SHAWN A. HORNSETH, Petitioner
DEPARTMENT OF THE NAVY, Respondent
Petition for review of the Merit Systems Protection Board in
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.
Lourie, Bryson, and Dyk, Circuit Judges.
LOURIE, CIRCUIT JUDGE.
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.
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
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.
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.
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
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.
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.
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 ...