Wilfredo Romero was an auditor at the Department of Defense (DoD) until his removal in December 2006 for failing to maintain his Secret level security clearance. He appealed this decision to the Merit Systems Protection Board (MSPB), which upheld the removal. The Federal Circuit Court previously vacated the MSPB's decision, mandating a reevaluation of whether harmful error occurred due to the DoD's procedural failures. Upon remand, the MSPB again affirmed the removal, and the court now confirms that the DoD followed its internal procedures in revoking Romero's clearance.
The case revolves around the DoD's revocation of Romero's Secret security clearance after he was denied access to Sensitive Compartmented Information (SCI). In 2004, Romero's supervisor requested SCI clearance for him while he held a valid Secret clearance since 1999. Romero's eligibility for SCI access was complicated by his marriage to a Honduran national, who was employed by the Honduran Embassy. The standards for granting SCI access differ from those for Secret clearances, although they share common guidelines. Key to the decision was the "foreign influence" factor, which can disqualify individuals from receiving security clearances based on familial ties to non-citizens or connections to foreign governments. While foreign influence concerns can be mitigated under specific circumstances, the court determined that the DoD appropriately applied these standards in Romero's case.
To access Sensitive Compartmented Information (SCI), an individual must be a U.S. citizen and have immediate family who are also U.S. citizens, as outlined in DCID 6/4. An individual with a foreign spouse is prohibited from obtaining SCI clearance, although they may qualify for a Secret clearance if foreign influence concerns are adequately addressed. If these concerns cannot be mitigated, access to both SCI and Secret clearance may be denied. The Department of Defense (DoD) oversees security clearance determinations through Central Adjudication Facilities (CAFs) in various components, including the Defense Intelligence Agency (DIA) and the Washington Headquarters Services (WHS).
The WHS-CAF generally issues Secret clearances, while the DIA-CAF handles SCI access. A security clearance determination from one component may be reciprocally accepted by another. For Mr. Romero, the WHS-CAF originally issued a Secret clearance, but the DIA-CAF was responsible for SCI access. Upon his employer's request, the DIA-CAF conducted an investigation and issued a preliminary denial for SCI access, citing security risks due to Mr. Romero’s non-U.S. citizen wife and stepson. This preliminary decision also suspended his Secret clearance.
Mr. Romero challenged this preliminary determination, but after reviewing his response, the DIA-CAF issued a final decision denying SCI access and revoking his Secret clearance, citing national security concerns related to his wife's status as a Honduran diplomat. Mr. Romero then appealed this final decision to the DIA’s Security Appeals Board, requesting a hearing with an administrative judge at the Defense Office of Hearing and Appeals (DOHA). The DOHA judge recommended upholding the DIA-CAF’s decision, noting that the agency lacked jurisdiction to consider exceptions to the eligibility criteria set by DCID 6/4 regarding foreign immediate family members.
The DOHA administrative judge focused solely on Mr. Romero's Secret security clearance, applying adjudicative guidelines regarding foreign influence based on his relationship with his wife and stepson. The judge concluded that while Mr. Romero's relationship with his stepson posed no security risk, his wife's employment at the Honduran Embassy constituted a significant risk against mitigating factors. Consequently, the judge recommended affirming the DIA-CAF's decision to revoke Mr. Romero’s Secret clearance.
The DIA-SAB reviewed this recommendation and affirmed that Mr. Romero did not meet the eligibility requirements for access to Sensitive Compartmented Information (SCI). The DIA-SAB stated that Mr. Romero's relationship with his wife, deemed an agent of a foreign power, precluded any mitigating factors. The DIA-SAB's decision did not address other security clearances but allowed the WHS-CAF, which originally issued the Secret clearance, to accept the DIA-SAB's determination without further investigation. Following this, the WHS-CAF revoked Mr. Romero's eligibility for classified information, resulting in his removal from his position, which required a Secret clearance.
Mr. Romero appealed his removal to the MSPB, claiming due process violations and arguing that the revocation was improper since the DIA-SAB only denied his eligibility for SCI. He also alleged retaliation behind the revocation. The MSPB administrative judge upheld the agency's action, rejecting Mr. Romero's due process claims as he had the opportunity to contest the DIA-CAF's decision and noting that agency regulations do not require a review of reciprocal revocations. The judge confirmed that Mr. Romero's clearance was validly revoked and that removal complied with procedural requirements under 5 U.S.C. 7513. The full board denied Mr. Romero's petition for review. He subsequently appealed to the court, which recognized that the MSPB cannot assess the merits of security clearance determinations, referencing Hesse v. Department of State.
The MSPB correctly rejected Mr. Romero's claim that his security clearance revocation was retaliatory, as this claim involved the merits of the clearance decision. The MSPB also found that the Department of Defense (DoD) adhered to 5 U.S.C. 7513 requirements during Mr. Romero's removal process, confirming he received notice of his proposed removal, the reasons behind it, and an opportunity to respond. However, the MSPB did not address Mr. Romero's procedural challenges regarding his Secret security clearance revocation, leading to a remand for further consideration.
On remand, Mr. Romero raised two main objections: first, he claimed the Defense Intelligence Agency's Security Assessment Board (DIA-SAB) lacked authority to revoke his clearance since the Washington Headquarters Services Central Adjudication Facility (WHS-CAF) initially issued it; second, he argued that the DIA-SAB did not formally revoke the clearance. Following a two-day hearing, the MSPB administrative judge affirmed the DoD’s action, concluding that the DIA-SAB had the authority to revoke the clearance and that its final decision indeed constituted a revocation. The judge reasoned that the absence of explicit language regarding the Secret clearance in the decision letter was mitigated by the context of the discussion surrounding it, which indicated agreement with the revocation.
Additionally, the judge found that WHS-CAF was not required to conduct an independent review of Mr. Romero’s clearance eligibility after the DIA's decision. Even if procedural errors occurred, they were deemed non-harmful, as the revocation was justified based on a perceived security risk linked to Mr. Romero's wife's foreign citizenship. The judge concluded Mr. Romero received all due process under 5 U.S.C. 7513 and most protections under 5 U.S.C. 7532 regarding national security. The MSPB adopted the administrative judge’s decision on April 29, 2010, leading to the current appeal. The reviewing court will uphold the MSPB’s decision unless it is found to be arbitrary, capricious, or unsupported by substantial evidence, maintaining a limited review scope focused on procedural adherence rather than the substance of the revocation. Mr. Romero argues on appeal that the MSPB misapplied relevant statutes and misinterpreted the DIA-SAB's authority and decision scope.
Mr. Romero contends that the WHS-CAF could not revoke his Secret security clearance through reciprocal acceptance due to a lack of a final determination. He argues that even if the DIA-SAB had revoked his clearance, the DIA lacked authority, as the WHS was the original issuer. According to Mr. Romero, DoD regulations dictate that only the issuing component can revoke a security clearance. The government counters that Mr. Romero failed to demonstrate that the DoD did not follow its procedures, asserting that the MSPB’s findings were backed by substantial evidence. The government further states that DoD regulations allow components like WHS to designate others, such as the DIA, to revoke clearances and that such revocation can occur even if the clearance was initially issued by the designating component.
The government cites departmental memoranda indicating that denial of SCI access results in the automatic revocation of collateral clearances like Secret clearances. They argue that common adjudicative guidelines apply to both types of access and that the DIA was obliged to apply these standards when assessing Mr. Romero's security eligibility. The investigation revealed a "foreign influence" security risk due to Mr. Romero's wife being an agent of a foreign power, which disqualified him from both SCI access and his Secret clearance.
The appeal centers on whether the DIA-SAB made a final determination regarding Mr. Romero’s Secret clearance and the authority of the DIA over the WHS in revoking it. The MSPB found that the DIA-SAB did revoke the clearance, supported by earlier decisions from the DIA-CAF and DOHA. Although the DIA-SAB's decision did not explicitly mention the Secret clearance, the DOHA administrative judge concluded that Mr. Romero’s familial ties posed an unmitigated security risk, which justified the revocation. The DIA-SAB affirmed the DOHA judge’s findings, highlighting that Mr. Romero did not meet minimum personnel security standards due to having a non-U.S. citizen immediate family member.
The DIA-CAF's denial of Mr. Romero's access to Sensitive Compartmented Information (SCI) is affirmed based on a determination that his wife's foreign citizenship disqualified him under DCID 6/4 standards. The DIA-SAB also acknowledged foreign influence issues, which were relevant to both SCI access and Secret clearance, and endorsed the DOHA administrative judge’s findings that Mr. Romero's case posed national security concerns due to his wife's status as an agent of a foreign power. Despite Mr. Romero's argument that different standards apply to SCI access and Secret clearance, the adjudicative guidelines support that foreign influence could legitimately lead to denial for both. The DIA-CAF's revocation of his Secret clearance was deemed justified and not based on an improper standard.
Mr. Romero contested the authority of DIA-CAF in revoking his Secret clearance, citing DoD Reg. 5200.2-R, which he argued restricts revocation to the issuing component (WHS). However, the MSPB determined that this regulation pertains only to military personnel and that there is provision for DoD components to delegate authority for clearance revocation. The MSPB found substantial evidence supporting that the DIA was authorized to adjudicate and revoke Mr. Romero's clearance. Additionally, the MSPB concluded that the WHS-CAF was not required to independently assess his eligibility following the DIA's decision, as such reciprocal acceptance aligns with DoD regulations.
Section C4.1.3.1 of the Department of Defense (DoD) regulations mandates that adjudicative determinations regarding access to classified information, including Sensitive Compartmented Information (SCI), made by designated DoD authorities must be accepted by all DoD components without further investigation. This provision allows the Washington Headquarters Service (WHS) to accept the Defense Intelligence Agency's (DIA) decision to deny SCI access and revoke Mr. Romero’s Secret clearance without additional inquiry. The Merit Systems Protection Board (MSPB) affirmed that the DIA-Security Appeals Board (SAB) correctly addressed both the denial of SCI access and the revocation of the Secret clearance, supported by substantial evidence. Mr. Romero did not demonstrate that the DoD failed to follow its regulations, and therefore the court did not consider whether any potential procedural deficiencies caused harmful error.
The concurrence by Circuit Judge Dyk notes the confusion in the DoD regulations but agrees that the DIA had the authority to revoke Romero's clearance and that the WHS could reciprocally accept this action. Although the DIA-SAB's decision primarily addressed SCI access without explicitly mentioning the Secret clearance, it was understood that the revocation of the Secret clearance was implied. The DIA-Central Adjudication Facility (CAF) had initially revoked the clearance due to security risks, and upon appeal, an administrative judge recommended sustaining this decision. The DIA-SAB affirmed the DIA-CAF's decision, indicating that the revocation of the Secret clearance remained in effect and could be reciprocally accepted by the WHS. Thus, the lack of explicit reference to the Secret clearance in the DIA-SAB's decision does not invalidate the revocation.
