Adams v. Department of Defense , 688 F.3d 1330 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
CHARLES DERECK ADAMS,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
2011-3124
__________________________
Petition for review of the Merit Systems Protection
Board in consolidated Case Nos. DC3443100711-I-1 and
DC0752100741-I-1.
___________________________
Decided: August 10, 2012
___________________________
CHARLES D. ADAMS, of Herndon, Virginia, pro se.
JOSEPH A. PIXLEY, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, of Washington, DC, for respondent. With him on the
brief were TONY WEST, Assistant Attorney General, JEANNE
E. DAVIDSON, Director, and PATRICIA M. MCCARTHY, Assis-
tant Director.
__________________________
ADAMS v. DEFENSE 2
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 revo-
cation 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 Depart-
ment 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
3 ADAMS v. DEFENSE
stated in the letter were violations of agency security regu-
lations.
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 Infor-
mation. After considering Mr. Adams’ written reply, the
Missile Defense Agency found that the suspension was
supported by a preponderance of the evidence and war-
ranted 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 De-
fense, 371 Fed. App’x 93 (Fed. Cir. April 13, 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 (1988), that “protection of classified
information must be committed to the broad discretion of
the agency responsible, and this must include broad discre-
tion 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 mini-
mal due process protections were provided, id. at 531, 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.
Mr. Adams argued in Adams I that the imposition of in-
definite suspension without pay was improper, and that he
ADAMS v. DEFENSE 4
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. App’x 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 Ap-
peals 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 classi-
fied information. The Missile Defense Agency then served
Mr. Adams with a Notice of Proposed Removal from em-
ployment. 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.
5 ADAMS v. DEFENSE
In view of his possible removal, Mr. Adams had submit-
ted 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 re-
view 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 unsup-
ported by substantial evidence. 5 U.S.C. §7703(c). Jurisdic-
tional 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 MPSB erred by limiting its review to
security clearance procedural aspects, and that “the statutes
require justice be served by considering the underlying
ADAMS v. DEFENSE 6
causes and motivations for 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 mini-
mal due process protection. 484 U.S. at 529–31; 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 respond.
Those are the limits of our review; neither this court nor the
MSPB has authority to review the charge that retaliation
and discrimination were the reasons for revocation of the
security clearance. See Cheney v. Dep’t of Justice, 479 F.3d
1343, 1352 (Fed. Cir. 2007) (“Neither the Board nor this
court may review the underlying merits of an agency’s
decision to suspend a security clearance.”). Thus it was not
legal error for the agency to terminate Mr. Adams’ employ-
ment when he no longer possessed the requisite security
7 ADAMS v. DEFENSE
status. See Robinson v. Dep’t of Homeland Sec., 498 F.3d
1361, 1365 (Fed. Cir. 2007) (“[I]n 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.”). The MSPB’s decision sustaining
the agency’s removal action is affirmed.
II. Retirement Appeal
The MSPB held that, because it did not have authority
to review the merits of the agency’s revocation of Mr. Ad-
ams’ security clearance, it did not have jurisdiction to re-
view the agency’s denial of his request for early retirement
under the VERA. The Board stated that “a prohibited
personnel practice claim may be considered by the Board
only if it is raised in connection with an otherwise appeal-
able action,” and that since the agency’s security clearance-
based actions cannot be appealed, neither can the agency’s
denial of the request for early retirement. However, the
Board misstates the premises, for security clearance-based
actions can indeed be appealed, albeit on the limited basis of
whether the minimal due process requirements of Egan
were met; the merits of the security clearance-based action
are not reviewable because of the uniquely personal and
subjective components of security evaluations. The limited
appeal of agency security clearance-based actions does not
remove federal employees from all other employment rights
and benefits.
No statute or policy suggests that retirement issues are
removed from appellate review when the retirement relates
to revocation of a security clearance. We discern no basis
for removing actions related to retirement from sensitive
positions from the general system of MSPB review of ad-
verse employment actions, without specific legislative
ADAMS v. DEFENSE 8
instruction. Cf. Webster v. Doe, 486 U.S. 592, 603 (1988)
(“[W]here Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear.”).
In the initial briefing of this case, the government ar-
gued that the Board acted correctly in denying its own
jurisdiction, government counsel stating that the govern-
ment is “unaware” of “any law, rule or regulation that
provides the Board with jurisdiction over an agency’s deci-
sion not to grant an employee’s request for retirement
incentives such as early retirement under VERA.” Gov’t Br.
11. On supplemental briefing at the court’s request, the
government discarded this position and now states that “the
MSPB conceivably could have jurisdiction to entertain Mr.
Adam’s VERA claim. . . .” Govt. Supp. Br. 5–6.
We agree that the federal employment statutes require
this conclusion. 5 U.S.C. §7701(a) provides for appeal to the
MSPB “from any action which is appealable to the Board
under any law, rule, or regulation.” MSPB jurisdiction is
summarized at 5 C.F.R. §1201.3, where subsection (a)(6)
authorizes the MSPB to review adverse retirement decisions
under 5 U.S.C. §8461, the Federal Employees Retirement
System by which Mr. Adams is covered. The voluntary
early retirement benefit is part of the Federal Employees
Retirement System pursuant to 5 U.S.C. §8414. Pursuant
to §8461(e)(1), “an administrative action or order affecting
the rights or interests of an individual or of the United
States under the provisions of this chapter [chapter 84]
administered by the Office [of Personnel Management] may
be appealed to the Merit Systems Protection Board.” Con-
gress authorized the Department of Defense to decide VERA
benefits, and 5 U.S.C. §9902(f)(4) states that “[a]n employee
who is at least 50 years of age and has completed 20 year of
service, or has at least 25 years of service, may, pursuant to
regulations promulgated under this section, apply and be
9 ADAMS v. DEFENSE
retired from the Department of Defense and receive benefits
in accordance with chapter 83 and 84. . . .”
Mr. Adams states, and the government does not dispute,
that he is within the scope of possible voluntary early re-
tirement, that he properly filed a claim for early retirement,
that he meets the statutory requirements based on his age
and employment term, and that his claim was denied by the
DoD. The denial significantly affects Mr. Adams’ “rights or
interests” under § 8461 of the Federal Employees’ Retire-
ment System, and thus may be an appealable “administra-
tive action” within the Board’s jurisdiction. Since the MSPB
incorrectly determined that no statutory provision provided
an appeal to the MSPB with respect to the denial of early
retirement benefits, we remand to the Board for further
proceedings.
The government now states that Mr. Adams is barred
from appealing to the MSPB because he failed to appeal the
DoD denial to OPM. We take note that OPM is charged
with administering claims under chapter 83, and chapter 84
relating to the Federal Employees Retirement System
(FERS). See 5 U.S.C. § 8461; see also 5 U.S.C. §
8414(b)(1)(B)(iv) and (v). We do not decide, however,
whether Mr. Adams was required first to appeal to OPM, an
issue to be addressed on remand.
CONCLUSION
We affirm the MSPB’s ruling with respect to the re-
moval action based on revocation of Mr. Adams’ security
clearance. However, the appeal of an adverse VERA ruling
is within MSPB jurisdiction, for it is “an administrative
action or order affecting the rights or interests of an indi-
vidual or of the United States.” 5 U.S.C. §8461(e) (FERS); 5
U.S.C. §8347(d)(1) (CSRS). The DoD’s retirement decision
ADAMS v. DEFENSE 10
is reviewable by the MSPB, independent of the revocation of
Mr. Adams’ security clearance. We reverse the MSPB’s
ruling that it does not have jurisdiction of the VERA claim,
and remand for further proceedings as to that claim.
Each party shall bear its costs.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED