Wonders v. Department of the Army ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK GERAGHTY WONDERS,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2016-1847
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-13-0055-B-1.
______________________
Decided: September 9, 2016
______________________
MARK GERAGHTY WONDERS, Ozark, AL, pro se.
CHRISTOPHER L. HARLOW, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by CLAUDIA BURKE, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER.
______________________
Before MOORE, TARANTO, and HUGHES, Circuit Judges.
2 WONDERS v. ARMY
PER CURIAM.
Mark Geraghty Wonders worked for the Department
of the Army, holding a position that required him to have
a security clearance. The Army revoked his security
clearance in 2010 and thereafter fired him. After unsuc-
cessfully challenging the clearance revocation within the
Department of Defense, Mr. Wonders sought review by
the Merit Systems Protection Board, alleging procedural
violations in the Army’s initial revocation process. The
Board, though it found procedural violations, concluded
that the violations were harmless, and it therefore sus-
tained the Army’s removal of Mr. Wonders from employ-
ment. We affirm.
BACKGROUND
Mr. Wonders was employed by the Army as a Public
Affairs Specialist at Fort Rucker, Alabama. On October 7,
2010, the Army’s Consolidated Adjudications Facility
(CAF) sent him a letter, accompanied by a statement of
reasons, stating its intent to revoke his security clearance.
Eight months later, on June 9, 2011, the CAF revoked the
clearance.
Mr. Wonders requested a hearing before the Defense
Office of Hearings and Appeals (DOHA). After reviewing
the evidence, without deference to the CAF, the adminis-
trative judge of DOHA recommended that the Army
reinstate Mr. Wonders’s clearance. The administrative
judge also discussed two circumstances raising related
“procedural issues.” J.A. 35. The first was that not until
shortly before the DOHA hearing did the Army identify,
and furnish to Mr. Wonders, the documents the CAF had
relied on in revoking his clearance. The second involved
one particular document, whether or not the CAF relied
on it: the Army had not given Mr. Wonders, during the
CAF’s proceedings, a revocation-favoring letter that his
commander had sent to the CAF. By the time of the
WONDERS v. ARMY 3
DOHA hearing, Mr. Wonders had the evidence that was
the subject of both procedural issues.
The Personnel Security Appeals Board (PSAB) con-
sidered the DOHA judge’s recommendation, but it drew a
different conclusion. On August 9, 2012, it denied Mr.
Wonders’s appeal from the clearance revocation. The
Army then fired him, because a security clearance was
necessary for his position.
Mr. Wonders appealed his termination to the Merit
Systems Protection Board. After the administrative judge
affirmed the Army’s decision, Wonders v. Dep’t of the
Army, No. AT-0752-13-0055-I-1, 2013 WL 6225536 (MSPB
May 3, 2013), the Board found that the Army violated its
own regulations during the CAF adjudication. Wonders v.
Dep’t of the Army, No. AT-0752-13-0055-I-1, 2014 WL
5319821 (MSPB June 25, 2014). The two violations found
were a failure by the CAF to provide Mr. Wonders all the
releasable documents the CAF relied on for the clearance-
revocation decision and the CAF’s consideration of the
commander’s letter without giving Mr. Wonders an oppor-
tunity to rebut what the letter said. The Board remanded
the case for the Board’s administrative judge to conduct a
harmless-error hearing, i.e., to determine whether the
Army would have reached a different clearance-revocation
decision had those violations not occurred.
On remand, the administrative judge conducted a
hearing and determined that the procedural errors were
harmless, because the errors had been identified, dis-
cussed, and analyzed by the DOHA judge and the PSAB,
which made the ultimate revocation decision, was fully
aware of the issues and their potential impact on Mr.
Wonders’s case. Wonders v. Dep’t of the Army, No. AT-
0752-13-0055-B-1, 2015 WL 5122826 (MSPB Aug.
26, 2015). On March 22, 2016, the Board affirmed the
administrative judge’s decision. Wonders v. Dep’t of the
4 WONDERS v. ARMY
Army, No. AT-0752-13-0055-B-1, 2016 WL 1118749
(MSPB Mar. 22, 2016).
Mr. Wonders appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Terban v. Dep’t of Energy,
216 F.3d 1021, 1024 (Fed. Cir. 2000). The only challenge
presented to us is the challenge to the clearance revoca-
tion; there is no separate challenge to removal if the
revocation is proper. When reviewing an agency decision
to revoke a security clearance, the Board and this court
may not inquire into the substantive merits of the deter-
mination. See Dep’t of Navy v. Egan, 484 U.S. 518, 529–
32 (1988); Cheney v. Dep’t of Justice, 479 F.3d, 1343,
1349–50 (Fed. Cir. 2007). Inquiry is limited to “deter-
min[ing] whether a security clearance was denied, wheth-
er the security clearance was a requirement of the
appellant’s position, and whether the [applicable proce-
dural guarantees] were followed.” Hesse v. Dep’t of State,
217 F.3d 1372, 1376 (Fed. Cir. 2000). Here, only the
procedural guarantees are at issue.
Procedural protections include those prescribed in 5
U.S.C. § 7513, see Hesse, 217 F.3d at 1376, and in agency
regulations, Romero v. Dep’t of Defense, 527 F.3d 1324,
1328 (Fed. Cir. 2008). The Board found violations of
procedural regulations, and the Army, on appeal here,
accepts the finding of such violations. The dispute on
appeal is over the Board’s finding of harmless error as a
basis for nevertheless sustaining the clearance revocation.
WONDERS v. ARMY 5
The clearance-revocation decision is subject to the
harmless-error standard of 5 U.S.C. § 7701(c)(2)(A) when
a removal based on a clearance revocation is challenged
for procedural error in the revocation process. Romero,
527 F.3d at 1328–30. Mr. Wonders had to show “harmful
error in the application of the agency’s procedures in
arriving at” the revocation decision. 5 U.S.C.
§ 7701(c)(2)(A). Harmful error is an “[e]rror by the agency
in the application of its procedures that is likely to have
caused the agency to reach a conclusion different from the
one it would have reached in the absence or cure of the
error.” 5 C.F.R. § 1201.4(r). Mr. Wonders had the burden
to show such error by a preponderance of the evidence.
Id. § 1201.56(c)(1); see Romero, 527 F.3d at 1330 & n.2.
Here, the Board had an ample basis for concluding
that Mr. Wonders failed to make that showing. The
record supports the finding that Mr. Wonders received the
missing evidence—the basis for the procedural violations
found—before his DOHA hearing. The CAF provided Mr.
Wonders the documents supporting its determination and
the commander’s letter—and also certain allegedly excul-
patory documents he cites in this court—before the DOHA
hearing took place. Thus, the Board could reasonably
conclude that he had the opportunity to address all of
those documents in front of the DOHA judge and, then, in
front of the PSAB. Both the DOHA and, crucially, the
PSAB—the ultimate decision-maker about the clearance
revocation—considered the documents without giving any
deference to the CAF. The Board’s finding that the proce-
dural violations were not harmful is reasonable given that
the ultimate decision-maker found revocation warranted,
without deference to the CAF, once the procedural viola-
tions had been cured by furnishing the evidence to Mr.
Wonders.
6 WONDERS v. ARMY
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Board.
AFFIRMED