is not as "harsh and drastic" as the majority con-
tends to either the employee or the agency head. The majority asserts
that, if respondent had been discharged under 17532, "he would have been
barred from employment with the agency." Ante, at 14. Respondent.
however, could have obtained other employment with the Navy even if he
had been discharged under 4 7532; the civil service statutes expressly au-
thorize the reinstatement of persons removed under ? 7532 "in the discre-
tion of the head of the agency concerned." ? 3571. It has never been sug-
gested that the Navy would not rehire respondent for a position that does
not require a security clearance. Moreover, while the majority asserts
that the agency head "must act personally" to discharge an employee under
4 7532. ante. at 14, the statute panicle' fir firs! review of d ~--large deci-
sions by "the head of the agency or his designee." ? 7532(cX3XD) (empha-
sis added). '
No. 85-2079. Argued November 10, 1987-Decided February 23, 1988
An employer may have a contractual duty under a collective-bargaining
agreement to make contributions to a pension fund during the agree-
ment's term, and may also have a duty under the National Labor Rela-
tions Act (NLRA) to continue making such contributions after the agree-
ment's expiration while negotiations for a new contract are in process.
Section 515 of the Employee Retirement Income Security Act (ERISA)
obligates an employer to pay to a multiemployer plan contributions that
are required "under the terms of the plan or under the terms of a collec-
tively bargained agreement," Section 502(gX2) of ERISA authorizes
the multiemployer plan's trustees to enforce such liability by bringing an
action in federal district court for the unpaid contributions, prejudgment
interest thereon, liquidated damages, reasonable attorney's fees and
costs, and other appropriate relief. Respondent company was a party
to two multiemployer collective-bargaining agreements that required
monthly contributions to eight employee benefit plans. Respondent
made the contributions until the agreements' expiration date, but made
no contributions thereafter. The plans' trustees (hereinafter petition-
ers) brought suit against respondent to collect the postcontract contribu-
tions, alleging that respondent's actions constituted a breach of its duty
to bargain in good faith under ? 8(aX5) of the NLRA_ and that the Fed-
eral District Court had jurisdiction under ?4 502(gX2) and 515 of ERISA.
The court granted respondent summary judgment on the grounds that
? 515 does not apply to an employer's obligation under ? 8(aX5) of the
NLRA, and that the National Labor Relations Board (NLRB) has
exclusive jurisdiction over petitioners' claims. The Court of Appeals
affirmed.
Held: The remedy provided in ?4 515 and 502(gX2) of ERISA is limited to
contractual, "promised contributions," and does not confer jurisdiction
on district courts to determine whether an employer's unilateral decision
to refuse to make postcontract contributions violates the NLRA.
(a) The text and the legislative history of ?1515 and 502(gX2)
clearly require this result. Both ? 515 and the legislative history plainly
describe the employer's contractual obligation to make contributions but
omit any reference to the noncontractual obligation imposed by the
NLRA. Conversely, in defining the contribution obligation of an em-
ployer wishing to withdraw from a multiemployer plan, ? 4212(a) of
ERISA unambiguously includes both the employer's contractual obliga-
tions and its NLRA obligations, thereby demonstrating that Congress
was aware of the two different sources of an employer's duty to contrib-
ute to covered plans.
(b) Petitioners' policy arguments for broadly construing ? 515 to in-
clude postcontract delinquencies are rejected in tight of Congress' plain
intent, as discussed above, and because countervailing policy arguments
make it highly unlikely that the limited reach of the statute is the conse-
quence of inadvertence rather than deliberate choice. Petitioners' first
argument-that denying district courts jurisdiction of postcontract de-
linquency collection actions leaves a "gap" in the enforcement scheme-is
unpersuasive. since there are indications that it may not be a problem of
serious magnitude; since the issues that must be decided in a post-
contract delinquency dispute are more complex than those that are pre-
sented in a simple collection action; and since the resolution of the type of
question presented is usually left to the NLRB. Petitioners' second
argument-that the remedies available in an NLRB proceeding are less
effective than those in an ERISA action-may be correct, but is ulti-
mately unavailing, since the asserted defects in NLRB remedies are
characteristic of all unfair labor practice proceedings. The NLRA duty
to make postcontract contributions is simply a consequence of a broader
duty that was created to protect the collective-bargaining process. and
does not provide ERISA plan trustees with a unique and preferred pro-
cedure for obtaining redress.
779 F. 2d 497, affirmed.
STEVENS, J., delivered the opinion of the Court. in which all other Mem-
bers joined, except KENNEDY, J., who took no part in the consideration or
decision of the case.
JUSTICE STEVENS delivered the opinion of the Court.
A company that is a party to a collective-bargaining agree-
ment may have a contractual duty to make contributions to a
pension fund during the term of the agreement and, in addi-
tion, may have a duty under the National Labor Relations
Act (NLRA) to continue making such contributions after the
I