*1 544 awarding priority inven- board consisting “X” sion of the as
application which disclosed is reversed. court held that the tion to Benedict halogen atom.” The of “a appli- in the British halogen “a atom” phrase REVERSED description of the iodo not a cation was pur- for species of the second count bromo 112, stating § that “Godt-
poses of 35 U.S.C. theory of law invoke one fredsen can not (i.e. chemistry that bromo and iodo
based ...) and, from chloro patentably distinct are [the count]
having obtained a bifurcation (i.e. contrary theory theory, urge a
on that comprises exemplified by halogen chloro Petitioner, BROCKMANN, Stephen species) in S. of the bromo iodo disclosure species.” priority as to those order to obtain 1417, USPQ2d at
Id. 1268-69. DEPARTMENT OF the AIR here, rely Similarly on one Benedict cannot FORCE, Respondent. (that “long” chain com theory “short” and distinct) in patentably order pounds are No. 92-3628. should not that certain of his claims establish count, urge an correspond to the and then Appeals, Court of United States (that “n,” “A” in theory the value of other Federal Circuit. critical) count, purposes of not is June establishing conception of the count. Bene Technologies Corp. v. dict’s reliance on Water
Calco, Ltd., USPQ2d (Fed.Cir.), denied, cert. L.Ed.2d argu that his proposition
for the inconsistent did “are not relevant since Benedict
ments any litigation from them” benefit obtain fact obtain Benedict did in unpersuasive. argument that from his initial short benefit long compounds patentably chain granted
distinct inventions when EIC designate motion to preliminary
Benedict’s corresponding claims as not
certain of his
the count. that Bene- conclude as a matter of law
We subject prove conception
dict failed by preponderant the counts evi-
matter of filing prior to Bosies’ effective date.4
dence of our that there was determination view conception,
no
we need not address the issue
Oka,
1,n.
diligence.
See
USPQ2d at 1171 n. 1.
CONCLUSION Benedict failed establish con-
Because
ception of the matter the counts date,
prior filing the deci- to Bosies’ effective respect priority incorporate to count 1 resolves the issue 2 and 3 the com- Because counts respect pounds priority with to counts 2 and 3 as well. of count determination of *2 Goraleski, GoralesM, Grandjean & Carl G. unsubstantiated accusations three times in OH, Dayton, argued petitioner. past. for Brash, USAF, Major Atty., F. Trial David Air Force notified Brockmann of Legal Agency, Arlington,
Air Force Services its intent security to revoke his clearance on VA, argued respondent. With him on the 5, 1991, April citing “conduct and behavior Nivens, USAF, brief was Lt. Col Norman F. which regarding your judg- raises concerns Branch, Chief, Air Civilian Personnel Force reliability, your ment and undergo refusal to Legal Agency. representing Services Also requested command medical evaluation to Oliver, respondent Mary K. were William behavior, your your evaluate refusal to Cohen, Dept, Mitehelson and David M. 2587, sign AF Security Form Termination Justice. Statement.” Mr. responded by Brockmann submitting signed Security Termination NIES,* NEWMAN, PLAGER, Before Statement, statement, personal a pro- and a Judges. Circuit psychological fessional evaluation obtained NIES, Judge. private Circuit from a firm. The latter document provided possible two reasons for Mr. Brock- Stephen appeals S. Brockmann from the police mann’s department: statements to the 10, 1992, 424, August 54 M.S.P.R. decision of actually either he was under or surveillance (MSPB Systems the Merit Protection Board he suffered from a persecutory paranoid de- Board), Docket No. CH-0752-92-0305-I-1 Unpersuaded disorder. per- lusional denying petition his for review of his removal statement, sonal and further concerned over position from a civilian in the reliability Mr. Brockmann’s due to the evalu- the Air Force. We affirm the decision of the ation, the Air Force notified Mr. Brockmann Board. that his clearance was revoked effective Au- gust 1991. I. Mr. Brockmann worked for the Air Force Because position Mr. Brockmann’s re- budget analyst, position as a GS-0560-12 a quired clearance, security a propos- a notice requiring security January a clearance. On his removal issued on October 1991. complaint Mr. Brockmann filed a agreed The Air postpone Force its deci- police department making with his local sev- regarding sion his removal until Mr. Brock- allegations concerning employer. eral his completed mann agency appeal an internal agents Mr. Brockmann contended that security his Following clearance revocation. surreptitiously Air attempted Force had appeal, the denial of this the Air Force re- home, enter listening that concealed de- moved position Mr. Brockmann from his there,
vices had been installed and that his January light observations of beams of his windows appealed Mr. Brockmann then his removal betrayed the use of laser surveillance de- sought Brockmann MSPB. Mr. vices. Mr. Brockmann also informed the have the Board police review the merits of the attempted that he had to counter the security April alleged withdrawal. an by placing laser surveillance alumi- 29, 1992, decision, Judge num foil in Administrative his home’s windows and base- (AJ) the Air Following police boards. sustained Force’s termination. notification to the Force, Citing Department Navy Egan, Air Mr. Brockmann’s access to classi- fied materials and restricted areas was tem- U.S. porarily suspended pending reinvestigation the AJ held that no the Board had eligibility. authority Contem- the merits of an poraneously, directly Brockmann ac- decision to revoke a clearance. The colleagues tampering satisfy cused several only with AJ held that the MSPB could system computer procedural steps satisfying office in in his order to itself that certain similar, make him look bad. had He minimal due had been followed. * Judge position Judge Circuit Helen W. Nies vacated the of Chief on March arguments, this case Broekmann’s to Mr. stipulation upon Mr. Brockmann’s
Based
application of
straightforward
agency’s presents a
in advance
“he was notified
per-
clearance,
completed
analysis
The AJ
Egan.
to revoke the
intent
entirety, on the basis
pro-
by Egan in its
reasons for the
mitted
set forth the
the notice
*3
revocation,
given
stipulations
the
and ad-
that he
Brockmann’s own
and
was
of Mr.
posed
notice,” the AJ
ar-
respond to the
Brockmann continues to
opportunity to
Mr.
missions.
aspects
Brockmann had re-
that Mr.
of the revocation
gue
was satisfied
the substantive
clearance,
The full Board
process.
admitting that
ceived minimal due
while
of his
review,
petition for
required proce-
Brockmann’s
denied Mr.
the
Air Force followed
the
appeal
this
followed.
Egan,
admissions end
these
dures. Under
the
inquiry.
Lyles v.
the
See
II.
(Fed.Cir.1989).
1581, 1583
Army, 864 F.2d
819,
518,
at
at
108 S.Ct.
Egan,
484 U.S.
argues that a
Brockmann nevertheless
the extent to
Supreme
considered
the
Court
Supreme
subsequent to
Court
decision
Board,
reviewing an adverse
the
while
which
Doe,
592, 108
Egan,
486 U.S.
S.Ct.
Chapter 75 of the Civil Service
action under
(1988),
judi
2047,
supports
case. The assertions made Brock-
mann do not
rise
the level of colorable
constitutional claims that the
contem-
Court
The Court
in Navy Egan
held
that when
plated in Webster v. Doe. Mr. Brockmann’s
procedural
process is
accorded the em-
constitutional claims which
mention
ployee by
agency,
the MSPB does not
First, Fourth, and Fifth
Amendments
have authority to review the substantive
stated,
vaguely
undeveloped,
unsupport-
merits of
deny
decision to
secu-
argument
ed. His
on this
rity
employee.
The MSPB’s
*4
pretextual
adverse action was
because of his
authority
process
is limited to the
preference
argument
known sexual
that
—the
agency,
before the
as is the
to the
caught the
in
Court’s attention
v.
Federal Circuit. Mr. Broekmann does not
appears
peripherally
so
in
Brock-
Mr.
Doe —
dispute that his removal
inwas
accordance
(in parentheses
brief
with
mann’s
no discus-
agency procedures,
that he received no-
sion)
appears
afterthought.
it
to
an
that
be
charges,
tice of certain
and that he had an
He
offered no
govern-
further
rebuttal to the
opportunity
respond.
to
The MSPB deter-
argument
ment’s
that no colorable claim of mined that
procedural
he received
pro-
right
of a
freedom
of
agency;
cess at the
I agree that
agency
the
speech
of
or association was
Mr.
requirements
met the
Navy
Egan.
v.
Hill v.
Broekmann.
the
Cf.
Navy
In
Egan
v.
employee
the
raised no
Force,
(Fed.Cir.1987) (dis-
Air
AFFIRMED.
majority’s endorsement the refusal of the NEWMAN, Judge, PAULINE Circuit any MSPB to consider constitutional issue dissenting. other than process”, the “minimal due as the it, Navy Egan. MSPB calls v. ruling Supreme in De Court partment Navy Egan, Mr. Broekmann asserted before the MSPB 108 S.Ct. agency’s security bars that the revocation of his judicial review, as well as review pretextual, clearance was and was based on Systems Board, Merit sex, Protection preference, age, his sexual and handicap- agency’s grounds condition, ping of Mr. withdrawal and on reprisal. whistleblower security when, First, Fourth, Fifth, Brockmann’s as in He cited the and Ninth Navy Egan, grounds raise colorable no Amendments. The MSPB refused to consid- however, ease, any constitutional issue. In this er of the constitutional claims because ruling they MSPB’s constitutional issues “are intertwined with the deci- can not security be considered when clear sion to revoke his clearance.” Thus involved, ance if is even the constitutional the MSPB no received evidence made no colorable, claim deprived analysis Mr. Broekmann of Mr. Brockmann’s constitutional issues, opportunity develop Although panel majority these claims. now Act from review Procedure Mr. Administrative argument that government’s accepts the Act, as the Civil claims are under the Service not Brockmann’s constitutional discussing opportuni- majority colorable, panel had no holds. Brockmann inherently discretionary” na proceeding in the claims develop these “sensitive ty to know au do not national We before the MSPB. ture of executive’s a constitutional at Egan, 484 thority, Navy could have established U.S. he afforded. opportunity been had the not eliminate claim did Court employ for federal protection agen that certain established ees. It is well on their merits unreviewable cy are actions constitutional issues The MSPB held committed them Congress has review an because can not be considered — discretion, Vigil, Lincoln action based on denial employment adverse L.Ed.2d -, -, employee’s clear- revocation an irregularities Procedural these constitu- agree that I can not ance. colorable, exceptions claims, violations if are less and constitutional tional rule, confirmed Webster of the Civil Service Re- as the Court the review employee did Act than a claim v. Doe. form Actions taken un- process. receive due *5 v. and Webster Doe The difference between Act are Reform not the Civil Service der assertion of Egan from the Navy v. flowed protection the thereby removed from claims other than constitutional charged with re- The tribunals Constitution.’ Doe, assert- whereas none was in v. Webster the under Civil Service view of actions taken did not Navy Egan. The Court in v. ed handicapped when the Act are not Reform violations distinguish constitutional between dimension. constitutional issue is of that were and those that were reviewable raise the issue of an Navy Egan v. did not in Egan, the Court Navy in not. As v. security pretextual revocation asserted may not that courts v. Doe held petitioned the Egan had clearance. Mr. security- merits review the substantive his concealed crimi- to decide whether MSPB However, in personnel actions. Web- based Navy’s the refusal past nal warranted that colorable held ster v. Doe the Court contrast, security In him clearance. grant arising the termi- claims from constitutional the CIA’s withdrawal Doe asserted that were not insulat- employment nation of Doe’s upon his was based scrutiny ground of judicial on the ed from preference. The of his sexual disclosure security. holding was made national This Navy Egan held that the MSPB’s in Court statutory grant to the Director despite the pro- authority limited to whether review was in Intelligence of broad discretion Central been met process had cedural due matters. employment recog- in v. Doe agency. The Court Webster grant of discretion to the that
nized
security matters
employer
national
federal
in
does not make unreviewable
constitutional
government argues that
rights.
be
process can not
claims other than due
an adverse
by the
when
reviewed
Navy
Egan and Webster v. Doe
clear-
employment action based
by simply
are not differentiated
decisions
through
appeal proce-
appealed
ance is
Security Act1
distinguishing
National
I
Reform Act.
do
Act,
Civil Service
dures
as the
from the Civil Service
appeal
statutory path of
that this
by distinguish-
not believe
suggests; or
government now
can,
to,
that
those
mean
intended
issues under the was
of constitutional
review
employ-
employment
any
officer or
grants
nate the
Security
Act
Director
1. The National
Doe,
deference”,
"extraordinary
Agency
shall deem such
Webster v.
he
ee of the
whenever
employment
necessary
U.S. at
in the inter-
S.Ct.
or advisable
termination
termination decisions:
ests of the United States....
403(c).
§
...
the Director Cen-
50 U.S.C.
discretion,
may,
Intelligence
termi-
tral
employees
subject
convincing”
federal
who are
to the
of congressional
evidence
in-
pro-
Reform Act are denied
Civil Service
tent to foreclose
Weinberger
such review.
Constitution,
tection of the
while federal em- Salfi,
U.S.
subject
Security
ployees
to the National
Act
It if would be anomalous indeed a federal Before the employee was enactment of the who terminated violation of Civil Service rights Reform Act a permitted employee was federal had alterna- Act, despite Security paths appeal tive the National employment wherein adverse personnel consigned Fausto, actions are Di- actions. United States v. discretion, rector’s but not under the Civil
Service Reform Act with its elaborate em- the Court held that the Civil Service ployee safeguards. provides I can discern no Reform Act such now path the exclusive design employ- intent of the federal of redress for most executive employ- branch agency ment An laws. does not have ees. It can discre- Congress be assumed that Constitution, Congress enacting tion to violate the the Civil Service Reform Act in- can no upon more confer such discretion an tended to eliminate access of these executive agency than it can leg- employees enact unconstitutional branch protection islation. Constitution when faced with an adverse em- ployment action.
In Navy
Egan
the Court determined
clearance matters are commit
It can not be assumed
Congress
in-
discretion,
ted to
pretextual
and therefore are
tended that a
termination of secu-
rity
unreviewable on
from an adverse ac
violation of constitutional
tion
rights,
to the Civil
ensuing
Service Reform Act.
employ-
termination of
*6
However,
ment,
presence
discretionary
would become insulated from review
agency
precludes
action no more
obligatory
review of because of the
appeal to the Merit
procedural
irregularities
Systems
and constitutional
judicial
Protection Board before
re-
Indeed,
violations under the Civil Service Reform Act view can be had.
Court Web-
than it does under the Administrative Proce
ster v. Doe referred to “the ‘serious constitu-
Sanders,
dure Act. See
question’
430
tional
U.S.
that would
if
arise
a federal
Califano
99, 109,
97 S.Ct.
nied, constitution a colorable is claim] (1987); Department Hambsch Service, without to determine 796 al claim is difficult States Secret Treasury, United record”, re travel); (Fed.Cir.1986) complete administrative (right to Di F.2d determination); Boettcher manding for Transportation, such Masso (9th HHS, (self-in F.2d 719 Cir. (Fed.Cir.1984) Secretary FAA, 735 F.2d 1985) (“Determining whether Boettcher’s crimination). necessarily colorable claim is Act nor the Civil Neither Service merits.”); Koerpel v. of its involves a review government’s Egan supports the Navy v. Cir.1986) (“we (10th Heckler, termi- employee is if a federal position that of the merits is neces agree that a review rights of constitutional in violation nated is color- a claim sary to whether determine involved, the tri- security clearance is when able.”) yet has not had this Broekmann Mr. by with review charged statute bunals hearing on the merits. the con- not consider employment action can determining violation. way of on stitutional is no There Brockmann’s constitu- record colorable, claims are tional them, and no record was refused to entertain make that hard cases is an old saw There developed. govern- permitted to be majority much of panel makes law. The bad that no colorable claim argument ment’s by the recited unsympathetic facts certain right was of a constitutional although accordance government, order, for is thus out of Broekmann not before Egan the facts are us. Navy v. entirely that issue were facts relevant to us, it Further, the non-record before on record the MSPB. from the excluded argue that Mr. Brock- possible to indeed acceptance of the majority’s casual panel are not color- constitutional claims mann’s merits is on its government’s argument First, claims mention His able. order, for there is no record equally out of Fourth, vaguely Fifth Amendments majority could decide panel wheth- which stated, unsupported. His undeveloped, and claim was made. er a colorable constitutional pretex- adverse action was argument that the can establish a con- Whether Mr. Broekmann prefer- sexual of his known tual because *7 on the promi- not turn stitutional claim does caught the Court’s argument that ence—the appears claim brief in which the nence appears periph- attention Doe — for the stage proceedings, at brief, parenthe- erally in Mr. Brockmann’s findings nor conclusions made neither MSPB He offered no rebut- with no discussion. ses issue, on the precluding its review on the that no government’s argument tal merits. of a constitutional claim of colorable speech or association was right freedom of held, is, beyond the If it as the However, we do not know whether made.2 any jurisdiction to consider of the MSPB they really as can one-sided the issues as in the claim raised context appear. be clearance, then it is revocation decide, authority of this court any beyond the if it basis in A claim is colorable has record, such hearing and a Parole without a Myers v. States or fact. United law Cir.1987) (“A (9th colorable. Hill Commn., claim was F.2d Cf. Force, F.2d the Air factually unsup it is is not colorable if claim (Federal (Fed.Cir.1986) both”). 1469, 1470-71 Circuit legally unsupported, ported, prima a case will determine whether frequently re a claim is colorable Whether facie MSPB, See, made before e.g., discrimination was finding of Callis v. quires the facts. only findings by the Federal Circuit is not panel majority these comments The moved has 2. findings deprives opinion, adopting highly prejudicial, it improper them as the but for into its record, However, hearing, any hearing a a the court. absent whatsoever. Mr. Broekmann of MSPB, by findings, mak- decision transferring before the case to the district Mr. Brockmann. safeguards con- court). firmed in Webster v. Doe for involving actions respected clearance must be in ac- tions committed to the MSPB and this court. panel majority has sustained the employees subject For federal to the Civil ruling MSPB’s that constitutional claims will Act, judicial Service Reform review is re- not be considered when clearance is quired statutory path to take the that starts I respectfully involved. dissent. Fausto, with the MSPB. See at 454-55, 108 (limiting 677-78
paths employees available to under Act).
the Civil Service Fausto relat-
ed to a concern earlier raised Justice dissenting grant
White in from a refusal to
certiorari:
In this case the United States Court of
Appeals for the District of Columbia Cir- comprehensive
cuit held remedial In re Francis S. GURLEY. by Congress scheme established in the No. 94-1025. (CSRA) Civil Service Reform Act of 1978 congressional preclude indicates a intent to United Appeals, States Court of judicial review under the Administrative Federal Circuit. Procedure Act of claims that could have June administratively been reviewed under the eight Ap- CSRA. While other Courts of
peals conclusion, have reached a similar Appeals United States Court of for the
First contrary. Circuit has held to the I grant
would certiorari to resolve this con-
flict.
Gray Mgt., Personnel Office of (1986)
(citations omitted). Although it is unclear resolved, fully
whether this conflict has been regional
almost all of the circuits have held path MSPB is the exclusive of re
view, even constitutional claims. Com Mathis,
pare Spagnola
(D.C.Cir.1988) (en banc) (‘While we decline
to extend Bivens remedies to Hubbard and
Spagnola, suggest we do not that the CSRA
precludes jurisdiction the exercise of federal
over the constitutional claims of federal em
ployees job applicants altogether.”) States,
Saul United 843 n. 27 (9th Cir.1991) (“The D.C. Circuit differs from by permitting
other circuits employ federal
ees to vindicate rights their constitutional
through against supervisors suits their
employing agencies injunctive relief, but damages.”)
not for sum, the MSPB was incorrect in refus-
ing to hear the constitutional claims raised