*1 Entеrgy purpose”). business-minded has pointed provision Stan-
dard Contract the NWPA that would intent to Congress’s
indicate waive the no- Consistently
interest rule. with our deci- Northwest, Energy
sion we conclude Entergy not recover the cost of
securing capital mitigation to fund its ef-
forts. PART, IN
AFFIRMED REVERSED PART,
IN AND REMANDED ROMERO, Petitioner,
Wilfredo DEFENSE,
DEPARTMENT OF
Respondent.
No. 2010-3137.
United States Court of Appeals,
Federal Circuit.
3,Oct. *2 (“Romero ”).
(Fed.Cir.2008) remand, I On again affirmed the removal. agree complied that the DoD Because we in revoking with its internal clearance, af- we Mr. Romero’s firm.
Background properly At issue is whether the DoD Mr. Romero’s it him a clearance when denied different clearance, namely access to Sensi- kind of Block, LLP, (“SCI”). Cox, Compartmented of C. Jenner & tive Information James DC, petitioner. for the Washington, argued A brief was Arthur B.
Of counsel on the Capital, of the Nation’s of Spitzer, ACLU 2004, began in The relevant events when Washington, DC. supervisor De- Mr. Romero’s asked the Hosford, Senior Trial Elizabeth M. Intelligence Agency Adjudi- fense Central Counsel, Branch, Litigation Commercial (“DIA-CAF”) grant Facility cation Division, United States Civil Romero clearance to obtain access to SCI. DC, Justice, Washington, argued for of as audi- working Mr. Romero had been an her on the brief were respondent. With agency’s Inspector tor in the Office General, West, Attorney Tony Assistant position required This General since 1999. Director, Davidson, and Todd E. Jeanne him to maintain a Secret level Hughes, Deputy M. Directоr. clearance, he obtained 1999 from which Headquarters Washington Service DYK, PROST, BRYSON, Before (‘WHS- Adjudication Facility Central Judges. Circuit CAF”). receiving After his Secret securi- filed Circuit Opinion for court clear- ty requesting clearance but before opinion filed Concurring Judge SCI, PROST. mar- for access Mr. Romero ance Judge DYK. Circuit At the time ried a Honduran national. SCI, sought access to his wife Mr. Romero PROST, Judge. Circuit Embas- an of the Honduran employee employed as an Romero Wilfredo sy- Department of Defense auditor standards for (“DoD”). In December identical, clearances are position failing from his removed are although there common level to maintain his Secret types do both procedures that the removal action to appealed ance. 12968; Exec. clearances. See Order Systems Protection Board the Merit 5200.R-2, 8; Director of Central In- App. (“MSPB”). the ac- The MSPB affirmed (“DCID”) telligence Agency Directive 6/4. the MSPB’s deci- tion. This court vacated adjudicative guide- common Under these to deter- for the MSPB sion and remanded lines, investigating agency must consid- Mr. Romero could show mine whether determining whether er factors in thirteen resulting DoD’s harmful error from the clearance is consistent granting See procedures. failure to follow its own security. Each 1324 with interests national Dep’t Defense, regardless applies component’s of these factors aWhen employee whether seeks Secret CAF denies or revokes particular ance or SCI access. Of rele- appealed to that *3 here is the influence” fac- “foreign vance component’s Security Appeals Board “foreign tor. Specificаlly, influence” (“SAB”). the DIA Both and the WHS are disqualifying “security factor states that a grant, deny, authorized to or revoke civil- may risk exist an individual’s imme- when ian personnel security including clearances family persons diate ... and other to addition, the DIA by may whom or bound he she be affec- grant, deny, also has the to or (1) tion, obligation influence are: or revoke access to gen- SCI. WHS-CAF (2) may or citizens United States be clearances, erally handles Secret 5200.2-R, subject App. to duress.” DoD while DIA-CAF handles to access SCI. may disqualifying be in- Conditions regulations, may Under DoD a сomponent having family an clude immediate member accept” “reciprocally a foreign country who a of a is citizen determination made compo- another having relatives who are connected with nent. See DoD 5200.2-R C4. any foreign government. Id. The common in specify step process obtaining The first foreign also influ- ence-related concerns can be miti- to asking access SCI appropri- involves gated under certain circumstances. Id. adjudicate ate CAF to the clearance. Al- though the WHS-CAF was the considerations,
Beyond these SCI access original that issued Mr. Romero’s requires satisfying additional minimum responsible the DIA-CAF is for personnel security standards that are not making regarding eligibili- other determinations Secret and lower-level clearances. See DCID For example, ty to access Accordingly, SCI. Mr. Rome- 6/4. in specifies DCID to order be 6/4 employer requested ro’s SCI, approved for access to individual grant CAF him SCI access. After con- “must be U.S. citizen [t]he individ- [and] ducting investigation, the DIA-CAF in- family ual’s immediate must be also U.S. formed Romero that a preliminary Thus, any citizens.” individual whose deny decision had to him been made spouse foreign is citizen of a country is ance for SCI. Romero barred under DCID from obtaining 6/4 at preliminary 1326. The decision also SCI, clearance for although access to indicated that Mr. Romero’s Secret securi- may eligible still be for a Secret clearance ty clearance would suspended pending be if foreign influence concern is ade- Pointing resolution of the matter. quately mitigated. foreign If the citizenship Honduran of Mr. Romero’s wife concern cannot adequately mitigated, be stepson, the preliminary decision ex- may the individual be denied both access plained that “available information tends SCI Secret clearance based to show a risk exist ... due spouse’s citizenship. preliminary influence.” The de- cision further noted that the influ- B ence concerns were also inconsistent with general organizational framework standards, require which used DoD make family members must be ance determinations is as follows. The U.S. citizens. authorized Adjudication has Central (“CAF”) employee Facilities If an is components, variоus not satisfied WHS, including decision, DIA and the preliminary issue step is to employment wife’s Mr. Romero’s challenge preliminary responded to writing. Embassy weighed against ap- Honduran After decision. preliminary DIA-CAF’s any mitigating conditions in Mr. plying supplied considering information Accordingly, the Romero’s favor. Romero, the chief issued DIA-CAF’s recommended access to SCI denying final the DIA-GAF’s decision to revoke Mr. revoking Mr. Romero’s Secret Romero’s Secret clearance be affirmed due deemed incon- due to issues relationship to Mr. Romero’s with his wife. security interests. with nаtional sistent process in the step is poten- The final decision indicated *4 review of the DOHA administrative SAB’s “the fact that security tial risks included In a judge’s two-para- recommendation. citizen, is an your spouse is not U.S. decision, the the graph DIA-SAB affirmed of diplomat of the Government accredited that Mr. Romero did not determination The final decision concluded Honduras.” eligibility requirements meet the for ac- mitigate that Romero had failed to Mr. paragraph cess to SCI. The first foreign security influence concerns based Mr. decision concludеd that Romero did foreign agent status as an of a on wife’s meet minimum personnel security not “the power. paragraph standards for SCI.” process, third in the step As the decision discussed the DOHA ad- may appealed final decision DIA-GAF’s ministrative of foreign treatment Security Appeals to the DIA’s Board concerns, influence which as noted (“DIA-SAB”). Mr. appealed above, addressed the DOHA were ad- final re- DIA-GAF’s judge ministrative the context of the hearing an questing a before administra- Hearing Secret clearance rather than SCI access. tive at thе Defense Office of judge (“DOHA”). The ad- Appeals agreed mitigating DOHA The DIA-SAB that fac- judge ministrative recommended that apply tors did not to Mr. Romero’s rela- DIA-SAB sustain the DIA-GAF’s revoca- tionship she with his wife because tion Mr. Romero’s Secret agent foreign definition an of a power. judge The DOHA administrative acknowl- The DIA-SAB’s did not explicitly decision edged agency juris- did not have that mention other clearances be- an exception diction to consider whether sides access SCI. preclusion of should to DCID 6/4’s above, regulations As discussed family individuals with permit сomponent reciprocally accept eligibility for members from access to SCI. component’s security another clearance de- judge The DOHA administrative therefore conducting termination without further in- only the of Mr. Romero’s issue vestigation. Accordingly, the WHS- respect clearance. With originally that is- CAF—the issue, the administrative this latter DOHA Mr. Romero’s Secret clearance —re- sued judge applied adjudicative common ciprocally accepted the DIA-SAB’s guidelines and considered denying Mr. Romero’s eligibility relationship bаsed on Mr. Romero’s addition, In to SCI. WHS- stepson. evaluating After his wife and that Mr. Romero’s eligibility CAF stated conditions, the DOHA adminis- mitigating “for access to classified information and to found re- judge trative that position has occupy sensitive been re- lationship stepson pose contrast, voked” based on the DIA-SAB’s decision. unacceptable security risk. Thus, accepted denial found WHS-CAF 1376 petition revoked Mr. Rome- for review
of access judge’s initial decision. Id. clearance based on ro’s Secret final decision. SAB appealed to this cоurt. Cit- State, ing Hesse F.3d
C (Fed.Cir.2000), we acknowl- position Because Mr. Romero’s edged the MSPB not examine maintain a Secret underlying him to level merits of posi- removed from his ance determination. Romero we Accordingly, held that shortly tion after his Secret reject correct revoked. ance was argument that the revocation of securi- MSPB, appealed his removal to He ty retaliatory clearance was because this clearance had not arguing his Secret argument implicated the merits of the se- properly allegеd been revoked. curity clearance decision. Id. at 1330. We DoD had to due right pro- denied his also held the MSPB did not err in him provide cess because it did concluding the DoD’s removal Mr. *5 opportunity challenge to the WHS-CAF’s complied requirements Romero with the of I, reciprocal revocation. Romero 527 F.3d (1) 5 § 7513 U.S.C. because Mr. Romero argued He 1327. also that the revoca- provided notice his proposed re- tion of his Secret clearance invalid (2) moval, provided the agency notice of the because DIA-SAB had denied the fоr reasons the removal and under- the for to eligibility SCI. Id. further lying clearance, revocation of his that argued the revocation Secret (3) and an opportunity Mr. Romero had to retaliatory. clearance was Id. at 1329. respond the to removal. Id. at 1329. Not- judge The MSPB administrative af- however, ing, that the MSPB had not ad- agency’s firmed the action. Id. at 1327. dressed Mr. challenges Romero’s rejected judge The administrative Mr. procedures used to revoke his Secret secu- due process argument Romero’s because rity we remanded the issue to оpportunity he had the challenge to the the to be the first DIA-CAF’s final decision and because the (vacating instance. Id. at 1329-30 agency’s regulations do require op- not MSPB’s decision and for remanding portunity for of a reciprocal review accep- MSPB to determine “whether Mr. Romero of a Department tance can clearance revocation. show failed to judge Id. The administrative follow its and that any also held that failure error”). to do so resulted in harmful Mr. Romero’s Secret security clearance revoked, had been position re- MSPB, On to remand information, quired access to classified procedural objections: focused on two main agency’s removal of Mr. Romero (1) The DIA-SAB lacked the complied fully procedural with the require- revoke the Secret clearance it because was of 5 ments U.S.C. Explaining Id. WHS-CAF had issued the Secret that the MSPB could not review merits (2) clearance in the place; first underlying revocation, a clearance actually DIA-SAB had not revoked the judge the administrative rejected clearance, leaving Seсret no revocation for remaining Romero’s challenges because reciprocally Af- accept. WHS-CAF they required review the merits of the two-day ter a hearing, the MSPB adminis- his security revoke judge clearance. again trative affirmed the DoD’s Id. The full First, board denied Mr. Romero’s action. DIA- concluded
1377 not in discretion, otherwise or abuse revoke Mr. authority to had SAB law; without obtained accordance even security clearance Secret Romero’s rule, law, regu or required ini- procedures not though it was evi lation; by substantial unsuрported He also con- the clearance. tially issued Bd., Sys. Prot. v. Merit final decision Bennett dence. cluded (Fed.Cir.2011) (citing 1215, 1218 635 F.3d revoked Mr. in fact had 7703(c)). MSPB, our Like The administrative U.S.C. that involve that, although the removal actions review of reasoned judge security clearance the Se- or denial of reference revocation expressly SAB letter, procedures used reviewing its in the decision is limited clearance cret revocation of the the substance rather than discussion at 1327-29 almost ex- focused decision. opinion —which evi- (discussing сlearance—was Hesse the Secret clusively on 818, Se- 108 S.Ct. Egan, 484 U.S. Navy agreement dence (1988)). 98 L.Ed.2d clearance. The cret that the WHS-CAF found further nature of our the limited Recognizing adjudicate Mr. independently actions in- employment adverse review of determinations, security clearance volving DIA’s decision. following I in Romero remanded opinion this court’s judge conclud- Finally, the administrative purpose of for the limited the MSPB DoD had com- assuming the even ed of Mr. revocation determining whether the error, error any such procedural mitted cоmplied with Romero’s Secret *6 Mr. that He determined not harmful. was Romero procedures. internal DoD’s own have would clearance Romero’s appeal, Mr. On 1328-30. security risk of the light revoked been commit- that the Romero contends wife’s Hon- with Mr. associated by misapplying statutes legal error ted agent status as citizenship and duran for se- defining regulations and He further concluded power. en- and determinations curity clearance of the all had received Romero Mr. that speculation regarding in erroneous gaging § and 5 U.S.C. under process due final decision. of the DIA-SAB’s scope in 5 set forth “nearly all” of the protections DIA-SAB argues Specifically, 7532, removals provides for which U.S.C clear- revoke his Secret explicitly in the interest to the MSPB appeal without follows, Rome- according to Mr. ance. It security. national could not revoke ro, the WHS-CAF by reciprocal be- judge’s decision the Secret The administrative no final de- April was because there acceptance of the MSPB the decision came fur- accept. have followed. We This termination aрpeal 2010. if DIA-SAB had MSPB’s even the ther jurisdiction argues to review 1295(a)(9). clearance, the revoked his Secret in fact under 28 decision U.S.C. authority to do so because
DIA lacked Discussion DIA rather than the the WHS the Secret issued component of the a decision we When review main- place. in the first Mr. ance stan MSPB, a deferential do so under we permit regulations DoD tains that by statute. prescribed as dard the secu- initially granted unless affirmed decision must MSPB’s to revoke it.1 rity clearance capricious, an arbitrary, to be is found it alleged comply fаilure the DoD’s based on arguments several makes Mr. Romero also responds Mr. A government Romero did not meet his burden of show- scope We first consider the ing DoD to follow proce- that the failed its DIA-SAB final decision. The MSPB dures MSPB’s found that the DIA-SAB did revoke Mr. supported by to that substantial effect Romero’s Secret In respect With to Mr. Romero’s evidence. deed, decision, initial DIA-CAF DIA claim that the lacked the decision, DIA-CAF final adjudicate gov- his Secret administrative recommendation all regulations ernment counters that DoD squarely Romero’s acсess plainly components DoD like the permit (i.e., to “collateral classified information” designate components other WHS to clearance) his Secret and concluded that pro- revoke clearances and do not Mr. Romero’s Secret clearance should be hibit designees from clearances light revoked the foreign influence originally designating issued com- concerns raised his wife’s status as an ponent. Pointing departmental to several contrast, agent power. of a foreign 5200.2-R, interpreting memoranda explicitly did not reference Mr. government argues denial further para Romero’s Secret clearance in its two automatically of SCI access acts as a revo- graph decision. Because last this cation of collateral clearances such as Se- controlling, is Mr. Romero contends that cret Finally, government his Secret never adjudicative notes that common the DIA. We disagree. apply to SCI both above, As discussed in detail the DOHA government ances. The submits that the judge acknowledged that DIA was to apply these сommon having an family member that standards in reviewing eligi- is not U.S. citizen anis automatic bar to bility for access to classified information SCI access under DCID The DOHA 6/4. once he was nominated SCI access. went on to consider government contends that standard, which ap- *7 investigation access a “foreign identified plies to both SCI access and securi- influence” risk that could clearances. See DoD ty 5200.2-R, App. 8. mitigated because of Mr. wife’s The administrative judge concluded agent status as an a foreign power. that Mr. relationship with unmitigated This foreign con- influence stepson present unacceptable did not cern, according government, dis- security risk but Mr. Romero’s rela- qualified Mr. Romero from eligibility both tionship with wife present such an for SCI access and collateral clearances unmitigated Accordingly, risk. the DOHA such as a Secret clearance. judge specifically recom- Accordingly, central issues on appeal mended that the DIA-CAF’s decision to are whether the DIA-SAB made a final revoke Mr. Romero’s Secret clearance be determination regarding Romero’s Se- sustained. cret clearance and whether the DIA than The first paragraph rather had WHS the author- the DIA-SAB’s ity to revoke Mr. Romero’s Secret clear- decision indicated Mr. Romero did not ance. We take each in turn. issue meet “the minimum personnel security procedural requirements finding
with the
complied
of 5 U.S.C.
did not err
DoD had
§
arguments
unavailing
7513. These
are
requirements
be-
with the
of 7513. Romero
expressly
cause Romero I
held that the MSPB
Mr. only Romero contends that this result this regulation applies military is to per unjust different sonnel because standards to civilians. The MSPB’s provides, pertinent by Cl. eligible Section 1.2.3. in mined to be for clearance anoth- part, as follows: expressly prohibited. er is In- security vestigations Army, Navy, of DoD Personnel clearances mili- conducted denied, tary personnel granted, shall be pеrsonnel by Air Force DIS will be returned only by designated authority the only parent subject Service of the for Issuance, parent Military Department. adjudication regardless of source reissuance, personnel denial revocation of a request. original any security by Component clearance DoD added.) (Emphasis concerning personnel who have been deter- plain supported consistent and the Secret clearance is
interpretation is SCI by assum- We C7.1.2.3. Even substantial evidence. further con- language section properly civilian clude that re- ing applies that section C7.1.2.3 WHS-CAF Romero, Mr. Mr. voked Romero’s Secret as contended personnel, reciprocally accepting concluded that section C7.1.2.3 DIA-SAB’s res- the MSPB permits components desig- DoD olution matter. Because Mr. Rome- plainly establishing not met in components nate other to revoke ro has his burden Indeed, regu- DoD follow the administrative failed to its own in supports record that the WHS can dele- lations clearance, adjudicat- gate the DIA in we do further to take lead consider ing procedural deficiency issue when infor- whether such re- adversely mation that affects that sulted harmful error. Romero during SCI ac- at 1330 (remanding clearance arises the DIA’s F.3d & n. 2. for the cess The MSPB’s conclu- determination. determine whether show sion that the DIA-CAF was authorized to could that the DoD failed to follow procedural revoke Mr. Romero’s clearance is its and that the de- error). supported ficiency correct as a matter law and harmful constituted by substantial evidence. Conclusion argues Romero further judgment The of MSPB is affirmed. independently
WHS-CAF was adjudicate for a AFFIRMED. after DIA’s To
ance decision. DYK, Circuit Judge, concurring. extent that Mr. Romero suggests reciprocally accept WHS could not (“DoD”) of Defense clearance, DIA’s revocation regulations involved in case are confus- incompatible this contention is clarity ing though even would best serve Reg. preclude 5200.2-R C4.1.3.1. To government the interests of both the components duplicative engaging from employees. that, agree its I nonetheless adjudicative processes under the common regulations, under Defense Intelli- guidelines, expressly section C4.1.3.1 (“DIA”) gence Agency had the authority to “[ajdjudicative states that determinations that, act on Romero’s Secret clearance and (in- ... access to classified information if it revoked the the Washington SCI) cluding pertaining those made (“WHS”) Headquarters Service give could designated DoD authorities will mutual- reciprocal effect action. ques- to this ly and all reciprocally accepted by DoD tion then becomes whether DIA ac- took Components requiring without additional tion revoke the Secret clearance. Thus, investigatiоn.” requir- than rather panel majority concludes even ing independent adjudication by Security the DIA though Appeals Board’s WHS, section C4.1.3.1 directs the WHS to (“DIA-SAB”) decision addressed reciprocally accept the DIA’s determina- access, the paragraph the deci- *9 denying tion SCI access and sion should be read to reference Secret in- Secret clearance without additional clearance because the denial SCI access vestigation. already had been in first sum, we conclude that I paragraph. given am fact dubious procedures. not violate its internal The that the DIA-SAB decision makes ref- no MSPB’s determination that erence Secret clearance but to SCI however, view, reached In my SAB’s decision both access to access. the revoca- his Secret The deci- depend clearance did the Secret tion of potential secu- action DIA-SAB. sion stated because explicit on risks, “eligibility for access rity deny an em- revoke The eligi- denied and [was] [his] to SCI made security clearance is ployee’s information bility to collatеral classified Adjudica- a DoD Central first instance [immediately].” revoked effective [was] DIA Facility- this case the Central tion —in appeal, opted ap- (“DIA-CAF”). 47. On J.A. Facility Adjudication judge, who pear before the decision right appeal has a employee Appeals DIA-SAB sustain corresponding Security recommended to the ap- § DoD 5200.2-R C8.2.2.4. of Romero’s Board. the DIA-CAF’s revocation person- “a through conducted peal may be reviewing the clearance. After al before appearance [an recommendation, DIA-SAB af- AJ’s (“AJ”) or via written submission ]” of the DIA- the earlier decision firmed “stating Security Appeals Board to the Although the DIA-SAB did CAF. to revoke or why the [decision reasons reference the Secret clearance specifically over- should be deny clearance] appeal, it is clear that the in its decision opts to employee Id. Where the turned.” did not or vacate the reverse AJ, AJ must submit before appear result, As a earlier DIA-CAF decision. appro- “a recommendation written decision to revoke DIA-CAF’s whether [Security Appeals priate Board] stands, proper- and could to re- or overturn the [decision sustain reciprocal by the WHS. ly given be effect Id. deny clearance].” voke or words, the In other failure of Board Security Appeals AP13.1.5.5. explicitly discuss the Secret SAB a final written determi- will then “render not, view, my require does ance issue appeal “will conclude the nation” which I accord- the revocation set aside. appeal, process.” Id. AP13.1.6. On by the with the reached ingly agree result burden; thus, unless the has the employee majority. panel Adjudication Central earlier decision Security Ap- Facility is overturned Board, it stands.
peals
Here, the DIA-CAF the decision from to SCI and Romero’s access
clearly denied