Stephen S. Brockmann v. Department of the Air Force

NIES, Circuit Judge.

Stephen S. Brockmann appeals from the August 10, 1992, 54 M.S.P.R. 424, decision of the Merit Systems Protection Board (MSPB or Board), Docket No. CH-0752-92-0305-I-1 denying his petition for review of his removal from a civilian position in the Department of the Air Force. We affirm the decision of the Board.

I.

Mr. Brockmann worked for the Air Force as a GS-0560-12 budget analyst, a position requiring a security clearance. On January 22, 1990, Mr. Brockmann filed a complaint with his local police department making several allegations concerning his employer. Mr. Brockmann contended that agents of the Air Force had surreptitiously attempted to enter his home, that concealed listening devices had been installed there, and that his observations of beams of light in his windows betrayed the use of laser surveillance devices. Mr. Brockmann also informed the police that he had attempted to counter the alleged laser surveillance by placing aluminum foil in his home’s windows and baseboards. Following police notification to the Air Force, Mr. Brockmann’s access to classified materials and restricted areas was temporarily suspended pending a reinvestigation of his security clearance eligibility. Contemporaneously, Mr. Brockmann directly accused several colleagues of tampering with the computer system in his office in order to make him look bad. He had made similar, unsubstantiated accusations three times in the past.

The Air Force notified Mr. Brockmann of its intent to revoke his security clearance on April 5, 1991, citing “conduct and behavior which raises concerns regarding your judgment and reliability, your refusal to undergo command requested medical evaluation to evaluate your behavior, and your refusal to sign AF Form 2587, Security Termination Statement.” Mr. Brockmann responded by submitting the signed Security Termination Statement, a personal statement, and a professional psychological evaluation obtained from a private firm. The latter document provided two possible reasons for Mr. Brock-mann’s statements to the police department: either he was actually under surveillance or he suffered from a persecutory paranoid delusional disorder. Unpersuaded by the personal statement, and further concerned over Mr. Brockmann’s reliability due to the evaluation, the Air Force notified Mr. Brockmann that his clearance was revoked effective August 16, 1991.

Because Mr. Brockmann’s position required a security clearance, a notice proposing his removal issued on October 3, 1991. The Air Force agreed to postpone its decision regarding his removal until Mr. Brock-mann completed an internal agency appeal of his security clearance revocation. Following the denial of this appeal, the Air Force removed Mr. Brockmann from his position on January 31, 1992.

Mr. Brockmann then appealed his removal to the MSPB. Mr. Brockmann sought to have the Board review the merits of the security clearance withdrawal. In an April 29, 1992, decision, the Administrative Judge (AJ) sustained the Air Force’s termination. Citing Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the AJ held that the Board had no authority to review the merits of an agency’s decision to revoke a security clearance. The AJ held that the MSPB could only satisfy itself that certain procedural steps satisfying minimal due process had been followed. Based upon Mr. Brockmann’s stipulation that “he was notified in advance of the agency’s intent to revoke the security clearance, that the notice set forth the reasons for the proposed revocation, and that he was given the opportunity to respond to the notice,” the AJ was satisfied that Mr. Brockmann had received minimal due process. The full Board denied Mr. Brockmann’s petition for review, and this appeal followed.

II.

In Egan, 484 U.S. at 518, 108 S.Ct. at 819, the Supreme Court considered the extent to which the Board, while reviewing an adverse action under Chapter 75 of the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (codified, as amended, in various sections of 5 U.S.C.), may evaluate an agency security clearance decision. Interpreting the authority granted to the Board in 5 U.S.C. § 7513 (1982), the Court reasoned that:

The Act by its terms does not confer broad authority on the Board to review a security-clearance determination. As noted above, the Board does have jurisdiction to review “adverse actions,” a term, however, limited to a removal, a suspension for more than 14 days, a reduction in grade or pay, and a furlough of 30 days or less. §§ 7513(d), 7512. A denial of a security clearance is not an “adverse action,” and by its own force is not subject to Board review. An employee who is removed for “cause” under § 7513, when his required clearance is denied, is entitled to the several procedural protections specified in that statute. The Board then may determine whether such cause existed, whether in fact clearance was denied, and whether transfer to a nonsensitive position was feasible. Nothing in the Act, however, directs or empowers the Board to go further.

484 U.S. at 530, 108 S.Ct. at 825-26.

With this appeal, Mr. Brockmann attempts to distinguish Egan by arguing that his actions leading to the security clearance revocation were less egregious than those of the Egan respondent, and that the Air Force’s actions were somehow pretextual. Contrary to Mr. Broekmann’s arguments, this case presents a straightforward application of Egan. The AJ completed the analysis permitted by Egan in its entirety, on the basis of Mr. Brockmann’s own stipulations and admissions. Mr. Brockmann continues to argue the substantive aspects of the revocation of his security clearance, while admitting that the Air Force followed the required procedures. Under Egan, these admissions end the inquiry. See Lyles v. Department of the Army, 864 F.2d 1581, 1583 (Fed.Cir.1989).

Mr. Brockmann nevertheless argues that a decision of the Supreme Court subsequent to Egan, Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), supports judicial review of the constitutional claims he claims to have raised relating to withdrawal of his security clearance. Webster concerned the termination of an employee by the Director of Central Intelligence pursuant to section 102(c) of the National Security Act, 50 U.S.C. § 403(c) (1982). The respondent brought claims under both the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1982 & Supp.1986), and the First, Fourth, Fifth and Ninth Amendments. With respect to the statutory claims, the Court reasoned that the National Security Act’s “extraordinary deference to the Director in his decision to terminate individual employees,” id. at 601, 108 S.Ct. at 2052, indicated that the “agency action is committed to agency discretion by law” as provided in 5 U.S.C. § 701(a)(2). Removal under the National Security Act was thus judicially unreviewable under the APA’s own terms.

The Court looked more favorably, however, upon the terminated employee’s constitutional claims. The Court rejected the government’s argument that the National Security Act precluded judicial review of constitutional claims, concluding that “[njothing in § 102(c) persuades us that Congress meant to preclude consideration of colorable constitutional claims arising out of actions of the Director pursuant to that section....” Id. at 603, 108 S.Ct. at 2054 (emphasis added). The Court remanded the case to the district court for further adjudication of the Webster respondent’s colorable constitutional claims.

We cannot agree with Mr. Broekmann that Webster v. Doe impacts the reviewability of the substantive aspects of his removal in this case. The assertions made by Mr. Brock-mann do not rise to the level of colorable constitutional claims that the Court contemplated in Webster v. Doe. Mr. Brockmann’s constitutional claims which mention the First, Fourth, and Fifth Amendments are vaguely stated, undeveloped, and unsupported. His argument on this appeal that the adverse action was pretextual because of his known sexual preference — the argument that caught the Court’s attention in Webster v. Doe — appears so peripherally in Mr. Brock-mann’s brief (in parentheses with no discussion) that it appears to be an afterthought. He further offered no rebuttal to the government’s argument that no colorable claim of violation of a constitutional right of freedom of speech or association was made by Mr. Broekmann. Cf. Hill v. Department of the Air Force, 818 F.2d 874 (Fed.Cir.1987) (discrimination claim must be supported to the extent of a prima facie case in order to create a “mixed case”).

We conclude that as Mr. Broekmann raised no colorable constitutional claim in terms of Webster v. Doe, the holding in Egan squarely controls the judicial reviewability of his appeal. Mr. Broekmann having stipulated that the standards set out in Egan were satisfied, the Board’s denial of his petition for review must be affirmed.

AFFIRMED.