Romero v. Department of Defense

United States Court of Appeals
for the Federal Circuit
__________________________

WILFREDO ROMERO,
Petitioner,

v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________

2010-3137
__________________________

Petition for review of the Merit Systems Protection
Board in consolidated case nos. DC0752070328-M-3 and
DC0752060136-M-2.
__________________________

Decided: October 3, 2011
__________________________

JAMES C. COX, Jenner & Block, LLP, of Washington,
DC, argued for the petitioner. Of counsel on the brief
was ARTHUR B. SPITZER, ACLU of the Nation’s Capital, of
Washington, DC.

ELIZABETH M. HOSFORD, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were TONY WEST,
ROMERO v. DEFENSE 2

Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and TODD M. HUGHES, Deputy Director.
__________________________

Before BRYSON, DYK, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST.
Concurring opinion filed by Circuit Judge DYK.

PROST, Circuit Judge.

Wilfredo Romero was employed as an auditor at the
Department of Defense (“DoD”). In December 2006, Mr.
Romero was removed from his position for failing to
maintain his Secret level security clearance. He appealed
the removal action to the Merit Systems Protection Board
(“MSPB”). The MSPB affirmed the action. This court
vacated the MSPB’s decision and remanded for the MSPB
to determine whether Mr. Romero could show harmful
error resulting from the DoD’s failure to follow its own
procedures. See Romero v. Dep’t of Defense, 527 F.3d 1324
(Fed. Cir. 2008) (“Romero I”). On remand, the MSPB
again affirmed the removal. Because we agree that the
DoD complied with its internal procedures in revoking
Mr. Romero’s security clearance, we affirm.

BACKGROUND

At issue is whether the DoD properly revoked Mr.
Romero’s Secret security clearance when it denied him a
different kind of clearance, namely access to Sensitive
Compartmented Information (“SCI”).

A

The relevant events began in 2004, when Mr. Ro-
mero’s supervisor asked the Defense Intelligence Agency
3 ROMERO v. DEFENSE

Central Adjudication Facility (“DIA-CAF”) to grant Mr.
Romero clearance to obtain access to SCI. Mr. Romero
had been working as an auditor in the agency’s Office of
Inspector General since 1999. This position required him
to maintain a Secret level security clearance, which he
obtained in 1999 from the Washington Headquarters
Service Central Adjudication Facility (“WHS-CAF”).
After receiving his Secret security clearance but before
requesting clearance for access to SCI, Mr. Romero mar-
ried a Honduran national. At the time Mr. Romero
sought access to SCI, his wife was an employee of the
Honduran Embassy.

The eligibility standards for SCI access and Secret
clearances are not identical, although there are common
guidelines and procedures that do apply to both types of
clearances. See Exec. Order 12968; DoD 5200.R-2, App. 8;
Director of Central Intelligence Agency Directive
(“DCID”) 6/4. Under these common adjudicative guide-
lines, an investigating agency must consider thirteen
factors in determining whether granting a security clear-
ance is consistent with interests of national security.
Each of these factors applies regardless of whether an
employee seeks a Secret clearance or SCI access. Of
particular relevance here is the “foreign influence” factor.
Specifically, the “foreign influence” disqualifying factor
states that a “security risk may exist when an individual’s
immediate family . . . and other persons to whom he or
she may be bound by affection, influence or obligation are:
(1) not citizens of the United States or (2) may be subject
to duress.” DoD 5200.2-R, App. 8. Conditions that may
be disqualifying include having an immediate family
member who is a citizen of a foreign country or having
relatives who are connected with any foreign government.
Id. The common guidelines also specify that foreign
ROMERO v. DEFENSE 4

influence-related security concerns can be mitigated
under certain circumstances. Id.

Beyond these considerations, SCI access requires sat-
isfying additional minimum personnel security standards
that are not required for Secret and other lower-level
clearances. See DCID 6/4. For example, DCID 6/4 speci-
fies that in order to be approved for access to SCI, an
individual “must be a US citizen [and] [t]he individual’s
immediate family must also be US citizens.” Thus, any
individual whose spouse is a citizen of a foreign country is
barred under DCID 6/4 from obtaining clearance for
access to SCI, although he may still be eligible for a
Secret clearance if the foreign influence concern is ade-
quately mitigated. If the foreign influence concern cannot
be adequately mitigated, the individual may be denied
both access to SCI and Secret clearance based on his
spouse’s citizenship.

B

The general organizational framework used by the
DoD to make security clearance determinations is as
follows. The DoD has authorized Central Adjudication
Facilities (“CAF”) in various components, including the
DIA and the WHS, to issue security clearances. When a
component’s CAF denies or revokes a clearance, the
determination may be appealed to that component’s
Security Appeals Board (“SAB”). Both the DIA and the
WHS are authorized to grant, deny, or revoke civilian
personnel security clearances including Secret clearances.
In addition, the DIA also has the authority to grant, deny,
or revoke access to SCI. The WHS-CAF generally handles
Secret security clearances, while the DIA-CAF handles
access to SCI. Under DoD regulations, a component may
5 ROMERO v. DEFENSE

“reciprocally accept” a security clearance determination
made by another component. See DoD 5200.2-R § C4.

The first step in the process of obtaining access to SCI
involves asking the appropriate CAF to adjudicate the
clearance. Although the WHS-CAF was the component
that issued Mr. Romero’s original Secret clearance, the
DIA-CAF is responsible for making determinations re-
garding eligibility to access SCI. Accordingly, Mr. Ro-
mero’s employer requested that the DIA-CAF grant him
SCI access. After conducting an investigation, the DIA-
CAF informed Mr. Romero that a preliminary decision
had been made to deny him clearance for access to SCI.
Romero I, 527 F.3d at 1326. The preliminary decision
also indicated that Mr. Romero’s Secret security clearance
would be suspended pending resolution of the matter.
Pointing to the Honduran citizenship of Mr. Romero’s wife
and stepson, the preliminary decision explained that
“available information tends to show a security risk may
exist . . . due to foreign influence.” The preliminary
decision further noted that the foreign influence concerns
were also inconsistent with SCI eligibility standards,
which require that immediate family members must be
U.S. citizens.

If an employee is not satisfied with the preliminary
decision, the second step is to challenge the preliminary
determination in writing. Mr. Romero responded to the
DIA-CAF’s preliminary decision. After considering the
information supplied by Mr. Romero, the DIA-CAF’s chief
issued a final decision denying access to SCI and revoking
Mr. Romero’s Secret clearance due to security issues
deemed to be inconsistent with national security inter-
ests. The final decision indicated that the potential
security risks included “the fact that your spouse is not a
U.S. citizen, and is an accredited diplomat of the Govern-
ROMERO v. DEFENSE 6

ment of Honduras.” The final decision concluded that Mr.
Romero had failed to mitigate foreign influence security
concerns based on his wife’s status as an agent of a for-
eign power.

As the third step in the process, the DIA-CAF’s final
decision may be appealed to the DIA’s Security Appeals
Board (“DIA-SAB”). 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 (“DOHA”). The DOHA administrative judge
recommended that the DIA-SAB sustain the DIA-CAF’s
revocation of Mr. Romero’s Secret clearance. The DOHA
administrative judge acknowledged that the agency did
not have jurisdiction to consider whether an exception
should apply to DCID 6/4’s preclusion of individuals with
foreign immediate family members from eligibility for
access to SCI. The DOHA administrative judge therefore
addressed only the issue of Mr. Romero’s Secret security
clearance. With respect to this latter issue, the DOHA
administrative judge applied the common adjudicative
guidelines and considered foreign influence based on Mr.
Romero’s relationship with his wife and stepson. After
evaluating mitigating conditions, the DOHA administra-
tive judge found that Mr. Romero’s relationship with his
stepson did not pose an unacceptable security risk. In
contrast, the DOHA administrative judge found that Mr.
Romero’s wife’s employment at the Honduran Embassy
weighed against applying any mitigating conditions in
Mr. Romero’s favor. Accordingly, the DOHA administra-
tive judge recommended that the DIA-CAF’s decision to
revoke Mr. Romero’s Secret clearance be affirmed due to
Mr. Romero’s relationship with his wife.

The final step in the process is the DIA-SAB’s review
of the DOHA administrative judge’s recommendation. In
7 ROMERO v. DEFENSE

a two-paragraph decision, the DIA-SAB affirmed the
determination that Mr. Romero did not meet the eligibil-
ity requirements for access to SCI. The first paragraph of
the decision concluded that Mr. Romero did not meet “the
minimum personnel security standards for SCI.” The
second paragraph of the decision discussed the DOHA
administrative judge’s treatment of foreign influence
security concerns, which as noted above, were addressed
by the DOHA administrative judge in the context of the
Secret clearance rather than SCI access. The DIA-SAB
agreed that mitigating factors did not apply to Mr. Ro-
mero’s relationship with his wife because she was by
definition an agent of a foreign power. The DIA-SAB’s
decision did not explicitly mention any other security
clearances besides access to SCI.

As discussed above, DoD regulations permit a compo-
nent to reciprocally accept another component’s security
clearance determination without conducting further
investigation. Accordingly, the WHS-CAF—the compo-
nent that originally issued Mr. Romero’s Secret clear-
ance—reciprocally accepted the DIA-SAB’s final decision
denying Mr. Romero’s eligibility for access to SCI. In
addition, the WHS-CAF stated that Mr. Romero’s eligibil-
ity “for access to classified information and to occupy a
sensitive position has been revoked” based on the DIA-
SAB’s decision. Thus, the WHS-CAF accepted the denial
of access to SCI and revoked Mr. Romero’s Secret clear-
ance based on the DIA-SAB final decision.

C

Because Mr. Romero’s position required him to main-
tain a Secret level security clearance, he was removed
from his position shortly after his Secret security clear-
ance was revoked.
ROMERO v. DEFENSE 8

He appealed his removal to the MSPB, arguing that
his Secret clearance had not been properly revoked. He
alleged that the DoD had denied his right to due process
because it did not provide him an opportunity to challenge
the WHS-CAF’s reciprocal revocation. Romero I, 527 F.3d
at 1327. He also argued that the revocation of his Secret
clearance was invalid because the DIA-SAB had denied
only his eligibility for access to SCI. Id. He further
argued that the revocation of his Secret clearance was
retaliatory. Id. at 1329.

The MSPB administrative judge affirmed the agency’s
action. Id. at 1327. The administrative judge rejected
Mr. Romero’s due process argument because he had the
opportunity to challenge the DIA-CAF’s final decision and
because the agency’s regulations do not require an oppor-
tunity for review of a reciprocal acceptance of a security
clearance revocation. Id. The administrative judge also
held that Mr. Romero’s Secret security clearance had been
revoked, that his position required access to classified
information, and that the agency’s removal of Mr. Romero
fully complied with the procedural requirements of 5
U.S.C. § 7513. Id. Explaining that the MSPB could not
review the merits underlying a security clearance revoca-
tion, the administrative judge rejected Mr. Romero’s
remaining challenges because they required review of the
merits of the decision to revoke his security clearance. Id.
The full board denied Mr. Romero’s petition for review of
the administrative judge’s initial decision. Id.

Mr. Romero appealed to this court. Citing Hesse v.
Department of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000),
we acknowledged that the MSPB may not examine the
underlying merits of the security clearance determina-
tion. Romero I, 527 F.3d at 1328. Accordingly, we held
that the MSPB was correct to reject Mr. Romero’s argu-
9 ROMERO v. DEFENSE

ment that the revocation of his security clearance was
retaliatory because this argument implicated the merits
of the security clearance decision. Id. at 1330. We also
held that the MSPB did not err in concluding that the
DoD’s removal of Mr. Romero complied with the require-
ments of 5 U.S.C. § 7513 because (1) Mr. Romero was
provided notice of his proposed removal, (2) the agency
provided notice of the reasons for the removal and the
underlying revocation of his security clearance, and (3)
Mr. Romero had an opportunity to respond to the re-
moval. Id. at 1329. Noting, however, that the MSPB had
not addressed Mr. Romero’s challenges to the procedures
used to revoke his Secret security clearance, we remanded
the issue to the MSPB to be addressed in the first in-
stance. Id. at 1329-30 (vacating the MSPB’s decision and
remanding for the MSPB to determine “whether Mr.
Romero can show that the Department failed to follow its
procedures and that any failure to do so resulted in harm-
ful error”).

On remand to the MSPB, Mr. Romero focused on two
main procedural objections: (1) The DIA-SAB lacked the
authority to revoke the Secret clearance because it was
the WHS-CAF that had issued the Secret clearance in the
first place; and (2) The DIA-SAB had not actually revoked
the Secret clearance, leaving no revocation for the WHS-
CAF to reciprocally accept. After a two-day hearing, the
MSPB administrative judge again affirmed the DoD’s
action. First, he concluded that the DIA-SAB had the
authority to revoke Mr. Romero’s Secret security clear-
ance even though it was not the component that initially
issued the clearance. He also concluded that the DIA-
SAB final decision had in fact revoked Mr. Romero’s
Secret security clearance. The administrative judge
reasoned that, although the DIA-SAB did not expressly
reference the Secret clearance in the decision letter, its
ROMERO v. DEFENSE 10

discussion of the DOHA administrative judge’s opinion—
which focused almost exclusively on the Secret clear-
ance—was evidence of agreement with revoking the
Secret clearance. The administrative judge further found
that the WHS-CAF was not required to independently
adjudicate Mr. Romero’s eligibility for a Secret security
clearance following the DIA’s decision. Finally, the ad-
ministrative judge concluded that, even assuming the
DoD had committed a procedural error, any such error
was not harmful. He determined that Mr. Romero’s
Secret clearance would have been revoked in light of the
security risk associated with Mr. Romero’s wife’s Hondu-
ran citizenship and status as an agent of a foreign power.
He further concluded that Mr. Romero had received all of
the process due under 5 U.S.C. § 7513 and “nearly all” of
the protections set forth in 5 U.S.C § 7532, which provides
for removals without appeal to the MSPB in the interest
of national security.

The administrative judge’s decision became the deci-
sion of the MSPB on April 29, 2010. This appeal followed.
We have jurisdiction to review the MSPB’s final decision
under 28 U.S.C. § 1295(a)(9).

DISCUSSION

When we review a decision of the MSPB, we do so un-
der a deferential standard as prescribed by statute. The
MSPB’s decision must be affirmed unless it is found to be
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures
required by law, rule, or regulation; or unsupported by
substantial evidence. Bennett v. Merit Sys. Prot. Bd., 635
F.3d 1215, 1218 (Fed. Cir. 2011) (citing 5 U.S.C. §
7703(c)). Like the MSPB, our review of removal actions
that involve the revocation or denial of a security clear-
11 ROMERO v. DEFENSE

ance is limited to reviewing the procedures used rather
than the substance of the revocation decision. Romero I,
527 F.3d at 1327-29 (discussing Hesse and Department of
the Navy v. Egan, 484 U.S. 518 (1988)).

Recognizing the limited nature of our review of ad-
verse employment actions involving security clearance
determinations, this court’s opinion in Romero I re-
manded to the MSPB for the limited purpose of determin-
ing whether the revocation of Mr. Romero’s Secret
clearance complied with DoD’s own internal procedures.
Romero I, 527 F.3d at 1328-30. On appeal, Mr. Romero
contends that the MSPB committed legal error by misap-
plying the statutes and regulations defining procedures
for security clearance determinations and engaging in
erroneous speculation regarding the scope of the DIA-
SAB’s final decision. Specifically, he argues that the DIA-
SAB did not explicitly revoke his Secret clearance. It
follows, according to Mr. Romero, that the WHS-CAF
could not revoke the Secret security clearance by recipro-
cal acceptance because there was no final determination
to accept. Mr. Romero further argues that, even if the
DIA-SAB had in fact revoked his Secret clearance, the
DIA lacked the authority to do so because the WHS rather
than the DIA was the component that issued the Secret
clearance in the first place. Mr. Romero maintains that
DoD regulations permit only the component that initially
granted the security clearance to revoke it. 1

1 Mr. Romero also makes several arguments based
on the DoD’s alleged failure to comply with the procedural
requirements of 5 U.S.C. § 7513. These arguments are
unavailing because Romero I expressly held that the
MSPB did not err in finding that DoD had complied with
the requirements of § 7513. Romero I, 527 F.3d at 1329.
ROMERO v. DEFENSE 12

The government responds that Mr. Romero did not
meet his burden of showing that the DoD failed to follow
its procedures and that the MSPB’s determination to that
effect was supported by substantial evidence. With
respect to Mr. Romero’s claim that the DIA lacked the
authority to adjudicate his Secret clearance, the govern-
ment counters that DoD regulations plainly permit DoD
components like the WHS to designate other components
to revoke security clearances and do not prohibit desig-
nees from revoking clearances originally issued by the
designating component. Pointing to several departmental
memoranda interpreting DoD 5200.2-R, the government
further argues that denial of SCI access automatically
acts as a revocation of collateral clearances such as Secret
clearances. Finally, the government notes that common
adjudicative guidelines apply to both SCI access and
Secret clearances. The government submits that the DIA
was required to apply these common standards in review-
ing Mr. Romero’s eligibility for access to classified infor-
mation once he was nominated for SCI access. The
government contends that the SCI access investigation
identified a “foreign influence” security risk that could not
be mitigated because of Mr. Romero’s wife’s status as an
agent of a foreign power. This unmitigated foreign influ-
ence concern, according to the government, disqualified
Mr. Romero both from eligibility for SCI access and
collateral clearances such as a Secret clearance.

Accordingly, the central issues on appeal are whether
the DIA-SAB made a final determination regarding Mr.
Romero’s Secret security clearance and whether the DIA
rather than the WHS had the authority to revoke Mr.
Romero’s Secret clearance. We take each issue in turn.
13 ROMERO v. DEFENSE

A

We first consider the scope of the DIA-SAB final deci-
sion. The MSPB found that the DIA-SAB did revoke Mr.
Romero’s Secret security clearance. Indeed, the DIA-CAF
initial decision, the DIA-CAF final decision, and the
DOHA administrative judge’s recommendation all
squarely addressed Mr. Romero’s access to “collateral
classified information” (i.e., his Secret clearance) and
concluded that Mr. Romero’s Secret clearance should be
revoked in light of the foreign influence concerns raised
by his wife’s status as an agent of a foreign power. In
contrast, the DIA-SAB did not explicitly reference Mr.
Romero’s Secret clearance in its two paragraph decision.
Because this last decision is controlling, Mr. Romero
contends that his Secret security clearance was never
revoked by the DIA. We disagree.

As discussed in detail above, the DOHA administra-
tive judge acknowledged that having an immediate family
member that is not a U.S. citizen is an automatic bar to
SCI access under DCID 6/4. The DOHA administrative
judge went on to consider the foreign influence standard,
which applies to both SCI access and Secret security
clearances. See DoD 5200.2-R, App. 8. The DOHA ad-
ministrative judge concluded that Mr. Romero’s relation-
ship with his stepson did not present an unacceptable
security risk but that Mr. Romero’s relationship with his
wife did present such an unmitigated risk. Accordingly,
the DOHA administrative judge specifically recommended
that the DIA-CAF’s decision to revoke Mr. Romero’s
Secret clearance be sustained.

The first paragraph of the DIA-SAB’s decision indi-
cated that Mr. Romero did not meet “the minimum per-
sonnel security standards for SCI.” The applicable
ROMERO v. DEFENSE 14

security standard under DCID 6/4 that Mr. Romero failed
to meet was that he had an immediate family member
that was not a U.S. citizen. The DIA-SAB affirmed the
DOHA administrative judge’s conclusion regarding this
automatic bar. This determination standing alone is
sufficient to affirm the DIA-CAF’s denial of SCI access.

The second paragraph of the DIA-SAB’s decision fo-
cused on foreign influence concerns. In light of the DIA-
SAB’s conclusion that Mr. Romero did not satisfy DCID
6/4’s standards for access to SCI because of his wife’s
citizenship, the DIA-SAB did not need to reach foreign
influence considerations if it was dealing exclusively with
SCI access and not also with the Secret clearance. But
the DIA-SAB did reach the issue. It addressed the DOHA
administrative judge’s analysis of foreign influence con-
cerns and explicitly endorsed the DOHA administrative
judge’s conclusion that Mr. Romero’s case presented
foreign influence security issues that are inconsistent
with national security interests. While such a determina-
tion applies to both access to SCI and Secret clearances,
the DOHA administrative judge’s analysis was conducted
specifically in the context of Mr. Romero’s Secret clear-
ance. The DIA-SAB’s treatment of the foreign influence
security concern thus reached Mr. Romero’s Secret clear-
ance. The MSPB’s finding that the DIA-SAB’s final
decision revoked the Secret clearance is supported by
substantial evidence.

Mr. Romero contends that this result is unjust be-
cause different standards apply for access to SCI and
eligibility for a Secret security clearance. While this is
partially true, this argument misses the mark because
there are standards under the common adjudicative
guidelines that apply to both. Foreign influence concerns
could have properly led to a denial of both a Secret secu-
15 ROMERO v. DEFENSE

rity clearance and access to SCI. Here, Mr. Romero’s
wife’s status as a foreign national automatically barred
him from access to SCI under DCID 6/4. That same
relationship also raised issues under the common guide-
lines regarding foreign influence based on his wife’s
employment. He was provided the opportunity to miti-
gate the foreign influence concerns, but the DOHA admin-
istrative judge and the DIA-SAB both concluded that his
wife’s status as an agent of a foreign power could not be
overcome. The DoD did not apply an improper, more
stringent standard to the Secret clearance revocation
determination.

B

We turn next to the question of which component(s)
had the authority to revoke Mr. Romero’s Secret clear-
ance. Mr. Romero contends that the DIA-CAF was pro-
hibited by agency regulation form adjudicating his Secret
clearance. Pointing to DoD Reg. 5200.2-R § C7.1.2.3, Mr.
Romero asserts that only the issuing component, here the
WHS, has the authority to revoke his Secret clearance. 2

2 Section C7.1.2.3. provides, in pertinent part,
as follows:
Personnel security clearances of DoD mili-
tary personnel shall be granted, denied, or
revoked only by the designated authority
of the parent Military Department. Issu-
ance, reissuance, denial revocation of a
personnel security clearance by any DoD
Component concerning personnel who
have been determined to be eligible for
clearance by another component is ex-
pressly prohibited. Investigations con-
ducted on Army, Navy, and Air Force
personnel by DIS will be returned only to
the parent Service of the subject for adju-
ROMERO v. DEFENSE 16

The MSPB rejected this argument, holding that the
prohibition described in this regulation applies only to
military personnel and not to civilians. The MSPB’s
interpretation is consistent with the plain language of
section C7.1.2.3. Even assuming that section C7.1.2.3
applies to civilian personnel, as contended by Mr. Romero,
the MSPB concluded that section C7.1.2.3 plainly permits
DoD components to designate other components to revoke
security clearances. Indeed, the administrative record
supports that the WHS can delegate the DIA to take the
lead in adjudicating a security clearance issue when
information that adversely affects that security clearance
arises during the DIA’s SCI access determination. The
MSPB’s conclusion that the DIA-CAF was authorized to
revoke Mr. Romero’s security clearance is correct as a
matter of law and supported by substantial evidence.

Mr. Romero further argues that the WHS-CAF was
required to independently adjudicate his eligibility for a
Secret clearance after the DIA’s decision. To the extent
that Mr. Romero suggests that the WHS could not recip-
rocally accept the DIA’s revocation of his security clear-
ance, this contention is incompatible with DoD Reg.
5200.2-R § C4.1.3.1. To preclude components from engag-
ing in duplicative adjudicative processes under the com-
mon guidelines, section C4.1.3.1 expressly states that
“[a]djudicative determinations for . . . access to classified
information (including those pertaining to SCI) made by
designated DoD authorities will be mutually and recipro-
cally accepted by all DoD Components without requiring
additional investigation.” Thus, rather than requiring an
independent adjudication by the WHS, section C4.1.3.1

dication regardless of the source of the
original request.
(Emphasis added.)
17 ROMERO v. DEFENSE

directs the WHS to reciprocally accept the DIA’s determi-
nation denying SCI access and revoking the Secret clear-
ance without any additional investigation.

In sum, we conclude that the DoD did not violate its
internal procedures. The MSPB’s determination that the
DIA-SAB’s final decision reached both access to SCI and
the Secret clearance is supported by substantial evidence.
We further conclude that the WHS-CAF properly revoked
Mr. Romero’s Secret clearance by reciprocally accepting
the DIA-SAB’s resolution of the matter. Because Mr.
Romero has not met his burden in establishing that the
DoD failed to follow its own regulations in revoking his
Secret security clearance, we do not further consider
whether any such procedural deficiency resulted in harm-
ful error. Romero I, 527 F.3d at 1330 & n.2. (remanding
for the MSPB to determine whether Mr. Romero could
show that the DoD failed to follow its procedures and that
the procedural deficiency constituted harmful error).

CONCLUSION

The judgment of the MSPB is affirmed.

AFFIRMED
 United States Court of Appeals
for the Federal Circuit
__________________________

WILFREDO ROMERO,
Petitioner,
v.
DEPARTMENT OF DEFENSE
Respondent.
__________________________

2010-3137
__________________________

Petition for review of the Merit Systems Protection
Board in consolidated case nos. DC0752070328-M-3 and
DC0752060136-M-2.
__________________________

DYK, Circuit Judge, concurring.
The Department of Defense (“DoD”) regulations in-
volved in the case are confusing even though clarity would
best serve the interests of both the government and its
employees. I nonetheless agree that, under the regula-
tions, the Defense Intelligence Agency (“DIA”) had the
authority to act on Romero’s Secret clearance and that, if
it revoked the clearance, the Washington Headquarters
Service (“WHS”) could give reciprocal effect to this action.
The question then becomes whether DIA took action to
revoke the Secret clearance.
The panel majority concludes that, even though the
DIA Security Appeals Board’s (“DIA-SAB”) decision
ROMERO v. DEFENSE 2

addressed only SCI access, the second paragraph of the
decision should be read to reference Secret clearance
because the denial of SCI access had already been ad-
dressed in the first paragraph. I am dubious given the
fact that the DIA-SAB decision makes no reference to
Secret clearance but only to SCI access. In my view,
however, the revocation of the Secret clearance did not
depend on explicit action by the DIA-SAB.
The decision to revoke or deny an employee’s security
clearance is made in the first instance by a DoD Central
Adjudication Facility—in this case the DIA Central
Adjudication Facility (“DIA-CAF”). The employee has a
right to appeal the decision to the corresponding Security
Appeals Board. DoD 5200.2-R § C8.2.2.4. The appeal
may be conducted through “a personal appearance before
[an administrative judge (“AJ”)]” or via a written submis-
sion to the Security Appeals Board “stating reasons why
the [decision to revoke or deny security clearance] should
be overturned.” Id. Where the employee opts to appear
before an AJ, the AJ must submit “a written recommen-
dation to the appropriate [Security Appeals Board]
whether to sustain or overturn the [decision to revoke or
deny security clearance].” Id. § AP13.1.5.5. The Security
Appeals Board will then “render a final written determi-
nation” which “will conclude the appeal process.” Id. §
AP13.1.6. On appeal, the employee has the burden; thus,
unless the earlier decision of the Central Adjudication
Facility is overturned by the Security Appeals Board, it
stands.
Here, the decision from the DIA-CAF clearly denied
Romero’s access to SCI and revoked his Secret clearance.
The decision stated that, because of potential security
risks, Romero’s “eligibility for access to SCI [was] denied
and [his] access eligibility to collateral classified informa-
tion [was] revoked effective [immediately].” J.A. 47. On
3 ROMERO v. DEFENSE

appeal, Romero opted to appear before an administrative
judge, who recommended that the DIA-SAB sustain the
DIA-CAF’s revocation of Romero’s Secret clearance. After
reviewing the AJ’s recommendation, the DIA-SAB af-
firmed the earlier decision of the DIA-CAF. Although the
DIA-SAB did not specifically reference the Secret clear-
ance in its decision on appeal, it is clear that the DIA-SAB
did not reverse or vacate the earlier DIA-CAF decision.
As a result, DIA-CAF’s decision to revoke Romero’s Secret
clearance stands, and could properly be given reciprocal
effect by the WHS. In other words, the failure of the DIA-
SAB to explicitly discuss the Secret clearance issue does
not, in my view, require that the revocation be set aside. I
accordingly agree with the result reached by the panel
majority.