Cheney v. Department of Justice

479 F.3d 1343, 2007 U.S. App. LEXIS 4757, 2007 WL 624367
CourtCourt of Appeals for the Federal Circuit
DecidedMarch 2, 2007
Docket2006-3124
StatusPublished
Cited by40 cases

This text of 479 F.3d 1343 (Cheney v. Department of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cheney v. Department of Justice, 479 F.3d 1343, 2007 U.S. App. LEXIS 4757, 2007 WL 624367 (Fed. Cir. 2007).

Opinions

Opinion for the court filed by Circuit Judge SCHALL. Dissenting opinion filed by Chief Judge MCKINNEY.

SCHALL, Circuit Judge.

Reginald Cheney petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that sustained the action of the Drug Enforcement Administration (“DEA” or “agency”) indefinitely suspending him from employment. Cheney v. Dep’t of Justice, CH0752050326-I-1, 100 M.S.P.R. 384 (M.S.P.B. Nov. 7, 2005) {“Final Decision"). Because we conclude that Mr. Cheney did not receive the statutory procedural protections to which he was entitled before his suspension, we reverse the decision of the Board and remand the case to the Board for [1345]*1345computation of the back pay to which Mr. Cheney is entitled by reason of his improper suspension.

BACKGROUND

I.

At the time of his suspension, Mr. Cheney was a GS-14 criminal investigator and the Resident Agent in Charge (“RAC”) of DEA’s Cleveland office. Mr. Cheney had been employed by DEA for approximately 18 years. His position, as do all positions within DEA, required a security clearance.

The DEA is a component of the Department of Justice (“DOJ”). On July 27, 2004, DO J’s Office of Professional Responsibility (“OPR”) requested that Mr. Cheney be placed on limited duty because it was alleged that he had abused his authority. Mr. Cheney was informed on August 3, 2004, that OPR had requested that he be placed on limited duty because of an ongoing investigation. Subsequently, on September 1, 2004, Mr. Cheney was interviewed by two inspectors from OPR concerning “abuse of authority.” The inspectors questioned Mr. Cheney about whether he had approached witnesses during the OPR investigation. As part of the interview process, Mr. Cheney signed a confidentiality agreement in which he agreed that, other than to retained counsel, he would not disclose that he had been interviewed or that OPR was conducting an investigation.

On September 9, 2004, Mr. Cheney’s supervisor was notified that Mr. Cheney’s security clearance had been suspended “based on allegations of derogatory personal conduct,” and would remain suspended “until the completion of an investigation into this matter.” Thereafter, by letter dated September 22, 2004, John P. Gil-bride, the Special Agent in Charge of DEA’s Detroit Field Division (“SAC Gil-bride”), informed Mr. Cheney that he was proposing that Mr. Cheney be indefinitely suspended from employment because of the suspension of his security clearance. The letter stated: “The decision to suspend your security clearance is based on allegations of potentially derogatory personal conduct and possible violations of law and DEA Standards of Conduct. You have failed to comply with security regulations and you have demonstrated a pattern of dishonesty and/or rule violations.” The letter informed Mr. Cheney that he had ten days from the date he received the notice of proposed suspension to reply to it. The letter further informed Mr. Cheney that as soon as possible after his answer was received, or after the expiration of the ten-calendar day limit if he chose not to answer, he would be provided with a written decision regarding the proposed suspension. Mr. Cheney received the notice of proposed suspension on September 27, 2004.

On September 28 and 29, 2004, Mr. Cheney contacted the Chief of the Employee Relations Unit and SAC Gilbride, requesting additional information concerning the suspension of his security clearance. From the Employee Relations Unit, Mr. Cheney sought “review of all material regarding the proposed action for indefinite suspension.” From SAC Gilbride, Mr. Cheney sought to obtain “the material” on which the proposed indefinite suspension “was based.”1

[1346]*1346Following his inquiry, on October 5, 2004, Mr. Cheney received a memorandum dated October 1, 2004 from Mark S. Johnson, Deputy Chief Inspector of DEA’s Office of Security Programs. The letter again notified Mr. Cheney that the suspension of his security clearance was “based upon allegations of derogatory personal conduct.” The memorandum stated that the suspension would remain in effect until the investigation into the matter was completed and that Mr. Cheney could contact Mr. Johnson if he had any questions or required further information.

Mr. Cheney requested a 30-day extension of time to respond to the notice of suspension, and on October 7, 2004 he wrote Mr. Johnson, stating:

On October 5, 2004, I received your letter dated October 1, 2004, which stated that the decision to suspend my security clearance was based upon allegation [sic] of derogatory personal conduct, and the suspension of my clearance would remain in effect until the completions [sic] of an investigation. However, I did not receive any facts, documentation or information relative to the allegations in this matter. Even though I have the right to respond, it is difficult if not impossible to respond to an issue without information. I am therefore, requesting all of the information and evidence relied upon to revoke my security clearance.

On October 19, 2004, the Federal Law Enforcement Officers Association (the “Association”), which at the time was representing Mr. Cheney, wrote Mr. Johnson and requested that the information that Mr. Cheney had sought in his letter of October 7 be provided. In addition, between October 19 and 29, 2004, Mr. Cheney and his counsel wrote letters seeking to obtain the evidence underlying the agency’s reasons for suspending his security clearance.

On November 8, 2004, the Association responded to the notice of proposed suspension on Mr. Cheney’s behalf, asserting that the DEA had not afforded Mr. Cheney due process. The Association asserted that Mr. Cheney had never been given notice of the apparently derogatory information that formed the basis for the suspension of his security clearance. Specifically, the Association stated that “[n]either the proposing official nor the deciding official have been able to provide any materials to RAC Cheney other than the notice which suspended Mr. Cheney’s clearance” and that OPR and the Office of Security Programs had “yet to respond to requests for information as to the reasons for the suspension of RAC Cheney’s security clearance.” In due course, DEA gave Mr. Cheney an extension of time through November 29, 2004 to respond further to the proposed indefinite suspension.

On November 17, 2004, Mr. Johnson sent Mr. Cheney a memorandum informing him that his security clearance was suspended. The memorandum provided the following information to Mr. Cheney about the reasons for his security clearance suspension:

The decision to suspend your security clearance is based upon allegations that you inappropriately queried or caused to be queried Law Enforcement Data Bases and abused the Administrative Subpoena process. Additionally, it is believed that you are in violation of the confidentiality agreement you entered into with the Office of Professional Responsibility during their investigation into these issues.

[1347]*1347On November 29, 2004, having submitted a written response through the Association on November 8, Mr. Cheney responded orally to the proposed indefinite suspension. That same day, in a handwritten “Disciplinary Action Summary” Kevin Michael Donnelly, the deciding official, concluded that Mr. Cheney should be suspended indefinitely from employment without pay. Mr. Donnelly wrote that although Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
479 F.3d 1343, 2007 U.S. App. LEXIS 4757, 2007 WL 624367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheney-v-department-of-justice-cafc-2007.