Swann v. Walters

• Decision Date: 27 July 1984
• Docket Number: Civ. A. No. 83-3493.
• Citation: 620 F. Supp. 741
• Parties: Michael L. SWANN, Plaintiff, v. Harry N. WALTERS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

620 F. Supp. 741

Michael L. SWANN, Plaintiff, v. Harry N. WALTERS, et al., Defendants.

Civ. A. No. 83-3493.

United States District Court, District of Columbia.

July 27, 1984.

COPYRIGHT MATERIAL OMITTED

Francis R. Ridley, Jr., Washington, D.C., for plaintiff.

Stuart H. Newberger, Asst. U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

In this action, plaintiff seeks reversal of his demotion by the Veterans Administration (VA).

Plaintiff was first employed by the VA in 1972 as a computer operator in one of its Medical Centers (VAMC), and was promoted to the job of Shift Supervisor in 1976. In this position, plaintiff had access to computerized medical records of VAMC patients. Specifically, he was responsible for the operation and monitoring of the central processing unit and all patient ward terminals; this gave him the ability to enter or change data in the computer system. Hence, plaintiff had access to confidential medical information—information often critical to a patient's well-being. For these reasons, and in accordance with an Office of Management and Budget (OMB) directive issued in 1978, plaintiff's position was designated as a "critical-sensitive ADP-I"^* for which a security clearance is required. Following the appropriate investigation, clearance was issued in 1980.

In May, 1982, plaintiff was convicted on a felony charge of sexual child abuse in a Maryland state court. He received a five-year suspended sentence and was placed on probation for five years with a requirement to undergo psychiatric treatment. Plaintiff did not report his conviction to the VA. When the Director of the VAMC learned of the conviction, in January 1983, he referred the matter to the Office of the Inspector General for review of plaintiff's security clearance. That office, in applying Federal Personnel Manual guidelines, determined that plaintiff was no longer able to hold a critical-sensitive ADP-I position. In particular, it was felt that plaintiff's crime reflected too adversely upon his honesty, integrity, and character to permit him to hold a position which requires a high degree of trustworthiness and stability.

Accordingly, in March, 1983, plaintiff's security clearance was revoked, and, following a hearing, he was advised that he would be removed from his position. After negotiations with plaintiff's attorney, the VA agreed to offer plaintiff a position which did not require a security clearance. At the time, the only such job available was that of Housekeeping Aide. Consequently, in May, 1983, plaintiff was demoted from Shift Supervisor for the Computer System to Housekeeping Aide.

Plaintiff appealed his demotion to the Merit Systems Protection Board (MSPB), which affirmed the VA's action. The MSPB found that plaintiff's criminal misconduct was sufficiently serious and indicative of aberrant behavior to justify the VA's concern about his character and trustworthiness. Besides challenging the propriety of demotion following his conviction, plaintiff claimed the VA's action constituted discrimination on the basis of his handicap of paranoid schizophrenia. The MSPB found no evidence of such discrimination.¹

Now before the Court are the parties' cross motions for summary judgment.² At issue are plaintiff's claims that (1) his position did not require a security clearance and, even if it did, the clearance was improperly revoked, in violation of the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq., and (2) his demotion represented discrimination on the basis of his psychiatric handicap in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.

While appeals of MSPB decisions are generally heard in the Court of Appeals for the Federal Circuit, 5 U.S.C. § 7703(b)(1) (1982), those which combine claims of discrimination and claims on other bases, are heard in the federal district court. See Hayes v. U.S. Gov't Printing Office, 684 F.2d 137, 140 (D.C.Cir.1982); 5 U.S.C. § 7703(b)(2). The district court reviews the discrimination claims de novo and the other claims on the administrative record. Id. at 141; Mayo v. Edwards, 562 F.Supp. 907 (D.D.C.1983) (federal employee challenged dismissal on procedural grounds and discrimination grounds, and procedural claim reviewed on the administrative record). As to the latter, the Court may set aside only those agency actions which are arbitrary, capricious, an abuse of discretion, not in accordance with law or procedure, or unsupported by substantial evidence. 5 U.S.C. § 7703(c); Hayes, 684 F.2d at 138.

I. Plaintiff's Security Clearance

Plaintiff challenges the application of security clearance considerations on grounds that (a) his position did not require a security clearance and (b) his clearance was improperly revoked. The Court rejects both claims.

Plaintiff first argues that, since his position had no relation to matters of national security, a security clearance should not have been required. However, the guidelines for computer security do not depend upon national security considerations. Rather, they were promulgated under Transmittal Memorandum No. 1 to OMB Circular A-71 (1978) which requires federal agencies to develop and implement computer security programs.³

OMB Circular A-71 itself was issued under the authority of 5 C.F.R. § 1310.1 (1984) (OMB and Federal Management Circulars) which provides:

In carrying out its responsibilities, the Office of Management and Budget issues policy guidelines to Federal agencies to promote efficiency and uniformity in Government action. These guidelines are normally in the form of circulars.

The responsibility for computer security was delegated to OMB through the Reorganization Plan No. 2 of 1970, 3 C.F.R. 1070 (1966-1970 Comp.) reprinted in 31 U.S.C. § 501 note (1982) ("Improvement of ... information ... systems will be a major function of the Office of Management and Budget") and Executive Order 11,541, 3 C.F.R. 939 (1966-1970 Comp.) reprinted in 31 U.S.C. § 501 note (1982) (Executive authority to carry out the Reorganization Plan No. 2 of 1970 assigned to OMB). Finally, the authority for the Reorganization Plan is 5 U.S.C. § 903 (1982):

"Whenever the President, after investigation, finds that changes in the organization of agencies are necessary ..., he shall prepare a reorganization plan...."

5 U.S.C. § 903(a).

OMB's computer security regulations are valid provided they are not arbitrary or capricious within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982), See, e.g., United States v. Wall, 670 F.2d 469, 471 (4th Cir.1982). The standard of review is a narrow one: the Court's role is to ensure that OMB's regulations are based on a consideration of relevant factors and that no clear error of judgment has been made. United States v. Wall, 670 F.2d at 471; Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). The Court is not free to substitute its judgment for OMB's; rather, OMB's regulations must be upheld if supported by a rational basis. See Loyola University v. FCC, 670 F.2d 1222, 1226 (D.C.Cir.1982); Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir.) (en banc) cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976).

Applying these guidelines, the Court upholds OMB's computer security program. The need to control access to computer data is obvious. Large amounts of important and sensitive information are concentrated on government computer disks. A computer operator can cause substantial harm by destruction, alteration, or disclosure of the data.

The Court also affirms the security classification of plaintiff's position, Shift Supervisor for the Computer System, as critical-sensitive ADP-I.⁴ Critical-Sensitive refers to positions

in which the incumbent ... can access a system during the operation or maintenance in such a way, and with relatively high risk for causing grave damage or realize a significant personal gain.

Federal Personnel Manual, Chapter 732, subchapter 1-9(c)(1) (May 16, 1979) (revised January 6, 1984; quoted provision remains in effect).

Such portions may involve:

...—Significant involvement in life-critical or mission-critical systems. —Positions involving major responsibility for the ... operation, monitoring, and/or management of systems hardware and software.

Federal Personnel Manual, Chapter 732, Appendix A-2 (May 16, 1979) (revised January 6, 1984; quoted provision remains in effect).

Plaintiff's position fits well within these criteria. Since a Shift Supervisor has access to highly sensitive medical records of patients, with the ability to alter those records, the position involves a "relatively high risk for effecting grave damage to the system." Moreover, access to medical records, particularly where, as here, the records belong to active patients, represents a "significant involvement in a life critical ... system." Finally, a Shift Supervisor has "major responsibility" for the "operation" and "monitoring" of the patient records system.

In addition to properly classifying plaintiff's position for security purposes, the VA acted reasonably in revoking his security clearance. Under 5 U.S.C. § 7513(a) (1982), an agency may take adverse action against an employee "only for such cause as will promote the efficiency of the service." Among the reasons which may be considered as a basis for such adverse action are "criminal, dishonest, infamous or notoriously disgraceful conduct." (Emphasis added.) Federal Personnel Manual, Supplement 731-1, subchapter S2-3 (November, 1975).

In acting under Section 7513, an agency must find that (1) the employee actually committed misconduct and (2) a nexus exists between the misconduct and the efficiency of the service. Hoska v. U.S. Dep't of the Army, 677 F.2d 131, 136-37 (D.C.Cir.1982); McClelland v. Andrus, 606 F.2d 1278, 1291 (D.C.Cir.1979). Without evidence of a nexus, "the adverse action must...