Cedric J. Drawhorn v. Securities and Exchange Commission

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CEDRIC J. DRAWHORN,
Petitioner
v.
SECURITIES AND EXCHANGE COMMISSION,
Respondent
______________________
2023-2031
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DC-0752-15-0332-I-4, DC-0752-15-0851-I-4.
______________________
Decided: April 8, 2024
______________________
CEDRIC J. D RAWHORN, Centreville, VA, pro se.
EMMA EATON B OND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, STEVEN J OHN G ILLINGHAM , P ATRICIA M.
MCCARTHY .
______________________
Before D YK, MAYER , and REYNA, Circuit Judges.
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DRAWHORN v. SEC 2
P ER CURIAM .
Cedric Drawhorn appeals from a decision of the Merit
Systems Protection Board (“Board”), sustaining his re-
moval as a Security Officer at the U.S. Securities and Ex-
change Commission (“SEC”). Because the decision was
supported by substantial evidence, we affirm.
BACKGROUND
Mr. Drawhorn held a position as a Security Officer at
the SEC. He held a top secret security clearance, and his
position was designated as “critical sensitive.” S.A. 9.1 On
November 3, 2014, the SEC sent Mr. Drawhorn a letter,
notifying him that his security clearance was being sus-
pended and, four days later, sent Mr. Drawhorn a notice of
proposed action and intent to revoke his security clearance.
The notice included a statement of reasons for the revoca-
tion, including evidence that he attempted to conceal a per-
sonal relationship with a recent hire that he selected to fill
a vacancy within the SEC. On November 17, 2014, the
SEC proposed that Mr. Drawhorn be indefinitely sus-
pended, and on November 26, 2014, the SEC revoked his
security clearance. The suspension was effective December
19, 2014. On May 13, 2015, the SEC proposed that Mr.
Drawhorn be removed from his position.
Mr. Drawhorn was removed based on the charge of
“Failure to Maintain a Condition of Employment.” S.A. 48.
The removal was effective June 20, 2015. Because his crit-
ical sensitive position as a Security Officer required him to
maintain eligibility for access to classified information and
the revocation of his security clearance made him ineligible
for that access, he was found to be “unable to satisfy a re-
quirement of [his] position.” S.A. 48.
1 S.A. refers to the supplemental appendix attached
to the respondent’s informal brief, ECF No. 18.
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DRAWHORN v. SEC 3
Mr. Drawhorn appealed to the Board, challenging his
indefinite suspension and removal from his position. In an
initial decision, the administrative judge sustained the re-
moval and suspension, finding that “the agency’s actions
suspending and removing the appellant are supported by a
preponderance of the evidence.” S.A. 24. Mr. Drawhorn
petitioned for review of the initial decision before the full
Board. Because of a recusal, there was a lack of quorum of
the Board, and the initial decision became the final deci-
sion of the Board.
Mr. Drawhorn appeals. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The scope of our judicial review is limited by 5 U.S.C.
§ 7703(c). We review decisions of the Board for whether
they are “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). “We review the Board’s legal determi-
nations de novo and its factual findings for substantial ev-
idence.” Bryant v. Dep’t of Veterans Affs., 26 F.4th 1344,
1346 (Fed. Cir. 2022) (citing Archuleta v. Hopper, 786 F.3d
1340, 1346 (Fed. Cir. 2015)).
I
In his informal brief, Mr. Drawhorn argues that the
Board’s decision should be set aside because “[t]he [Board]
did not review [his] Petition for Review of the initial deci-
sion due to Lack of Quorum.” Appellant Informal Op. Br.
3. Mr. Drawhorn requests that this court “review the mer-
its of [his] initial Petition for Review to the Board,” using
the same standard of review as the full Board decision
would have used. Id. This we cannot do.
The statutory standard of review in 5 U.S.C. § 7703(c)
does not change where, as here, there is no Board review of
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DRAWHORN v. SEC 4
the initial decision. There is no basis in the absence of a
quorum for this court to conduct de novo review.
II
To the extent that Mr. Drawhorn asks us to review the
decision of the Board because it allegedly “is contrary to
law and fails to properly analyze pertinent record evi-
dence,” Appellant Informal Op. Br. 9, we are only able to
review “whether the administrative determination is sup-
ported by substantial evidence as a whole.” Haebe v. Dep’t
of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002).
To affirm a decision of the Board, “[t]he record need
only disclose such relevant evidence as might be accepted
by a reasonable mind as adequate to support the conclusion
reached.” Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537
(Fed. Cir. 1984). While Mr. Drawhorn alleges that “the
SEC never established that [his] position required a secu-
rity clearance,” Appellant Informal Op. Br. 3, substantial
evidence supports the finding that eligibility to hold a se-
curity clearance was a requirement of Mr. Drawhorn’s po-
sition.
In reaching the conclusion that Mr. Drawhorn failed to
“maintain access to classified information which [was] a re-
quirement of [his] position,” S.A. 18 (second alteration in
original), the administrative judge relied on the testimony
of the then-Branch Chief of Personnel Security Operations,
Kelly Gibbs, “that all SEC positions that are designated
critical sensitive require a security clearance” and the fact
that “the appellant failed to credibly identify any employee
who occupied a critical sensitive position but was ineligible
for a clearance or failed to have a clearance.” S.A. 21. The
administrative judge found that Ms. Gibbs “testified credi-
bly when she asserted that all employees at the SEC who
are in critical sensitive designated positions are required
to hold a clearance.” S.A. 18–19 (footnote omitted). The
administrative judge explained that Ms. Gibbs’ demeanor
was “calm, confident, and forthright.” S.A. 20.
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DRAWHORN v. SEC 5
“[C]redibility determinations by the board are ‘virtually
unreviewable.’” Wright v. U.S. Postal Serv., 183 F.3d 1328,
1334 (Fed. Cir. 1999) (quoting Hambsch v. Dep’t of Treas-
ury, 796 F.2d 430, 436 (Fed. Cir. 1986)). The conclusion
that Mr. Drawhorn failed to maintain a condition of his em-
ployment is supported by substantial evidence.
We have considered Mr. Drawhorn’s remaining argu-
ments and find them unpersuasive.
AFFIRMED
COSTS
No costs.
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