Avram E. Glick v. Department of the Navy ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AVRAM E. GLICK, DOCKET NUMBER
Appellant, SF-0752-13-0466-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 27, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeff Letts, Trenton, New Jersey, for the appellant.
Matthew D. Dunand and Steven L. Seaton, Esquire, Bremerton,
Washington, 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 action indefinitely suspending him pending a security
clearance determination. For the reasons discussed below, we GRANT the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appellant’s petition for review and REVERSE the initial decision. The indefinite
suspension is NOT SUSTAINED.
¶2 The appellant is a GS-11 Shipbuilding Specialist. Initial Appeal File (IAF),
Tab 5 at 12. His position is designated as noncritical sensitive. 2 Id. at 50. On
March 13, 2013, the Department of Defense’s (DOD) Consolidated Adjudications
Facility (CAF) notified the appellant of its preliminary decision to revoke his
eligibility for a security clearance and/or assignment to a sensitive position. IAF,
Tab 5, Subtab 4I. The CAF provided him with a Statement of Reasons (SOR)
forming the basis for the preliminary decision and informed him that he could
respond to the SOR within 15 calendar days. Id. The agency informed the
appellant that, if the CAF made a final decision to revoke his eligibility for a
security clearance and/or assignment to a sensitive position, he could appeal the
decision by submitting a written appeal to the Personnel Security Appeals Board
(PSAB) or by requesting a personal appearance before an administrative judge of
the Defense Office of Hearings and Appeals (DOHA). IAF, Tab 5 at 25.
¶3 Based on the preliminary decision, the agency proposed to suspend the
appellant’s access to classified information. Id. at 24. The agency advised the
appellant that he could provide any information he wished to be considered prior
to a final decision regarding the suspension of his access to classified
information, and scheduled a March 18, 2013 meeting for him with the deciding
official. Id. On March 16, 2013, the appellant submitted written and oral
responses, which the agency considered. Id. at 5, 19-23. On March 18, 2013, the
agency made a final decision to suspend the appellant’s access to classified
information, and proposed to indefinitely suspend him, pending a final
determination regarding his eligibility for a security clearance and/or to occupy a
sensitive position. Id. at 16-19. On April 23, 2013, the agency made a final
2
We assume, without deciding, that the administrative judge correctly found that the
appellant’s position was subject to a security clearance requirement. See IAF, Tab 24,
Initial Decision (ID) at 2, 7.
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decision to indefinitely suspend the appellant, as a result of the suspension of his
access to classified information. Id. at 13-15. The appellant’s indefinite
suspension became effective on April 18, 2013. 3 See id. at 12-13.
¶4 The appellant filed an appeal with the Board regarding his indefinite
suspension. IAF, Tab 1. He requested a hearing. Id. at 2. On appeal, the
appellant asserted, inter alia, that the agency violated DOD Instruction 5200.2-R
and 32 C.F.R. § 154 by failing to follow the procedures, set forth at section
C8.2.2 of that instruction prior to indefinitely suspending him. IAF, Tab 15
at 4-7, Tab 22 at 2-5. Specifically, he argued that, before being subjected to an
adverse action relating to his security clearance, he was entitled to submit a
response to the CAF, receive a decision from CAF and, if applicable, appeal the
CAF’s unfavorable decision to the PSAB. IAF, Tab 15 at 6. He stated that,
although he had submitted a response to the CAF, he had neither received a
decision from the CAF, nor submitted an appeal to the PSAB. Id. at 7. The
agency conceded that the CAF was “still reviewing his case and ha[d] not yet
issued a final determination to deny or revoke [his] security clearance and
eligibility for access to . . . classified information.” IAF, Tab 21 at 10.
¶5 After holding the requested hearing, the administrative judge issued an
initial decision affirming the agency’s indefinite suspension action. See ID. He
3
The Standard Form 50 documenting the indefinite suspension indicates that the
suspension became effective on May 7, 2013. IAF, Tab 5 at 12. However, for the
following reasons, we find that the suspension began on April 18, 2013. When it
proposed the indefinite suspension, the agency placed the appellant on administrative
leave, pending a final decision. Id. at 16. The agency’s decision notice indicates that it
terminated the appellant’s administrative leave on April 17, 2013. Id. at 13. The
agency asserts that, because it permitted the appellant to exhaust his annual leave
between April 18, 2013 and May 6, 2013, rather than placing him on leave without pay
during that period, the indefinite suspension did not become effective until May 7,
2013. See id.; see also IAF, Tab 19 at 4-5. This is incorrect. The appellant’s choice to
exhaust his annual leave before being placed on leave without pay does not render his
absence during that period voluntary because the fact is that he did not have the option
of returning to work, given that the agency required him to remain off duty. See Abbott
v. U.S. Postal Service, 121 M.S.P.R. 294 (2014).
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found, in relevant part, that: (1) the appellant’s position required the ability to
access classified information and, therefore, a security clearance; (2) the agency
suspended the appellant’s access to classified information; (3) the agency
complied with the procedural requirements of 5 U.S.C. § 7513(b) in effecting the
indefinite suspension; and (4) DOD Instruction 5200.2-R and 32 C.F.R. § 154 do
not apply to adverse actions taken as a result of the suspension of access to
classified information, which is not a final security determination. See ID.¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that the agency violated DOD 5200.2-R and 32 C.F.R.
§ 154, with which it was required to comply. 4 Id. at 9-11. The agency filed a
response in opposition. PFR File, Tab 3.
¶7 Generally, in an appeal of an adverse action based on the denial, revocation,
or suspension of a security clearance, the Board has the authority to review:
(1) whether the appellant’s position required a clearance; (2) whether the
clearance was denied or revoked; (3) whether the employee was provided with the
procedural protections specified in 5 U.S.C. § 7513; and (4) if a statute or
regulation provides the employee a substantive right to reassignment, whether
transfer to a nonsensitive position was feasible. Schnedar v. Department of the
4
The appellant also argues that: (1) the individual who suspended his access to
classified information did not have the authority to do so, which also constitutes a
violation of DOD Instruction 5200.2-R; (2) the agency violated his due process rights,
in that he did not receive a meaningful opportunity to respond to the proposal notice
because the deciding official did not consider his response and did not have the
authority to reassign him or take any other action to mitigate the proposed indefinite
suspension; and (3) indefinite suspensions are illegal, in that the Office of Personnel
Management (OPM) has improperly created a new adverse action not authorized by
statute, and the Board should overturn its case law which allows indefinite suspensions
in cases involving personnel security determinations. PFR File, Tab 1. Because we
reverse the initial decision on other grounds, we need not reach these arguments.
However, to the extent that the appellant is attempting to make a request for regulatory
review, the request is denied because it fails to comply with the applicable Board
procedures. See 5 C.F.R. § 1203.11.
5
Air Force, 120 M.S.P.R. 516, ¶ 7 (2014). The Board may also review whether the
agency complied with its own procedures in imposing the adverse action. Id., ¶ 8.
¶8 Here, the agency suspended the appellant’s access to classified information
based on the CAF’s preliminary decision to revoke his security clearance and/or
eligibility to occupy a sensitive position and indefinitely suspended him as a
result. After the CAF provided the appellant with the SOR and received his
response, he was entitled, under section C8.2 of DOD Instruction 5200.2-R, to
receive a written response from the CAF explaining its final decision and, if
applicable, file an appeal with the PSAB or the DOHA and receive a final written
decision before being indefinitely suspended. IAF, Tab 15, Subtab A at 13-15. It
is undisputed that the agency did not follow these procedures. This error was
plainly harmful because had the agency followed its regulations, it would not
have indefinitely suspended the appellant effective April 18, 2013, but would
have waited until completion of the security clearance adjudication process before
taking any adverse action against him.
¶9 The agency contends that DOD Instruction 5200.2-R and 32 C.F.R. § 154are inapplicable in the context of an indefinite suspension based on the temporary
suspension of access to classified information, a position with which the
administrative judge agreed. ID at 13-14; see PFR File, Tab 3 at 6-9; see also
IAF, Tab 21 at 9-10. However, in Ulep v. Department of the
Army, 120 M.S.P.R. 579 (2014), we held that the Army’s indefinite suspension
action based on the suspension of the appellant’s security clearance, without first
providing him any of its procedures set forth at 32 C.F.R. § 154.56(b), constituted
harmful error warranting reversal of the action. We therefore find, as to the
instant appeal, that the indefinite suspension cannot be sustained for the
foregoing reasons.
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ORDER
¶10 We ORDER the agency to cancel the suspension and retroactively restore
the appellant effective April 18, 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
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 to describe 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 in 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
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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.
¶15 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
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 (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1202.202, 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 review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
8
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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 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.
If you are interested in securing pro bono representation for your court
appeal, 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 court. The Merit Systems
Protection Board 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.
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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.