DoD Employee Gets a Second Shot With MSPB on Removal Appeal

An auditor with the Inspector General for DoD was fired after losing his security clearance. His removal was upheld by the MSPB but a federal court gives him a second shot at overturning his removal.

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 The MSPB Administrative Judge found that the clearance had been revoked, that Romero’s job required access to SCI and to classified information, and that DOD had met the requirements of the law in denying his clearance.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.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.