Stoyanov v. Department of the Navy , 348 F. App'x 558 ( 2009 )


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  •                       NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2009-3163
    YURI J. STOYANOV,
    Petitioner,
    v.
    DEPARTMENT OF THE NAVY,
    Respondent.
    Yuri J. Stoyanov, of Fulton, Maryland, pro se.
    Russell A. Shultis, Trial Attorney, Commercial Litigation Branch, Civil Division,
    United States Department of Justice, of Washington, DC, for respondent. With him on
    the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
    and Steven J. Gillingham, Assistant Director.
    Appealed from: Merit Systems Protection Board
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2009-3163
    YURI J. STOYANOV,
    Petitioner,
    v.
    DEPARTMENT OF THE NAVY,
    Respondent.
    Petition for review of the Merit Systems Protection Board in DC0752080466-I-1.
    ___________________________
    DECIDED: September 15, 2009
    ___________________________
    Before MICHEL, Chief Judge, NEWMAN and MOORE Circuit Judges.
    PER CURIAM.
    Dr. Yuri J. Stoyanov petitions for review of the final decision of the Merit Systems
    Protection Board (“Board”) sustaining the Department of the Navy’s suspension of Dr.
    Stoyanov from his position, based on the suspension of his security clearance. The
    suspension lasted for over 370 days, ending with the reinstatement of his clearance
    through the Navy’s appellate processes. The Board held that it had no authority to review
    the basis of the suspension and that it had no authority to review Dr. Stoyanov’s charge
    that the suspension was improperly based on discrimination or on reprisal for
    whistleblowing. The Board held that the Navy had met the requirements of minimal due
    process in its imposition of the suspension, and that this was the limit of the Board’s review
    authority. Stoyanov v. Department of Navy, No. DC-0752-08-0466-I-1 (M.S.P.B. July 22,
    2008). We affirm, for review of matters related to security clearance is limited to the
    question of due process in accordance with Department of the Navy v. Egan, 
    484 U.S. 518
    (1988).
    BACKGROUND
    Dr. Stoyanov is employed as a Physicist/Scientist with the Naval Surface Warfare
    Center, Carderock Division. This position requires access to information classified as
    Secret. On February 2, 2007, Dr. Stoyanov received a “Notice of Intent to Suspend Access
    to Classified Information and Assignment to a Sensitive Position.” The notice stated the
    reasons as “falsification of time and attendance records, misuse of government resources,
    and lack of candor when questioned regarding your misconduct.” The notice identified the
    following acts:
    a. On multiple occasions between February and May 2006, you used
    your government issued computer/email account to engage in
    communications with the HRSC, National Capital Region and Johns Hopkins
    University using the alias “Basil Stoyanov.” By impersonating Basil Stoyanov,
    you misled representatives of the Department of Navy and Johns Hopkins.
    b. On 28 September 2006, you signed in for duty at 0811 hours and
    disappeared until approximately 0855 hours. Subsequently, when questioned
    as to your whereabouts, you claimed to be working in a classified work area;
    however, no one in the area observed you working, your supervisor did not
    observe your working in this area, and the computer records for this secured
    computer disclose your first sign in time to be 1000, which is significantly later
    than you claimed.
    2009-7082                                      2
    c. On 22 December 2006 and 5 January 2007, you signed in earlier
    than your actual arrival time, as observed by a witness.
    d. You repeatedly ignore direction to limit your use of official time and
    you utilize government time and resources for unauthorized purposes (in
    excess of 200 incidences).
    Stoyanov v. Department of Navy, No. DC-0752-08-0466-I-1, Separate Opinion of Neil A. G.
    McPhie at 2 (M.S.P.B. March 11, 2009). On February 5, 2007 Dr. Stoyanov requested the
    documentation to support these charges, and also requested thirty additional days to
    respond. On February 7, 2007, the Navy issued a “Notice to Indefinitely Suspend Access
    to Classified Information and Assignment to a Sensitive Position,” by which the Navy
    suspended his security access. In this Notice, the Navy denied Dr. Stoyanov’s requests for
    documentation and additional time, stating that he had received the statutory response
    period and that his response of February 5 did not address any of the concerns that had
    been raised in the February 2 Notice.
    On February 9, 2007 Dr. Stoyanov again requested additional documentation and
    time, and stated that the suspension of his security clearance was in retaliation for his
    various EEO and whistleblowing claims against various Navy officials at his location. On
    February 15, 2007 the Navy issued a “Notice of Proposed Indefinite Suspension,” which
    placed Dr. Stoyanov in a non-duty status with pay for a 30 day period, pending a final
    determination regarding the suspension of his security clearance. The suspension of his
    security clearance was the reason cited for the indefinite suspension. This Notice stated
    that he could respond “in writing, in person, or both.” From the record, it appears that he
    responded in writing. On April 9, 2007 the Navy placed Dr. Stoyanov on indefinite non-
    duty, non-pay status as of April 15, 2007.
    2009-7082                                     3
    The record does not contain details of the ensuing Navy procedures. However, Dr.
    Stoyanov advised that on April 10, 2008 the Department of the Navy Personnel Security
    Appeals Board, reviewing a decision dated March 11, 2008 of the Navy Central
    Adjudication Facility, reversed the revocation of his security clearance. His indefinite
    suspension was terminated, effective April 27, 2008, and he was directed to report for duty
    on May 5, 2008.
    Meanwhile, Dr. Stoyanov had taken an appeal to the Board. A hearing was held on
    July 14, 2008, after which the administrative judge (“AJ”) held that the Board does not have
    jurisdiction to inquire into the merits of a decision to suspend a security clearance. Thus
    the AJ held that he was precluded from considering whether the suspension of Dr.
    Stoyanov’s security clearance was in retaliation for his EEO or whistleblowing actions. The
    AJ observed that the Board’s authority was limited to review of whether Dr. Stoyanov had
    received due process from the Navy; that is, whether Dr. Stoyanov received notice of the
    charges against him and had the opportunity to reply. The AJ held that the reasons given
    to Dr. Stoyanov were sufficient to enable a response, without the additional documentation
    and time that he requested. Accordingly, the AJ affirmed the Navy’s suspension action.
    Dr. Stoyanov petitioned the full Board for review. The full Board normally has three
    members, but had a vacancy and only two members participated in the review. These two
    members did not agree as to whether the Navy had provided sufficient detail of one of the
    four charges. In view of the split the AJ’s decision became the final decision of the Board,
    in accordance with 5 C.F.R. §1200.3(b). This appeal followed.
    2009-7082                                    4
    ANALYSIS
    Dr. Stoyanov argues that the Navy committed procedural flaws and that the Board
    erred, as follows: (1) the Navy’s Notice of Intent was impermissibly vague; (2) the Board
    should have considered his whistleblowing reprisal claims; (3) he was improperly denied
    the information he needed to respond to the Navy’s charges; (4) he was improperly denied
    the time extension he need to respond to the Navy’s charges; (5) the Board failed to
    properly consider the Navy’s violations of its own procedures and regulations as set forth in
    SECNAV M-5510-30 9-7 2(b); (6) the Navy failed to provide him the requisite due process;
    and (7) the Navy’s indefinite suspension was “unlawful in its entirety.”
    In 
    Egan, supra
    , the Supreme Court considered the Board’s authority to review an
    adverse employment action, when the action is based on the revocation or suspension of
    security clearance. The Court concluded that the Board lacks such authority, beyond
    determination of whether there was minimal due process in connection with the suspension
    of clearance, and specifically, whether the agency provided the procedural protections
    specified in §7513(b). 
    Egan, 484 U.S. at 530
    (“An employee who is removed for ‘cause’
    under § 7513, when his required clearance is denied, is entitled to the several procedural
    protections specified in that statute.”). The Navy states that it followed the procedures set
    forth at §7513(b). These procedures apply to any federal employment action and relate to
    notice, the opportunity to reply, and to be informed of the decision and its reasons:
    (1) at least 30 days’ advance written notice, unless there is
    reasonable cause to believe the employee has committed a crime for which a
    sentence of imprisonment may be imposed, stating the specific reasons for
    the proposed action;
    (2) a reasonable time, but not less than 7 days, to answer orally and
    in writing and to furnish affidavits and other documentary evidence in support
    of the answer;
    2009-7082                                    5
    (3) be represented by an attorney or other representative; and
    (4) a written decision and the specific reasons therefor at the earliest
    practicable date.
    5 U.S.C. §7513(b).
    Notice under §7513(b) is sufficient if “it apprises the employee of the nature of the
    charges ‘in sufficient detail to allow the employee to make an informed reply.’” King v.
    Alston, 
    75 F.3d 657
    (Fed. Cir. 1996) (quoting Brook v. Corrado, 
    999 F.2d 523
    , 526 (Fed.
    Cir. 1993)). Brook requires that the employee have “adequate notice” of the nature of the
    charges to which he must 
    respond. 999 F.2d at 526
    . However, “[n]owhere does section
    7513(b) require notice to include explicitly every element of every charge underlying the
    proposed action.” 
    Id. at 526-27.
    Dr. Stoyanov argues that the Notice contained insufficient
    detail, particularly as to the fourth itemized reason given by the Navy, which was that
    Dr. Stoyanov “repeatedly ignore[d] direction to limit your use of official time and you utilize
    government time and resources for unauthorized purposes (in excess of 200 incidences).”
    The Notice did not include details of any of the 200 incidences. Dr. Stoyanov argues that
    the Navy improperly denied him the time and the documentation he needed to respond to
    the Navy’s charges. The AJ found that the notice requirement had been met, and that
    although the Navy did not provide details, Dr. Stoyanov did not state that he was confused
    about the basis of the Navy’s charges against him.
    Dr. Stoyanov also argues that the Board should have considered that his security
    clearance was revoked in retaliation for his whistleblowing activity, and that the Board
    should have addressed whether his disclosures constituted “protected disclosures” within
    the meaning of the Whistleblower Protection Act. The Board concluded that it lacked
    jurisdiction to review this aspect, citing this court’s decision in Hesse v. Department of
    2009-7082                                     6
    State, 
    217 F.3d 1372
    , 1377 (Fed. Cir. 1988), where this court applied Egan and held that
    “absent a clear indication from Congress that the Board was meant to review security
    clearance determinations when raised in an appeal under the [Whistleblower Protection Act
    of 1989], the principles of Egan compel” a conclusion that the Board lacks such jurisdiction.
    Applying Hesse, the Board was correct in holding that it lacks jurisdiction to review whether
    a security clearance revocation was an act of retaliation for whistleblowing.
    Dr. Stoyanov also argues that the Navy violated its own internal regulations, citing
    SECNAV M-5510.30 9-7, which relates to the Navy’s internal procedures in suspending
    access to classified information for cause. Dr. Stoyanov specifically identifies SECNAV
    M-5510.30 9-7(2)(b), which provides “Commands and activities must report all suspensions
    [of access to classified information] to the DON CAF no later than 10 working days from the
    date of the suspension action via JPAS, providing sufficient details to support adjudicative
    review.” Dr. Stoyanov argues that the report of his suspension was not sufficient “to
    support adjudicative review” because the Navy “den[ied] evidence in support of adjudicative
    review.”
    The AJ held that “there is nothing in the record to even suggest that the agency
    failed to follow its own procedures in connection with the suspension of the appellant’s
    security clearance.” While agencies must follow the procedures in their own regulations,
    see Drumheller v. Department of the Army, 
    49 F.3d 1566
    , 1569-73 (Fed. Cir. 1995), we
    conclude that the AJ did not err in holding that Dr. Stoyanov did not prove that the Navy did
    not follow its own regulations, and did not establish “harmful error in the application of the
    agency’s procedures in arriving at such decision.” Romero v. Department of Defense, 
    527 F.3d 1324
    , 1328 (Fed. Cir. 2008). Other than for review of the agency’s procedures in the
    2009-7082                                     7
    context of minimal due process, the Board adhered to the prohibition against Board review
    of the suspension of the security clearance. See 
    Egan, 484 U.S. at 520
    .
    Substantial evidence supports the Board’s finding that the Navy “has adduced
    preponderant evidence showing that it provided the appellant with the statutorily mandated
    due process to which he was entitled” as to the security clearance suspension. These
    requirements were when Dr. Stoyanov was apprised of the charges against him and
    afforded the opportunity to respond, as outlined in §7513(b). Although Dr. Stoyanov
    contends that the suspension of his security clearance and ensuing suspension of his
    employment with the Navy was “unlawful in its entirety,” this charge is not within the
    Board’s purview, beyond determination of whether he received the minimal due process to
    which he is entitled in accordance with Egan. The Board correctly so held. That decision
    must be affirmed.
    No costs.
    2009-7082                                   8
    

Document Info

Docket Number: 2009-3163

Citation Numbers: 348 F. App'x 558

Judges: Michel, Newman, Moore

Filed Date: 9/15/2009

Precedential Status: Non-Precedential

Modified Date: 10/19/2024