688 F.3d 1330
Fed. Cir.2012Background
- Adams, an IT Specialist for DoD’s Missile Defense Agency, held a position requiring a Top Secret clearance.
- DIA notified Adams of suspension of access and proposed to revoke his clearance for security violations.
- MDA suspended Adams indefinitely without pay; MSPB initially sustained the suspension as minimal due process.
- DISAB issued a final adverse decision after Adams’ security appeal; agency removed Adams due to loss of clearance.
- Adams applied for Voluntary Early Retirement under VERA; DoD denied the VERA request and Adams appealed.
- MSPB later held it lacked jurisdiction to review the merits of the VERA denial, prompting an appeal and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB could review the termination for security clearance revocation | Adams argues MSPB should review underlying motives, not only procedures. | DoD contends MSPB review is limited to minimal due process on security issues per Egan. | MSPB's review limited to minimal due process; underlying merits not reviewable. |
| Whether MSPB has jurisdiction over the DoD VERA retirement denial | Ver a denial affects rights under FERS and is appealable as an administrative action. | MSPB has no jurisdiction over retirement appeals tied to security-clearance removal. | MSPB may review VERA denial as an administrative action affecting rights; remand for proceedings. |
| What is the proper disposition of Adams' removal and VERA appeal on remand | MSPB should reverse as to VERA if jurisdiction exists; removal affirmed on security grounds. | Removal upheld for revocation of clearance; VERAAffirmation not previously jurisdictionally decided. | Removal affirmed; VERA remanded for adjudication consistent with MSPB jurisdiction. |
Key Cases Cited
- Department of the Navy v. Egan, 484 U.S. 518 (1988) (security clearance review limited to due process, broad agency discretion)
- Drumheller v. Dep’t of the Army, 49 F.3d 1566 (Fed. Cir. 1995) (minimal due process requirements for security actions)
- Cheney v. Dep’t of Justice, 479 F.3d 1343 (Fed. Cir. 2007) (MSPB may not review underlying merits of security clearance decisions)
- Robinson v. Dep’t of Homeland Sec., 498 F.3d 1361 (Fed. Cir. 2007) (absence of properly authorized security clearance is fatal to job entitlement)
- Hesse v. Dep’t of State, 217 F.3d 1372 (Fed. Cir. 2000) (Board may determine procedures but not merits of security clearance)