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Hornseth v. Department of Navy

United States Court of Appeals, Federal Circuit

February 27, 2019


          Petition for review of the Merit Systems Protection Board in No. SF-0752-17-0271-I-1.

          Jeremy Aaron Morris, Glisson & Morris, PS, Port Orchard, WA, argued for petitioner.

          Nathanael Yale, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Allison Kidd-Miller, Robert Edward Kirschman, Jr., Joseph H. Hunt.

          Before Lourie, Bryson, and Dyk, Circuit Judges.


         Shawn A. Hornseth petitions for review of the final decision of the Merit Systems and Protection Board ("the Board") affirming the decision of the United States Navy to suspend him indefinitely without pay. Hornseth v. Dep't of Navy, No. SF-0752-17-0271-I-1, 2017 WL 3980894 (M.S.P.B. Sept. 8, 2017). For the reasons that follow, we affirm.


         Hornseth was an employee of the Puget Sound Naval Shipyard and Intermediate Maintenance Facility ("Shipyard"), where he worked as a combined trade supervisor. The Shipyard is a secure facility that houses nuclear powered vessels, and every position at the Shipyard, including Hornseth's, requires a security clearance. During his employment, Hornseth attended rehabilitation for alcoholism and provided the Navy with documents regarding his treatment. From Hornseth's rehabilitation facility discharge letter, the Navy learned that Hornseth had used marijuana during his employment.

         On December 12, 2016, Hornseth received a letter informing him that the Commander of the Shipyard intended to suspend his access to classified information and his assignment to a sensitive position. Three days later, the Commander issued a letter notifying Hornseth that his security clearance was suspended. On the same day, Hornseth was notified via letter from the Operations Program Manager that the Navy proposed to indefinitely suspend his employment. Hornseth filed a reply to the proposal, and the Navy assigned Charlie Combs, a supervisor at the Shipyard, to be the deciding official regarding the proposed suspension.

         While the proposed suspension was pending before him, Combs engaged in a series of communications with the Human Resources ("HR") staff at the Shipyard. Upon receipt of Hornseth's reply, a Shipyard HR employee sent an e-mail to Combs stating that she would "research the case law" cited in those communications for further discussion. J.A. 240. The employee then sent an e-mail to Combs stating that Hornseth's "attorney cites the employee's due process," and asking whether Combs had "the delegated authority on behalf of the Commander to offer/find an interim job [for Hornseth]." J.A. 229. In that e-mail, the employee asked Combs to respond concerning his availability to "discuss this case so [Combs could] make a decision." Id. Combs responded via e-mail, stating that he was a "designated/qualified hiring official." J.A. 231.

         The employee then e-mailed Combs and asked whether he had "made a decision," J.A. 231, to which Combs responded that "[t]he operations department has no positions that do not require a security clearance" and that "it [would be] fiscally irresponsible to generate an unneeded position to accommodate the request for work without a clearance," J.A. 239. The employee responded to Combs's e-mail, informing him that "there are three concerns [Combs had] to consider in a Security case" and that Combs should "[k]eep this in mind, should the employee pursue this further." Id. No response to the employee's e-mail is in the record. The HR department then drafted a five-page "Decision on Proposed Indefinite Suspension" and forwarded it to Combs. Combs signed the decision, and it issued on January 20, 2017. J.A. 46-50. Hornseth appealed the decision to the Board.

         Hornseth argued that he was denied minimum due process of law in that (1) the reply process was an empty formality because Combs did not have the ability to take or recommend alternative agency action and (2) Combs and the Shipyard HR staff engaged in an improper ex parte communication.

         The Board's administrative judge (the "AJ") disagreed. He concluded in an initial decision on September 8, 2017 that a due process violation may occur when a reply process is an empty formality, for example, if a deciding official lacks the ability to take or recommend alternative agency action based on an appellant's reply, J.A. 21 (citing McGriff v. Dep't of Navy, No. DC-0752-09-0816-I-1, 2012 WL 1434869, ¶¶ 33-36 (M.S.P.B. Apr. 26, 2012)), and he found that administrative leave would be inadequate to satisfy due process. J.A. 22. Regardless, however, the AJ here sua sponte determined that investigative leave was an available alternative, and, because Combs could have provided Hornseth with investigative leave, the process afforded Hornseth due process. J.A. 22-26.

         The AJ also concluded that, while Combs engaged in certain ex parte communications, those communications "were not so substantial and prejudicial such that no employee could fairly be required to be subjected to a deprivation of property under these circumstances." J.A. 18-19. Before the AJ, Combs testified that in his decision he considered only the proposal letter, some references cited in the letter, and Hornseth's written reply. J.A. 16. Combs also testified that his ex parte contacts were only made to clarify the arguments raised in the reply or other material in the record and procedural matters. According to Combs, none of the communications yielded additional information and, even though the Shipyard HR staff had drafted the five-page decision, it only did so after he had made his decision, and he ...

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