Adams v. Dep't of Def.

• Decision Date: 10 August 2012
• Docket Number: No. 2011–3124.,2011–3124.
• Citation: 688 F.3d 1330
• Parties: Charles Dereck ADAMS, Petitioner, v. DEPARTMENT OF DEFENSE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

688 F.3d 1330

Charles Dereck ADAMS, Petitioner,

v.DEPARTMENT OF DEFENSE, Respondent.

No. 2011–3124.

United States Court of Appeals,Federal Circuit.

Aug. 10, 2012.

Charles D. Adams, of Herndon, VA, pro se.

Joseph A. Pixley, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director.

Before RADER, Chief Judge, NEWMAN, and DYK, Circuit Judges.

NEWMAN, Circuit Judge.

Mr. Charles Dereck Adams appeals the decision of the Merit Systems Protection Board (“MSPB” or “Board”), holding that the Board did not have jurisdiction to review the termination of his employment by the Department of Defense (“Department” or “DoD”), and the Department's denial of his request for voluntary early retirement. The Board held that, because he was terminated based on revocation of his security clearance, Board review was limited to whether he received minimal due process on the security issues from the terminating agency. The Board also held that, since it did not have jurisdiction to review the merits of his termination, the Board did not have jurisdiction to review the denial by the Department of Defense of his request for early retirement under the Voluntary Early Retirement Authority (VERA), 5 U.S.C. § 9902(f). We affirm the Board's ruling as to the security clearance procedures, and reverse the Board's ruling concerning its authority to review the denial of his retirement request.

Background

Mr. Adams was employed as an Information Technology Specialist with the Missile Defense Agency of the Department of Defense. The Information Technology Specialist position is designated Special Sensitive and requires the employee to maintain a Top Secret security clearance with access to Sensitive Compartmented Information. By letter dated April 2, 2009, the Defense Intelligence Agency notified Mr. Adams that it had suspended his access to Sensitive Compartmented Information and had made a preliminary determination to revoke his security clearance. The reasons stated in the letter were violations of agency security regulations.

By letter dated May 13, 2009, the Missile Defense Agency notified Mr. Adams that he would be suspended from his position indefinitely without pay because of the suspension of his access to Sensitive Compartmented Information. After considering Mr. Adams' written reply, the Missile Defense Agency found that the suspension was supported by a preponderance of the evidence and warranted Mr. Adams' indefinite suspension from his position, effective June 15, 2009. Mr. Adams appealed to the MSPB, and the MSPB sustained the agency's action on the ground that the procedural standards of minimal due process for security revocation had been met.

On appeal this court affirmed. Adams v. Dep't of Defense, 371 Fed.Appx. 93 (Fed.Cir.2010)( Adams I ). The court held that the agency had afforded Mr. Adams the required minimal procedural protections, recognizing that review of security issues by the MSPB and the Federal Circuit is limited to review of the agency's procedures and applying the Court's ruling in Department of the Navy v. Egan, 484 U.S. 518, 529, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), that “protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” In Egan the Court held that review of an agency's decision related to security clearance is limited to determining whether minimal due process protections were provided, id. at 531, 108 S.Ct. 818, and that the grant or revocation of a security clearance “is committed by law to the appropriate agency of the executive branch,” id. at 527, 108 S.Ct. 818.

Mr. Adams argued in Adams I that the imposition of indefinite suspension without pay was improper, and that he should have been placed in a different position that did not require access to sensitive and classified information. The MSPB held, and this court affirmed, that “an employee is not entitled to a transfer to a nonsensitive position absent a separate transfer right arising from some source other than § 7513.” Adams I, 371 Fed.Appx. at 96. The court applied Griffin v. Defense Mapping Agency, 864 F.2d 1579, 1581 (Fed.Cir.1989) which held that “[s]ection 7513 contains no obligation to transfer to a nonsensitive position if possible.” The government stated and a premise of Adams I was that all Missile Defense Agency positions require an active security clearance with access to classified information, and that the agency has no policy or regulation requiring it to transfer to a nonsensitive position an employee whose security clearance had been suspended. As a result, Mr. Adams remained on indefinite suspension without pay pending completion of the agency appeals process.

On April 14, 2010 the Defense Intelligence Security Appeals Board (DISAB) announced its decision of the security appeal, adverse to Mr. Adams. The decision by the DISAB was the final agency review of Mr. Adams' access to classified information. The Missile Defense Agency then served Mr. Adams with a Notice of Proposed Removal from employment. The Notice informed Mr. Adams of his right to reply and submit evidence, and his right to representation by an attorney or other representative. Mr. Adams replied, challenging the proposed removal as being discriminatory, unfair, and not in good faith. Mr. Adams described his many positive contributions to the agency, and the adverse impact his removal would have on his family. The agency reviewed the information, and issued its final decision to remove Mr. Adams because of his inability to perform the duties of his position due to the revocation of his access to classified information. Mr. Adams again appealed to the MSPB.

In view of his possible removal, Mr. Adams had submitted an application for voluntary early retirement pursuant to the VERA. The Defense Logistics Agency, which acts as the Department of Defense's human resources office for the Missile Defense Agency, denied the application. Mr. Adams appealed this denial to the MSPB.

The MSPB held that it did not have jurisdiction to review the merits of Mr. Adams' request for voluntary early retirement because it was not raised in connection with an otherwise appealable action, and the Board is not permitted to evaluate the substantive merits of the agency's decision to remove an employee for failure to maintain a required security clearance. This appeal followed.

Discussion

Rulings of the MSPB are reviewed to determine whether they are 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). Jurisdictional rulings and statutory and legislative interpretations are reviewed for correctness.

I. Termination of Employment

The termination of Mr. Adams' employment with the Missile Defense Agency resulted from the decision of the DISAB to revoke his security clearance, which issued after this court's decision in Adams I. Mr. Adams argues that his removal was improper because it was based on retaliation by his supervisor and age and racial discrimination. Mr. Adams states that the MSPB erred by limiting its review to security clearance procedural aspects, and that “the statutes require justice be served by considering the underlying causes and motivationsfor performing the acts ... and not just following procedures.” Adams Br. 2.

In Egan the Court established that MSPB review of an agency's denial or revocation of a security clearance is limited to determining whether the agency provided minimal due process protection. 484 U.S. at 529–31, 108 S.Ct. 818;see Hesse v. Dep't of State, 217 F.3d 1372, 1376 (Fed.Cir.2000) ( “[T]he 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.”). Precedent has elaborated that these minimal procedural protections require: (1) at least thirty days' advance written notice stating the reasons for the proposed action; (2) a reasonable time to answer orally and in writing and the right to furnish affidavits and other documentary evidence in support of the answer; (3) the opportunity to be represented; and (4) a written decision and the reasons therefor. Drumheller v. Dep't of the Army, 49 F.3d 1566, 1571 (Fed.Cir.1995).

We discern no violation of procedural due process. It is not disputed that a security clearance is required for Mr. Adams' position, that he was notified of the reason for its revocation, and that he had the opportunity to...