# 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

__________________________

J AMES C. C OX , Jenner & Block, LLP, of Washington, DC, argued for the petitioner. Of counsel on the brief
was A RTHUR B. S PITZER , ACLU of the Nation’s Capital, of Washington, DC.

E LIZABETH M. H OSFORD , 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 T ONY W EST

,ROMERO v. DEFENSE 2

Assistant Attorney General, J EANNE E. D AVIDSON , Director, and T ODD M. H UGHES , Deputy Director.

__________________________

Before B RYSON , D YK , and P ROST

, Circuit Judges

. Opinion for the court filed by Circuit Judge P ROST

. Concurring opinion filed by Circuit Judge D YK

.

P ROST

, 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 securi ty 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.

B ACKGROUND

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 AgencyROMERO v. DEFENSE 3

Central Adjudication Facilit y (“DIA-CAF”) to grant Mr.
Romero clearance to obtain access to SCI. Mr. Romero had been working as an audito r in the agency’s Office of Inspector General since 1999. This position required him
to maintain a Secret level se curity 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 acce ss 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 thes e common adjudicative guidelines, an investigating agency must consider thirteen factors in determining whethe r granting a security clearance is consistent with inte rests of national security. Each of these factors applie s 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 ma y exist when an individual’s immediate family . . . and ot her 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 foreignROMERO 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 ci tizen of a foreign country is barred under DCID 6/4 from obtaining clearance for access to SCI, although he may still be eligible for aSecret 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 cleara nce 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 mayROMERO v. DEFENSE 5

“reciprocally accept” a security clearance determination made by another component. See DoD 5200.2-R § C4.

The first step in the proce ss 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, theDIA-CAF is responsible for making determinations regarding eligibility to access SCI. Accordingly, Mr. Romero’s employer requested that the DIA-CAF grant himSCI 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 issuesdeemed 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 accre dited 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 fo reign influence based on Mr. Romero’s relationship with his wife and stepson. Afterevaluating 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 inMr. 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 proce ss is the DIA-SAB’s review of the DOHA administrative judge’s recommendation. InROMERO v. DEFENSE 7

a two-paragraph decision, the DIA-SAB affirmed thedetermination 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 ju dge in the context of the
Secret clearance rather than SCI access. The DIA-SABagreed that mitigating factors did not apply to Mr. Romero’s relationship with hi s 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 furtherinvestigation. 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. Inaddition, the WHS-CAF stated that Mr. Romero’s eligibility “for access to classified information and to occupy asensitive 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 removedfrom 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 deni ed 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 regulati ons 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 re quired access to classified information, and that the agen cy’s removal of Mr. Romero fully complied with the procedural requirements of 5 U.S.C. § 7513. Id. Explaining that the MSPB could notreview 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 revo ke 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 theunderlying 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-ROMERO v. DEFENSE 9

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 theDoD’s removal of Mr. Romero complied with the requirements of 5 U.S.C. § 7513 because (1) Mr. Romero was provided notice of his propos ed 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 secu rity 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 De partment failed to follow itsprocedures 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 revokedthe 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 conclude d that the DIA-SAB had theauthority 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, itsROMERO 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 admini strative 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 dete rmined that Mr. Romero’s Secret clearance would have been revoked in light of thesecurity 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).

D ISCUSSION

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-ROMERO v. DEFENSE 11

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 Iremanded 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 co mmitted legal error by misapplying the statutes and regulations defining procedures for security clearance determinations and engaging inerroneous 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-CAFcould not revoke the Secret security clearance by reciprocal acceptance because there was no final determination to accept. Mr. Romero furthe r 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 su bstantial evidence. With respect to Mr. Romero’s claim that the DIA lacked theauthority to adjudicate his Secret clearance, the government counters that DoD regulations plainly permit DoD components like the WHS to designate other componentsto 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 fo r 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 anagent 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 de termination 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.ROMERO v. DEFENSE 13

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 clea rance. Indeed, the DIA-CAF initial decision, the DIA-CAF final decision, and the DOHA administrative judge’s recommendation all squarely addressed Mr. Rome ro’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 ag ent 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 applicableROMERO 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 issu e. It addressed the DOHAadministrative 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 intere sts. 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 ofMr. Romero’s Secret clearance. The DIA-SAB’s treatment of the foreign influencesecurity 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-ROMERO v. DEFENSE 15

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 samerelationship 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-S AB 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 Do D Reg. 5200.2-R § C7.1.2.3, Mr. Romero asserts that only th e 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 authorityof 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 forclearance 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 dele gate 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 extentthat Mr. Romero suggests that the WHS could not reciprocally accept the DIA’s revoca tion 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 bydesignated 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.)ROMERO v. DEFENSE 17

directs the WHS to reciproca lly 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 re gulations in revoking his Secret security clearance, we do not further considerwhether 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).

C ONCLUSION

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.

__________________________

D YK

, 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 itsemployees. 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”) decisionROMERO v. DEFENSE 2

addressed only SCI access, th e second paragraph of the
decision should be read to reference Secret clearancebecause 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 appearbefore 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 SecurityAppeals 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] deniedand [his] access eligibility to collateral classified information [was] revoked effective [immediately].” J.A. 47. OnROMERO v. DEFENSE 3

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