CASPAR WEINBERGER, SECRETARY OF DEFENSE, ET AL., PETITIONERS V.
JOHN DOE

   No. 87-751

   In the Supreme Court of the United States

   October Term, 1987

   The Solicitor General, on behalf of the Secretary of Defense and
the Director of the National Security Agency, petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the District of Columbia Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

                       PARTIES TO THE PROCEEDING

   Petitioners are Caspar Weinberger, Secretary of Defense, and Lt.
General William E. Odom, Director of the National Security Agency
(NSA).  Respondent is a former employee of NSA.  Respondent sued as
John Doe in order to protect his employment status with NSA and
because the "private and personal subject matter of this suit" might
jeopardize his employment opportunities outside NSA (Plaintiff's Mot.
for Leave to File as John Doe Paragraphs 2-3).

            TABLE OF CONTENTS
   Question Presented
   Parties to the Proceeding
   Opinions below
   Jurisdiction
   Statutes and regulations involved
   Statement
      A. The statutory and regulatory framework
      B. Proceedings below
   Reasons for granting the petition

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-16a) is
reported at 820 F.2d 1275.  The opinion of the district court (App.,
infra, 17a-20a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 22a-23a) was
entered on June 9, 1987.  A petition for rehearing with suggestion for
rehearing en banc was denied on August 18, 1987 (App., infra,
24a-25a).  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                   STATUTES AND REGULATIONS INVOLVED

   The pertinent statutory provisions, 5 U.S.C. 7312, 7511-7513, and
7532, and relevant portions of the National Security Agency Act of
1959, 50 U.S.C. 402 note, the Act of Mar. 26, 1964, Tit. III, 50
U.S.C. 831 et seq., and Chapter 370 of National Security Agency
Personnel Management Manual 30-2 (Aug. 12, 1980) are set forth in
App., infra, 26a-43a.

                          QUESTION PRESENTED

   Whether an employee of the National Security Agency who fails to
maintain a required clearance for access to classified information may
be dismissed "for cause," without invocation of 5 U.S.C. 7532 or 50
U.S.C. 833.

                               STATEMENT

   Respondent was removed "for cause" from his position with the
National Security Agency (NSA or the Agency) after it was determined
that his access to classified information was no longer "clearly
consistent with the national security." See 50 U.S.C. 831.  The court
of appeals held that the Director of NSA has no authority to remove an
employee for cause where the cause for the removal is related to
national security.  Rather, the court held, an NSA employee may be
removed on national security grounds only by the Secretary of Defense
acting in person, under either 5 U.S.C. 7532 or 50 U.S.C. 833(a).  The
court of appeals ruled that the National Security Agency Act of 1959,
50 U.S.C. 402 note, which gives the Secretary of Defense or his
designee the power to establish positions in the Agency and make
appointments thereto without regard to civil service laws, and 50
U.S.C. 831 and 832, which prohibit employment of any person at the
Agency in a position involving access to classified information unless
such access is "clearly consistent with the national security," do not
authorize the removal for cause of an employee who fails to maintain
his eligibility for such access.

   The court of appeals' decision conflicts with the decision of the
Federal Circuit in Egan v. Department of the Navy, 802 F.2d 1563
(1986), cert. granted, No. 86-1552 (May 26, 1987), which held that a
competive service employee denied a security clearance required by his
job could be removed for cause under the general removal provisions of
the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92
Stat. 1111, without invocation of 5 U.S.C. 7532.  The Court granted
certiorari in that case to decide whether, in the course of reviewing
such a removal, the Merit Systems Protection Board (MSPB) is
authorized by statute to review the substance of the underlying
decision to deny or revoke the security clearance.  The question
presented to this Court in Egan arose only because the Federal Circuit
decided the logically prior question -- whether the Navy could remove
Egan "for cause" without invoking Section 7532 -- in a way that
conflicts with the later decision of the D.C. Circuit in the present
case.

   Briefs in chief have been filed in Egan and the case has been
scheduled for argument on December 2, 1987.  Accordingly, although the
removal for cause issue has not been joined in Egan, /1/ the Court may
wish to defer consideration of this petition pending the Court's
decision in Egan.  /2/

               A. THE STATUTORY AND REGULATORY FRAMEWORK

   1. The National Security Agency was established by Presidential
Directive in 1952 as a separately organized intelligence agency within
the Department of Defense.  The National Security Agency Act of 1959,
50 U.S.C. 402 note (the 1959 NSA Act), gave the Secretary of Defense,
or his designee, the power "to establish such positions, and to
appoint thereto, without regard to the civil service laws, such
officers and employees * * * as may be necessary to carry out the
functions of such agency." In DoD Directive No. 5100.23 (May 17, 1967)
(C.A. App. 56-58), the Secretary of Defense delegated his authority
under the 1959 NSA Act to the Director of NSA.  The Director has in
turn promulgated regulations governing personnel matters.  NSA
Personnel Management Manual 30-2 (Aug. 12, 1980) (NSA/PMM).  Chapter
370 of these regulations (App., infra, 36a-43a) sets forth the
standards and procedures for removing an employee.

   Chapter 370 provides, inter alia, that an employee may be removed
for "such cause as will promote the efficiency of the service"
(NSA/PMM Section 370.3-4).  This overall standard for removal of an
NSA employee is identical to that for federal employees who are
covered by the CSRA (see 5 U.S.C. 7512-7513).  NSA employees also
enjoy by regulation many of the same procedural protections afforded
federal employees covered by the CSRA, including the right to advance
written notice of an adverse action an opportunity to respond and be
represented by counsel, and a written decision (compare 5 U.S.C. 7513
with NSA/PMM Sections 370.3-5 to 370.3-7).  Preference eligible
veterans employed at NSA like preference eligible excepted service
employees who are covered by 5 U.S.C. Chapter 75 (see 5 U.S.C.
7511(a)(1)(B)), have the right to appeal an adverse action to the MSPB
(NSA/PMM Section 370.3-8a(1)).  Nonveterans at NSA, however, may not
appeal adverse actions to the MSPB (id. section 370.3-8a(2)), just as
nonveterans in the excepted service have no right of MSPB appeal under
the CSRA (see 5 U.S.C. 7501(1)).

   2. Because of the sensitive nature of the tasks performed by NSA,
the Secretary of Defense is statutorily directed to ensure that no
person is employed by the Agency, or granted consequent access to
classified information, unless such employment or access is "clearly
consistent with national security" (50 U.S.C. 831).  In particular,
subject to specified exceptions, no person may be employed "unless he
has been the subject of a full field investigation" (50 U.S.C.
832(a)).  Subsection (b) of the same section provides for boards of
appraisal to aid the Secretary and the Director of NSA in making
access determinations, and further provides that "(n)o person shall be
cleared for access to classified information, contrary to the
recommendations of any such board, unless the Secretary (or his
designee for such purpose) shall make a determination in writing that
such employment * * * is in the national interest" (50 U.S.C. 832(b)).

   All employees at NSA are required to be cleared for access to
Sensitive Compartmented Information (SCI), which includes "data about
sophisticated technical systems for collecting intelligence and the
information collected by those systems." Sensitive Compartmented
Information:  Characteristics and Security Requirements (June 1984),
reprinted in App., infra, 44a-51a.  /3/ The standards and criteria for
access to SCI are "more rigorous and stringent" than those for a top
secret clearance, and individuals who have been granted top secret
clearances may nonetheless be denied access to SCI (id. at 48a).  /4/

   3. The Secretary of Defense, like the heards of other agencies, has
the power to suspend and thereafter to remove any employee when he
determines that such action is necessary or advisable in the interests
of national security.  Section 7532 of Title 5, United States Code,
provides that "the head of an agency" may summarily suspend an
employee without pay when he considers such action "necessary in the
interests of national security" and may remove a suspended employee
when, after following specified procedures, he determines that removal
is "necessary or advisable in the interests of national security." 5
U.S.C. 7532(a) and (b).  /5/ With certain exceptions, an employee
suspended under this section is entitled to notice of the reasons for
the suspension and an opportunity to respond, a hearing "by an agency
authority duly constituted for this purpose," and a written decision.
Neither a suspension nor a removal under Section 7532 is subject to
any outside review.  Cole v. Young, 351 U.S. 536, 546 (1956).  An
employee removed under Section 7532 is not eligible for any position
in the agency and may not be appointed to any position elsewhere in
the government prior to consultation with the Office of Personnel
Management (OPM) (5 U.S.C. 7312).

   Congress also gave the Secretary of Defense broad and unreviewable
discretion to remove any NSA employee when he considers such action to
be in the interest of the United States and determines that compliance
with the removal procedures set forth in other provisions of law would
not be consistent with national security.  50 U.S.C. 833(a).  Section
833(a) provides:

         Notwithstanding sections 7512 and 7532 of title 5, or any
      other provision of law, the Secretary may terminate the
      employment of any officer or employee of the Agency whenever he
      considers that action to be in the interest of the United
      States, and he determines that the procedures prescribed in
      other provisions of law that authorize the termination of the
      employment of that officer or employee cannot be invoked
      consistently with the national security.  Such a determination
      is final.

                         B. PROCEEDINGS BELOW

   1. Respondent was employed at NSA from 1968 to 1984 as a
cryptographic material control technician (App. infra, 2a).  In 1982
he disclosed to NSA officials that he had engaged in homosexual
relations with unnamed individuals, including foreign nationals
(ibid.).  Respondent was subsequently notified, pursuant to NSA
regulations, of his proposed removal from employment on the ground
that his continued access to SCI was not clearly consistent with the
interests of national security (C.A. App. 83).  The notice advised
respondent that he had a right to respond, to be represented by
counsel, and to review the information upon which the Agency relied in
reaching its decision (id. at 83-84).  The notice also advised
respondent that he would be retained in pay status during the
adjudication process but that he would not be permitted access to SCI
(id. at 84).

   Through counsel, respondent offered to undergo a psychiatric
evaluation to demonstrate that he did not pose a security risk (App.,
infra, 2a).  The Agency agreed to the psychiatric evaluation (id. at
3a) and, in the meantime, convened a board of appraisal pursuant to 50
U.S.C. 832(b) to determine whether respondent's continued access to
SCI was clearly consistent with the national security (App., infra,
3a).  Based on a detailed report of the psychiatrist in response to
questions from the board, the board ultimately concluded that
respondent's continued access to SCI was not clearly consistent with
the interests of national security (ibid.).  The board recommended,
however, that in view of respondent's satisfactory job performance the
Agency assist him in finding employment outside NSA (id. at 3a-4a).

   Respondent's counsel filed a lengthy brief (C.A. App. 121-144)
together with summaries of interviews and letters from respondent's
acquaintances attesting generally to his good character and
trustworthiness (id. at 147-174, 183-190).  Respondent and his counsel
also had a hearing before the Director of NSA at which respondent
challenged the decision to withdraw his access to SCI (id. at 191).
Following consideration of all of respondent's submissions, the
Director decided to revoke respondent's eligibility for access to SCI.
 Since such eligibility was a condition of respondent's job and all
other jobs at the Agency, the Director, relying on the authority
delegated to him under the 1959 NSA Act, ordered that respondent be
removed.  App., infra, 4a.

   Respondent's counsel requested a pre-removal hearing pursuant to 5
U.S.C. 7532 (App., infra, 4a).  This request was directed to the
Secretary of Defense as well as to the Director of NSA (C.A. App.
216-219).  Both NSA and the Department of Defense replied that
respondent's removal was for "cause" pursuant to NSA regulations and
was not pursuant to the Secretary's summary authority under either 50
U.S.C. 833 or 5 U.S.C. 7532 (C.A. App. 220, 221).  Respondent renewed
his request for a Section 7532 hearing, and also contended that the
appointment authority provided in the 1959 NSA Act, 50 U.S.C. 402
note, and delegated to the Director of NSA, did not include any
authority to remove employees (C.A. App. 222, 223).  The renewed
request was denied (id. at 224, 225), and respondent's employment was
terminated effective March 9, 1984 (id. at 226).

   2. Respondent then filed this suit in the United States District
Court for the District of Columbia contending that his removal
violated various constitutional and statutory rights.  He argued,
inter alia, that the Director had no statutory authority to remove him
under the 1959 NSA Act and that, unless the Director proceeded under
NSA's special summary authority (50 U.S.C. 833), the only available
statutory authority for removal was 5 U.S.C. 7532.  He sought
reinstatement to his job or a remand to the Agency for a full hearing
at which he could challenge the decision to revoke his clearance for
access to SCI.

   The district court granted summary judgment for petitioners (App.,
infra, 17a-20a).  The court held, inter alia, that respondent was
properly removed "for cause" pursuant to the 1959 NSA Act and NSA's
implementing regulations.  The court concluded that the power to
remove is inherent in the power to appoint, and that, although NSA
could have elected to proceed under its summary authority in 50 U.S.C.
833, it was not required to do so.  The court noted that NSA in fact
provided respondent with greater procedural safeguards by proceeding
under its "for cause" regulations than he would have received under 50
U.S.C. 833 (App., infra, 20a).  The court concluded that NSA was
similarly not required, simply because the removal implicated national
security concerns, to utilize the summary procedures of 5 U.S.C. 7532
(App., infra, 20a).

   3. The court of appeals reversed the district court's decision with
respect to the applicability of 5 U.S.C. 7532 and vacated the
remainder of the decision (App., infra, 1a-16a).  The court held that,
since respondent's removal was "in the interests of national
security," the Secretary of Defense was required to proceed under 5
U.S.C. 7532 in removing respondent.  The court reasoned that since
Section 7532 predated the creation of NSA, any implied removal
authority granted to NSA must be limited by Section 7532.  The court
of appeals stated (App., infra, 10a):  "Whatever implicit firing
authority may ordinarily be conferred by an explicit grant of hiring
authority, in this case the 1959 (NSA) Act cannot override a
congressional statute that expressly controls terminations in the
interest of national security." The court noted that Congress had
subsequently provided NSA with an explicit statutory removal authority
(50 U.S.C. 833), but since NSA did not use that authority, the only
means of removing respondent in the interests of national security was
Section 7532.  The court therefore remanded to the agency for
compliance with Section 7532.

                   REASONS FOR GRANTING THE PETITION

   The decision of the court of appeals, that an employee who fails to
maintain a required eligibility for access to classified information
may not be dismissed for cause, but may only be dismissed by the head
of his agency under 5 U.S.C. 7532 or other summary procedure, is
important to all federal agencies concerned with national security.
The court of appeals has seriously miscontrued both 5 U.S.C. 7532 and
the set of statutes governing NSA employment and access to classified
NSA information.  Its decision also conflicts with the decision of the
Federal Circuit in Egan v. Department of the Navy, 802 F.2d 1563
(1986), cert. granted, No. 86-1552 (May 26, 1987).

   1. In the 1959 NSA Act, 50 U.S.C. 402 note, Congress granted to the
Secretary of Defense, who in turn delegated to the Director of NSA,
the authority to administer and direct the operations of NSA,
specifically including the power "to establish such positions and to
appoint thereto, without regard to the civil service laws, such
officers and employees * * * as may be necessary to carry out the
functions of such agency." As a general matter, the power to fire is,
unless expressly circumscribed, inherent in the power to hire.  The
district court correctly so noted (App., infra, 20a), and this Court
has so recognized for 150 years.  In re Hennen, 38 U.S. (13 Pet.) 230,
259 (1839);  Crenshaw v. United States, 134 U.S. 99, 108 (1890);  Keim
v. United States, 177 U.S. 290, 293-294 (1900);  Shurtleff v. United
States, 189 U.S. 311, 315 (1903);  De Castro v. Board of Comm'rs, 322
U.S. 451, 462 (1944);  Cafeteria Workers v. McElroy, 367 U.S. 886, 896
(1961);  Arnett v. Kennedy, 416 U.S. 134, 148 (1974) (plurality
opinion);  id. at 181 (White, J., concurring in part and dissenting in
part).  /6/

   Clearance for access to SCI is a continuing requirement for
employment at NSA, and loss of that clearance plainly constitutes
"cause" for removal.  /7/ Section 831 provides that "no person shall
be employed in * * * the National Security Agency * * * or continue to
be so employed * * * (or) have access to any classified information( )
unless such employment * * * or access to classified information is
clearly consistent with the national security" (emphasis added).
Section 832(a) provides that "(n)o person shall be employed in, or
detailed or assigned to, the Agency unless he has been the subject of
a full field investigation in connection with such employment, detail,
or assignment, and is cleared for access to classified information in
accordance with the provisions of this subchapter."

   Sections 831 and 832 authorize, and NSA's regulations establish,
procedures by which it may be determined that an existing employee's
access to SCI is no longer "clearly consistent with the national
security" -- with the consequence that the employee must be removed.
Section 831 directs the Secretary to prescribe regulations "relating
to continuing security procedures" sufficient to assure that an
individual's "continue(d)" employment is clearly consistent with the
national security.  The Secretary promulgated such regulations and NSA
followed them here.  Section 832(b), which applies to continuing as
well as initial clearance determinations, /8/ provides that, "in those
cases in which the Director of the Agency determines that there is a
doubt whether (the employee's) access to that information would be
clearly consistent with the national security," a board of appraisal
"shall submit a report and recommendation on each such a case."
Section 832(b) further provides that no person may be cleared for
access to classified information "contrary to the recommendations of
any such board" unless the Secretary or his designee "shall make a
determination in writing that such employment * * * or access to
classified information is in the national interest."

   2. Neither the language nor the history of 5 U.S.C. 7532 supports
the court of appeals' conclusion that Section 7532 displaces the
authority of the Director to remove an employee for cause for failure
to maintain a clearance that is a requirement of his job.  Section
7532 is plainly not an exclusive procedure but an extraordinary
supplement to the usual methods of removing federal employees.
Section 7532 gives each agency head responsible for protecting
national security -- here, the Secretary of Defense -- certain summary
suspension and removal powers when he has made an affirmative
determination that such action is necessary or advisable in the
interests of national security.  Neither the interests of national
security nor the interests of employees would be served by turning it
into a mandatory substitute for normal removal procedures.

   Congress enacted the predecessor of Section 7532 (the Act of Aug.
26, 1950, ch. 803, Section 1, 64 Stat. 476) to give the heads of
certain executive agencies the power to take immediate action when
necessary to protect the national security.  See, e.g., S. Rep. 2158,
81st Cong., 2d Sess. 2 (1950).  See also H.R. Rep. 2264, 80th Cong.,
2d Sess. 1 (1948).  From the standpoint of both the agency head and
the affected employee, it is a drastic remedy.  The agency head must
act personally and must make affirmative findings that a suspension is
"necessary" and then that a removal is "necessary or advisable" in the
interests of national security.  But the employee may be suspended
summarily, without process and without pay, and may be removed "after
such investigation and reviews as (the agency head) considers
necessary." Permanent employees are entitled, "after suspension and
before removal," to notice of charges "as specific() as security
considerations permits," an opportunity to respond, and a hearing "by
an agency authority duly constituted for this purpose." 5 U.S.C. 7532.
 The statute provides that "(t)he determination of the head of the
agency is final" (5 U.S.C. 7532(b)), i.e., there is no outside review
(Cole v. Young, 351 U.S. at 546).  An employee removed under Section
7532 is not eligible for any position in the agency and may not be
appointed to any position elsewhere in the government prior to
consultation with OPM (5 U.S.C. 7312).

   Section 7532 was not intended to be used routinely, but only when
there is an immediate and apparent risk to the national security.  See
H.R. Rep. 2330, 81st Cong., 2d Sess. 3 (1950).  See also Cole v.
Young, 351 U.S. at 546.  The proponents of the statute gave assurances
that it would be used sparingly and cautiously.  See, e.g., Hearings
on S. 1561 Before a Subcomm. of the Senate Comm. on Armed Services,
80th Cong., 1st Sess. 2, 3 (1948) (statement of Mark Edwin Andrews,
Assistant Secretary of the Navy:  "It is our intention to utilize the
provisions of this law only in the exceptional cases where no other
speedy and sure method is available to protect the national security.
* * * I wish to reemphasize that the Navy does not intend to use this
summary-dismissal legislation * * * except in the most unusual
cases.").

   For these reasons, this Court noted in Cole v. Young, 351 U.S. at
543, that the summary removal authority granted to agency heads by the
predecessor of Section 7532 is "not the only, nor even the primary,
source of authority to dismiss Government employees." In Cole, the
Court held that, "(i)n the absence of an immediate threat of harm to
the 'national security,'" a removal based on doubts about an
employee's loyalty should proceed not under Section 7532 but under
"the normal dismissal procedures" (351 U.S. at 546).  That is
precisely what happened in this case, and the court of appeals erred
in concluding that the possibility of summary termination under
Section 7532 somehow precluded a "for cause" removal of respondent.
/9/

   3. The court of appeals' decision is simply irreconcilable with the
statutory mandate that "no person shall be employed in" the Agency or
have "access to any classified information" unless such employment or
access is "clearly consistent with the national security" (50 U.S.C.
831).  If the employee fails to meet that "clearly consistent"
standard and hence is no longer permitted by statute to have access to
classified information, the statute requires that his employment not
continue (ibid.).  Removal under Section 7532, by contrast, requires
an affirmative finding that removal is "necessary or advisable in the
interests of national security." That is a different standard:  a
determination to deny access to SCI, on the ground that it is no
longer "clearly consistent with the national security," does not
necessarily mean there is an immediate danger to national security
sufficient to invoke Section 7532.  It does, however, mean that the
employee no longer satisfies a statutory condition of his employment.

   4. The court of appeals apparently reasoned (App., infra, 12a-13a)
that respondent would receive more protection under Section 7532 than
in a "for cause" removal, and that therefore the former procedure must
displace the latter.  But the premise is wrong and the conclusion does
not follow:  respondent received greater protection under NSA
regulations than he would have received had Section 7532 been invoked;
 and the fact that NSA employees are statutorily excluded from civil
service protection does not turn Section 7532, a supplementary
procedure applicable to a wide range of federal employees, into an
exclusive means of removing NSA personnel.

   Under NSA regulations, respondent could be removed only for cause
and was entitled to written notice, an opportunity to respond and be
represented by counsel, and a written decision.  His case was
reviewed, first, by a board of appraisal and then by the Director of
NSA, who met with respondent and his counsel.  Had respondent been a
veteran, he would also have had a right to appeal to the MSPB (see p.
4, supra).  Respondent was kept on pay status for a period of 16
months while his case was being considered.  When the board of
appraisal determined that respondent's access to SCI was no longer
"clearly consistent with the national security," it nonetheless
recommended that NSA endeavor to help respondent find employment
elsewhere.  /10/ This treatment constrasts sharply with what
respondent could have expected under Section 7532, which is designed
primarily to deal with immediate threats to national security:
summary suspension without pay, notice only to the extent consistent
with national security, a single hearing of unspecified scope, and, if
the determination were made to remove him, ineligibility for any other
position in the Department of Defense, or prior to consultation with
OPM, for appointment elsewhere in government.  NSA employees would be
ill-served if Section 7532 became the standard procedure for all
removals based on considerations of national security.

   In any event, the fact that NSA personnel have no civil service
protection does not imply that Section 7532 is the exclusive means of
removing them.  Section 7532 applies to employees of many agencies
(see n.5, supra), including employees in the competitive service, who
do have civil service protection and who receive statutory protections
in a "for cause" removal that they do not receive when Section 7532 is
invoked.  /11/ The emergency procedure permitted by Section 7532 does
not become a mandatory procedure just because personnel of a
particularly sensitive agency have been deliberately shorn of
statutory protection and relegated to such protections as the agency
provides by regulation.

   5. The court of appeals' ruling has an importance that extends well
beyond NSA.  The court ruled that a general authority to remove
employees for cause is displaced in cases involving national security
by 5 U.S.C. 7532.  The opinion suggests no reason why that ruling
should not apply to other agencies with general "for cause" removal
authority.  /12/ If it does, then every routine decision to revoke a
required clearance would require procedures suitable to an immediate
threat to national security, including the personal attention of the
head of the agency.  Even if the "necessary or advisable" standard of
Section 7532 could be stretched to accommodate such cases (as would be
necessary if the "clearly consistent" test of 50 U.S.C. 831 and other
statutes is to be complied with), the burden upon the agencies and
consequent inefficiency would greatly handicap efforts to protect the
national security.  /13/

   Finally, the court of appeals' holding is in direct conflict with
the conclusion of the Federal Circuit in Egan v. Department of the
Navy, supra, that an agency may remove an employee for cause, for
failure to hold a required security clearance, without invoking
Section 7532.  Although, as noted (see n.1, supra), issue is not
jointed in this Court on that question in Egan, the question was fully
considered and expressly decided by the Federal Circuit, and it is the
logical antecedent to the question presented by the petition in that
case.  If the Navy had no authority to dismiss Egan for cause after
denying him a security clearance, then the question presented in Egan
-- the scope of MSPB review of the dismissal -- would not have arisen.

   We believe the Court should grant certiorari in this case and,
after plenary review, reverse the decision below.  However, briefs in
chief have been filed in Egan, and argument has been scheduled for
December 2, 1987.  Under the circumstances, since the Federal
Circuit's contrary view on the issue presented in this case is a
predicate for the issue presented in Egan, the Court may wish to defer
consideration of this petition pending the Court's decision in Egan.

                              CONCLUSION

   The petition for a writ of certiorari should be granted either now
or after the Court's decision in Department of the Navy v. Egan, No.
86-1552.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   LOUIS R. COHEN

      Deputy Solicitor General

   MICHAEL K. KELLOGG

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   FREDDI LIPSTEIN

      Attorneys

   NOVEMBER 1987

   /1/ Respondent Egan concedes that the Navy had authority to dismiss
him for cause without invoking Section 7532.  See Resp. Br. at 15,
Department of the Navy v. Egan, cert. granted, No. 86-1552 (May 26,
1987).  We have furnished respondent with a copy of our brief in Egan.
 We have also furnished counsel in that case with a copy of the
instant petition.

   /2/ The mandate of the count of appeals in this case has been
stayed pending the filing of this petition.  The mandate does not
direct reinstatement of respondent but would require the district
court to remand the case to the Agency for proceedings pursuant to 5
U.S.C. 7532.  If, upon such remand, the Secretary of Defense were to
suspend and then remove respondent under that section, respondent
would presumably be entitled to back pay from the date of the removal
challenged in this case to the date of the suspension under that
section.

   /3/ Clearance for access to SCI is a statutory requirement of
employement at NSA, except that conditional employment without such
access may be granted pending completion of a full field
investigation.  See 50 U.S.C. 832(a) (requiring clearance for "access
to sensitive cryptologic information or material").

   /4/ "Because of the extreme vulnerability to countermeasures of the
operations covered by SCI control systems, * * * a substantially more
vigorous personnel screening process is necessary and a determination
standard beyond that for other classified information must be used"
(App., infra, 50a-51a).

   /5/ 5 U.S.C. 7531 contains a list of specific agencies and
departments to which Section 7532 applies, but also provides that
Section 7532 will apply to any "such other agency * * * as the
President designates in the best interests of national security." By
Executive Order, the President has extended Section 7532 "to all other
departments and agencies of the Government." Exec. Order No. 10,450,
Section 1, 3 C.F.R. 936 (1949-1953 comp.).  However, this Court in
Cole v. Young, 351 U.S. 536, 551 (1956), held that "a condition
precedent to the exercise of th(is) dismissal authority is a
determination by the agency head that the position occupied is one
affected with the 'national security'" -- a determination, the Court
made clear (id. at 548 (footnote omitted)), that will only be possible
in agencies with "a close and immediate concern with the defense of
the Nation." Thus, Section 7532 in fact has no relevance to many
government agencies.

   /6/ NSA employees are not covered by the civil service laws.
However, as noted above, the Director has promulgated regulations
granting to NSA employees substantive and procedural rights similar to
those enjoyed by their counterparts in the civil service.  These
include the right to be dismissed "only for such cause as will promote
the efficiency of the service." NSA/PPM Section 370.3-4.

   /7/ Loss of a required clearance is also cause for removal under
the parallel provisions of the CSRA.  Egan v. Department of the Navy,
supra;  Hoska v. Department of the Army, 677 F.2d 131 (D.C. Cir.
1982).  Cf. Cole v. Young, 351 U.S. at 543 (footnote omitted) ("(t)he
general personnel laws * * * authorize dismissals 'for such cause as
will promote the efficiency of the service,' and * * * a reasonable
doubt as to an employee's loyalty was recognized as a 'cause' for
dismissal under those procedures as early as 1942").

   /8/ Section 832(b) establishes procedures for "assist(ing) the
Secretary and the Director of the Agency in carrying out their
personnel security responsibilities," responsibilities which are
defined in Section 831 to include ensuring that no employee at NSA
shall "continue to be so employed" and have access to classified
information unless such continued employment and access is "clearly
consistent with the national security."

   /9/ That Congress intended to allow "for cause" removal on national
security grounds is clear from the preamble to 50 U.S.C. 833, which
grants the Secretary of Defense summary authority to dismiss an
employee in the interest of the United States.  Section 833 provides
that the Secretary's authority may be exercised "(n)otwithstanding
sections 7512 and 7532 of title 5." The reference to 5 U.S.C. 7512 is
to the "for cause" dismissal protections of the CSRA, protections
which have been afforded by regulation to NSA employees.  The
reference to both Section 7512 and Section 7532 clearly indicates that
Congress assumed that removals for cause would continue to occur even
in cases with national security implications.  See also 50 U.S.C.
832(b) authorizing boards of appraisal to submit reports and make
recommendations on access to classified information, but providing
that "appraisal by such a board is not required before action may be
taken under section 7512 and 7532 of title 5, or any other similar
provision of law").

   Section 833 requires a finding by the Secretary of Defense both
that the action is "in the interest of the United States" and that
"the procedures prescribed in other provisions of law that authorize
the termination of the employment of that officer or employee cannot
be invoked consistently with the national security" (50 U.S.C.
833(a)).  The latter clause further demonstrates that 50 U.S.C. 833
does not displace the general authority of the Director to remove
employees for cause, merely because the case implicates national
security.

   /10/ Although all positions at NSA require SCI clearance, that is
not true elsewhere in the Department of Defense or in other agencies.

   /11/ For example, a competitive service employee or veteran removed
for cause for failure to obtain or retain a required security
clearance is entitled, under 5 U.S.C. 7513, to MSPB and judicial
review in addition to agency procedures.  See Egan v. Department of
the Navy, supra.  We argue in that case that the substance of the
clearance determination is not reviewable, but this outside check on
the procedures followed by the agency offers a protection wholly
unavailable under Section 7532.

   /12/ The court of appeals did note that Section 7532 predates the
NSA Act of 1959, but statutes are normally more easily read to
displace prior enactments than subsequent ones.

   /13/ Two additional points should be noted.  First, the line of
distinction between dismissals implicating national security and those
which "promote the efficiency of the service" in other ways is far
from clear.  For example, an employee found selling drugs could be
dismissed for cause to promote the efficiency of the service.  Yet
drug trafficking is presumably also grounds for revoking a security
clearance because the continued access to classified information by
such an employee would seem not to be "clearly consistent with the
interests of the national security." It is not clear whether the court
of appeals' decision would require the agency to proceed under Section
7532 in such a case.

   Second, mandatory resort to Section 7532 could cause some of the
very security problems the section was designed to alleviate.  In the
above example, the Director might be legitimately concerned that
suspension of the employee without pay (under Section 7532) would
cause the employee to react by disclosing highly sensitive information
in retaliation.  By adjudicating the employee under the "for cause"
procedures established by NSA regulations, with attendant procedural
protections and the employees enjoying full pay but denied further
access to classified information, the Agency may be able to defuse any
such impulse.  While the Agency does not dispute that it could proceed
under Section 7532 in such a case, it vigorously disputes that it must
do so, since a mandatory procedure undermines its ability to protect
national security when it believes that the summary procedures might
cause greater risk to national security than a for cause dismissal.

   APPENDIX