Landell v. Department of Defense

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTONIO WHITE LANDELL, Ph.D.,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2015-3045
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-13-5854-I-1.
______________________
Decided: October 5, 2015
______________________
ANTONIO WHITE LANDELL, Bristow, VA, pro se.
CHRISTOPHER L. HARLOW, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by FRANKLIN E. WHITE, JR., ROBERT E. KIRSCHMAN, JR.,
JOYCE R. BRANDA.
______________________
Before NEWMAN, CLEVENGER, and O’MALLEY, Circuit
Judges.
2 LANDELL v. DEPT. OF DEFENSE
NEWMAN, Circuit Judge.
Dr. Antonio W. Landell seeks judicial review of the
Merit System Protection Board’s (MSPB) decision affirm-
ing the Defense Intelligence Agency’s (the Agency) termi-
nation of his employment after the Agency revoked his
security clearance. Landell v. Dept. of Defense, No. PH-
0752-13-5854-I-1 (M.S.P.B. Sept. 12, 2014). We affirm the
MSPB’s decision.
BACKGROUND
Dr. Landell was employed as an Intelligence Officer in
a position that required eligibility for access to Sensitive
Compartmented Information, and he had been given the
appropriate security clearance. On November 16, 2011,
the Defense Intelligence Central Adjudication Facility
(DICAF) advised Dr. Landell that the Agency intended to
revoke his security clearance because of security concerns
that were inconsistent with the Agency’s eligibility crite-
ria. The DICAF provided Dr. Landell with a Statement of
Reasons for the intended action. On June 20, 2012, the
Agency suspended him from his duties, and on August 1,
2012, the DICAF notified Dr. Landell that his security
clearance had been revoked and that he was entitled to
appeal the revocation to the Defense Intelligence Security
Appeals Board (DISAB). Dr. Landell appealed, and, after
receiving submissions and argument, the DISAB affirmed
the decision to revoke his security clearance. The Agency
then terminated his employment for failure to maintain a
security clearance, a stated condition of employment for
all positions with this agency.
On appeal to the MSPB, the Administrative Judge
and then the full Board affirmed, ruling that Dr. Landell
had received procedural due process, and that the MSPB
had no authority to review an agency’s decision to revoke
a security clearance, other than to ascertain that the
requirements of due process had been met.
LANDELL v. DEPT. OF DEFENSE 3
On appeal to this court, Dr. Landell states that the
Agency’s action was unjust and unfair, that he had done
no wrong, that the alleged infraction had occurred years
earlier in military service, that he was the victim of
favoritism and discrimination, and that the MSPB erred
in declining to review the merits of the revocation.
DISCUSSION
The MSPB held that it does not have authority to re-
view an agency’s revocation of security clearance, other
than to ascertain whether the employee received due
notice of the proposed action and had an opportunity to be
heard as required by Dept. of the Navy v. Egan, 484 U.S.
518, 530–31 (1988). Precedent has elaborated that the
MSPB’s review is limited to “whether a security clearance
was denied, whether the security clearance was a re-
quirement of the appellant’s position, and whether the
procedures set forth in Section 7513 were followed.”
Hesse v. Dept. of State, 217 F.3d 1372, 1376 (Fed. Cir.
2000). In conducting this limited review, the MSPB may
consider whether an agency committed harmful error by
failing to follow its own regulations in denying or revoking
the security clearance. Romero v. Dept. of Defense, 527
F.3d 1324, 1329 (Fed. Cir. 2008).
The MSPB reviews removals only to the extent of as-
certaining whether an agency’s formal policy requires
reassignment under such conditions and, if so, whether a
position existed to which the appellant could be reas-
signed. Blagaich v. DOT, 90 M.S.P.R. 619 ¶ 16 (2001),
aff’d, 63 F. App’x 476 (Fed. Cir. 2003).
Dr. Landell states that the Agency violated unspeci-
fied procedures, regulations, and laws; violated Title VII
of the 1964 Civil Rights Act, the Pendleton Act, and the
Uniformed Services Employment and Reemployment
Rights Act of 1994; did not provide any factual evidence in
support of its action; and conspired to remove him from
his position in order to hire a more favored candidate. In
4 LANDELL v. DEPT. OF DEFENSE
accordance with Egan, the MSPB did not review these
issues and arguments, but limited its review to the proce-
dural requirements.
The MSPB found that Dr. Landell was provided with
a Statement of Reasons for the proposed revocation, and
that the procedural protections of Section 7513 were
followed, including the opportunity to respond. With
respect to reassignment, it is not disputed that security
clearance is a requirement of all positions at this agency.
We do not discern reversible error in the MSPB’s ap-
plication of its limited review authority with respect to
employment actions based on security clearance require-
ments. Although Dr. Landell’s appeal brief is directed to
the merits of the revocation of his security clearance, the
MSPB correctly determined that the Agency provided the
requisite procedural due process, and that the merits of
the revocation are not reviewable by the MSPB. Similar-
ly, review of that issue is not within the authority of this
Court on appeal from the MSPB ruling. The MSPB
decision is affirmed.
Each party shall bear its costs.
AFFIRMED