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DoD Employee Gets a Second Shot With MSPB on Removal Appeal

By Susan Smith

Friday, June 13, 2008

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An auditor with the Inspector General for the Department of Defense, fired for losing his security clearance, has won a reprieve from the appeals court. (Romero v. Department of Defense, C.A.F.C. No. 2007-3322, 6/2/08)

Romero's position had required a Secret clearance. Then, Romero's boss asked that Romero be cleared for SCI (Sensitive Compartmented Information) so that he could do audit work at the National Security Agency. He was denied this clearance upgrade and the denial was affirmed following an administrative hearing within DOD. At this point the agency revoked Romero's clearance and removed him as a result. (Opinion pp. 2-5)

Romero took his case to the Merit Systems Protection Board where he argued he was denied due process when the agency revoked his existing clearance based on the agency's refusal to upgrade his clearance to SCI. The MSPB Administrative Judge found that the clearance had been revoked, that Romero's job required access to SCI and to classified information, and that DOD had met the requirements of the law in denying his clearance. In short, the MSPB sustained Romero's removal. (pp. 4-5)

Romero then took his case to the Federal Circuit Court of Appeals. In its decision, the court points out a removal based on denial of a security clearance "does not require the agency to prove that the reasons for its decision…are supported by a preponderance of evidence." (p. 5) However, since the MSPB did not consider whether DOD had followed its own regulations in revoking Romero's clearance, the court vacated the Board's decision and remanded the case "for the Board to determine whether Mr. Romero can show that the Department failed to follow its procedures and that any failure to do so resulted in harmful error." (p. 11)

The effect of this decision is to give Romero another shot at overturning his removal when he goes back before the MSPB.

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Readers' Comments

  • I'm wondering at the brief statement that the court said about maybe the dept., then MSPB, didn't follow it's own rules. That happens a lot in government. Rules get overlooked to get people to do extra work, when they probably should have hired more people to do it. Ever looking at the $ line the...
    Posted: June 16, 2008 8:39 AM
  • This article leaves too many vital questions unanswered about what led to Romero’s failure to obtain the higher level clearance, whether there was an official change in duties to require the new clearance, if Romero appealed the denial to the agency granting the clearance and if his agency could hav...
    Posted: June 13, 2008 10:37 AM
  • This article should have been entitled MSPB's failure to make basic findings of fact results in it having to do the work it should have done in the first place. In addition, while the decision does give him another opportunity to overturn his removal, the article should mention that the issue on ...
    Posted: June 13, 2008 10:07 AM

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