Robinson v. Department of Homeland Security

United States Court of Appeals for the Federal Circuit
Corrected August 30, 2007

2006-3123

RALEIGH W. ROBINSON, JR.,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

Robert P. Waldeck, John Berry, P.L.L.C., of Washington, DC, argued for
petitioner. On the brief was John V. Berry.

Reginald T. Blades, Jr., Senior Trial Counsel, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of Washington, DC, argued for
respondent. On the brief were Peter D. Keisler, Assistant Attorney General, Todd M.
Hughes, Assistant Director, and Steven M. Mager, Trial Attorney. Of counsel on the
brief was Liza M. Murphy, Senior Counsel, United States Secret Service, Office of Chief
Counsel, of Washington, DC.

Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit

2006-3123

RALEIGH W. ROBINSON, JR.,

Petitioner,
v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

__________________________

DECIDED: August 30, 2007
__________________________

Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.

Opinion for the court filed PER CURIAM. Concurring opinion filed by RADER, Circuit
Judge. Concurring opinion filed by PLAGER, Senior Circuit Judge.

PER CURIAM.

This is a security clearance case. Raleigh W. Robinson, Jr. was removed from

his position with the Department of Homeland Security (“agency”) after the agency

revoked his security clearance, which was a condition of his employment. Mr. Robinson

appealed his removal to the Merit Systems Protection Board (“MSPB”), arguing that his

minimum due process rights had been denied because the agency’s decision to revoke

his security clearance had been “predetermined.” The MSPB affirmed the agency’s

removal decision. 1

1
The administrative judge’s initial decision dated June 27, 2005, became
the final decision of the Board when the Board denied Mr. Robinson’s petition for
review. Robinson v. Dep’t of Homeland Sec., No. DA-0752-05-0329-I-1 (M.S.P.B. Nov.
7, 2005).
 Mr. Robinson appeals the decision of the MSPB, and challenges the ruling by the

administrative judge who initially decided his appeal to exclude testimony from a

witness. The witness, if permitted, would have testified regarding the agency’s alleged

“predetermination” that Mr. Robinson’s security clearance should be revoked. For the

reasons explained below, we conclude that the MSPB’s decision should be affirmed.

We explain these reasons in some detail in hopes that the MSPB and litigants before

the MSPB will better understand the applicable law.

BACKGROUND

Before his removal, Mr. Robinson was employed as a Criminal Investigator

(Special Agent) with the United States Secret Service (“USSS”), Office of Investigations,

Little Rock Field Office. He held a Top Secret security clearance, which was a

requirement of his position. On February 5, 2004, the agency notified Mr. Robinson that

his security clearance had been suspended based on an ongoing investigation and that

it would remain suspended until security concerns regarding him had been resolved.

On March 24, 2004, the agency issued a Notice of Determination advising Mr. Robinson

that a determination had been made that his security clearance should be revoked. The

Notice set forth specific allegations relating to activities and work hours claimed by Mr.

Robinson that could not be reconciled with the agency’s official records. The Notice

further stated in some detail why the explanation he gave during the investigation was

less than satisfactory, raising questions about his personal and possible criminal

conduct. Reference was made to the Adjudicative Guidelines for Determining Eligibility

for Access to Classified Information contained in 32 C.F.R. Part 147, specifically the

2006-3123 2
guidelines regarding Personal Conduct (Guideline E) and Criminal Conduct (Guideline

J).

In the Notice of Determination, the agency informed Mr. Robinson that the

deciding official in his case would be the Acting Deputy Assistant Director of the Office

of Human Resources and Training. The Notice further stated that, pursuant to

Executive Order 12,968, Access to Classified Information, he had specified rights,

including the right to be represented by counsel, the right to request documents upon

which the decision that his security clearance should be revoked was based, the right to

respond in writing, and the right to appear personally before the deciding official. 2 The

Notice also explained that, if Mr. Robinson did not respond within the stated time period,

the determination to revoke his clearance would become final.

Mr. Robinson requested and was provided with the supporting documentation.

Subsequently, through counsel, he replied in writing to the Notice of Determination,

arguing at some length the merits of why the proposed revocation was not justified. His

reply also stated that “we have concluded that it would be a waste of resources for Mr.

Robinson to personally appear in this process, the outcome of which appears to be

predetermined.” The deciding official responded by letter assuring Mr. Robinson that

the result was not predetermined and that each case is given careful consideration.

Thereafter, the deciding official by letter advised Mr. Robinson that, after a

careful review of the record, she had determined that his Top Secret clearance “should

2
See Exec. Order No. 12,968 § 5.2(a), 60 Fed. Reg. 40,245, 40,252 (Aug.
2, 1995) (setting forth review procedures for denials and revocations of security
clearances).

2006-3123 3
remain revoked.” 3 The same letter advised him that he could appeal her decision to the

USSS Security Appeals Board and provided him with information about how that could

be done. This process was consistent with the review procedures provided by

Executive Order 12,968. Mr. Robinson did appeal the decision to the agency’s Security

Appeals Board. In due course, the Board advised Mr. Robinson that, after reviewing the

record, they had decided that his security clearance should remain revoked.

Subsequently, the agency proposed to remove Mr. Robinson from employment

with the Secret Service because, since the decision of the Board was final and his

security clearance had been revoked, he no longer met the requirements of his position.

Mr. Robinson was informed of his right to respond orally and in writing, but he chose not

to do so. On March 3, 2005, the agency’s deciding official issued a decision sustaining

Mr. Robinson’s removal, effective the following day.

Following his removal, Mr. Robinson filed a timely appeal with the MSPB. In

preparation for the hearing before the administrative judge, Mr. Robinson filed a

Statement of Facts and Issues indicating that he would call as a witness Terry Edwards,

a retired supervisor at the office where Mr. Robinson worked, to “testify as to the

predetermination of the appellant losing his security clearance.” At the prehearing

conference on May 18, 2005, the administrative judge decided that Mr. Edwards was

not approved to testify because his proffered testimony was not relevant to the only

issue to be adjudicated—“whether the appellant was granted minimum due process

3
The phrase “remain revoked” is inconsistent with the terminology of the
Notice of Determination, which is cast in terms of the future—“should be revoked.” The
inconsistency is not explained in the record, but is of no controlling significance in the
case; we understand the named deciding official to have made the operative decision to
revoke Mr. Robinson’s security clearance.

2006-3123 4
protection.” Mr. Robinson sought reconsideration of this determination in a response in

which he argued generally that constitutional guarantees of procedural due process

required an unbiased decision maker. The response contained no facts or specific

allegations about either the deciding official (the Acting Deputy Assistant Director), or

the reviewing officials (the members of the USSS Security Appeals Board). The

administrative judge denied the request the following day.

Mr. Robinson subsequently withdrew his request for a hearing and requested

that the MSPB render a decision based on the record. He submitted for the record a

written declaration from Mr. Edwards, the former supervisor. In that statement, Mr.

Edwards related that he and former Special Agent in Charge Crowley had met at a

restaurant in February 2004 to discuss Mr. Robinson’s case, and at that meeting

“Robinson was advised, in writing, that his [Top Secret security clearance] was being

suspended, pending further treatment and USSS investigation.” Mr. Edwards further

stated that he believed that prior to that meeting there had been one or possibly two

telephone conversations between Agent Crowley and officials at USSS Headquarters

concerning the future employment of Mr. Robinson, and, “based on my personal

impressions, that a decision relating to the final disposition of Robinson’s employment

status with USSS was arrived at before the February 2004 restaurant meeting.” The

Edwards letter became a part of the record. 4

In an initial decision the administrative judge found that the agency had afforded

Mr. Robinson “minimum due process protection” in the denial of his security clearance

and had properly followed the procedures of 5 U.S.C. § 7513 when it removed him from

4
The agency objected to Mr. Robinson’s submission of the declaration, but
the administrative judge never ruled on the objection.

2006-3123 5
his position. No mention was made of the Edwards declaration. The administrative

judge’s decision became the final decision of the MSPB when the MSPB denied Mr.

Robinson’s petition for review.

Mr. Robinson filed a timely notice of appeal. We have jurisdiction to review the

MSPB’s final decision pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

1.

When we review a decision of the MSPB, we do so under 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. 5 U.S.C. § 7703(c).

On appeal from the agency’s decision to terminate his employment, Mr.

Robinson argues that the MSPB abused its discretion by excluding Mr. Edwards’

proposed testimony, which Mr. Robinson alleges would show that the decision to revoke

his security clearance was predetermined. Because the decision to revoke his security

clearance was predetermined, argues Mr. Robinson, he was denied the minimum due

process to which the law entitles him. The Government responds that the MSPB lacks

the authority to review the agency’s security clearance determination at all, and may

only review whether the agency followed the procedures for taking adverse actions

contained in 5 U.S.C. § 7513(b) when it removed him. Because Mr. Edwards’ testimony

would relate only to the underlying security clearance decision, the Government

contends, the MSPB correctly excluded it. The administrative judge’s decision, which

2006-3123 6
became the decision of the MSPB, was that Mr. Robinson had been afforded the

procedural protections of § 7513 in the removal action, and in addition “the appellant’s

security clearance was revoked only after he had been afforded the minimum due

process rights to which he was entitled.”

As the Government notes, and contrary to Mr. Robinson’s argument and what

appears to be the MSPB’s view, security clearance decisions are not reviewable for

“minimum due process protection.” We consistently have held that a federal employee

does not have a liberty or property interest in access to classified information, Jones v.

Dep’t of the Navy, 978 F.2d 1223, 1225-26 (Fed. Cir. 1992), and therefore the

revocation of a security clearance does not implicate constitutional procedural due

process concerns. See Hesse v. Dep’t of State, 217 F.3d 1372, 1381 (Fed. Cir. 2000)

(“[T]he Due Process Clause of the Fifth Amendment has no application to a proceeding

to review an employee’s security clearance.”). The opportunity a government employee

may have for access to top secret or other classified information is not subject to due

process procedural protections but rather is subject to the applicable statutes and

regulations for issuing and revoking such clearances.

In his reply brief Mr. Robinson shifts ground and argues that he seeks only the

minimal due process required under § 7513, the statute regarding removal actions. But

in an adverse employment action, such as removal, based on failure to maintain the

security clearance required by the job description, the absence of a properly authorized

security clearance is fatal to the job entitlement. Mr. Robinson’s case is not one that

falls into the interstices of the § 7513 process such as the suspension cases of King v.

2006-3123 7
Alston 5 and Cheney v. Department of Justice. 6 We need not address the full scope of

those earlier cases nor is it our task as a panel to reconsider the correctness of those

decisions. However, in Mr. Robinson’s case, the revocation of his security clearance

was a completed matter in which he fully participated, so that its absence became a

matter of record before the MSPB on which the MSPB could rely.

2.

We further note that, even if the issue of whether the revocation of Mr.

Robinson’s security clearance was predetermined were properly before us, the record

does not demonstrate that Mr. Edwards’ proposed testimony would show such bias on

the part of agency personnel responsible for deciding whether to revoke Mr. Robinson’s

security clearance as to affect the decision. Mr. Edwards’ conclusion that the decision

regarding Mr. Robinson’s security clearance was predetermined appears to be based

on his “personal impressions”—he was aware of one or two conversations between the

Special Agent in Charge of the Little Rock Field Office and headquarters officials prior to

the February 2004 suspension of the security clearance, and he was unaware of any

follow-up investigation after that time. It should surprise no one that the local agent in

charge would confer in advance before suspending a fellow agent of long-standing in

the Service, and whether Mr. Edwards would be in the chain of command once the

investigation was underway is not made known.

Nor do Mr. Edwards’ statements demonstrate that any particular decision maker

at the agency was incapable of judging fairly on the merits whether Mr. Robinson’s

security clearance should be revoked, nor do they show that a decision was made
5
75 F.3d 657 (Fed. Cir. 1996).
6
479 F.3d 1343 (Fed. Cir. 2007).

2006-3123 8
without consideration of the relevant information. They merely confirm what the other

evidence of record already indicates: as a result of an investigation into Mr. Robinson’s

conduct, agency officials concluded that Mr. Robinson’s behavior raised enough

concerns to suspend, and subsequently revoke, his security clearance. Therefore, even

if the alleged “predetermination” of Mr. Robinson’s security clearance revocation was

within the scope of the MSPB’s review, the exclusion of Mr. Edwards’ testimony was not

an abuse of discretion. See Guise v. Dep’t of Justice, 300 F.3d 1376, 1379 (Fed. Cir.

2003) (“A determination to allow or exclude witness testimony is within the sound

discretion of the administrative judge.”).

CONCLUSION

The decision of the MSPB is

AFFIRMED.

COSTS

Each party shall bear its own costs.

2006-3123 9
 United States Court of Appeals for the Federal Circuit
2006-3123

RALEIGH W. ROBINSON, JR.,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

RADER, Circuit Judge, concurring.

I agree with the result in this court's Per Curiam opinion and therefore join.

However, I write separately to clarify that this court and the Merit System Protection

Board ("Board") lack jurisdiction to review security clearance removal processes at all.

Dep't of the Navy v. Egan, 484 U.S. 518 (1988). The Supreme Court was quite clear

that the Board and this court have jurisdiction only over "adverse actions." 5 U.S.C.

§ 7513; Egan, 484 U.S. at 530. The Supreme Court made it clear that a security

clearance determination is not within this court's circumscribed authority:

A denial of a security clearance is not such an "adverse action," and by its
own force is not subject to Board review. An employee who is removed for
"cause" under § 7513, when his required clearance is denied, is entitled to the
several procedural protections specified in that statute [Title 5 Protections].
The Board then may determine whether such cause existed, whether in fact
clearance was denied, and whether transfer to a nonsensitive position was
feasible. Nothing in the Act, however, directs or empowers the Board to go
further.

Id. at 530 (emphases added). In short, the Board's (and this court's) authority does not

extend "further" than determinations about eligibility for continued employment.

The Board and this court can ensure compliance with § 7513, but cannot cross

the line into reviewing security clearance determinations. Neither the Board nor this
court has any authority to review substantively or procedurally a security clearance

suspension or removal that may precede loss of a sensitive job. The Supreme Court

reiterated: "[T]he grant of [a] security clearance to a particular employee, a sensitive and

inherently discretionary judgment call, is committed by law to the appropriate agency of

the Executive Branch." Id. at 527. Security clearance decisions simply are the province

of the Executive branch and not subject to review by the Board or this court.

This court previously stated that administrative and judicial bodies do not have

any role in security clearance determinations. Hesse v. Dep't of State, 217 F.3d 1372,

1376 (Fed. Cir. 2000) ("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."). This court further stated:

[I]t is not reasonably possible for an outside nonexpert body to review the
substance of such a judgment and to decide whether the agency should
have been able to make the necessary affirmative prediction [that a
particular individual might compromise sensitive information] with
confidence. Nor can such a body determine what constitutes an
acceptable margin of error in assessing the potential risk.

Id. Further, in citing Egan, this court clearly stated that "the Merit Systems Protection

Board is not authorized to review security clearance determinations or agency actions

based on security clearance determinations." Hesse, 217 F.3d at 1376. The Board and

this court may only determine whether a security clearance was denied in reviewing an

adverse personnel action, nothing more. Id.

Thus, this court should avoid entangling security clearance determinations with

adverse personnel actions. In King v. Alston, 75 F.3d 657 (Fed. Cir. 1996), the Board

and this court mistakenly justified expansive security clearance review by finding that

2006-3123 2
§ 7513 "entitles an employee to notice of reasons for suspension of his access to

classified information when that is the reason for placing the employee on enforced

leave pending a decision on the employee's security clearance." Id., at 661. To the

contrary, this court can enforce notice of an adverse action, but not notice of a security

clearance suspension or removal. Then, in Cheney v. Dep't of Justice, 479 F.3d 1343

(Fed. Cir. 2007), this court wrongly perpetuated King and "noted that, under § 7513, an

employee must receive written notice stating the specific reasons for the suspension of

his or her security clearance when that is the reason for suspending the employee

pending a decision on the employee's security clearance." Cheney, 479 F.3d at 1352.

This court cannot go "further" than ensuring proper notice of an adverse action. Again,

this court has no authority whatsoever with respect to a security clearance suspension

or removal. The Supreme Court made clear in Egan that any procedural safeguards

during security clearance determinations are committed solely to the Executive Branch

and occur in Personnel Security Appeals Boards. Egan, 484 U.S. at 533.

Thus, I agree with the result of this court's Per Curiam opinion but write

separately to clarify the limits of this court's authority with respect to an Executive

Branch security clearance determination.

2006-3123 3
 United States Court of Appeals for the Federal Circuit

2006-3123

RALEIGH W. ROBINSON, JR.,

Petitioner,
v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

PLAGER, Senior Circuit Judge, concurring.

I join the court’s per curiam opinion and agree that, on the facts presented by Mr.

Robinson’s case, the result is correct. I write separately because the court’s opinion in

my view does not adequately respond to one of the petitioner’s major arguments, and I

believe he is entitled to a more complete explanation.

In response to the Government’s brief, and at oral argument, Mr. Robinson

argued that, like the plaintiff in King v. Alston, 1 he is entitled to have the Merit Systems

Protection Board (“MSPB”), and on appeal this court, review the manner in which his

security clearance was revoked, i.e., whether in his case the decision was

“predetermined.” Recently this court affirmed the principle of Alston in Cheney v.

Department of Justice. 2 These two precedents of the court, along with Drumheller v.

Department of the Army, 3 which is not before us, do suggest that, presumably

1
75 F.3d 657 (Fed. Cir. 1996).
2
479 F.3d 1343 (Fed. Cir. 2007).
3
49 F.3d 1566 (Fed. Cir. 1995).
consistent with the Supreme Court’s decision in Department of the Navy v. Egan, 4 there

is some limited scope for judicial review of the procedure by which a security clearance

is revoked.

In response to Mr. Robinson’s argument, the per curiam opinion summarily

opines that his case “is not one that falls into the interstices of the § 7513 process such

as the suspension cases of King v. Alston and Cheney v. Department of Justice.” Ante

at 7-8. If that leaves Mr. Robinson puzzled, as well as others seeking understanding of

what the law on this point is, I would not be surprised.

These security clearance/employment status cases involve two separate, though

related, steps. First there is the determination by the agency whether the employee’s

security clearance should be either suspended (pending an investigation into whether

the employee continues to meet the requirements of the rules and regulations governing

a trusted employee’s conduct) or revoked (based on the findings of the investigation).

Second, if an employee’s security clearance is suspended or revoked, and the job

description requires that the employee hold a security clearance, there is the

subsequent action taken by the agency addressing the employee’s employment status,

usually involving an indefinite suspension or removal.

In these cases the second step may be somewhat pro forma. The civil service

employment statutes require that the agency have adequate grounds before taking an

adverse action, such as a suspension or termination, against a government employee 5

4
484 U.S. 518 (1988) (holding that the MSPB has no authority to review the
merits of an agency’s security clearance determination).
5
An agency may take an adverse action “only for such cause as will
promote the efficiency of the service.” 5 U.S.C. § 7513(a).

2006-3123 2
and that it follow the notice and hearing procedures specified by statute. 6 In a case

such as Mr. Robinson’s, there is no issue of adequate grounds because the absence of

a security clearance when one is required for the job is unquestionably cause for the

adverse action, and the required notice and hearing procedures are straightforward and

readily followed. Thus, although technically the appeal to the MSPB is based on step

two (the adverse action), the determinative issue in these cases usually is the first step,

the suspension or revocation of the security clearance which led to the adverse action.

Mr. Robinson contends that, according to our decision in Alston, § 7513(b)

requires that he be given the opportunity to present a meaningful reply to the agency’s

charges and therefore he must be permitted to present evidence before the MSPB that

the revocation of his security clearance was predetermined. To the contrary, the

holding in Alston is limited to a particular factual situation and is inapplicable to Mr.

Robinson’s case. In Alston, the agency temporarily suspended the employee’s security

clearance and placed the employee on unpaid leave pending completion of an

investigation and adjudication as to whether his security clearance should be revoked.

6
An employee subject to an adverse action covered by 5 U.S.C. § 7513,
such as a suspension or removal, is entitled to:

(1) at least 30 days’ advance written notice, unless there is reasonable
cause to believe the employee has committed a crime for which a
sentence of imprisonment may be imposed, stating the specific reasons
for the proposed action;
(2) a reasonable time, but not less than 7 days, to answer orally and in
writing and to furnish affidavits and other documentary evidence in support
of the answer;
(3) be represented by an attorney or other representative; and
(4) a written decision and the specific reasons therefore at the earliest
practicable date.

5 U.S.C. § 7513(b).

2006-3123 3
The employee challenged the action, and the MSPB, after some indecision, held that

the employee had been denied the statutory protections of § 7513(b), governing

adverse employment actions, because of the agency’s failure to provide adequate

notice of the reasons for the suspension of the security clearance.

On appeal, we agreed with the MSPB that the agency must provide some

indication of the reasons for an agency’s decision to suspend access to classified

information before placing an employee on enforced leave. We found authority for this

requirement in § 7513(b), which we said “entitles an employee to notice of the reasons

for the suspension of his access to classified information when that is the reason for

placing the employee on enforced leave pending a decision on the employee’s security

clearance.” Alston, 75 F.3d at 661. The point was, as the MSPB had noted, to provide

the employee with an adequate opportunity to make a meaningful reply to the agency

before an adverse employment action was taken, even though that meant looking into

the security clearance itself. However, we disagreed with the MSPB on the facts of the

case and held that the employee had sufficient notice. Id. at 662.

In Cheney, the MSPB in a similar situation held that the employee had been

given adequate notice of the reasons for the security clearance action. The employee

was indefinitely suspended from employment by the agency because his security

clearance had been suspended, based on allegations of “derogatory personal conduct,”

pending an investigation. 479 F.3d at 1345. The employee challenged the agency

action before the MSPB, arguing that he had not been able to prepare a meaningful

response to the adverse action because the agency had given him only a generalized

vague notice of the reasons for suspending his security clearance. The MSPB upheld

2006-3123 4
the agency action on the ground that, inter alia, the employee’s challenge was to the

merits of the security clearance decision, and therefore was barred by Egan.

We reversed. Citing Alston, we noted that, under § 7513, an employee must

receive written notice stating the specific reasons for the suspension of his security

clearance when that is the reason for suspending the employee pending a decision on

the employee’s security clearance. Cheney, 479 F.3d at 1352. On the basis of the

MSPB’s factual findings, and the Government’s concession that the reasons given were

indeed “vague,” we held that the requirements of § 7513 were not met. Id. at 1352-53.

The dissenting judge, noting the tension that exists between security clearance

determinations that are not reviewable and adverse actions that are, considered the

information given the employee about his security clearance issue sufficient to meet the

Alston standard. Id. at 1354-59 (McKinney, C.J., dissenting).

The rule created to deal with the Alston and Cheney problem is a narrow one that

applies when the agency has decided to suspend the employee from his position

because his security clearance has been suspended and there is a continuing

investigation into whether the security clearance should be revoked. Cheney, 479 F.3d

at 1351-52. The rationale is that there is an ongoing investigative and adjudicative

process regarding the security clearance in which the employee can participate. The

employee should therefore have the opportunity to address the agency’s concerns and

allegations before being subjected to an adverse action—indefinite suspension of

employment—based on the suspension, but not yet the revocation, of his security

clearance.

2006-3123 5
 The case before us is different from Alston and Cheney. The agency did not take

its adverse employment action against Mr. Robinson until after it revoked his security

clearance. That is, the revocation of Mr. Robinson’s security clearance and the adverse

action against him—his removal from employment—were seriatim, the first completed

before the second began. Furthermore, once the investigation began into whether there

were grounds for revoking his security clearance, the procedures established under

Executive Order 12,968 for security clearance revocations, but not suspensions, 7 were

invoked, and the record indicates these were fully implemented. See Exec. Order No.

12,968 § 5.2(a), 60 Fed. Reg. 40,245, 40,252 (Aug. 2, 1995). Unlike Mr. Cheney, Mr.

Robinson was given a detailed explanation of why the agency had decided his security

clearance should be revoked, and he was afforded the rights specified in the Executive

Order. See id. § 5.2(a)(1) (providing that an employee undergoing review proceedings

concerning the revocation of his security clearance should be given “as comprehensive

and detailed a written description of the basis for that conclusion as the national security

interests of the United States and other applicable laws permit”). Mr. Robinson then

had the opportunity to participate in the security clearance determination process to its

conclusion, including review by the agency’s internal Security Appeals Board.

Thus, in a case such as this in which the agency made a final decision on the

employee’s eligibility for a security clearance after following the applicable procedures

before it pursued an adverse action, the problem presented by Cheney and Alston is not

7
See Cheney, 479 F.3d at 1350 n.2 (Fed. Cir. 2007) (noting that
procedures in Executive Order 12,968 apply to security clearance revocations but not
suspensions).

2006-3123 6
present. 8 Then, when the adverse action followed—the agency terminated Mr.

Robinson’s employment—Mr. Robinson was entitled to the procedural protections of 5

U.S.C. § 7513 with respect to his removal, but § 7513(b) does not require any additional

process with regard to the earlier security clearance determination.

In the per curiam opinion, we followed the court’s summary discussion noted at

the beginning of this concurrence with the conclusory sentence that, in Mr. Robinson’s

case, “the revocation of his security clearance was a completed matter in which he fully

participated, so that its absence became a matter of record before the MSPB on which

the MSPB could rely.” With the explanation given above, that sentence correctly

captures the state of our law.

8
Cf. Hesse v. Dep’t of State, 217 F.3d 1372, 1381 (Fed. Cir. 2000) (not
applying the Alston rule in the case of an employee who was suspended from his
position following the agency’s final decision to suspend his security clearance for a
fixed two-year period).

2006-3123 7