Romero v. Department of Defense
658 F.3d 1372
Fed. Cir.2011Background
- Romero was a DoD auditor with a Secret clearance; his wife’s Honduran citizenship triggered foreign-influence concerns for SCI access.
- DIA-CAF preliminarily denied SCI access and suspended Romero’s Secret clearance, citing his wife’s status.
- DOHA reviewed and recommended sustaining the DIA-CAF’s revocation of Romero’s Secret clearance, while addressing SCI denial under DCID 6/4.
- DIA-SAB affirmed the DOHA recommendation, addressing both SCI access and the Secret clearance; it did not expressly mention the Secret clearance but its analysis applied thereto.
- WHS-CAF reciprocally revoked Romero’s Secret clearance and denied SCI access, following DoD regulations for mutual acceptance of determinations.
- MSPB on remand held the DoD followed its procedures; Romero appealed to the Federal Circuit, challenging procedural and authority aspects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DIA-SAB had authority to revoke Romero’s Secret clearance | Romero argues only the initial issuing component could revoke | DIA-SAB empowered to revoke per DoD rules and reciprocal acceptance | DIA-SAB had authority to revoke; DoD rules permit designees to adjudicate and revoke |
| Whether the DIA-SAB’s decision explicitly revoking the Secret clearance was required for reciprocal acceptance by WHS | No explicit Secret-clearance revocation needed for reciprocal acceptance | DOHA/DIA-CAF findings on Secret clearance were effectively revocation | Reciprocal acceptance valid; DIA-SAB decision supported by substantial evidence and DOHA analysis |
Key Cases Cited
- Romero v. Dep’t of Defense (Romero I), 527 F.3d 1324 (Fed. Cir. 2008) (review of MSPB for procedural compliance in security-clearance revocation)
- Hesse v. Department of State, 217 F.3d 1372 (Fed. Cir. 2000) (MSPB may not review underlying merits of security-clearance decision)
- Department of the Navy v. Egan, 484 U.S. 518 (1988) (scope of review in security-clearance decisions)
- Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215 (Fed. Cir. 2011) (deferential review of MSPB decisions; substantial evidence standard)