Andrew C. Wiesner v. Department of the Navy ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW C. WIESNER, DOCKET NUMBER
Appellant, PH-0752-13-0434-I-2
v.
DEPARTMENT OF THE NAVY, DATE: December 15, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Marshall J. Tinkle, Esquire, Portland, Maine, for the appellant.
Barbara A. Badger and Scott W. Flood, Esquire, Portsmouth, New
Hampshire, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s indefinite suspension based on a finding of harmful
procedural error. Generally, we grant petitions such as this one only when: the
initial decision contains erroneous findings of material fact; the initial decision is
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the judge’s rulings during either the
course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, and
based on the following points and authorities, we conclude that the petitioner has
not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The following facts are not in dispute. The appellant held the position of
Pipefitter at a naval shipyard, which required him to be able to obtain and
maintain a security clearance with access to classified information. MSPB
Docket No. PH-0752-13-0434-I-1, Initial Appeal File (IAF), Tab 5 at 35, 57-59.
On April 26, 2013, the agency suspended the appellant’s access to classified
information. Id. at 40. As a result, the agency indefinitely suspended the
appellant, effective June 3, 2013, based upon his failure to maintain a condition
of employment. Id. at 36-37.
¶3 Meanwhile, on June 7, 2013, the Department of Defense Consolidated
Adjudications Facility (DoDCAF) informed the appellant of its final
determination to revoke his eligibility for a security clearance and assignment to a
sensitive position. MSPB Docket No. PH-0752-13-0434-I-2, IAF, Tab 3, Initial
Decision (ID) at 3. The appellant appealed DoDCAF’s final revocation by
submitting a written appeal to the Personnel Security Appeals Board (PSAB), and
the PSAB upheld the revocation in a decision dated August 22, 2013. ID at 3.
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¶4 The appellant timely appealed his indefinite suspension to the Board. IAF,
Tab 1 at 4. After holding the requested hearing, id. at 2, the administrative judge
issued an initial decision reversing the indefinite suspension action, ID at 4-5. 2
The administrative judge found that the agency committed harmful procedural
error when it indefinitely suspended the appellant prior to his receipt of a written
decision from the PSAB concerning his security clearance in violation of
Department of Defense (DoD) regulation 5200.2-R. ID at 5.
¶5 The agency has filed a petition for review. 3 Petition for Review (PFR) File,
Tabs 3, 6. On review, the agency claims that the Board’s recent decision in
Flores v. Department of Defense, 121 M.S.P.R. 287 (2014), necessitates reversal
of the initial decision. PFR File, Tab 3 at 4-6. The appellant has filed a response
in opposition. PFR File, Tab 5. In his response, the appellant requests the
dismissal of the agency’s petition for review based upon its failure to provide
interim relief. Id. at 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The agency’s reliance on Flores is misplaced. In Flores, 121 M.S.P.R. 287,
¶¶ 1, 4, the Board sustained an agency removal action based upon the appellant’s
loss of eligibility to occupy a sensitive position. In sustaining the action, the
Board held that it lacked the authority to review the merits of the agency’s
decision to deny the appellant’s eligibility to occupy a sensitive position. Id.,¶¶ 7-8 (citing Kaplan v. Conyers, 733 F.3d 1148, 1158-60 (Fed. Cir. 2013), cert.
denied sub nom. Northover v. Archuleta, 134 S. Ct. 1759 (2014)). Here, it
appears that the agency is arguing that, because the Board lacks the authority to
2
The administrative judge also addressed the appellant’s appeal of his removal in the
initial decision. ID at 6-9. We have addressed the appellant’s petition for review
concerning the removal, which is docketed as MSPB Docket No. PH-0752-14-0342-I-1,
in a separate order.
3
The petition for review is labeled as a cross-petition for review given the former status
of the appeals as joined. PFR File, Tab 3.
4
review the merits of the agency’s decision regarding the loss of eligibility to
occupy a sensitive position, it similarly lacks the authority to review whether the
agency complied with its own procedures when taking an adverse action based on
that loss or, as here, the revocation of a security clearance. PFR File, Tab 3
at 4-6. As described below, the agency’s argument is unavailing.
¶7 Generally, in an appeal of an adverse action based on the revocation of a
security clearance, the Board is limited to reviewing whether: (1) the appellant’s
position required a security clearance; (2) the clearance was denied, revoked, or
suspended; and (3) the appellant was provided with the procedural protections
specified in 5 U.S.C. § 7513. Ulep v. Department of the Army, 120 M.S.P.R. 579,
¶ 4 (2014). Section 7513 is not the only source of procedural protections for
employees subject to adverse actions, however; agencies must also comply with
the procedures set forth in their own regulations. Schnedar v. Department of the
Air Force, 120 M.S.P.R. 516, ¶ 8 (2014). Under 5 U.S.C. § 7701(c)(2)(A), the
Board may not sustain an adverse action decision if the employee can show
“harmful error in the application of the agency’s procedures in arriving at such
decision.” The Board has held that it may review whether the agency complied
with its own procedures for taking an adverse action based on the revocation of a
security clearance. See Schnedar, 120 M.S.P.R. 516, ¶ 8.
¶8 Prior to taking an adverse action based on the revocation of an employee’s
security clearance, DoD components must provide: (1) a written statement of
reasons for the unfavorable administrative action, signed by an adjudicatory
official within the DoD component’s designated Central Adjudication Facility;
(2) an opportunity to respond in writing; (3) a written response to the reply,
stating the final reasons therefor; and (4) an opportunity to appeal to a higher
level authority designated by the component concerned. Ulep, 120 M.S.P.R. 579,
¶ 5; 32 C.F.R. § 154.56(b). DoD regulations further provide that an employee
must receive a written decision on appeal. Schnedar, 120 M.S.P.R. 516, ¶ 12;
DoD 5200.2-R, C8.2.2.5. Here, it is undisputed that the agency effected the
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indefinite suspension prior to the conclusion of the appeals process and issuance
of the written decision from the PSAB. IAF, Tab 5 at 36-37; ID at 3. This error
was plainly harmful. See Ulep, 120 M.S.P.R. 579, ¶ 6; see also
Schnedar, 120 M.S.P.R. 516, ¶ 12. Consequently, the administrative judge
properly reversed the indefinite suspension. 4 ID at 4-5; see Schnedar, 120
M.S.P.R. 516, ¶ 12.
¶9 Finally, although the appellant is correct that an agency’s failure to
establish compliance with an order of interim relief may result in the dismissal of
its petition for review, see 5 C.F.R. § 1201.116(e), the administrative judge
properly did not order interim relief in this appeal. See McIntire v. Federal
Emergency Management Agency, 55 M.S.P.R. 578, 582 (1992) (an administrative
judge should not order interim relief in a suspension appeal where the suspension
period had expired before the administrative judge issued the initial decision).
Accordingly, we deny the appellant’s request to dismiss the agency’s petition for
review for failure to provide interim relief.
ORDER
¶10 We ORDER the agency to cancel the suspension and retroactively restore
the appellant effective June 3, 2013. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶11 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
4
In the portion of the initial decision summarizing her findings, the administrative
judge mistakenly stated that the agency failed to provide the appellant with the
procedural protections specified in 5 U.S.C. § 7513. ID at 8. As the administrative
judge properly found in her analysis, however, she did not sustain the indefinite
suspension because the agency failed to comply with the procedures set forth in DoD
5200.2-R, C8.2.2.5, and we find no violation of the appellant’s rights under 5 U.S.C.
§ 7513. ID at 4-5; IAF, Tab 5 at 36-39.
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decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶12 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶13 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶14 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
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NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination claims
by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the
United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit
your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
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Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
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may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or by any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
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neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.