Case: 23-2031 Document: 25 Page: 1 Filed: 04/08/2024
`
`NOTE: This disposition is nonprecedential.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. DRAWHORN, Centreville, VA, pro se.
`
`
` EMMA EATON BOND, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent. Also represented by BRIAN M.
`BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA M.
`MCCARTHY.
`
`______________________
`
`Before DYK, MAYER, and REYNA, Circuit Judges.
`
`

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`Case: 23-2031 Document: 25 Page: 2 Filed: 04/08/2024
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`2
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`DRAWHORN v. SEC
`
`PER 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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`Case: 23-2031 Document: 25 Page: 3 Filed: 04/08/2024
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`DRAWHORN v. SEC
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`3
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`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).
`DISCUSSION
`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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`Case: 23-2031 Document: 25 Page: 4 Filed: 04/08/2024
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`4
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`DRAWHORN v. SEC
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`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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`Case: 23-2031 Document: 25 Page: 5 Filed: 04/08/2024
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`DRAWHORN v. SEC
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`5
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`“[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.
`
`
`