Nazario v. Department of Justice , 335 F. App'x 43 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3047
JAIME NAZARIO,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Jaime Nazario, of Fairfax, Virginia, pro se.
Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeanne E. Davidson, Director, and Harold D. Lester, Jr., Assistant
Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3047
JAIME NAZARIO,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Petition for review of the Merit Systems Protection Board in consolidated case nos.
DC-0752-08-0002-B-1 and DC-0752-08-0425-I-1.
__________________________
DECIDED: June 5, 2009
__________________________
Before MAYER, CLEVENGER, and SCHALL, Circuit Judges.
PER CURIAM.
Jaime Nazario appeals the decision of the Merit Systems Protection Board,
which affirmed the decision of the Department of Justice to suspend him indefinitely for
failing to hold a security clearance to access National Security Information (NSI).
Nazario v. Dep’t of Justice, No. DC-0752-08-0002-B-1 (M.S.P.B. Oct. 15, 2008).
Because the board correctly determined that the department followed the required
procedures to suspend him, we affirm.
Nazario charges that the Department of Justice violated the requirements of 5
U.S.C. § 7513 by not providing certain supporting material to him or the board which
would have allowed him to present a better answer to his proposed suspension as
provided under subsection (e). He specifically argues for the inclusion of information
concerning the department’s decision to rescind his security clearance. He also argues
that the department did not adhere to its own regulations for revoking a security
clearance. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2006).
This court must affirm a decision of the board unless the decision is (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence. 5 U.S.C. 7703(c) (2006).
5 U.S.C. § 7513 provides the procedures by which an agency may remove or
suspend an employee for more than 14 days. By its terms, an employee is generally
entitled to 30 days advance notice, at least 7 days to answer, representation by an
attorney, and a written decision by the earliest practicable date. 5 U.S.C. § 7513(b)
(2006). An employee may appeal a suspension to the Merit Systems Protection Board,
to which the agency is required to provide a copy of the proposed action, the
employee’s answer if written or a summary if oral, the notice of the agency’s decision,
and any order effecting the action. Id. at §§ 7513(d), (e). However, while the board
may review the facts resulting in the suspension, it does not have jurisdiction to
consider the decision of whether to grant or maintain a security clearance, because
such a decision is “a sensitive and inherently discretionary judgment call which is
committed by law to the appropriate agency of the Executive Branch,” in this case, the
Department of Justice. Hesse v. Dep’t of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000)
(quoting Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988)). Therefore, the board could
2009-3047 2
only determine whether the Department of Justice correctly adhered to section 7513
given the fact that Nazario had lost his security clearance. When an agency action is
challenged under section 7513, 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 it may
not examine the underlying merits of the security clearance determination. Hesse, 217
F.3d at 1376.
Because both parties agree that a security clearance was required for Nazario’s
position, and that it had been rescinded at least pending investigation, and because the
department gave Nazario notice of 30 days, allowed him to answer, and promptly
supplied him with a decision, substantial evidence supports the board’s finding that the
department correctly adhered to the statute. The board correctly dismissed Nazario’s
charges that the information provided to the board by the department was insufficient
under section 7513(e) because the supporting material he requested be considered by
the board reached only the merits of the underlying removal of his security clearance.
2009-3047 3