Hornseth v. Department of the Navy, No. 18-1188 (Fed. Cir. 2019)Annotate this Case
Hornseth worked at the Puget Sound Naval Shipyard, which houses nuclear-powered vessels; every position requires a security clearance. Hornseth attended rehabilitation for alcoholism and provided the Navy with documents regarding his treatment. From Hornseth’s rehabilitation discharge letter, the Navy learned that Hornseth had used marijuana during his employment. The Commander notified Hornseth that his security clearance was suspended and that the Navy proposed to indefinitely suspend his employment. Hornseth filed a reply. Combs, the deciding official, engaged in communications with the Shipyard’s Human Resources staff, primarily concerning positions that would not require a security clearance. The HR department drafted a “Decision on Proposed Indefinite Suspension” and forwarded it to Combs. Combs signed the decision. The Merit Systems and Protection Board ALJ affirmed, rejecting due process arguments that the reply process was an empty formality because Combs did not have the ability to take or recommend alternative agency action and Combs and the HR staff engaged in an improper ex parte communication. The Federal Circuit affirmed. Homseth received the procedural protections of 5 U.S.C. 7513(b); he received notice, had an opportunity to respond and to be represented, and was provided with a written decision with reasons. Although Hornseth had not seen the communication to Combs before the discovery process, the information it contained was already known to Hornseth or cumulative.