Appealed from: Merit Systems Protection Board.
Before: Archer, Chief Judge, Nies*fn* and Newman, Circuit Judges. Opinion for the court filed by Circuit Judge Nies. Dissenting opinion filed by Circuit Judge Newman.
Petitioner Lula B. Drumheller ("Drumheller") seeks review of a final decision of the Merit Systems Protection Board ("Board"), Docket No. PH0752910279-B-1 (June 17, 1993), affirming her removal from a civilian position in the Department of the Army. Following the revocation of her security clearance and her eligibility for access to special compartmented information (collectively referred to as "security clearance"), Drumheller accepted retirement for disability in lieu of her removal.
In prior proceedings, the Board held that it had jurisdiction to review her appeal because Drumheller was entitled to retire only if her removal was proper. Thus, the issues on appeal relate to the revocation of her security clearance, which is the only reason for her removal. More particularly, the issue is whether the Army denied her due process or violated applicable regulations in revoking her clearance.
For the reasons set forth below, we affirm.
As a secretary with the Army Foreign Science and Technology Center ("FSTC"), Drumheller was required to maintain a security clearance and eligibility for access to classified information. On November 7, 1989, pursuant to the provisions of Army Regulation ("AR") 380-67, Bette Lyons, the Chief of the Adjudications Division of the U.S. Army Central Personnel Security Clearance Facility ("CCF"), acting for the Commander of the FSTC, notified Drumheller of the Army's intent ("LOI") to revoke her security clearance.
The LOI recounts the following events and sets out the grounds for revocation. Drumheller has had a long history of psychiatric illness. In March of 1986, Drumheller's security clearance had been suspended upon her hospitalization for psychiatric symptomatology. Contrary to her physician's directions, she had discontinued taking daily prescribed Lithium prior to this hospitalization because she did not think she needed it. At the time of her admission to the hospital, her mental status had deteriorated significantly. Her supervisor, Colonel Hope, nevertheless recommended her continued employment because he believed that the experience would convince her of the wisdom of remaining on prescribed medication in order to retain a position at the Center. A favorable determination was made and her clearance was restored in July 1986.
On August 23, 1989, Drumheller was hospitalized again for recurrent manic symptoms and questionable medication compliance. Her symptoms included hyperactivity, decreased need for sleep, changes in appetite, racing thought, increased activity at home and there was a question as to whether she was beginning to develop ideas of having special powers. Initially, she required security and restraint. Her treatment, prescribed prior to admission, had included maintenance therapy of Lithium carbonate and Tegretol. Drumheller admitted she had discontinued the Tegretol and had refused to take it in the future. The LOI concluded:
Your periodic refusal to take your prescribed medication, which results in unacceptable behavior due to your mental disorder affects your judgment and reliability and is considered incompatible with the standards established for access to SCI and the possession of a security clearance.
In addition to outlining the reasons for the proposed revocation, the LOI also explained the proposed action, and offered Drumheller a chance to reply, as required by AR 380-67.
On January 10, 1990, Drumheller, personally and through counsel, responded to the LOI. She did not challenge the facts of her illness and the events set out in the LOI but disagreed with the Conclusion. She provided the Army with the results of a psychiatric evaluation conducted by a new doctor of her choice, Dr. Robert Brown, Jr., who stated that in his expert opinion Mrs. Drumheller's illness was responsive to medication, that she had been and was willing to continue taking his prescribed medication and that, therefore, she posed no security threat. This time Colonel Hope recommended that her clearance be revoked. He stated in his written recommendation that her assurances that she "intended" to remain on the medication now prescribed were not an acceptable solution to him because she had quit her medication knowing the effect it could have on her career. He also noted that her physician stated that she had to remain under the care of a "qualified" physician whom she "will grow to trust." Colonel Hope stated further that he did not feel that national security should depend on the competency of her private physician.
A group of Army psychiatrists reviewed the record and Drumheller's response, and on March 7, 1990, concluded that Drumheller's conduct in discontinuing her medication "reflected a defect in judgment, reliability and stability." A one paragraph memorandum for the record summarized the meeting. About one week later, Commander Fullerton of the CCF notified Drumheller of his decision to revoke her security clearance. Noting her response, his letter indicated that, although the prognosis for recovery was "good", her erratic behavior suggested the need for revocation for a period of approximately two years to ensure that there was no recurrence of her past problems. This letter also advised Drumheller that she might request reconsideration with the submission of additional mitigating information in her possession, or that she could appeal the revocation on the present record to a higher headquarters. On March 23, 1990, Drumheller filed an Freedom of Information Act request and discovered the March 7, 1990, memorandum.
On April 9, 1990, the FSTC gave Drumheller 30 days notice of her proposed removal because of her loss of security clearance. Further, the agency stated that it did "not have ANY nonsensitive positions to which [she] could be reassigned in lieu of removal." In response, Drumheller argued that her security clearance had not been validly revoked because the system failed to provide minimum procedural due process. Drumheller argued she should have been given a hearing, that there was no medical evidence to support revocation except for the March 7, 1990, memorandum, that she should have the opportunity to cross examine the medical experts on whom the agency relied, and have more than "limited" rebuttal. Further, she challenged the need for a security clearance for her position in the agency. Finally, she demanded a transfer within the Department of the Army and reasonable accommodation for her physical and mental problems and challenged the sufficiency of the Department's search for another position.
The Army stayed further action on Drumheller's removal pending a decision on her May 14, 1990, request for reconsideration of the security clearance revocation. In that request, Drumheller discussed her case, provided what she believed to be mitigating information, and addressed the memorandum (a copy of which she had obtained) documenting the March 7, 1990, meeting.
On June 13, 1990, the Army convened a meeting to reconsider Drumheller's case. A memorandum documenting this meeting stated that one of the attendees, an Army psychiatrist, concluded that "subject's condition [did] represent a potential defect in her judgment, stability and reliability." On June 22, 1990, the Army notified Drumheller that on reconsideration, the revocation of her security clearance had been reaffirmed. Drumheller obtained the June 13 memorandum pursuant to a subsequent FOIA request.
Drumheller then appealed to the Army's Headquarters on August 15, 1990. In her appeal papers, Drumheller charged that the memoranda of agency meetings were medical evidence which she had had no opportunity to rebut. The Army Headquarters upheld the revocation, finding "that CCF did not err in reaching its decision."
After the final decision on her security clearance, Drumheller's removal was effected in November 1990.*fn1 Drumheller appealed her termination of employment to the MSPB which affirmed. The AJ refused to consider the merits of an agency's security clearance decision. With respect to the charge of procedural flaws, he rejected Drumheller's argument that the agency violated Army Regulation 380-67 and denied her due process by consulting with several doctors concerning her mental condition without giving her the opportunity to cross-examine them.*fn2 Even assuming error, he held it to be harmless under 5 U.S.C. § 7701(c)(2)(A). She had made no ...