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Wilfredo Romero v. Department of Defense

October 3, 2011

WILFREDO ROMERO, PETITIONER,
v.
DEPARTMENT OF DEFENSE, RESPONDENT.



Petition for review of the Merit Systems Protection Board in consolidated case nos. DC0752070328-M-3 and DC0752060136-M-2.

The opinion of the court was delivered by: Prost, Circuit Judge.

Before BRYSON, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST.

Concurring opinion filed by Circuit Judge DYK.

Wilfredo Romero was employed as an auditor at the Department of Defense ("DoD"). In December 2006, Mr. Romero was removed from his position for failing to maintain his Secret level security clearance. He appealed the removal action to the Merit Systems Protection Board ("MSPB"). The MSPB affirmed the action. This court vacated the MSPB's decision and remanded for the MSPB to determine whether Mr. Romero could show harmful error resulting from the DoD's failure to follow its own procedures. See Romero v. Dep't of Defense, 527 F.3d 1324 (Fed. Cir. 2008) ("Romero I"). On remand, the MSPB again affirmed the removal. Because we agree that the DoD complied with its internal procedures in revoking Mr. Romero's security clearance, we affirm.

BACKGROUND

At issue is whether the DoD properly revoked Mr. Romero's Secret security clearance when it denied him a different kind of clearance, namely access to Sensitive Compartmented Information ("SCI").

A

The relevant events began in 2004, when Mr. Romero's supervisor asked the Defense Intelligence Agency Central Adjudication Facility ("DIA-CAF") to grant Mr. Romero clearance to obtain access to SCI. Mr. Romero had been working as an auditor in the agency's Office of Inspector General since 1999. This position required him to maintain a Secret level security clearance, which he obtained in 1999 from the Washington Headquarters Service Central Adjudication Facility ("WHS-CAF"). After receiving his Secret security clearance but before requesting clearance for access to SCI, Mr. Romero married a Honduran national. At the time Mr. Romero sought access to SCI, his wife was an employee of the Honduran Embassy.

The eligibility standards for SCI access and Secret clearances are not identical, although there are common guidelines and procedures that do apply to both types of clearances. See Exec. Order 12968; DoD 5200.R-2, App. 8; Director of Central Intelligence Agency Directive ("DCID") 6/4. Under these common adjudicative guidelines, an investigating agency must consider thirteen factors in determining whether granting a security clearance is consistent with interests of national security. Each of these factors applies regardless of whether an employee seeks a Secret clearance or SCI access. Of particular relevance here is the "foreign influence" factor. Specifically, the "foreign influence" disqualifying factor states that a "security risk may exist when an individual's immediate family . . . and other persons to whom he or she may be bound by affection, influence or obligation are:

(1) not citizens of the United States or (2) may be subject to duress." DoD 5200.2-R, App. 8. Conditions that may be disqualifying include having an immediate family member who is a citizen of a foreign country or having relatives who are connected with any foreign government. Id. The common guidelines also specify that foreign influence-related security concerns can be mitigated under certain circumstances. Id.

Beyond these considerations, SCI access requires satisfying additional minimum personnel security standards that are not required for Secret and other lower-level clearances. See DCID 6/4. For example, DCID 6/4 specifies that in order to be approved for access to SCI, an individual "must be a US citizen [and] [t]he individual's immediate family must also be US citizens." Thus, any individual whose spouse is a citizen of a foreign country is barred under DCID 6/4 from obtaining clearance for access to SCI, although he may still be eligible for a Secret clearance if the foreign influence concern is adequately mitigated. If the foreign influence concern cannot be adequately mitigated, the individual may be denied both access to SCI and Secret clearance based on his spouse's citizenship.

B

The general organizational framework used by the DoD to make security clearance determinations is as follows. The DoD has authorized Central Adjudication Facilities ("CAF") in various components, including the DIA and the WHS, to issue security clearances. When a component's CAF denies or revokes a clearance, the determination may be appealed to that component's Security Appeals Board ("SAB"). Both the DIA and the WHS are authorized to grant, deny, or revoke civilian personnel security clearances including Secret clearances. In addition, the DIA also has the authority to grant, deny, or revoke access to SCI. The WHS-CAF generally handles Secret security clearances, while the DIA-CAF handles access to SCI. Under DoD regulations, a component may "reciprocally accept" a security clearance determination made by another component. See DoD 5200.2-R § C4.

The first step in the process of obtaining access to SCI involves asking the appropriate CAF to adjudicate the clearance. Although the WHS-CAF was the component that issued Mr. Romero's original Secret clearance, the DIA-CAF is responsible for making determinations regarding eligibility to access SCI. Accordingly, Mr. Romero's employer requested that the DIA-CAF grant him SCI access. After conducting an investigation, the DIACAF informed Mr. Romero that a preliminary decision had been made to deny him clearance for access to SCI. Romero I, 527 F.3d at 1326. The preliminary decision also indicated that Mr. Romero's Secret security clearance would be suspended pending resolution of the matter. Pointing to the Honduran citizenship of Mr. Romero's wife and stepson, the preliminary decision explained that "available information tends to show a security risk may exist . . . due to foreign influence." The preliminary decision further noted that the foreign influence concerns were also inconsistent with SCI eligibility standards, which require that immediate family members must be U.S. citizens.

If an employee is not satisfied with the preliminary decision, the second step is to challenge the preliminary determination in writing. Mr. Romero responded to the DIA-CAF's preliminary decision. After considering the information supplied by Mr. Romero, the DIA-CAF's chief issued a final decision denying access to SCI and revoking Mr. Romero's Secret clearance due to security issues deemed to be inconsistent with national security interests. The final decision indicated that the potential security risks included "the fact that your spouse is not a U.S. citizen, and is an accredited diplomat of the Govern- ment of Honduras." ...


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