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SWANN v. WALTERS

July 27, 1984

Michael L. SWANN, Plaintiff
v.
Harry N. WALTERS, et al., Defendants



The opinion of the court was delivered by: GREEN

JOYCE H. GREEN, District Judge: --

 In this action, plaintiff seeks reversal of his demotion by the Veterans Administration (VA).

 Plaintiff was first employed by the VA in 1972 as a computer operator in one of its Medical Centers (VAMC), and was promoted to the job of Shift Supervisor in 1976. In this position, plaintiff had access to computerized medical records of VAMC patients. Specifically, he was responsible for the operation and monitoring of the central processing unit and all patient ward terminals; this gave him the ability to enter or change data in the computer system. Hence, plaintiff had access to confidential medical information -- information often critical to a patient's well-being. For these reasons, and in accordance with an Office of Management and Budget (OMB) directive issued in 1978, plaintiff's position was designated as a "critical-sensitive ADP-I"* for which a security clearance is required. Following the appropriate investigation, clearance was issued in 1980.

 In May, 1982, plaintiff was convicted on a felony charge of sexual child abuse in a Maryland state court. He received a five-year suspended sentence and was placed on probation for five years with a requirement to undergo psychiatric treatment. Plaintiff did not report his conviction to the VA. When the Director of the VAMC learned of the conviction, in January 1983, he referred the matter to the Office of the Inspector General for review of plaintiff's security clearance. That office, in applying Federal Personnel Manual guidelines, determined that plaintiff was no longer able to hold a critical-sensitive ADP-I position. In particular, it was felt that plaintiff's crime reflected too adversely upon his honesty, integrity, and character to permit him to hold a position which requires a high degree of trustworthiness and stability.

 Accordingly, in March, 1983, plaintiff's security clearance was revoked, and, following a hearing, he was advised that he would be removed from his position. After negotiations with plaintiff's attorney, the VA agreed to offer plaintiff a position which did not require a security clearance. At the time, the only such job available was that of Housekeeping Aide. Consequently, in May, 1983, plaintiff was demoted from Shift Supervisor for the Computer System to Housekeeping Aide.

 Plaintiff appealed his demotion to the Merit Systems Protection Board (MSPB), which affirmed the VA's action. The MSPB found that plaintiff's criminal misconduct was sufficiently serious and indicative of aberrant behavior to justify the VA's concern about his character and trustworthiness. Besides challenging the propriety of demotion following his conviction, plaintiff claimed the VA's action constituted discrimination on the basis of his handicap of paranoid schizophrenia. The MSPB found no evidence of such discrimination. *fn1"

 Now before the Court are the parties' cross motions for summary judgment. *fn2" At issue are plaintiff's claims that (1) his position did not require a security clearance and, even if it did, the clearance was improperly revoked, in violation of the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq., and (2) his demotion represented discrimination on the basis of his psychiatric handicap in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.

 While appeals of MSPB decisions are generally heard in the Court of Appeals for the Federal Circuit, 5 U.S.C. § 7703(b)(1) (1982), those which combine claims of discrimination and claims on other bases, are heard in the federal district court. See Hayes v. U.S. Gov't Printing Office, 684 F.2d 137, 140 (D.C. Cir. 1982); 5 U.S.C. § 7703(b)(2). The district court reviews the discrimination claims de novo and the other claims on the administrative record. Id. at 141; Mayo v. Edwards, 562 F. Supp. 907 (D.D.C. 1983) (federal employee challenged dismissal on procedural grounds and discrimination grounds, and procedural claim reviewed on the administrative record). As to the latter, the Court may set aside only those agency actions which are arbitrary, capricious, an abuse of discretion, not in accordance with law or procedure, or unsupported by substantial evidence. 5 U.S.C. § 7703(c); Hayes, 684 F.2d at 138.

 I. Plaintiff's Security Clearance

 Plaintiff challenges the application of security clearance considerations on grounds that (a) his position did not require a security clearance and (b) his clearance was improperly revoked. The Court rejects both claims.

 Plaintiff first argues that, since his position had no relation to matters of national security, a security clearance should not have been required. However, the guidelines for computer security do not depend upon national security considerations. Rather, they were promulgated under Transmittal Memorandum No. 1 to OMB Circular A-71 (1978) which requires federal agencies to develop and implement computer security programs. *fn3"

 OMB Circular A-71 itself was issued under the authority of 5 C.F.R. § 1310.1 (1984) (OMB and Federal Management Circulars) which provides:

 
In carrying out its responsibilities, the Office of Management and Budget issues policy guidelines to Federal agencies to promote efficiency and uniformity in Government action. These guidelines are normally in the form of circulars.

 The responsibility for computer security was delegated to OMB through the Reorganization Plan No. 2 of 1970, 3 C.F.R. 1070 (1966-1970 Comp.) reprinted in 31 U.S.C. § 501 note (1982) ("Improvement of . . . information . . . systems will be a major function of the Office of Management and Budget") and Executive Order 11,541, 3 C.F.R. 939 (1966-1970 Comp.) reprinted in 31 U.S.C. § 501 note (1982) (Executive authority to carry out the Reorganization ...


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