Carlucci v. Doe, 488 U.S. 93 (1988)

Carlucci v. Doe

No. 87-751

Argued October 11, 1988
Decided December 6, 1988
488 U.S. 93

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

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 (1959 NSA Act) 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, "[n]otwithstanding 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, inter alia, a preremoval 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 District Court 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 Court of Appeals 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.

Held: Neither § 833 nor § 7532 barred NSA from invoking its for-cause removal mechanism adopted by regulation pursuant to the 1959 NSA Act.. Pp. 99-104.

(a) Although the 1959 NSA Act expressly confers only appointment power upon the Secretary, and does not refer to termination, nevertheless, as a matter of statutory construction, the power of removal from office is incident to the power of appointment, absent a specific provision to the contrary. Keim v. United States, 177 U.S. 290. There has been no showing that Congress expressly or impliedly indicated a contrary purpose in the 1959 NSA Act or its subsequent amendments. P. 99.

(b) That §§ 833 and 7532 are not the exclusive means to remove NSA employees for national security reasons, but instead contemplate alternative recourse to NSA’s ordinary removal mechanisms pursuant to the 1959 NSA Act, is established by the express language of those sections. Thus, since § 833 provides that the Secretary "may" terminate an employee if other statutory removal procedures cannot be invoked consistently with national security, it follows that recourse may, even must, be had to those other removal procedures where those procedures do not jeopardize national security. Similarly, § 7532 also is not mandatory since, in providing that an agency head "may" suspend or remove an employee "[n]otwithstanding other statutes," that section, in effect, declares that, even though other statutes might not permit it, the Secretary may authorize removals pursuant to § 7532 procedures, rather than those governing terminations under other laws. This discretionary aspect of § 7532 is manifest in the section’s legislative history. Congress could not have intended that § 7532 would be the exclusive procedure in this and like cases, since no national security termination would then be permissible without an initial suspension and adherence to the standard of Cole v. Young, 351 U.S. 536, 546, whereby a showing of "immediate threat of harm to the `national security’" is required in order for § 7532 to be invoked. Indeed, when Congress later passed the NSA Personnel Security Procedures Act, it must have intended that § 7532 not impose such restrictions on the various affected agencies, since the stringency of the § 7532 standard would conflict with the more lenient provisions of that Act authorizing the revocation of a security clearance and consequent dismissal. The Court of Appeals’ view that its construction of § 7532 is necessary to provide employees sought to be removed on national security grounds with procedures equivalent to those provided by that section assumes that NSA’s ordinary clearance revocation and for cause dismissal procedures are less protective than those guaranteed by § 7532, which assumption is not borne out by the record in this case. More significantly, the Court of Appeals’ view that Congress enacted § 7532 to extend new protections to such employees runs counter to explicit congressional statements that the legislation was proposed to increase agency heads’ authority to suspend and terminate employees on national security grounds. Pp. 99-104.

261 U.S.App.D.C. 96, 820 F.2d 1275, reversed and remanded.

WHITE, J., delivered the opinion for a unanimous Court.