Reginald Cheney was the Resident Agent in Charge of the DEA’s Cleveland office in 2004 when his security clearance was suspended. He was then suspended from his job on the basis of “allegations that [he] inappropriately queried or caused to be queried law enforcement data bases and abused the administrative subpoena process.” Despite his requests he was never given further details, making it impossible for him to refute the allegations. But his appeal to the Merit Systems Protection Board was rejected on the ground that he had been given an adequate opportunity to respond. We agreed to represent him before the Federal Circuit Court of Appeals to argue that the statutory and constitutional due process to which a civil servant is entitled when suspended without pay must include sufficient notice of the reasons so that he or she can make a meaningful response—even when the reason for the suspension is the suspension of a security clearance.
In March 2007 the court of appeals ruled that an employee “must be given enough information to enable him or her to make a meaningful response to the agency's proposed suspension,” that Mr. Cheney had not been given enough information to enable him to do so, and that he was therefore entitled to back pay. The government petitioned for rehearing en banc on the ground that the decision would interfere with the President’s ability to protect classified information. We showed that that was nonsense, and rehearing was denied.
