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

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW C. WIESNER, DOCKET NUMBER
Appellant, PH-0752-14-0342-I-1
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THIS FINAL ORDER IS NONPRECEDENTIAL 1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, Scott Egers, 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 appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action based upon his failure to maintain a security
clearance. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as expressly MODIFIED to
address the appellant’s harmful procedural error and due process claims and to
reflect that, under the circumstances, our adjudication of the appellant’s
discrimination and retaliation claims is not permissible and that our consideration
of the Douglas factors in the penalty analysis is not appropriate, we AFFIRM the
initial decision.
BACKGROUND
¶2 The appellant held the position of Pipefitter at the agency’s Portsmouth
Naval Shipyard. Initial Appeal File (IAF), Tab 14 at 18, 121. The agency
designated the position as noncritical sensitive and required the appellant to be
able to obtain and maintain a security clearance with access to classified
information. Id. at 113-15. On March 22, 2013, the Department of Defense
Consolidated Adjudications Facility (DoDCAF) issued the appellant a Letter of
Intent, informing him of its preliminary decision to revoke his eligibility for a
security clearance and assignment to a sensitive position. Id. at 102-05.
DoDCAF provided the appellant a Statement of Reasons forming the basis for the
preliminary decision and informed him that he could respond to the statement
within 15 calendar days. Id. The appellant responded and, on June 7, 2013,
3
DoDCAF issued a Letter of Notification with its final determination to revoke his
eligibility for a security clearance and assignment to a sensitive position. Id.
at 68-69, 87-95.
¶3 The appellant appealed DoDCAF’s final revocation by submitting a written
appeal to the Personnel Security Appeals Board (PSAB). Id. at 48-66. On
August 22, 2013, the PSAB issued a final decision upholding DoDCAF’s
determination to revoke the appellant’s security clearance. Id. at 46-47. As a
result, on September 9, 2013, the agency proposed to remove the appellant based
on the sole charge of failure to maintain a security clearance. Id. at 44-45. After
consideration of the appellant’s written reply, id. at 24-43, the agency removed
the appellant, effective November 6, 2013, id. at 18-23.
¶4 The appellant timely appealed his removal to the Board, challenging the
merits of the underlying security clearance determination. IAF, Tab 1 at 4, 6. He
also claimed that the agency violated his due process rights, committed harmful
procedural error, discriminated against him based on his disability, and retaliated
against him based on his prior equal employment opportunity (EEO) and
whistleblowing activities. IAF, Tab 30 at 4-9. After holding the requested
hearing, IAF, Tab 1 at 2, the administrative judge issued an initial decision
affirming the removal action, IAF, Tab 39, Initial Decision (ID). 2 The
administrative judge found that the Board lacked jurisdiction to consider the
merits of the underlying security clearance determination and instead was limited
to a review of whether the appellant’s position required a security clearance,
whether the agency revoked the security clearance, and whether the appellant
received the procedural protections specified in 5 U.S.C. § 7513. ID at 4. In
applying the limited scope of review, the administrative judge affirmed the
2
The administrative judge also addressed the appellant’s appeal of his indefinite
suspension in the initial decision. ID at 4-5, 8-9. We have addressed the agency’s
petition for review concerning the indefinite suspension, which is docketed as MSPB
Docket No. PH-0752-13-0434-I-2, in a separate order.
4
removal action. ID at 6-9. She found that the appellant’s position required a
clearance, that his clearance was revoked, and that the agency provided the
procedural protections required by statute. ID at 6-7. She also found that the
agency established a nexus between the appellant’s loss of his security clearance
and the efficiency of the service and that the agency proved the reasonableness of
the penalty. ID at 7-8. The administrative judge did not address the appellant’s
affirmative defenses.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. On review, the appellant asserts that the administrative judge erred
in failing to find harmful procedural error and due process violations in the
agency’s treatment of him leading to his removal. Id. at 10-12. He also argues
that the administrative judge erred in failing to address his retaliation claims. Id.
at 12-14. The agency has filed a response in opposition, PFR File, Tab 3, to
which the appellant has replied, PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 As properly noted by the administrative judge, in an appeal of an adverse
action based on the revocation of a security clearance, the Board may not review
the merits of the underlying clearance determination. ID at 4; see Department of
the Navy v. Egan, 484 U.S. 518, 526-30 (1988); see also Flores v. Department of
Defense, 121 M.S.P.R. 287, ¶¶ 7-8 (2014). Rather, the Board has the authority to
review only 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). Here, the administrative
judge properly found that the Pipefitter position held by the appellant required a
security clearance, his security clearance was revoked, and the agency provided
him with the procedural protections specified in 5 U.S.C. § 7513. ID at 6-7.
5
¶7 Section 7513, however, is not the only source of procedural protections for
employees subject to adverse actions; agencies also must 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). Here, the appellant claims that the agency
committed harmful procedural error when it failed to timely provide him with
documentation underlying DoDCAF’s preliminary decision to revoke his security
clearance in violation of Department of Defense (DoD) regulation 5200.2-R,
C8.2.2.1. PFR File, Tab 1 at 10-12. 3 Among other things, DoD 5200.2-R,
C8.2.2.1 requires that the designated Central Adjudicative Facility (CAF)
provide, upon request, copies of releasable records of the personnel security
investigation prior to taking any unfavorable administrative action. Department
of Defense, Personnel Security Program, DoD 5200.2-R, C8.2.2.1, http://www.
dtic.mil/whs/directives/corres/pdf/520002r.pdf. However, the appellant has not
alleged that he requested documentation from DoDCAF prior to his removal.
Indeed, there is no evidence in the record that the appellant ever requested
documentation directly from DoDCAF. In the absence of a request to the
designated CAF for the specified documentation, we find that the appellant has
not shown any error in the agency’s application of DoD 5200.2-R, C8.2.2.1. 4
3
Although the appellant generally alleged harmful procedural error below, IAF, Tab 30
at 9, he raises this specific argument for the first time on review, relying on the Board’s
decision in Wonders v. Department of the Army, MSPB Docket No. AT-0752-13-0055-
I-1, Final Order (June 25, 2014), which was issued after the issuance of the initial
decision in this appeal, ID at 1; PFR File, Tab 1 at 10-11. Even though Wonders is
nonprecedential and therefore not binding on the Board, see 5 C.F.R. § 1201.117(c), we
nevertheless have considered the appellant’s alleged new argument relating to DoD
5200.2-R, C8.2.2.1, as described herein.
4
The appellant additionally claims that there were a number of “procedural
irregularities” throughout the agency’s handling of his personnel security investigation.
PFR File, Tab 1 at 12. The appellant, however, has not identified any statute or
regulation that the agency violated by taking the alleged actions. We therefore find that
he has failed to establish any procedural error in this regard. See Schnedar,
120 M.S.P.R. 516, ¶ 8.
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¶8 An employee also has a right to minimum due process of law in connection
with an adverse action based on a security clearance determination. See Buelna v.
Department of Homeland Security, 121 M.S.P.R. 262, ¶ 15 (2014). Specifically,
an employee has a right to notice of the grounds in support of the adverse action
and a meaningful opportunity to respond to the notice and to invoke the discretion
of a deciding official with the authority to select an alternative penalty, to the
extent an alternative penalty is feasible. Id., ¶¶ 26-28; see Flores, 121 M.S.P.R.
287, ¶ 10. Here, although the appellant generally claims that the agency violated
his due process rights when it revoked his security clearance and removed him,
PFR File, Tab 1 at 6, he has not alleged that he was denied any of these
constitutional rights. Moreover, the record shows that the agency provided the
appellant with notice and a meaningful opportunity to respond to the proposed
removal, IAF, Tab 14 at 24-25, 44-45, and that no viable alternatives to his
removal existed due in large part to the fact that all agency employees at the
Portsmouth Naval Shipyard required a security clearance, IAF, Tab 32 at 81-82;
Hearing Compact Disc at 10:13:15-10:13:50 (testimony of deciding official); see
Brown v. Department of Defense, 121 M.S.P.R. 584, ¶¶ 13-16 (2014).
Accordingly, we are not persuaded by the appellant’s contention that the agency
violated his due process rights.
¶9 The appellant also argues on review that the administrative judge erred in
failing to consider his claims of retaliation based on prior EEO and
whistleblowing activities. PFR File, Tab 1 at 12-14. As properly noted by the
administrative judge in the prehearing conference summary order, however, the
Board is not permitted to adjudicate whether an agency’s adverse action, which is
premised on the suspension or revocation of a security clearance, constitutes
impermissible retaliation. IAF, Tab 37 at 5; see Doe v. Department of
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Justice, 121 M.S.P.R. 596, ¶ 10 & n.5 (2014). The administrative judge therefore
properly declined to adjudicate the appellant’s retaliation claims. 5
¶10 Finally, the Board has recently held that the traditional Douglas factors
analysis does not apply where, as here, an adverse action is based not on
misconduct but rather on the suspension or revocation of a security clearance.
See Munoz v. Department of Homeland Security, 121 M.S.P.R. 483, ¶ 15 (2014)
(loss of a required security clearance); see also Flores, 121 M.S.P.R. 287, ¶ 12
(loss of eligibility to occupy a sensitive position). The portion of the initial
decision that addressed the Douglas factors is hereby modified accordingly.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
5
The appellant also raised a claim of disability discrimination below, IAF, Tab 30 at 8,
which he did not raise on review. We similarly find that the administrative judge
properly declined to adjudicate this claim. See Doe, 121 M.S.P.R. 596, ¶ 10.
8
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
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),
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(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
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.