Case: 22-1236 Document: 20 Page: 1 Filed: 05/09/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES PHILLIP CAMPION,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2022-1236
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-21-0444-I-1.
______________________
Decided: May 9, 2022
______________________
JAMES PHILLIP CAMPION, Sarasota, FL, pro se.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY.
______________________
Before HUGHES, LINN, and STOLL, Circuit Judges.
PER CURIAM.
Case: 22-1236 Document: 20 Page: 2 Filed: 05/09/2022
2 CAMPION v. DEFENSE
James Phillip Campion appeals a decision of the Merit
Systems Protection Board affirming the Department of De-
fense’s indefinite suspension of Mr. Campion. The Board
did not err in its analysis, so we affirm.
I
Mr. Campion worked for the government as a Telecom-
munications Specialist, a position that required Mr. Cam-
pion to “remain eligible for access to classified and sensitive
national security information.” Appx3. 1 On June 22, 2020,
the government suspended Mr. Campion’s access to classi-
fied information and placed him on paid administrative
leave. The Department of Defense Consolidated Adjudica-
tions Facility then issued a preliminary decision revoking
Mr. Campion’s eligibility for access to classified infor-
mation on November 18, 2020. And on April 28, 2021, the
government suspended Mr. Campion indefinitely without
pay.
Mr. Campion appealed his indefinite suspension with-
out pay to the Board. The Board affirmed. Mr. Campion
now appeals to us. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
II
Our “review of adverse actions stemming from security
clearance determinations is limited to determining
(1) ‘whether a security clearance was denied,’ (2) ‘whether
the security clearance was a requirement for appellant’s
position,’ and (3) ‘whether the procedures set forth in [5
U.S.C. §] 7513 were followed.’” Hornseth v. Dep’t of Navy,
916 F.3d 1369, 1373–74 (Fed. Cir. 2019). We must affirm
the Board’s decision unless it is “(1) arbitrary, capricious,
1 Appx refers to the appendix attached to Mr. Cam-
pion’s opening brief. SAppx refers to the supplemental ap-
pendix attached to the Department of Defense’s brief.
Case: 22-1236 Document: 20 Page: 3 Filed: 05/09/2022
CAMPION v. DEFENSE 3
an abuse of discretion or otherwise not in accordance with
the law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c).
III
Mr. Campion’s stipulations are dispositive of the sub-
stantive issues we can review in this appeal. See Hornseth,
916 F.3d at 1373–74. He stipulated that (1) “[b]y memoran-
dum dated June 22, 2020, [Mr. Campion] was advised that
his access to classified information was suspended effective
on that date,” SAppx8; (2) his “position requires that he re-
main eligible for access to classified and sensitive national
security information,” SAppx7; and (3) “the agency pro-
vided him with the procedural protections required by
5 U.S.C. § 7513(b),” Appx8; see SAppx8.
Mr. Campion’s auxiliary arguments do not change this
outcome. He asserts that the Board refused to admit rele-
vant evidence showing that the government suspended
Mr. Campion’s access to security clearance because of his
whistleblowing disclosures to Congress. But because the
scope of the Board’s review is limited as discussed above, it
cannot hear whistleblower complaints when reviewing se-
curity clearance determinations. Hesse v. Dep’t of State,
217 F.3d 1372, 1377–80 (Fed. Cir. 2000). So the Board did
not err in determining that it lacks jurisdiction to hear
Mr. Campion’s whistleblower argument.
Mr. Campion further argues that the determining offi-
cial for the adverse action, Colonel Frederick Williams, was
illegitimately appointed and therefore did not have author-
ity under 5 U.S.C. §§ 7511 and 7103(a)(10) to indefinitely
suspend Mr. Campion without pay. According to Mr. Cam-
pion, Colonel Williams performed civilian functions as a
member of the military in violation of 10 U.S.C. § 129a(g),
and Colonel Williams’s promotion violated 5 C.F.R.
§ 335.103 because Colonel Williams stayed in that position
for more than 120 days.
Case: 22-1236 Document: 20 Page: 4 Filed: 05/09/2022
4 CAMPION v. DEFENSE
The Board heard these arguments and determined that
“the decision to effect the suspension was made by [Freder-
ick Moorefield], not Colonel Williams,” rendering any chal-
lenge to Colonel Williams’s promotion irrelevant. Appx7.
Alternatively, the Board determined that “even if Colo-
nel Williams lacked the authority to propose [Mr. Cam-
pion’s] indefinite suspension,” that error is harmless
because Mr. Campion was “required to hold a clearance as
a condition of his employment” and “[a]bsent compliance
with this condition, there is no showing that any action
other than a suspension from duty is appropriate.” Appx7.
If an employee shows “harmful error in the application
of the agency’s procedures in arriving at” a decision, then
the Board cannot sustain that decision. Romero v. Dep’t of
Def., 527 F.3d 1324, 1328 (Fed. Cir. 2008). Here, Mr. Cam-
pion did not and cannot show harmful error; a different de-
termining official would have reached the same conclusion
because Mr. Campion’s position required a security clear-
ance and he no longer held one. The Board did not err in
rejecting Mr. Campion’s challenges to Colonel Williams’s
decision.
Finally, Mr. Campion argues that the government com-
mitted a due process violation by allegedly withholding ev-
idence that the Department of Defense Consolidated
Adjudications Facility had relied on in its initial decision.
While there was “a delay in [Mr. Campion] receiving the
pertinent documents,” the Department accommodated this
delay by granting Mr. Campion multiple extensions to the
deadline for his response. Appx77. These extensions, for
which Mr. Campion was “grateful,” resulted in a final
deadline of June 18, 2021. Appx77. Mr. Campion timely
submitted his response to the Department on that date. So
we discern no violation or error.
AFFIRMED
No costs.