The Federal Circuit Court of Appeals has just issued a 2-1 decision that overturns the Merit Systems Protection Board and the Department of Justice in an indefinite suspension case and orders that the employee be retroactively reinstated.
This could amount to more than two years back pay for this GS-14 Resident Agent in Charge of the Cleveland office of the Drug Enforcement Administration. (Cheney v. Department of Justice, C.A.F.C. No. 06-3124, 3/2/07) The facts are taken from the court’s majority and dissenting opinions.
In mid-2004, Reginald Cheney was an 18-year employee with DEA. His position—indeed all positions within DEA—required a security clearance. The Department of Justice Office of Professional Responsibility (OPR) opened an investigation of Cheney centering on allegations that he had abused his authority. As a consequence of the ongoing OPR investigation, Cheney’s security clearance was suspended until the investigation was complete. The suspended clearance resulted in the agency indefinitely suspending Cheney from employment.
The issue before the Board and the court was whether Cheney was afforded that due process required by 5 U.S.C. §7513 in his indefinite suspension. In the back and forth leading up to his suspension, Cheney sought and obtained extensions while he made several different requests for more details on the basis for suspending his security clearance and received more and more details from the agency in the process. The question was whether the agency had provided enough specificity for the security clearance suspension, which was the basis for the indefinite employment suspension.
Here is what the agency eventually told Cheney before making the final decision to suspend him: