Nicholas v. Pangelinan v. Department of the Navy ( 2017 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICHOLAS V. PANGELINAN, DOCKET NUMBER
Appellant, SF-0752-16-0218-I-1
v.
DEPARTMENT OF THE NAVY, DATE: January 6, 2017
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Elbridge W. Smith, Esquire, Honolulu, Hawaii, for the appellant.
Jason Zhao, Pearl Harbor, Hawaii, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his indefinite suspension. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent wi th 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. 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, 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).
¶2 The relevant facts underlying this appeal, as detailed in the initial decision,
are not in dispute. Initial Appeal File (IAF), Tab 24, Initial Decision (ID) at 2-4.
The appellant holds the position of Welder in Pearl Harbor, Hawaii. ID at 2. In
September 2015, the agency issued notice that it intended to suspend his access to
classified information and a controlled industrial area based on allegations that he
falsely denied having engaged in illegal drug activity. Id. After the appellant
responded, the agency issued a decision, suspending his access, pending a final
determination by the Department of Defense Consolidated Adjudication Facility
(DOD CAF). ID at 3. Days later, the agency proposed the appellant’s indefinite
suspension from service for failure to meet a condition of
employment-maintaining access to classified information. Id. The appellant
again filed a response, but the deciding official sustained the indefinite
suspension, effective December 12, 2015. Id.
¶3 The appellant filed the instant appeal, challenging his indefinite suspension.
IAF, Tab 1. After the parties stipulated to the pertinent facts, see IAF, Tab 22,
the administrative judge held oral arguments on the disputed legal issues before
affirming the indefinite suspension, ID. The appellant has filed a petition for
review. Petition for Review (PFR) File, Tab 1. The agency has filed a response.
PFR File, Tab 3.
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¶4 On review, the appellant presents due process arguments that mirror the
ones we recently addressed in Palafox v. Department of the Navy, 2016 MSPB 43.
For the same reasons as those we provided in that case, as detailed below, the
appellant’s arguments fail.
¶5 An indefinite suspension lasting more than 14 days is an adverse action
appealable to the Board under 5 U.S.C. § 7513(d). 5 U.S.C. § 7512(2);
Palafox, 2016 MSPB 43, ¶ 8. It is well settled that an agency may indefinitely
suspend an appellant when his access to classified information has been
suspended and he needs such access to perform his job. Palafox, 2016 MSPB
43, ¶ 8. In such a case, the Board lacks the authority to review the merits of the
decision to suspend access. Id. However, the Board retains the authority to
review whether: (1) the appellant’s position required access to classified
information; (2) the appellant’s access to classified information was suspended;
and (3) the appellant was provided with the procedural protections specified in
5 U.S.C. § 7513. Id. In addition, the Board has the authority under 5 U.S.C.
§ 7701(c)(2)(A) to review whether the agency provided the proc edural protections
required under its own regulations. Id. 2 Finally, because a tenured Federal
employee has a property interest in continued employment, the Board also may
consider whether the agency provided minimum due process in taking the
indefinite suspension action. Id. Here, the only issue remaining in dispute is
whether the agency provided the appellant due process.
¶6 Due process requires, at a minimum, that an employee being deprived of his
property interest be given “the opportunity to be heard ‘at a meaningful time and
2
In this regard, the Board has found that DOD procedures governing “personnel
security determinations” do not apply to the suspension of access to classified
information by local commands, such as the Shipyard in this case. Palafox,
2016 MSPB 43, ¶ 8 n.1. We discern no error in the administrative judge’s finding that
the local command acted within its authority in suspending the appellant’s access to
classified information pending a final decision by DOD CAF on his security clearance.
See id.; ID at 7 (citing Secretary of the Navy Manual 5510.30, ¶ 9-7).
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in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 3 As the U.S. Supreme
Court explained in Cleveland Board of Education v. Loudermill,
470 U.S. 532, 542-46 (1985), the opportunity to respond to a proposed adverse
action is important for two reasons. First, an adverse action will often involve
factual disputes and consideration of the employee’s response may clarify such
disputes. Id. at 543; see Stone v. Federal Deposit Insurance Corporation,
179 F.3d 1368, 1376 (Fed. Cir. 1999). Second, “[e]ven where the facts are clear,
the appropriateness or necessity of the [penalty] may not be,” and in such cases
the employee must receive a “meaningful opportunity to invoke the discretion of
the decision maker.” Loudermill, 470 U.S. at 543; see Stone, 179 F.3d at 1376.
Thus, “the employee’s response is essential not only to the issue of whether the
allegations are true, but also with regard to whether the level of penalty to be
imposed is appropriate.” Stone, 179 F.3d at 1376; Palafox, 2016 MSPB 43, ¶ 9.
¶7 As to the facts underlying the proposed action, the agency provided minimal
due process by informing the appellant of the basis for the indefinite suspension,
i.e., that his position required access to classified information and that his access
had been suspended. See Palafox 2016 MSPB 43, ¶ 10. The agency further
complied with the procedural requirements of 5 U.S.C. § 7513 by informing the
appellant of the specific reasons for the suspension of his access to classified
information. See id.
¶8 Regarding the penalty, the appellant argues that he was denied a meaningful
opportunity to persuade the deciding official to reassign him instead of imposing
the proposed indefinite suspension. PFR File, Tab 1 at 8 -11. He contends that
the deciding official did not have the authority to choose that alternative because,
according to the proposal notice, reassignment would have been “inconsistent”
3
Because the appellant was afforded an opportunity to respond to the proposed
indefinite suspension prior to being suspended, it is clear that the hearing took place at
a meaningful time. See Palafox, 2016 MSPB 43, ¶ 9 n.2.
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with official agency policy. IAF, Tab 4 at 91. The agency asserts that,
notwithstanding the proposing official’s statement, there is in fact no agency
policy prohibiting reassignment following a loss of access to classified
information. PFR File, Tab 3 at 6. However, even if agency policy did prohibit
reassigning the appellant, that restriction would not consti tute a due process
violation, because due process does not require that a deciding official consider
alternatives that are prohibited, impracticable, or outside management’s purview.
Palafox, 2016 MSPB 43, ¶ 11.
¶9 Furthermore, to the extent administrative leave may have been a viable
alternative to suspension without pay, the appellant was not denied his due
process right to invoke the discretion of a deciding official with the authority to
select that alternative. See id., ¶ 12. The appellant cites deposition testimony in
which the deciding official indicated that he could not think of a scenario in
which he would have considered keeping the appellant on administrative leave.
PFR, Tab 1 at 17 (Deposition Transcript at 40-41). However, the deciding
official went on to clarify that his statement did not mean that the appellant
“couldn’t come up with some evidence that [he] would consider.” Id. (Deposition
Transcript at 41). In particular, he explained that he might carry an employee in
the appellant’s position on administrative leave if he believed that the allegations
underlying the suspension of the employee’s access to classified informatio n were
not well founded. Id. at 16-17 (Deposition Transcript at 37-40). Thus, we find
that the deciding official did have discretion to select administrative leave as an
alternative to suspension without pay. While the appellant did not succeed in
persuading the deciding official to carry him on administrative leave, the record
reflects that he was notified of the allegations underlying the suspension of his
access to classified information, and received an opportunity to present rebuttal
evidence before the final penalty determination was made. E.g., IAF, Tab 4
at 35-47.
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¶10 The appellant further contends that he was denied due process because his
access to classified information “was suspended through a process by which he
was not afforded the right to review information relied upon and provide a
meaningful response to the officials proposing and deciding suspension of access
to classified information.” PFR File, Tab 1 at 12. However, it is well settled that
employees “do not have a liberty or property interest in access to classified
information, and the termination of that access therefore [does] not implicate any
due process concerns.” Gargiulo v. Department of Homeland Security,
727 F.3d 1181, 1184-85 (Fed. Cir. 2013) (quoting Jones v. Department of the
Navy, 978 F.2d 1223, 1225 (Fed. Cir. 1992)); Palafox, 2016 MSPB 43, ¶ 13.
¶11 In sum, we agree with the administrative judge’s determination that the
agency did not deprive the appellant of due process. Accordingly, we deny the
petition for review. The initial decision is affirmed.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. 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 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).
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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 and other sections of the Unite d 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may v isit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.