CARLUCCI v. DOE

Legal Principle at Issue

Whether the National Security Agency could dismiss an employee who has lost their required security clearance under its ordinary personnel regulations in the National Security Agency Act of 1959, or whether federal law required the agency to follow special removal procedures under 5 U.S.C. § 7532, including a hearing before the employee's dismissal.

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

After respondent, a cryptographic material control technician at the National Security Agency (NSA), disclosed to NSA officials that he had engaged in homosexual relationships with foreign nationals, his employment was terminated pursuant to NSA personnel regulations setting forth procedures for removal "for cause," which were promulgated under provisions of the National Security Agency Act of 1959 empowering the Secretary of Defense, or his designee, to appoint NSA employees. Claiming that the 1959 NSA Act does not authorize removals, and that he could only be discharged under 5 U.S.C. § 7532 — which provides that, notwithstanding other statutes, the head of an agency "may" suspend and then remove employees "in the interests of national security," so long as they have been given a pre-removal hearing by the agency head or his designee — respondent requested a hearing before the Secretary. That request was denied on the ground that respondent had been removed under the NSA regulations, which do not include the right to such a hearing, and not pursuant to the Secretary's § 7532 summary authority. 

Granting summary judgment for petitioners, the Secretary, and the NSA Director, in respondent's suit challenging his removal, the U.S. District Court for the District of Columbia held that, although NSA could have elected to proceed under either § 7532 or 50 U.S.C. § 833 — which is part of the NSA Personnel Security Procedures Act, and which provides that the Secretary "may" remove an NSA employee upon determining that the termination procedures set forth in other statutes "cannot be invoked consistently with national security" — NSA could also proceed under the authority provided by the 1959 NSA Act. The U.S. Court of Appeals for the District of Columbia reversed as to the optional application of § 7532 and vacated the remainder of the district court's decision, holding that removals for national security reasons must occur under either § 7532 or § 833, and that, because NSA disclaimed reliance on § 833, resort to § 7532 rather than NSA's for-cause removal regulations was mandatory.