United States Court of Appeals for the Federal Circuit 

 

2007-3322 

WILFREDO ROMERO, 

Petitioner, 

v. 

DEPARTMENT OF DEFENSE, 

 Respondent. 

Wilfredo Romero, of Laurel, Maryland, pro se. 

Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With her on 

the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Todd M. Hughes, Deputy Director. 

Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, of 

Washington, DC, for amicus curiae American Civil Liberties Union of the National 

Capital Area. 

 

Appealed from: Merit Systems Protection Board 
United States Court of Appeals for the Federal Circuit

2007-3322 

WILFREDO ROMERO, 

 Petitioner, 

v. 

DEPARTMENT OF DEFENSE, 

 Respondent. 

Petition for review of the Merit Systems Protection Board in DC07520070328-I-1. 

___________________________ 

DECIDED: June 2, 2008 

___________________________ 

Before LOURIE, BRYSON, and DYK, Circuit Judges. 

BRYSON, Circuit Judge. 

 Wilfredo Romero was employed as an auditor for the Office of Inspector General 

at the Department of Defense. In December 2006 Mr. Romero was removed from his 

position for failing to maintain his security clearance. He appealed the removal action to 

the Merit Systems Protection Board. The Board affirmed the action, holding that it could 

not review the merits underlying a security clearance revocation. Because the Board 

did not address whether the Department of Defense complied with its own procedures 

when revoking Mr. Romero’s security clearance, we vacate the Board’s decision and 
remand for the Board to determine whether Mr. Romero can show harmful error 

resulting from any failure by the Department to follow its own procedures. 

I 

Mr. Romero had worked as an auditor at the Department’s Office of Inspector 

General since 1999. His position required a Secret security clearance, which he had 

been granted by the Washington Headquarters Service Central Adjudication Facility 

(“WHS-CAF”). In 2004 Mr. Romero’s supervisor asked the Defense Intelligence Agency 

Central Adjudication Facility (“DIA-CAF”) to grant Mr. Romero clearance to obtain 

access to Sensitive Compartmented Information (“SCI”) so that Mr. Romero would be 

able to assist with auditing work at the National Security Agency. After conducting an 

investigation, the DIA-CAF issued a letter of intent informing Mr. Romero that a 

preliminary decision had been made to deny him clearance for access to SCI. The 

specific security risk cited in the preliminary denial was the Honduran citizenship of Mr. 

Romero’s wife and stepson. The letter of intent further stated that Mr. Romero’s 

“access to collateral information has been suspended pending resolution of this matter.” 

Both parties agree that the effect of that language was to suspend Mr. Romero’s Secret 

security clearance. 

After Mr. Romero responded to the letter of intent, the DIA-CAF issued a final 

decision denying Mr. Romero eligibility for access to SCI and revoking his “access 

eligibility to collateral classified information.” 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. The administrative judge determined that the Defense 

Intelligence Agency (“DIA”) “lack[ed] jurisdiction to consider whether an exception 

2007-3322 2 
should apply” to the Department’s regulations precluding individuals with foreign 

immediate family members from eligibility for access to SCI. The administrative judge 

therefore addressed only the issue of Mr. Romero’s access to collateral classified 

information. On that issue, the administrative judge considered the foreign influence 

mitigating conditions that might be relevant to Mr. Romero’s relationship with his wife, 

but found that his wife’s employment at the Honduran Embassy weighed against 

applying any mitigating conditions in Mr. Romero’s favor. The administrative judge 

found that Mr. Romero’s relationship with his stepson did not pose an unacceptable 

security risk. Nevertheless, based on Mr. Romero’s relationship with his wife, the 

administrative judge recommended that the Defense Intelligence Agency Security 

Appeals Board (“DIA-SAB”) affirm the DIA-CAF’s decision to revoke Mr. Romero’s 

access to collateral classified information.

After reviewing the administrative judge’s recommendation, the DIA-SAB issued 

a decision affirming the determination that Mr. Romero did not meet the eligibility 

requirements for access to SCI. Turning to the administrative judge’s determination that 

no mitigating factors applied to Mr. Romero’s relationship with his wife, the DIA-SAB 

stated the following: 

The SAB concluded that you failed to mitigate the foreign influence 

security concerns. As noted by the DOHA Administrative Judge, the 

Foreign Influence standard applies and mitigating factors do not apply as 

your wife is, by definition, an agent of a foreign power (50 U.S.C.A. 

1801(b)(1)(A)). Accordingly, as the security issues are deemed to be 

inconsistent with the national security interests, your eligibility for access 

to SCI is denied effective this date. This decision is final and concludes 

the administrative review of this process. 

The DIA-SAB’s final decision made no mention of the revocation of Mr. Romero’s 

access to collateral classified information (i.e., his Secret security clearance). 

2007-3322 3 
On December 16, 2005, the WHS-CAF notified Mr. Romero of its decision to 

reciprocally accept the DIA-SAB’s final decision denying his eligibility for access to SCI. 

Based on that decision, the WHS-CAF stated that his eligibility “for access to classified 

information and to occupy a sensitive position has been revoked.” The WHS-CAF did 

not provide Mr. Romero any opportunity to appeal the revocation of his access to 

classified information because the revocation was based on the reciprocal acceptance 

of the DIA-SAB’s final decision. 

On July 26, 2006, Mr. Romero received a notice of proposed removal from the 

Office of Inspector General citing the DIA-SAB’s denial of his access to SCI and the 

WHS-CAF’s revocation of his access to classified information. A final decision was sent 

to Mr. Romero on December 21, 2006, and he was removed from his position eight 

days later. 

Mr. Romero appealed his removal to the Merit Systems Protection Board. Before 

the administrative judge, Mr. Romero argued that he was denied due process because 

the Department of Defense did not give him the opportunity to challenge the WHSCAF’s reciprocal revocation. He further argued that the WHS-CAF’s revocation of his 

access to classified information was invalid because the DIA-SAB only denied his 

eligibility for access to SCI. Additionally he argued that his removal was retaliatory. 

The administrative judge first rejected Mr. Romero’s due process argument because Mr. 

Romero was given the opportunity to challenge the DIA-CAF’s decision and because 

the Department’s regulations do not require an opportunity for review of a reciprocal 

acceptance of a security clearance revocation. The administrative judge then 

determined that Mr. Romero’s security clearance had been revoked, that Mr. Romero’s 

2007-3322 4 
position required “access to sensitive compartmented information (SCI) and access to 

classified information,” and that the Department had fully complied with the 

requirements of 5 U.S.C. § 7513. The administrative judge rejected Mr. Romero’s 

remaining challenges to the Department’s action as challenges to the merits of the 

decision to revoke his security clearance. The administrative judge therefore affirmed 

Mr. Romero’s removal. On Mr. Romero’s petition for review, the full Board denied 

review. 

II 

Under 5 U.S.C. § 7512(1), an agency’s removal of an employee is an “adverse 

action.” An employee subject to an adverse action is entitled to the protections of 5 

U.S.C. § 7513. Those protections include written notice of the specific reasons for the 

proposed action, an opportunity to respond to the charges, the requirement that the 

agency’s action is taken to promote the efficiency of the service, and the right to review 

of the action by the Board. When reviewing an adverse action under 5 U.S.C. § 7701, 

the Board may sustain the agency’s action only if the agency can show that its decision 

is supported by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). In most 

cases, the agency must provide evidence supporting the reasons for the adverse action. 

But in cases in which the adverse action is based on the denial or revocation of a 

security clearance, section 7701(c)(1)(B) does not require the agency to prove that the 

reasons for its decision to deny or revoke a security clearance are supported by a 

preponderance of evidence. In Department of the Navy v. Egan, 484 U.S. 518, 531 

(1988), the Supreme Court observed that imposing such a burden would be inconsistent 

with the normal standard applied when granting security clearances—i.e., that granting 

2007-3322 5 
clearance is “clearly consistent with the interests of the national security.” Instead, the 

Court stated that in reviewing a for-cause removal action of an employee who was 

denied a security clearance, the Board may only determine “whether such cause 

existed, whether in fact clearance was denied, and whether transfer to a nonsensitive 

position was feasible.” Id. at 530. 

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

addressed the scope of review of removal actions that involve the revocation or denial 

of security clearance: 

The principles we draw from the Court’s decision in Egan are these: (1) 

there is no presumption that security clearance determinations will be 

subject to administrative or judicial review, as those determinations are 

committed to the broad discretion of the responsible Executive Branch 

agency; (2) unless Congress specifically provides otherwise, the Merit 

Systems Protection Board is not authorized to review security clearance 

determinations or agency actions based on security clearance 

determinations; and (3) when an agency action is challenged under the 

provisions of chapter 75 of title 5, the 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. See King v. 

Alston, 75 F.3d 657, 662-63 (Fed. Cir. 1996); Drumheller v. Department of 

the Army, 49 F.3d 1566, 1571 (Fed. Cir. 1995); Lyles v. Department of the 

Army, 864 F.2d 1581, 1583 (Fed. Cir. 1989). 

Although in a Board proceeding an agency does not need to provide evidence to justify 

the denial or revocation of a security clearance, section 7513(b)(1) requires agencies to 

give written notice to employees “stating the specific reasons for the proposed action.” 

Section 7513 therefore requires—in some circumstances at least—that an agency do 

more than simply state that an adverse action is based on the revocation or denial of 

security clearance. In King v. Alston, 75 F.3d 657 (Fed. Cir. 1996), and Cheney v. 

Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007), we held that the suspension of 

2007-3322 6 
an employee because of denial or revocation of a security clearance could not be 

sustained when the agencies involved did not “provide the employee with sufficient 

information to make an informed reply to the agency.” Cheney, 479 F.3d at 1352 

(quoting Alston, 75 F.3d at 662). 

Section 7513 is not the only source of procedural protections for employees 

subject to adverse actions based on security clearance decisions; agencies must also 

follow the procedures established by their own regulations. See Drumheller v. Dep’t of 

the Army, 49 F.3d 1566, 1569-73 (Fed. Cir. 1995) (reviewing Department of the Army 

regulations related to the revocation of security clearances). In the event that an 

agency does not follow its own regulations, 5 U.S.C. § 7701(c)(2)(A) provides that an 

adverse action decision may not be sustained by the Board if the employee can show 

“harmful error in the application of the agency’s procedures in arriving at such decision.” 

The government argues that under Egan, Hesse, and Robinson v. Department of 

Homeland Security, 498 F.3d 1361 (Fed. Cir. 2007), the Board and this court may not 

review the procedural validity of a security clearance revocation. We disagree. Egan

and this court’s decisions following it are based on the principle that foreign policy is the 

“province and responsibility of the Executive.” Egan, 484 U.S. at 529 (quoting Haig v. 

Agee, 453 U.S. 280, 293-94 (1981)). In light of that principle, the Supreme Court in 

Egan observed that “unless Congress specifically has provided otherwise, courts 

traditionally have been reluctant to intrude upon the authority of the Executive in military 

and national security affairs.” 484 U.S. at 530. The statutory provision allowing review 

of an agency’s compliance with its own procedures leading to an adverse action does 

not amount to an unwarranted intrusion upon the authority of the Executive, however, 

2007-3322 7 
because the authority to formulate procedures for denying or revoking security 

clearances remains with the Executive. 

We note that the government in Egan itself acknowledged that the Board may 

review whether the agency has complied with its procedures for revoking a security 

clearance, even though it may not review the substance of the revocation decision. The 

government’s brief in Egan stated: 

We agree with the Board that it may examine whether the agency made

such a determination [to revoke a security clearance], that is, whether the 

agency had procedures for denying or revoking clearances and whether 

the procedures were followed. The Board also could, in an appropriate 

case, find that a determination was not validly made because the 

employee was not afforded procedural protections guaranteed to him by 

the agency’s regulations . . . . 

Brief for Petitioner at 24-25, Dep’t of the Navy v. Egan, 484 U.S. 518 (1988). In light of 

that concession, we decline to interpret Egan as having precluded such review without 

comment. The Supreme Court’s decisions in Service v. Dulles, 354 U.S. 363 (1957), 

and Vitarelli v. Seaton, 359 U.S. 535 (1959), also make clear that federal employees 

may challenge an agency’s compliance with its regulations governing revocation of 

security clearances. Nothing in Egan overrules those cases, and in fact the principle of 

those cases has been applied even in cases involving employee security issues. See

Duane v. U.S. Dep’t of Def., 275 F.3d 988, 993 (10th Cir. 2002) (holding that court was 

not precluded from reviewing a claim that agency violated its own procedural 

regulations when revoking or denying a security clearance); Reinbold v. Evers, 187 F.3d 

348, 359 n.10 (4th Cir. 1999) (same). 

In Mr. Romero’s case, the Board was correct to reject the argument that the 

revocation of his Secret clearance was retaliatory, as that argument went to the merits 

2007-3322 8 
of the security clearance decision. See Hesse, 217 F.3d at 1380. The Board also did 

not err in finding that the agency had complied with the requirements of section 7513. 

Mr. Romero was provided with notice of his proposed removal, and the Department 

provided notice of the reasons for his removal and for the underlying revocation of his 

security clearance, and an opportunity to respond to the proposed removal. 

The Board, however, did not address Mr. Romero’s arguments that the 

Department failed to follow its own regulations in revoking his Secret security clearance. 

Mr. Romero has raised two challenges to the procedural validity of the Department’s 

revocation of his Secret security clearance. First, he argues that the DIA-SAB was 

authorized to review the denial of his eligibility for access to SCI, but not to revoke his 

Secret security clearance. Second, he argues that the DIA-SAB did not actually revoke 

his Secret security clearance, even if it had authority to do so. As a result, he asserts 

that the WHS-CAF’s “reciprocal revocation” of his Secret security clearance was invalid. 

Because there was no revocation to reciprocally accept, Mr. Romero claims that in 

order to revoke his Secret security clearance, the WHS-CAF was required to provide 

him with a statement of reasons, an opportunity to respond, and an opportunity to seek 

review of the revocation at the Personnel Security Appeals Board.

In support of those arguments, Mr. Romero relies on a July 16, 1998, 

memorandum from the Office of the Assistant Secretary of Defense and DoD 

Regulation 5200-2-R.1

 The Board did not address whether the Department complied 

 

1

 Mr. Romero also relies on Executive Order No. 12,968. That order, however, 

provides that it is “intended only to improve the internal management of the executive 

branch and is not intended to, and does not, create any right to administrative or judicial 

review, or any other right or benefit.” Exec. Order No. 12,968 § 7.2(e). Such language 

2007-3322 9 
2007-3322 10 

with its own procedures in revoking Mr. Romero’s Secret security clearance. Because 

the answer to that question may turn on the way that the Defense Department’s 

procedures are interpreted and have been applied, matters that are not fleshed out in 

the record before us, we are not in a position to decide whether Mr. Romero’s 

procedural objections have merit. That issue should be addressed by the Board in the 

first instance. Accordingly, we vacate the Board’s decision and remand for the Board 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.2

VACATED and REMANDED. 

 

in Executive Orders bars a court from reviewing agency compliance with rules or 

regulations qualified in that manner. See Sur Contra La Contaminacion v. EPA, 202 

F.3d 443, 449 (1st Cir. 2000); Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1, 8-9 (D.C. 

Cir. 1999); Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998); 

State of Mich. v. Thomas, 805 F.2d 176, 187 (6th Cir. 1986). 

2

 The American Civil Liberties Union, as amicus curiae, argues that the Board 

erred because the record does not support a finding that Mr. Romero’s Secret security 

clearance was actually revoked. We believe the WHS-CAF’s statement that his 

eligibility “for access to classified information and to occupy a sensitive position has 

been revoked” shows that his clearance was revoked. In substance, the amicus’s 

argument largely parallels the argument that the Department did not follow its own 

procedures when it issued the reciprocal revocation. It differs in one respect, however. 

Under section 7701(c)(2)(A), it is the employee’s burden to show that the agency failed 

to follow its own procedures in reaching a removal decision and that the procedural 

deficiency constituted harmful error. Accepting the ACLU’s characterization of the 

Department’s action would seem to shift the burden to the Department to show 

compliance with its security clearance procedures.