United States Court of Appeals 

for the Federal Circuit 

__________________________ 

CHARLES DERECK ADAMS, 

Petitioner, 

v. 

DEPARTMENT OF DEFENSE, 

Respondent. 

__________________________ 

2011-3124 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in consolidated Case Nos. DC3443100711-I-1 and 

DC0752100741-I-1. 

___________________________ 

Decided: August 10, 2012 

___________________________ 

CHARLES D. ADAMS, of Herndon, Virginia, pro se. 

JOSEPH A. PIXLEY, Attorney, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the 

brief were TONY WEST, Assistant Attorney General, JEANNE 

E. DAVIDSON, Director, and PATRICIA M. MCCARTHY, Assistant Director. 

__________________________ 
ADAMS v. DEFENSE 2

Before RADER, Chief Judge, NEWMAN, and DYK, Circuit 

Judges. 

NEWMAN, Circuit Judge. 

Mr. Charles Dereck Adams appeals the decision of the 

Merit Systems Protection Board (“MSPB” or “Board”), 

holding that the Board did not have jurisdiction to review 

the termination of his employment by the Department of 

Defense (“Department” or “DoD”), and the Department’s 

denial of his request for voluntary early retirement. The 

Board held that, because he was terminated based on revocation of his security clearance, Board review was limited to 

whether he received minimal due process on the security 

issues from the terminating agency. The Board also held 

that, since it did not have jurisdiction to review the merits 

of his termination, the Board did not have jurisdiction to 

review the denial by the Department of Defense of his 

request for early retirement under the Voluntary Early 

Retirement Authority (VERA), 5 U.S.C. §9902(f). We affirm 

the Board’s ruling as to the security clearance procedures, 

and reverse the Board’s ruling concerning its authority to 

review the denial of his retirement request. 

BACKGROUND

Mr. Adams was employed as an Information Technology 

Specialist with the Missile Defense Agency of the Department of Defense. The Information Technology Specialist 

position is designated Special Sensitive and requires the 

employee to maintain a Top Secret security clearance with 

access to Sensitive Compartmented Information. By letter 

dated April 2, 2009, the Defense Intelligence Agency notified 

Mr. Adams that it had suspended his access to Sensitive 

Compartmented Information and had made a preliminary 

determination to revoke his security clearance. The reasons 
3 ADAMS v. DEFENSE

stated in the letter were violations of agency security regulations. 

By letter dated May 13, 2009, the Missile Defense 

Agency notified Mr. Adams that he would be suspended 

from his position indefinitely without pay because of the 

suspension of his access to Sensitive Compartmented Information. After considering Mr. Adams’ written reply, the 

Missile Defense Agency found that the suspension was 

supported by a preponderance of the evidence and warranted Mr. Adams’ indefinite suspension from his position, 

effective June 15, 2009. Mr. Adams appealed to the MSPB, 

and the MSPB sustained the agency’s action on the ground 

that the procedural standards of minimal due process for 

security revocation had been met. 

On appeal this court affirmed. Adams v. Dep’t of Defense, 371 Fed. App’x 93 (Fed. Cir. April 13, 2010) (Adams I). 

 The court held that the agency had afforded Mr. Adams the 

required minimal procedural protections, recognizing that 

review of security issues by the MSPB and the Federal 

Circuit is limited to review of the agency’s procedures and 

applying the Court’s ruling in Department of the Navy v. 

Egan, 484 U.S. 518, 529 (1988), that “protection of classified 

information must be committed to the broad discretion of 

the agency responsible, and this must include broad discretion to determine who may have access to it.” In Egan the 

Court held that review of an agency’s decision related to 

security clearance is limited to determining whether minimal due process protections were provided, id. at 531, and 

that the grant or revocation of a security clearance “is 

committed by law to the appropriate agency of the executive 

branch,” id. at 527. 

Mr. Adams argued in Adams I that the imposition of indefinite suspension without pay was improper, and that he 
ADAMS v. DEFENSE 4

should have been placed in a different position that did not 

require access to sensitive and classified information. The 

MSPB held, and this court affirmed, that “an employee is 

not entitled to a transfer to a nonsensitive position absent a 

separate transfer right arising from some source other than 

§7513.” Adams I, 371 Fed. App’x at 96. The court applied 

Griffin v. Defense Mapping Agency, 864 F.2d 1579, 1581 

(Fed. Cir. 1989) which held that “[s]ection 7513 contains no 

obligation to transfer to a nonsensitive position if possible.” 

The government stated and a premise of Adams I was that 

all Missile Defense Agency positions require an active 

security clearance with access to classified information, and 

that the agency has no policy or regulation requiring it to 

transfer to a nonsensitive position an employee whose 

security clearance had been suspended. As a result, Mr. 

Adams remained on indefinite suspension without pay 

pending completion of the agency appeals process. 

On April 14, 2010 the Defense Intelligence Security Appeals Board (DISAB) announced its decision of the security 

appeal, adverse to Mr. Adams. The decision by the DISAB 

was the final agency review of Mr. Adams’ access to classified information. The Missile Defense Agency then served 

Mr. Adams with a Notice of Proposed Removal from employment. The Notice informed Mr. Adams of his right to 

reply and submit evidence, and his right to representation 

by an attorney or other representative. Mr. Adams replied, 

challenging the proposed removal as being discriminatory, 

unfair, and not in good faith. Mr. Adams described his 

many positive contributions to the agency, and the adverse 

impact his removal would have on his family. The agency 

reviewed the information, and issued its final decision to 

remove Mr. Adams because of his inability to perform the 

duties of his position due to the revocation of his access to 

classified information. Mr. Adams again appealed to the 

MSPB. 
5 ADAMS v. DEFENSE

In view of his possible removal, Mr. Adams had submitted an application for voluntary early retirement pursuant 

to the VERA. The Defense Logistics Agency, which acts as 

the Department of Defense’s human resources office for the 

Missile Defense Agency, denied the application. Mr. Adams 

appealed this denial to the MSPB. 

The MSPB held that it did not have jurisdiction to review the merits of Mr. Adams’ request for voluntary early 

retirement because it was not raised in connection with an 

otherwise appealable action, and the Board is not permitted 

to evaluate the substantive merits of the agency’s decision 

to remove an employee for failure to maintain a required 

security clearance. This appeal followed. 

DISCUSSION

Rulings of the MSPB are reviewed to determine whether 

they are arbitrary, capricious, an abuse of discretion or 

otherwise not in accordance with law; obtained without 

procedures required by law, rule, or regulation; or unsupported by substantial evidence. 5 U.S.C. §7703(c). Jurisdictional rulings and statutory and legislative interpretations 

are reviewed for correctness. 

I. Termination of Employment 

The termination of Mr. Adams’ employment with the 

Missile Defense Agency resulted from the decision of the 

DISAB to revoke his security clearance, which issued after 

this court’s decision in Adams I. Mr. Adams argues that his 

removal was improper because it was based on retaliation 

by his supervisor and age and racial discrimination. Mr. 

Adams states that the MPSB erred by limiting its review to 

security clearance procedural aspects, and that “the statutes 

require justice be served by considering the underlying 
ADAMS v. DEFENSE 6

causes and motivations for performing the acts . . . and not 

just following procedures.” Adams Br. 2. 

In Egan the Court established that MSPB review of an 

agency’s denial or revocation of a security clearance is 

limited to determining whether the agency provided minimal due process protection. 484 U.S. at 529–31; see Hesse v. 

Dep’t of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000) (“[T]he 

Board may determine whether a security clearance was 

denied, whether the security clearance was a requirement of 

the appellant’s position, and whether the procedures set 

forth in section 7513 were followed, but the Board may not 

examine the underlying merits of the security clearance 

determination.”). Precedent has elaborated that these 

minimal procedural protections require: (1) at least thirty 

days’ advance written notice stating the reasons for the 

proposed action; (2) a reasonable time to answer orally and 

in writing and the right to furnish affidavits and other 

documentary evidence in support of the answer; (3) the 

opportunity to be represented; and (4) a written decision 

and the reasons therefor. Drumheller v. Dep’t of the Army, 

49 F.3d 1566, 1571 (Fed. Cir. 1995). 

We discern no violation of procedural due process. It is 

not disputed that a security clearance is required for Mr. 

Adams’ position, that he was notified of the reason for its 

revocation, and that he had the opportunity to respond. 

Those are the limits of our review; neither this court nor the 

MSPB has authority to review the charge that retaliation 

and discrimination were the reasons for revocation of the 

security clearance. See Cheney v. Dep’t of Justice, 479 F.3d 

1343, 1352 (Fed. Cir. 2007) (“Neither the Board nor this 

court may review the underlying merits of an agency’s 

decision to suspend a security clearance.”). Thus it was not 

legal error for the agency to terminate Mr. Adams’ employment when he no longer possessed the requisite security 
7 ADAMS v. DEFENSE

status. See Robinson v. Dep’t of Homeland Sec., 498 F.3d 

1361, 1365 (Fed. Cir. 2007) (“[I]n an adverse employment 

action, such as removal, based on failure to maintain the 

security clearance required by the job description, the 

absence of a properly authorized security clearance is fatal 

to the job entitlement.”). The MSPB’s decision sustaining 

the agency’s removal action is affirmed. 

II. Retirement Appeal 

The MSPB held that, because it did not have authority 

to review the merits of the agency’s revocation of Mr. Adams’ security clearance, it did not have jurisdiction to review the agency’s denial of his request for early retirement 

under the VERA. The Board stated that “a prohibited 

personnel practice claim may be considered by the Board 

only if it is raised in connection with an otherwise appealable action,” and that since the agency’s security clearancebased actions cannot be appealed, neither can the agency’s 

denial of the request for early retirement. However, the 

Board misstates the premises, for security clearance-based 

actions can indeed be appealed, albeit on the limited basis of 

whether the minimal due process requirements of Egan

were met; the merits of the security clearance-based action 

are not reviewable because of the uniquely personal and 

subjective components of security evaluations. The limited 

appeal of agency security clearance-based actions does not 

remove federal employees from all other employment rights 

and benefits. 

No statute or policy suggests that retirement issues are 

removed from appellate review when the retirement relates 

to revocation of a security clearance. We discern no basis 

for removing actions related to retirement from sensitive 

positions from the general system of MSPB review of adverse employment actions, without specific legislative 
ADAMS v. DEFENSE 8

instruction. Cf. Webster v. Doe, 486 U.S. 592, 603 (1988) 

(“[W]here Congress intends to preclude judicial review of 

constitutional claims its intent to do so must be clear.”). 

In the initial briefing of this case, the government argued that the Board acted correctly in denying its own 

jurisdiction, government counsel stating that the government is “unaware” of “any law, rule or regulation that 

provides the Board with jurisdiction over an agency’s decision not to grant an employee’s request for retirement 

incentives such as early retirement under VERA.” Gov’t Br. 

11. On supplemental briefing at the court’s request, the 

government discarded this position and now states that “the 

MSPB conceivably could have jurisdiction to entertain Mr. 

Adam’s VERA claim. . . .” Govt. Supp. Br. 5–6. 

We agree that the federal employment statutes require 

this conclusion. 5 U.S.C. §7701(a) provides for appeal to the 

MSPB “from any action which is appealable to the Board 

under any law, rule, or regulation.” MSPB jurisdiction is 

summarized at 5 C.F.R. §1201.3, where subsection (a)(6) 

authorizes the MSPB to review adverse retirement decisions 

under 5 U.S.C. §8461, the Federal Employees Retirement 

System by which Mr. Adams is covered. The voluntary 

early retirement benefit is part of the Federal Employees 

Retirement System pursuant to 5 U.S.C. §8414. Pursuant 

to §8461(e)(1), “an administrative action or order affecting 

the rights or interests of an individual or of the United 

States under the provisions of this chapter [chapter 84] 

administered by the Office [of Personnel Management] may 

be appealed to the Merit Systems Protection Board.” Congress authorized the Department of Defense to decide VERA 

benefits, and 5 U.S.C. §9902(f)(4) states that “[a]n employee 

who is at least 50 years of age and has completed 20 year of 

service, or has at least 25 years of service, may, pursuant to 

regulations promulgated under this section, apply and be 
9 ADAMS v. DEFENSE

retired from the Department of Defense and receive benefits 

in accordance with chapter 83 and 84. . . .” 

Mr. Adams states, and the government does not dispute, 

that he is within the scope of possible voluntary early retirement, that he properly filed a claim for early retirement, 

that he meets the statutory requirements based on his age 

and employment term, and that his claim was denied by the 

DoD. The denial significantly affects Mr. Adams’ “rights or 

interests” under § 8461 of the Federal Employees’ Retirement System, and thus may be an appealable “administrative action” within the Board’s jurisdiction. Since the MSPB 

incorrectly determined that no statutory provision provided 

an appeal to the MSPB with respect to the denial of early 

retirement benefits, we remand to the Board for further 

proceedings. 

The government now states that Mr. Adams is barred 

from appealing to the MSPB because he failed to appeal the 

DoD denial to OPM. We take note that OPM is charged 

with administering claims under chapter 83, and chapter 84 

relating to the Federal Employees Retirement System 

(FERS). See 5 U.S.C. § 8461; see also 5 U.S.C. § 

8414(b)(1)(B)(iv) and (v). We do not decide, however, 

whether Mr. Adams was required first to appeal to OPM, an 

issue to be addressed on remand. 

CONCLUSION

We affirm the MSPB’s ruling with respect to the removal action based on revocation of Mr. Adams’ security 

clearance. However, the appeal of an adverse VERA ruling 

is within MSPB jurisdiction, for it is “an administrative 

action or order affecting the rights or interests of an individual or of the United States.” 5 U.S.C. §8461(e) (FERS); 5 

U.S.C. §8347(d)(1) (CSRS). The DoD’s retirement decision 
ADAMS v. DEFENSE 10

is reviewable by the MSPB, independent of the revocation of 

Mr. Adams’ security clearance. We reverse the MSPB’s 

ruling that it does not have jurisdiction of the VERA claim, 

and remand for further proceedings as to that claim. 

Each party shall bear its costs. 

AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED