United States Court of Appeals for the Federal Circuit
2007-3322
WILFREDO ROMERO,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
Wilfredo Romero, of Laurel, Maryland, pro se.
Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Todd M. Hughes, Deputy Director.
Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, of
Washington, DC, for amicus curiae American Civil Liberties Union of the National
Capital Area.
Appealed from: Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
2007-3322
WILFREDO ROMERO,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
Petition for review of the Merit Systems Protection Board in DC07520070328-I-1.
___________________________
DECIDED: June 2, 2008
___________________________
Before LOURIE, BRYSON, and DYK, Circuit Judges.
BRYSON, Circuit Judge.
Wilfredo Romero was employed as an auditor for the Office of Inspector General
at the Department of Defense. In December 2006 Mr. Romero was removed from his
position for failing to maintain his security clearance. He appealed the removal action to
the Merit Systems Protection Board. The Board affirmed the action, holding that it could
not review the merits underlying a security clearance revocation. Because the Board
did not address whether the Department of Defense complied with its own procedures
when revoking Mr. Romero’s security clearance, we vacate the Board’s decision and
remand for the Board to determine whether Mr. Romero can show harmful error
resulting from any failure by the Department to follow its own procedures.
I
Mr. Romero had worked as an auditor at the Department’s Office of Inspector
General since 1999. His position required a Secret security clearance, which he had
been granted by the Washington Headquarters Service Central Adjudication Facility
(“WHS-CAF”). In 2004 Mr. Romero’s supervisor asked the Defense Intelligence Agency
Central Adjudication Facility (“DIA-CAF”) to grant Mr. Romero clearance to obtain
access to Sensitive Compartmented Information (“SCI”) so that Mr. Romero would be
able to assist with auditing work at the National Security Agency. After conducting an
investigation, the DIA-CAF issued a letter of intent informing Mr. Romero that a
preliminary decision had been made to deny him clearance for access to SCI. The
specific security risk cited in the preliminary denial was the Honduran citizenship of Mr.
Romero’s wife and stepson. The letter of intent further stated that Mr. Romero’s
“access to collateral information has been suspended pending resolution of this matter.”
Both parties agree that the effect of that language was to suspend Mr. Romero’s Secret
security clearance.
After Mr. Romero responded to the letter of intent, the DIA-CAF issued a final
decision denying Mr. Romero eligibility for access to SCI and revoking his “access
eligibility to collateral classified information.” Mr. Romero appealed the DIA-CAF’s final
determination by requesting a hearing before an administrative judge at the Defense
Office of Hearing and Appeals. The administrative judge determined that the Defense
Intelligence Agency (“DIA”) “lack[ed] jurisdiction to consider whether an exception
2007-3322 2
should apply” to the Department’s regulations precluding individuals with foreign
immediate family members from eligibility for access to SCI. The administrative judge
therefore addressed only the issue of Mr. Romero’s access to collateral classified
information. On that issue, the administrative judge considered the foreign influence
mitigating conditions that might be relevant to Mr. Romero’s relationship with his wife,
but found that his wife’s employment at the Honduran Embassy weighed against
applying any mitigating conditions in Mr. Romero’s favor. The administrative judge
found that Mr. Romero’s relationship with his stepson did not pose an unacceptable
security risk. Nevertheless, based on Mr. Romero’s relationship with his wife, the
administrative judge recommended that the Defense Intelligence Agency Security
Appeals Board (“DIA-SAB”) affirm the DIA-CAF’s decision to revoke Mr. Romero’s
access to collateral classified information.
After reviewing the administrative judge’s recommendation, the DIA-SAB issued
a decision affirming the determination that Mr. Romero did not meet the eligibility
requirements for access to SCI. Turning to the administrative judge’s determination that
no mitigating factors applied to Mr. Romero’s relationship with his wife, the DIA-SAB
stated the following:
The SAB concluded that you failed to mitigate the foreign influence
security concerns. As noted by the DOHA Administrative Judge, the
Foreign Influence standard applies and mitigating factors do not apply as
your wife is, by definition, an agent of a foreign power (50 U.S.C.A.
1801(b)(1)(A)). Accordingly, as the security issues are deemed to be
inconsistent with the national security interests, your eligibility for access
to SCI is denied effective this date. This decision is final and concludes
the administrative review of this process.
The DIA-SAB’s final decision made no mention of the revocation of Mr. Romero’s
access to collateral classified information (i.e., his Secret security clearance).
2007-3322 3
On December 16, 2005, the WHS-CAF notified Mr. Romero of its decision to
reciprocally accept the DIA-SAB’s final decision denying his eligibility for access to SCI.
Based on that decision, the WHS-CAF stated that his eligibility “for access to classified
information and to occupy a sensitive position has been revoked.” The WHS-CAF did
not provide Mr. Romero any opportunity to appeal the revocation of his access to
classified information because the revocation was based on the reciprocal acceptance
of the DIA-SAB’s final decision.
On July 26, 2006, Mr. Romero received a notice of proposed removal from the
Office of Inspector General citing the DIA-SAB’s denial of his access to SCI and the
WHS-CAF’s revocation of his access to classified information. A final decision was sent
to Mr. Romero on December 21, 2006, and he was removed from his position eight
days later.
Mr. Romero appealed his removal to the Merit Systems Protection Board. Before
the administrative judge, Mr. Romero argued that he was denied due process because
the Department of Defense did not give him the opportunity to challenge the WHS-
CAF’s reciprocal revocation. He further argued that the WHS-CAF’s revocation of his
access to classified information was invalid because the DIA-SAB only denied his
eligibility for access to SCI. Additionally he argued that his removal was retaliatory.
The administrative judge first rejected Mr. Romero’s due process argument because Mr.
Romero was given the opportunity to challenge the DIA-CAF’s decision and because
the Department’s regulations do not require an opportunity for review of a reciprocal
acceptance of a security clearance revocation. The administrative judge then
determined that Mr. Romero’s security clearance had been revoked, that Mr. Romero’s
2007-3322 4
position required “access to sensitive compartmented information (SCI) and access to
classified information,” and that the Department had fully complied with the
requirements of 5 U.S.C. § 7513. The administrative judge rejected Mr. Romero’s
remaining challenges to the Department’s action as challenges to the merits of the
decision to revoke his security clearance. The administrative judge therefore affirmed
Mr. Romero’s removal. On Mr. Romero’s petition for review, the full Board denied
review.
II
Under 5 U.S.C. § 7512(1), an agency’s removal of an employee is an “adverse
action.” An employee subject to an adverse action is entitled to the protections of 5
U.S.C. § 7513. Those protections include written notice of the specific reasons for the
proposed action, an opportunity to respond to the charges, the requirement that the
agency’s action is taken to promote the efficiency of the service, and the right to review
of the action by the Board. When reviewing an adverse action under 5 U.S.C. § 7701,
the Board may sustain the agency’s action only if the agency can show that its decision
is supported by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). In most
cases, the agency must provide evidence supporting the reasons for the adverse action.
But in cases in which the adverse action is based on the denial or revocation of a
security clearance, section 7701(c)(1)(B) does not require the agency to prove that the
reasons for its decision to deny or revoke a security clearance are supported by a
preponderance of evidence. In Department of the Navy v. Egan, 484 U.S. 518, 531
(1988), the Supreme Court observed that imposing such a burden would be inconsistent
with the normal standard applied when granting security clearances—i.e., that granting
2007-3322 5
clearance is “clearly consistent with the interests of the national security.” Instead, the
Court stated that in reviewing a for-cause removal action of an employee who was
denied a security clearance, the Board may only determine “whether such cause
existed, whether in fact clearance was denied, and whether transfer to a nonsensitive
position was feasible.” Id. at 530.
In Hesse v. Department of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000), we
addressed the scope of review of removal actions that involve the revocation or denial
of security clearance:
The principles we draw from the Court’s decision in Egan are these: (1)
there is no presumption that security clearance determinations will be
subject to administrative or judicial review, as those determinations are
committed to the broad discretion of the responsible Executive Branch
agency; (2) unless Congress specifically provides otherwise, the Merit
Systems Protection Board is not authorized to review security clearance
determinations or agency actions based on security clearance
determinations; and (3) when an agency action is challenged under the
provisions of chapter 75 of title 5, the Board may determine whether a
security clearance was denied, whether the security clearance was a
requirement of the appellant’s position, and whether the procedures set
forth in section 7513 were followed, but the Board may not examine the
underlying merits of the security clearance determination. See King v.
Alston, 75 F.3d 657, 662-63 (Fed. Cir. 1996); Drumheller v. Department of
the Army, 49 F.3d 1566, 1571 (Fed. Cir. 1995); Lyles v. Department of the
Army, 864 F.2d 1581, 1583 (Fed. Cir. 1989).
Although in a Board proceeding an agency does not need to provide evidence to justify
the denial or revocation of a security clearance, section 7513(b)(1) requires agencies to
give written notice to employees “stating the specific reasons for the proposed action.”
Section 7513 therefore requires—in some circumstances at least—that an agency do
more than simply state that an adverse action is based on the revocation or denial of
security clearance. In King v. Alston, 75 F.3d 657 (Fed. Cir. 1996), and Cheney v.
Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007), we held that the suspension of
2007-3322 6
an employee because of denial or revocation of a security clearance could not be
sustained when the agencies involved did not “provide the employee with sufficient
information to make an informed reply to the agency.” Cheney, 479 F.3d at 1352
(quoting Alston, 75 F.3d at 662).
Section 7513 is not the only source of procedural protections for employees
subject to adverse actions based on security clearance decisions; agencies must also
follow the procedures established by their own regulations. See Drumheller v. Dep’t of
the Army, 49 F.3d 1566, 1569-73 (Fed. Cir. 1995) (reviewing Department of the Army
regulations related to the revocation of security clearances). In the event that an
agency does not follow its own regulations, 5 U.S.C. § 7701(c)(2)(A) provides that an
adverse action decision may not be sustained by the Board if the employee can show
“harmful error in the application of the agency’s procedures in arriving at such decision.”
The government argues that under Egan, Hesse, and Robinson v. Department of
Homeland Security, 498 F.3d 1361 (Fed. Cir. 2007), the Board and this court may not
review the procedural validity of a security clearance revocation. We disagree. Egan
and this court’s decisions following it are based on the principle that foreign policy is the
“province and responsibility of the Executive.” Egan, 484 U.S. at 529 (quoting Haig v.
Agee, 453 U.S. 280, 293-94 (1981)). In light of that principle, the Supreme Court in
Egan observed that “unless Congress specifically has provided otherwise, courts
traditionally have been reluctant to intrude upon the authority of the Executive in military
and national security affairs.” 484 U.S. at 530. The statutory provision allowing review
of an agency’s compliance with its own procedures leading to an adverse action does
not amount to an unwarranted intrusion upon the authority of the Executive, however,
2007-3322 7
because the authority to formulate procedures for denying or revoking security
clearances remains with the Executive.
We note that the government in Egan itself acknowledged that the Board may
review whether the agency has complied with its procedures for revoking a security
clearance, even though it may not review the substance of the revocation decision. The
government’s brief in Egan stated:
We agree with the Board that it may examine whether the agency made
such a determination [to revoke a security clearance], that is, whether the
agency had procedures for denying or revoking clearances and whether
the procedures were followed. The Board also could, in an appropriate
case, find that a determination was not validly made because the
employee was not afforded procedural protections guaranteed to him by
the agency’s regulations . . . .
Brief for Petitioner at 24-25, Dep’t of the Navy v. Egan, 484 U.S. 518 (1988). In light of
that concession, we decline to interpret Egan as having precluded such review without
comment. The Supreme Court’s decisions in Service v. Dulles, 354 U.S. 363 (1957),
and Vitarelli v. Seaton, 359 U.S. 535 (1959), also make clear that federal employees
may challenge an agency’s compliance with its regulations governing revocation of
security clearances. Nothing in Egan overrules those cases, and in fact the principle of
those cases has been applied even in cases involving employee security issues. See
Duane v. U.S. Dep’t of Def., 275 F.3d 988, 993 (10th Cir. 2002) (holding that court was
not precluded from reviewing a claim that agency violated its own procedural
regulations when revoking or denying a security clearance); Reinbold v. Evers, 187 F.3d
348, 359 n.10 (4th Cir. 1999) (same).
In Mr. Romero’s case, the Board was correct to reject the argument that the
revocation of his Secret clearance was retaliatory, as that argument went to the merits
2007-3322 8
of the security clearance decision. See Hesse, 217 F.3d at 1380. The Board also did
not err in finding that the agency had complied with the requirements of section 7513.
Mr. Romero was provided with notice of his proposed removal, and the Department
provided notice of the reasons for his removal and for the underlying revocation of his
security clearance, and an opportunity to respond to the proposed removal.
The Board, however, did not address Mr. Romero’s arguments that the
Department failed to follow its own regulations in revoking his Secret security clearance.
Mr. Romero has raised two challenges to the procedural validity of the Department’s
revocation of his Secret security clearance. First, he argues that the DIA-SAB was
authorized to review the denial of his eligibility for access to SCI, but not to revoke his
Secret security clearance. Second, he argues that the DIA-SAB did not actually revoke
his Secret security clearance, even if it had authority to do so. As a result, he asserts
that the WHS-CAF’s “reciprocal revocation” of his Secret security clearance was invalid.
Because there was no revocation to reciprocally accept, Mr. Romero claims that in
order to revoke his Secret security clearance, the WHS-CAF was required to provide
him with a statement of reasons, an opportunity to respond, and an opportunity to seek
review of the revocation at the Personnel Security Appeals Board.
In support of those arguments, Mr. Romero relies on a July 16, 1998,
memorandum from the Office of the Assistant Secretary of Defense and DoD
Regulation 5200-2-R. 1 The Board did not address whether the Department complied
1
Mr. Romero also relies on Executive Order No. 12,968. That order, however,
provides that it is “intended only to improve the internal management of the executive
branch and is not intended to, and does not, create any right to administrative or judicial
review, or any other right or benefit.” Exec. Order No. 12,968 § 7.2(e). Such language
2007-3322 9
with its own procedures in revoking Mr. Romero’s Secret security clearance. Because
the answer to that question may turn on the way that the Defense Department’s
procedures are interpreted and have been applied, matters that are not fleshed out in
the record before us, we are not in a position to decide whether Mr. Romero’s
procedural objections have merit. That issue should be addressed by the Board in the
first instance. Accordingly, we vacate the Board’s decision and remand for the Board to
determine whether Mr. Romero can show that the Department failed to follow its
procedures and that any failure to do so resulted in harmful error. 2
VACATED and REMANDED.
in Executive Orders bars a court from reviewing agency compliance with rules or
regulations qualified in that manner. See Sur Contra La Contaminacion v. EPA, 202
F.3d 443, 449 (1st Cir. 2000); Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1, 8-9 (D.C.
Cir. 1999); Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998);
State of Mich. v. Thomas, 805 F.2d 176, 187 (6th Cir. 1986).
2
The American Civil Liberties Union, as amicus curiae, argues that the Board
erred because the record does not support a finding that Mr. Romero’s Secret security
clearance was actually revoked. We believe the WHS-CAF’s statement that his
eligibility “for access to classified information and to occupy a sensitive position has
been revoked” shows that his clearance was revoked. In substance, the amicus’s
argument largely parallels the argument that the Department did not follow its own
procedures when it issued the reciprocal revocation. It differs in one respect, however.
Under section 7701(c)(2)(A), it is the employee’s burden to show that the agency failed
to follow its own procedures in reaching a removal decision and that the procedural
deficiency constituted harmful error. Accepting the ACLU’s characterization of the
Department’s action would seem to shift the burden to the Department to show
compliance with its security clearance procedures.
2007-3322 10