United States Court of Appeals 

for the Federal Circuit 

__________________________ 

WILFREDO ROMERO, 

Petitioner, 

v. 

DEPARTMENT OF DEFENSE, 

Respondent. 

__________________________ 

2010-3137 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in consolidated case nos. DC0752070328-M-3 and 

DC0752060136-M-2. 

__________________________ 

Decided: October 3, 2011 

__________________________ 

JAMES C. COX, Jenner & Block, LLP, of Washington, 

DC, argued for the petitioner. Of counsel on the brief 

was ARTHUR B. SPITZER, ACLU of the Nation’s Capital, of 

Washington, DC. 

ELIZABETH M. HOSFORD, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

respondent. With her on the brief were TONY WEST, 
ROMERO v. DEFENSE 2

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and TODD M. HUGHES, Deputy Director. 

__________________________ 

Before BRYSON, DYK, and PROST, Circuit Judges. 

Opinion for the court filed by Circuit Judge PROST. 

Concurring opinion filed by Circuit Judge DYK. 

PROST, Circuit Judge. 

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 
3 ROMERO v. DEFENSE

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 
ROMERO v. DEFENSE 4

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 
5 ROMERO v. DEFENSE

“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-
ROMERO v. DEFENSE 6

ment of Honduras.” The final decision concluded that Mr. 

Romero had failed to mitigate foreign influence security 

concerns based on his wife’s status as an agent of a foreign power. 

As the third step in the process, the DIA-CAF’s final 

decision may be appealed to the DIA’s Security Appeals 

Board (“DIA-SAB”). Mr. Romero appealed the DIA-CAF’s 

final determination by requesting a hearing before an 

administrative judge at the Defense Office of Hearing and 

Appeals (“DOHA”). The DOHA administrative judge 

recommended that the DIA-SAB sustain the DIA-CAF’s 

revocation of Mr. Romero’s Secret clearance. The DOHA 

administrative judge acknowledged that the agency did 

not have jurisdiction to consider whether an exception 

should apply to DCID 6/4’s preclusion of individuals with 

foreign immediate family members from eligibility for 

access to SCI. The DOHA administrative judge therefore 

addressed only the issue of Mr. Romero’s Secret security 

clearance. With respect to this latter issue, the DOHA 

administrative judge applied the common adjudicative 

guidelines and considered foreign influence based on Mr. 

Romero’s relationship with his wife and stepson. After 

evaluating mitigating conditions, the DOHA administrative judge found that Mr. Romero’s relationship with his 

stepson did not pose an unacceptable security risk. In 

contrast, the DOHA administrative judge found that Mr. 

Romero’s wife’s employment at the Honduran Embassy 

weighed against applying any mitigating conditions in 

Mr. Romero’s favor. Accordingly, the DOHA administrative judge recommended that the DIA-CAF’s decision to 

revoke Mr. Romero’s Secret clearance be affirmed due to 

Mr. Romero’s relationship with his wife. 

The final step in the process is the DIA-SAB’s review 

of the DOHA administrative judge’s recommendation. In 
7 ROMERO v. DEFENSE

a two-paragraph decision, the DIA-SAB affirmed the 

determination that Mr. Romero did not meet the eligibility requirements for access to SCI. The first paragraph of 

the decision concluded that Mr. Romero did not meet “the 

minimum personnel security standards for SCI.” The 

second paragraph of the decision discussed the DOHA 

administrative judge’s treatment of foreign influence 

security concerns, which as noted above, were addressed 

by the DOHA administrative judge in the context of the 

Secret clearance rather than SCI access. The DIA-SAB 

agreed that mitigating factors did not apply to Mr. Romero’s relationship with his wife because she was by 

definition an agent of a foreign power. The DIA-SAB’s 

decision did not explicitly mention any other security 

clearances besides access to SCI. 

As discussed above, DoD regulations permit a component to reciprocally accept another component’s security 

clearance determination without conducting further 

investigation. Accordingly, the WHS-CAF—the component that originally issued Mr. Romero’s Secret clearance—reciprocally accepted the DIA-SAB’s final decision 

denying Mr. Romero’s eligibility for access to SCI. In 

addition, the WHS-CAF stated that Mr. Romero’s eligibility “for access to classified information and to occupy a 

sensitive position has been revoked” based on the DIASAB’s decision. Thus, the WHS-CAF accepted the denial 

of access to SCI and revoked Mr. Romero’s Secret clearance based on the DIA-SAB final decision. 

C 

Because Mr. Romero’s position required him to maintain a Secret level security clearance, he was removed 

from his position shortly after his Secret security clearance was revoked. 
ROMERO v. DEFENSE 8

He appealed his removal to the MSPB, arguing that 

his Secret clearance had not been properly revoked. He 

alleged that the DoD had denied his right to due process 

because it did not provide him an opportunity to challenge 

the WHS-CAF’s reciprocal revocation. Romero I, 527 F.3d 

at 1327. He also argued that the revocation of his Secret 

clearance was invalid because the DIA-SAB had denied 

only his eligibility for access to SCI. Id. He further 

argued that the revocation of his Secret clearance was 

retaliatory. Id. at 1329. 

The MSPB administrative judge affirmed the agency’s 

action. Id. at 1327. The administrative judge rejected 

Mr. Romero’s due process argument because he had the 

opportunity to challenge the DIA-CAF’s final decision and 

because the agency’s regulations do not require an opportunity for review of a reciprocal acceptance of a security 

clearance revocation. Id. The administrative judge also 

held that Mr. Romero’s Secret security clearance had been 

revoked, that his position required access to classified 

information, and that the agency’s removal of Mr. Romero 

fully complied with the procedural requirements of 5 

U.S.C. § 7513. Id. Explaining that the MSPB could not 

review the merits underlying a security clearance revocation, the administrative judge rejected Mr. Romero’s 

remaining challenges because they required review of the 

merits of the decision to revoke his security clearance. Id. 

The full board denied Mr. Romero’s petition for review of 

the administrative judge’s initial decision. Id. 

Mr. Romero appealed to this court. Citing Hesse v. 

Department of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000), 

we acknowledged that the MSPB may not examine the 

underlying merits of the security clearance determination. Romero I, 527 F.3d at 1328. Accordingly, we held 

that the MSPB was correct to reject Mr. Romero’s argu-
9 ROMERO v. DEFENSE

ment that the revocation of his security clearance was 

retaliatory because this argument implicated the merits 

of the security clearance decision. Id. at 1330. We also 

held that the MSPB did not err in concluding that the 

DoD’s removal of Mr. Romero complied with the requirements of 5 U.S.C. § 7513 because (1) Mr. Romero was 

provided notice of his proposed removal, (2) the agency 

provided notice of the reasons for the removal and the 

underlying revocation of his security clearance, and (3) 

Mr. Romero had an opportunity to respond to the removal. Id. at 1329. Noting, however, that the MSPB had 

not addressed Mr. Romero’s challenges to the procedures 

used to revoke his Secret security clearance, we remanded 

the issue to the MSPB to be addressed in the first instance. Id. at 1329-30 (vacating the MSPB’s decision and 

remanding for the MSPB 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”). 

On remand to the MSPB, Mr. Romero focused on two 

main procedural objections: (1) The DIA-SAB lacked the 

authority to revoke the Secret clearance because it was 

the WHS-CAF that had issued the Secret clearance in the 

first place; and (2) The DIA-SAB had not actually revoked 

the Secret clearance, leaving no revocation for the WHSCAF to reciprocally accept. After a two-day hearing, the 

MSPB administrative judge again affirmed the DoD’s 

action. First, he concluded that the DIA-SAB had the 

authority to revoke Mr. Romero’s Secret security clearance even though it was not the component that initially 

issued the clearance. He also concluded that the DIASAB final decision had in fact revoked Mr. Romero’s 

Secret security clearance. The administrative judge 

reasoned that, although the DIA-SAB did not expressly 

reference the Secret clearance in the decision letter, its 
ROMERO v. DEFENSE 10

discussion of the DOHA administrative judge’s opinion—

which focused almost exclusively on the Secret clearance—was evidence of agreement with revoking the 

Secret clearance. The administrative judge further found 

that the WHS-CAF was not required to independently 

adjudicate Mr. Romero’s eligibility for a Secret security 

clearance following the DIA’s decision. Finally, the administrative judge concluded that, even assuming the 

DoD had committed a procedural error, any such error 

was not harmful. He determined that Mr. Romero’s 

Secret clearance would have been revoked in light of the 

security risk associated with Mr. Romero’s wife’s Honduran citizenship and status as an agent of a foreign power. 

He further concluded that Mr. Romero had received all of 

the process due under 5 U.S.C. § 7513 and “nearly all” of 

the protections set forth in 5 U.S.C § 7532, which provides 

for removals without appeal to the MSPB in the interest 

of national security. 

The administrative judge’s decision became the decision of the MSPB on April 29, 2010. This appeal followed. 

We have jurisdiction to review the MSPB’s final decision 

under 28 U.S.C. § 1295(a)(9). 

DISCUSSION

When we review a decision of the MSPB, we do so under a deferential standard as prescribed by statute. The 

MSPB’s decision must be affirmed unless it is found to be 

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. Bennett v. Merit Sys. Prot. Bd., 635 

F.3d 1215, 1218 (Fed. Cir. 2011) (citing 5 U.S.C. § 

7703(c)). Like the MSPB, our review of removal actions 

that involve the revocation or denial of a security clear-
11 ROMERO v. DEFENSE

ance is limited to reviewing the procedures used rather 

than the substance of the revocation decision. Romero I, 

527 F.3d at 1327-29 (discussing Hesse and Department of 

the Navy v. Egan, 484 U.S. 518 (1988)). 

Recognizing the limited nature of our review of adverse employment actions involving security clearance 

determinations, this court’s opinion in Romero I remanded to the MSPB for the limited purpose of determining whether the revocation of Mr. Romero’s Secret 

clearance complied with DoD’s own internal procedures. 

Romero I, 527 F.3d at 1328-30. On appeal, Mr. Romero 

contends that the MSPB committed legal error by misapplying the statutes and regulations defining procedures 

for security clearance determinations and engaging in 

erroneous speculation regarding the scope of the DIASAB’s final decision. Specifically, he argues that the DIASAB did not explicitly revoke his Secret clearance. It 

follows, according to Mr. Romero, that the WHS-CAF 

could not revoke the Secret security clearance by reciprocal acceptance because there was no final determination 

to accept. Mr. Romero further argues that, even if the 

DIA-SAB had in fact revoked his Secret clearance, the 

DIA lacked the authority to do so because the WHS rather 

than the DIA was the component that issued the Secret 

clearance in the first place. Mr. Romero maintains that 

DoD regulations permit only the component that initially 

granted the security clearance to revoke it.1

 1 Mr. Romero also makes several arguments based 

on the DoD’s alleged failure to comply with the procedural 

requirements of 5 U.S.C. § 7513. These arguments are 

unavailing because Romero I expressly held that the 

MSPB did not err in finding that DoD had complied with 

the requirements of § 7513. Romero I, 527 F.3d at 1329. 
ROMERO v. DEFENSE 12

The government responds that Mr. Romero did not 

meet his burden of showing that the DoD failed to follow 

its procedures and that the MSPB’s determination to that 

effect was supported by substantial evidence. With 

respect to Mr. Romero’s claim that the DIA lacked the 

authority to adjudicate his Secret clearance, the government counters that DoD regulations plainly permit DoD 

components like the WHS to designate other components 

to revoke security clearances and do not prohibit designees from revoking clearances originally issued by the 

designating component. Pointing to several departmental 

memoranda interpreting DoD 5200.2-R, the government 

further argues that denial of SCI access automatically 

acts as a revocation of collateral clearances such as Secret 

clearances. Finally, the government notes that common 

adjudicative guidelines apply to both SCI access and 

Secret clearances. The government submits that the DIA 

was required to apply these common standards in reviewing Mr. Romero’s eligibility for access to classified information once he was nominated for SCI access. The 

government contends that the SCI access investigation 

identified a “foreign influence” security risk that could not 

be mitigated because of Mr. Romero’s wife’s status as an 

agent of a foreign power. This unmitigated foreign influence concern, according to the government, disqualified 

Mr. Romero both from eligibility for SCI access and 

collateral clearances such as a Secret clearance. 

Accordingly, the central issues on appeal are whether 

the DIA-SAB made a final determination regarding Mr. 

Romero’s Secret security clearance and whether the DIA 

rather than the WHS had the authority to revoke Mr. 

Romero’s Secret clearance. We take each issue in turn. 
13 ROMERO v. DEFENSE

A 

We first consider the scope of the DIA-SAB final decision. The MSPB found that the DIA-SAB did revoke Mr. 

Romero’s Secret security clearance. Indeed, the DIA-CAF 

initial decision, the DIA-CAF final decision, and the 

DOHA administrative judge’s recommendation all 

squarely addressed Mr. Romero’s access to “collateral 

classified information” (i.e., his Secret clearance) and 

concluded that Mr. Romero’s Secret clearance should be 

revoked in light of the foreign influence concerns raised 

by his wife’s status as an agent of a foreign power. In 

contrast, the DIA-SAB did not explicitly reference Mr. 

Romero’s Secret clearance in its two paragraph decision. 

Because this last decision is controlling, Mr. Romero 

contends that his Secret security clearance was never 

revoked by the DIA. We disagree. 

As discussed in detail above, the DOHA administrative judge acknowledged that having an immediate family 

member that is not a U.S. citizen is an automatic bar to 

SCI access under DCID 6/4. The DOHA administrative 

judge went on to consider the foreign influence standard, 

which applies to both SCI access and Secret security 

clearances. See DoD 5200.2-R, App. 8. The DOHA administrative judge concluded that Mr. Romero’s relationship with his stepson did not present an unacceptable 

security risk but that Mr. Romero’s relationship with his 

wife did present such an unmitigated risk. Accordingly, 

the DOHA administrative judge specifically recommended 

that the DIA-CAF’s decision to revoke Mr. Romero’s 

Secret clearance be sustained. 

The first paragraph of the DIA-SAB’s decision indicated that Mr. Romero did not meet “the minimum personnel security standards for SCI.” The applicable 
ROMERO v. DEFENSE 14

security standard under DCID 6/4 that Mr. Romero failed 

to meet was that he had an immediate family member 

that was not a U.S. citizen. The DIA-SAB affirmed the 

DOHA administrative judge’s conclusion regarding this 

automatic bar. This determination standing alone is 

sufficient to affirm the DIA-CAF’s denial of SCI access. 

The second paragraph of the DIA-SAB’s decision focused on foreign influence concerns. In light of the DIASAB’s conclusion that Mr. Romero did not satisfy DCID 

6/4’s standards for access to SCI because of his wife’s 

citizenship, the DIA-SAB did not need to reach foreign 

influence considerations if it was dealing exclusively with 

SCI access and not also with the Secret clearance. But 

the DIA-SAB did reach the issue. It addressed the DOHA 

administrative judge’s analysis of foreign influence concerns and explicitly endorsed the DOHA administrative 

judge’s conclusion that Mr. Romero’s case presented 

foreign influence security issues that are inconsistent 

with national security interests. While such a determination applies to both access to SCI and Secret clearances, 

the DOHA administrative judge’s analysis was conducted 

specifically in the context of Mr. Romero’s Secret clearance. The DIA-SAB’s treatment of the foreign influence 

security concern thus reached Mr. Romero’s Secret clearance. The MSPB’s finding that the DIA-SAB’s final 

decision revoked the Secret clearance is supported by 

substantial evidence. 

Mr. Romero contends that this result is unjust because different standards apply for access to SCI and 

eligibility for a Secret security clearance. While this is 

partially true, this argument misses the mark because 

there are standards under the common adjudicative 

guidelines that apply to both. Foreign influence concerns 

could have properly led to a denial of both a Secret secu-
15 ROMERO v. DEFENSE

rity clearance and access to SCI. Here, Mr. Romero’s 

wife’s status as a foreign national automatically barred 

him from access to SCI under DCID 6/4. That same 

relationship also raised issues under the common guidelines regarding foreign influence based on his wife’s 

employment. He was provided the opportunity to mitigate the foreign influence concerns, but the DOHA administrative judge and the DIA-SAB both concluded that his 

wife’s status as an agent of a foreign power could not be 

overcome. The DoD did not apply an improper, more 

stringent standard to the Secret clearance revocation 

determination. 

B 

We turn next to the question of which component(s) 

had the authority to revoke Mr. Romero’s Secret clearance. Mr. Romero contends that the DIA-CAF was prohibited by agency regulation form adjudicating his Secret 

clearance. Pointing to DoD Reg. 5200.2-R § C7.1.2.3, Mr. 

Romero asserts that only the issuing component, here the 

WHS, has the authority to revoke his Secret clearance.2 

 2 Section C7.1.2.3. provides, in pertinent part, 

as follows: 

Personnel security clearances of DoD military personnel shall be granted, denied, or 

revoked only by the designated authority 

of the parent Military Department. Issuance, reissuance, denial revocation of a 

personnel security clearance by any DoD 

Component concerning personnel who 

have been determined to be eligible for 

clearance by another component is expressly prohibited. Investigations conducted on Army, Navy, and Air Force 

personnel by DIS will be returned only to 

the parent Service of the subject for adju-
ROMERO v. DEFENSE 16

The MSPB rejected this argument, holding that the 

prohibition described in this regulation applies only to 

military personnel and not to civilians. The MSPB’s 

interpretation is consistent with the plain language of 

section C7.1.2.3. Even assuming that section C7.1.2.3 

applies to civilian personnel, as contended by Mr. Romero, 

the MSPB concluded that section C7.1.2.3 plainly permits 

DoD components to designate other components to revoke 

security clearances. Indeed, the administrative record 

supports that the WHS can delegate the DIA to take the 

lead in adjudicating a security clearance issue when 

information that adversely affects that security clearance 

arises during the DIA’s SCI access determination. The 

MSPB’s conclusion that the DIA-CAF was authorized to 

revoke Mr. Romero’s security clearance is correct as a 

matter of law and supported by substantial evidence. 

Mr. Romero further argues that the WHS-CAF was 

required to independently adjudicate his eligibility for a 

Secret clearance after the DIA’s decision. To the extent 

that Mr. Romero suggests that the WHS could not reciprocally accept the DIA’s revocation of his security clearance, this contention is incompatible with DoD Reg. 

5200.2-R § C4.1.3.1. To preclude components from engaging in duplicative adjudicative processes under the common guidelines, section C4.1.3.1 expressly states that 

“[a]djudicative determinations for . . . access to classified 

information (including those pertaining to SCI) made by 

designated DoD authorities will be mutually and reciprocally accepted by all DoD Components without requiring 

additional investigation.” Thus, rather than requiring an 

independent adjudication by the WHS, section C4.1.3.1 

 

dication regardless of the source of the 

original request. 

(Emphasis added.) 
17 ROMERO v. DEFENSE

directs the WHS to reciprocally accept the DIA’s determination denying SCI access and revoking the Secret clearance without any additional investigation. 

In sum, we conclude that the DoD did not violate its 

internal procedures. The MSPB’s determination that the 

DIA-SAB’s final decision reached both access to SCI and 

the Secret clearance is supported by substantial evidence. 

We further conclude that the WHS-CAF properly revoked 

Mr. Romero’s Secret clearance by reciprocally accepting 

the DIA-SAB’s resolution of the matter. Because Mr. 

Romero has not met his burden in establishing that the 

DoD failed to follow its own regulations in revoking his 

Secret security clearance, we do not further consider 

whether any such procedural deficiency resulted in harmful error. Romero I, 527 F.3d at 1330 & n.2. (remanding 

for the MSPB to determine whether Mr. Romero could 

show that the DoD failed to follow its procedures and that 

the procedural deficiency constituted harmful error). 

CONCLUSION

The judgment of the MSPB is affirmed. 

AFFIRMED
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

WILFREDO ROMERO, 

Petitioner, 

v. 

DEPARTMENT OF DEFENSE 

Respondent. 

__________________________ 

2010-3137 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in consolidated case nos. DC0752070328-M-3 and 

DC0752060136-M-2. 

__________________________ 

DYK, Circuit Judge, concurring. 

The Department of Defense (“DoD”) regulations involved in the case are confusing even though clarity would 

best serve the interests of both the government and its 

employees. I nonetheless agree that, under the regulations, the Defense Intelligence Agency (“DIA”) had the 

authority to act on Romero’s Secret clearance and that, if 

it revoked the clearance, the Washington Headquarters 

Service (“WHS”) could give reciprocal effect to this action. 

The question then becomes whether DIA took action to 

revoke the Secret clearance. 

The panel majority concludes that, even though the 

DIA Security Appeals Board’s (“DIA-SAB”) decision 
ROMERO v. DEFENSE 2

addressed only SCI access, the second paragraph of the 

decision should be read to reference Secret clearance 

because the denial of SCI access had already been addressed in the first paragraph. I am dubious given the 

fact that the DIA-SAB decision makes no reference to 

Secret clearance but only to SCI access. In my view, 

however, the revocation of the Secret clearance did not 

depend on explicit action by the DIA-SAB. 

The decision to revoke or deny an employee’s security 

clearance is made in the first instance by a DoD Central 

Adjudication Facility—in this case the DIA Central 

Adjudication Facility (“DIA-CAF”). The employee has a 

right to appeal the decision to the corresponding Security 

Appeals Board. DoD 5200.2-R § C8.2.2.4. The appeal 

may be conducted through “a personal appearance before 

[an administrative judge (“AJ”)]” or via a written submission to the Security Appeals Board “stating reasons why 

the [decision to revoke or deny security clearance] should 

be overturned.” Id. Where the employee opts to appear 

before an AJ, the AJ must submit “a written recommendation to the appropriate [Security Appeals Board] 

whether to sustain or overturn the [decision to revoke or 

deny security clearance].” Id. § AP13.1.5.5. The Security 

Appeals Board will then “render a final written determination” which “will conclude the appeal process.” Id. § 

AP13.1.6. On appeal, the employee has the burden; thus, 

unless the earlier decision of the Central Adjudication 

Facility is overturned by the Security Appeals Board, it 

stands. 

Here, the decision from the DIA-CAF clearly denied 

Romero’s access to SCI and revoked his Secret clearance. 

The decision stated that, because of potential security 

risks, Romero’s “eligibility for access to SCI [was] denied 

and [his] access eligibility to collateral classified information [was] revoked effective [immediately].” J.A. 47. On 
3 ROMERO v. DEFENSE

appeal, Romero opted to appear before an administrative 

judge, who recommended that the DIA-SAB sustain the 

DIA-CAF’s revocation of Romero’s Secret clearance. After 

reviewing the AJ’s recommendation, the DIA-SAB affirmed the earlier decision of the DIA-CAF. Although the 

DIA-SAB did not specifically reference the Secret clearance in its decision on appeal, it is clear that the DIA-SAB 

did not reverse or vacate the earlier DIA-CAF decision. 

As a result, DIA-CAF’s decision to revoke Romero’s Secret 

clearance stands, and could properly be given reciprocal 

effect by the WHS. In other words, the failure of the DIASAB to explicitly discuss the Secret clearance issue does 

not, in my view, require that the revocation be set aside. I 

accordingly agree with the result reached by the panel 

majority.