Regina Miles v. Department of Justice ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REGINA LORRAINE MILES, DOCKET NUMBER
Appellant, DC-0752-17-0177-I-1
v.
DEPARTMENT OF JUSTICE, DATE: March 11, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Regina Lorraine Miles , Oxon Hill, Maryland, pro se.
Eric S. Daniels and Melanie Russell , Esquire, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, AFFIRM the administrative judge’s findings that
the appellant’s position required a security clearance, the clearance was revoked,
and the appellant received the procedural protections specified in 5 U.S.C.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
§ 7513, MODIFY the initial decision to clarify the administrative judge’s analysis
of the appellant’s due process claim and to address her claims of reprisal and
bias, and REMAND this case to the Office of Regional Operations for further
adjudication of the appellant’s affirmative defense of harmful error.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant served as an Investigative Analyst with INTERPOL
Washington. Initial Appeal File (IAF), Tab 10 at 4-10. The Investigative Analyst
position description specified that it was a critical-sensitive position (level 3),
requiring that the appellant maintain access to classified National Security
Information (NSI) and eligibility for a top secret clearance subject to background
reinvestigations every 5 years. IAF, Tab 13 at 8, 19, Tab 14 at 31-32. On
September 19, 2016, the agency’s Department Security Officer revoked the
appellant’s access to classified NSI after she failed to complete the forms
required to initiate her 5-year security reinvestigation. IAF, Tab 12 at 10, Tab 14
at 4-5, Tab 41, Initial Decision (ID) at 2. In the letter of revocation, the agency
provided the appellant with the following information: (1) her procedural options
under Executive Order 12,968 of August 2, 1995, as amended; 2 (2) how to request
reconsideration of the revocation decision; (3) her right to appeal an unfavorable
reconsideration decision to the agency’s Office of Inspector General (OIG) if she
believed that the action affecting her NSI access was taken in reprisal for making
a protected disclosure under Presidential Policy Directive 19 (Oct. 19, 2012)
(PPD-19); 3 and (4) her right to appeal the revocation decision to the agency’s
Access Review Committee (ARC). IAF, Tab 14 at 4-5. On November 7, 2016,
2
Executive Order 12,968 establishes standards for access to classified information and
the review procedures for revocations of eligibility. See Doe v. Department of Justice,
118 M.S.P.R. 434, ¶¶ 26-28 (2012).
3
PPD-19 provides protection for whistleblowers with access to classified information
and requires the intelligence community to develop and implement procedures to
protect employees from whistleblower retaliation. See Van Lancker v. Department of
Justice, 119 M.S.P.R. 514, ¶ 12 n.1 (2013).
3
the Department Security Officer denied the appellant’s request for
reconsideration of his decision revoking her access to NSI and advised the
appellant of her right to ARC review. IAF, Tab 26 at 9-12.
Based on the revocation of the appellant’s access to classified NSI, the
agency proposed to remove her for the charge of failure to maintain a
qualification of her position. IAF, Tab 11 at 4-6. The appellant submitted a
written response to the agency’s proposal. IAF, Tab 10 at 14-15. The deciding
official sustained the charge and the removal action, effective November 17,
2016. Id. at 10-13. This appeal followed. 4 IAF, Tab 1.
On appeal, the appellant made the following allegations: (1) she never
processed top secret or classified information at INTERPOL Washington; (2) the
agency violated “Federal removal protocols”; and (3) the agency retaliated
against her for her prior whistleblowing and equal employment opportunity
(EEO) activity. IAF, Tab 1 at 5, Tab 39 at 11, 15. She also raised an affirmative
defense of harmful error, claiming that the agency violated Executive
Order 12,968, PPD-19, agency Human Resources (HR) Order 1200.1 (pertaining
to disciplinary and adverse actions of agency employees), agency Order 2610.2B
(setting forth responsibilities under the agency employment security program),
and several agency regulations during the security clearance revocation and
subsequent removal process. IAF, Tab 14 at 14-28, Tab 28 at 6-7, Tab 39 at 4-15.
The appellant waived her right to a hearing, and the administrative judge
issued a decision based on the written record affirming the agency’s removal
action. ID at 2; IAF, Tab 1 at 2. He found that the appellant’s position required
her to have a top secret security clearance and access to NSI, the agency revoked
4
The appellant elected to voluntarily retire on the effective date of her removal. IAF,
Tab 10 at 4. On appeal, the administrative judge properly found that the Board retained
jurisdiction over the agency’s removal action despite the appellant’s retirement. ID
at 1 n.1; see Mays v. Department of Transportation , 27 F.3d 1577, 1579-80 (Fed. Cir.
1994) (holding that the Board retains jurisdiction over an appeal if an employee retires
when faced with an agency’s final decision to remove her); Krawchuk v. Department of
Veterans Affairs, 94 M.S.P.R. 641, ¶ 6 (2003) (same).
4
her access to NSI, the agency afforded her the procedural protections specified in
5 U.S.C. § 7513, and the agency provided her with minimum due process in
revoking her NSI access and in the removal action. 5 ID at 2-4. The
administrative judge did not address the appellant’s affirmative defenses alleging
that the agency engaged in reprisal and harmful error in applying its security
clearance regulations.
The appellant has filed a petition for review disputing the administrative
judge’s finding that her position required top secret clearance and access to
classified NSI. Petition for Review (PFR) File, Tab 1 at 9, 12. She challenges
the administrative judge’s finding that the agency provided her with due process
in revoking her NSI access and in the removal proceedings, and she reasserts the
affirmative defenses that she raised on appeal. Id. at 6-10; IAF, Tab 1 at 5,
Tab 39 at 11-12, 15. The appellant also reasserts arguments she made on appeal,
challenging the agency’s penalty determination and raising a claim of bias against
the administrative judge. 6 PFR File, Tab 1 at 7, 9; IAF, Tab 39 at 13, 87. The
agency has responded in opposition to her petition. PFR File, Tab 5.
The administrative judge properly found that the appellant’s position required a
security clearance, the clearance was revoked, and the appellant received the
procedural protections specified in 5 U.S.C. § 7513.
As properly noted by the administrative judge, in an appeal of a removal
action under chapter 75 based on the revocation of a security clearance, the Board
5
During the pendency of her appeal, the appellant filed a request to stay the removal
and the proceedings on her Board appeal. IAF, Tab 25. The appellant argued that a
stay would allow her to exhaust her “DOJ Appeal Rights as a Whistleblower” and
pursuant to Executive Order 12,968 and any other laws and protections, contending that
the results of the Department of Justice appeal process might make her Board appeal
unnecessary. Id. at 4. The administrative judge denied her request. IAF, Tab 27.
6
The appellant also suggests that the Board should grant her petition for review because
the agency did not state in its e-Appeal Online filings that it had personal knowledge of
its pleadings. PFR File, Tab 1 at 9. We disagree. The statements of a party’s
representative in a pleading generally do not constitute evidence, and the appellant does
not explain how the alleged error affected the outcome of her appeal. See, e.g.,
Brown v. Department of Interior, 86 M.S.P.R. 546, ¶ 16 (2000).
5
may not review the merits of the underlying clearance determination. ID at 2; see
Flores v. Department of Defense, 121 M.S.P.R. 287, ¶¶ 7-8 (2014). Rather, the
Board only has the authority to review whether the following conditions were
met: (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. 7 Ulep v. Department of the
Army, 120 M.S.P.R. 579, ¶ 4 (2014). For the reasons stated below, we agree with
the administrative judge that the agency met these standards.
The administrative judge found it undisputed that the appellant’s
Investigative Analyst position required a top secret clearance and access to
classified NSI. 8 On review, the appellant disputes this finding but submits no
evidence to support her argument. PFR File, Tab 1 at 9. The appellant asserts
that she raised this issue below, but she provides no citation to the record. Id.Moreover, the record reflects that the appellant’s Investigative Analyst position
with INTERPOL Washington was designated as a critical-sensitive position
(level 3), which required her to maintain a top secret clearance and eligibility to
access classified information. IAF, Tab 13 at 8, 10, 19, Tab 14 at 31-32. We
reject as unproven the appellant’s argument to the contrary.
Moreover, to the extent that the appellant reasserts the argument she made
on appeal disputing the agency’s action designating her former position as
critical-sensitive requiring top secret clearance eligibility and NSI access, the
Board lacks authority to determine whether the agency properly designated the
position. PFR File, Tab 1 at 9, 12-13; IAF, Tab 39 at 10; see Doe v. Department
7
The Board also may consider whether the appellant’s transfer to a nonsensitive
position was feasible but only when an agency policy statement or regulation provides
the appellant with a substantive right to such a reassignment. See Rogers v. Department
of Defense, 122 M.S.P.R. 671, ¶ 14 (2015). The administrative judge found it
undisputed that the agency had no such policy, and the appellant does not contest this
finding on review. ID at 3 n.2.
8
NSI is synonymous with classified information. Grimes v. Department of Justice,
122 M.S.P.R. 36, ¶ 2 n.1 (2014) (citing Exec. Order No. 13,526, § 6.1(i) (2009)).
6
of Justice, 118 M.S.P.R. 434, ¶ 17 (2012) (finding that the Board lacks authority
to determine whether an agency’s designation of a position was proper ) .
Finally, the undisputed record reflects that the agency followed the
procedural requirements of 5 U.S.C. § 7513, by providing the appellant with at
least 30 days’ advance written notice of the proposed adverse action; 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 her answer; to be
represented by an attorney or other representative; and a written decision giving
the specific reasons for the agency’s action. ID at 3-4; IAF, Tab 10 at 10-15,
Tab 11 at 4-5. Accordingly, we agree with the administrative judge’s findings in
this regard. ID at 3-4.
We affirm the administrative judge’s finding that the agency did not violate the
appellant’s right to due process, as modified herein.
The administrative judge found that the agency afforded the appellant due
process protections by providing her with notice of the proposed security
clearance revocation and an opportunity to respond. ID at 4. The appellant
disputes this finding on review, alleging that the agency denied her due process
rights under Executive Order 12,968 and PPD-19 in revoking her NSI access.
PFR File, Tab 1 at 6, 8-10. We disagree but nonetheless modify the
administrative judge’s reasoning on the alleged due process violation. In the
initial decision, the administrative judge found that the minimum due process to
be afforded the appellant here included advance notice of the reasons for revoking
her access to classified NSI and a meaningful opportunity to respond. ID at 4.
Our reviewing court, however, has clarified that, because an employee has no
property interest in a security clearance, an agency is not obliged as a matter of
constitutional due process to notify the employee of the specific reasons for
revoking her clearance. See Gargiulo v. Department of Homeland Security,
727 F.3d 1181, 1185-86 (Fed. Cir. 2013); see Buelna v. Department of Homeland
Security, 121 M.S.P.R. 262, ¶ 25 (2014). Rather, for purposes of due process, it
7
is sufficient for an agency to inform the employee in the proposed removal that
her position required a security clearance and that she cannot retain her position
after she loses her clearance. See Buelna, 121 M.S.P.R. 262, ¶ 25. Contrary to
the appellant’s arguments on review, the record reflects that the agency provided
her with this information. PFR File, Tab 1 at 12, Tab 10 at 10-11, Tab 11 at 4-5;
IAF, Tab 12 at 6-10.
On review, the appellant also reasserts her argument that the agency did not
afford her due process right to “a meaningful opportunity to invoke the discretion
of a deciding official with the authority to select an alternative outcome.” PFR
File, Tab 1 at 6; IAF, Tab 39 at 14. In support of her argument, the appellant
reasserts the claim she made on appeal that INTERPOL Washington could have
contacted the Office of Personnel Management (OPM) to determine if her
security reinvestigation was necessary and allowed her to continue working
because she was less than 1 year from retirement. PFR File, Tab 1 at 6, 10; IAF,
Tab 39 at 13. She also makes a claim of bias against the deciding official. PFR
File, Tab 1 at 10. For the reasons discussed below, we find that the agency
provided the appellant with minimal due process.
An employee has a due process right to notice of the grounds in support of
the adverse action and a meaningful opportunity to invoke the discretion of a
deciding official with the authority to select an alternative outcome, to the extent
that an alternative penalty may have been feasible. Grimes v. Department of
Justice, 122 M.S.P.R. 36, ¶ 8 (2014). We affirm the administrative judge’s
finding that the agency provided the appellant with minimal due process because
the record reflects that the deciding official determined that her removal was
warranted after considering the appellant’s arguments in response to the notice of
proposed removal and providing her with notice of the grounds in support of her
removal. 9 IAF, Tab 10 at 10-13, Tab 11 at 4-7; see Grimes, 122 M.S.P.R. 36, ¶ 8
9
Although unclear, the appellant may be arguing that the administrative judge or the
deciding official in her removal action was required to consider mitigating factors such
as her pending retirement date. PFR File, Tab 1 at 6-7, 10; IAF, Tab 39 at 13. We
8
(finding no due process error when the deciding official considered and rejected
the arguments the appellant raised in her reply to the proposed removal).
On review, the appellant cites the Board’s decision in Ryan v. Department
of Homeland Security, 121 M.S.P.R. 460 (2014), to support her argument that she
was denied her due process right to have a meaningful opportunity to invoke the
discretion of the deciding official because the agency did not pursue alternatives
to removal. PFR File, Tab 1 at 10. However, the Board held in Ryan that it had
no authority to review whether an employee should have been reassigned instead
of subjected to an adverse action, absent a statute, regulation, or policy mandating
the transfer or reassignment of an employee who is denied a security clearance.
Ryan, 121 M.S.P.R. 460, ¶¶ 6, 8, overruled on other grounds by Freeze v.
Department of the Navy, 122 M.S.P.R. 179, ¶ 11 n.2 (2015). Because the
appellant does not contest the administrative judge’s finding that the agency did
not have a policy requiring her transfer or reassignment, the Board has no
authority to consider these alternatives. ID at 3 n.2.
On review, the appellant also appears to argue that the deciding official in
the removal action was biased to the extent that his selection violated due
process. PFR File, Tab 1 at 8, 10-11. An employee has a due process right to
have an unbiased decision maker adjudicate her case. Holton v. Department of
the Navy, 123 M.S.P.R. 688, ¶ 30 (2016), aff’d, 884 F.3d 1142 (Fed. Cir. 2018).
To establish a due process violation based on the identity of a deciding official,
an appellant must assert a specific allegation indicating that the agency’s choice
of deciding official made the risk of unfairness to the appellant intolerably high.
Id. For the reasons discussed below, we find that the appellant has not met that
burden here.
disagree because mitigation is not appropriate in this type of case. See Doe,
118 M.S.P.R. 434, ¶ 41 (finding mitigation inappropriate in a removal action based on
the appellant’s failure to maintain a qualification of his position requiring him to have
access to classified information).
9
To support her claim of bias, the appellant argues that the deciding official
in this removal action, and all of the agency officials who wanted to remove her,
were individuals alleged to have engaged in discriminatory conduct in her past
EEO complaints. PFR File, Tab 1 at 8, 10-12; IAF, Tab 39 at 14-15. However,
we find that the agency’s choice of a deciding official did not make the risk of
unfairness to the appellant intolerably high considering that she was required to
maintain access to classified NSI as a qualification of her position, her proposed
removal was based on her failure to maintain that qualification of her position,
and she does not dispute that access was revoked. See Robinson v. Department of
Homeland Security, 498 F.3d 1361, 1365 (Fed. Cir. 2007) (finding that the
absence of a properly authorized security clearance is fatal in a removal action
based on failure to maintain the security clearance required by the job
description). Accordingly, we are not persuaded by the appellant’s arguments
that the agency violated her due process rights.
We remand this appeal for the administrative judge to adjudicate the appellant’s
affirmative defense of harmful error.
Separate from constitutional due process, the Board has the authority under
5 U.S.C. § 7701(c)(2)(A) to review whether an agency taking an adverse action
complied with required procedural protections for security clearance
determinations, including those set forth in an agency’s own regulations.
Rogers v. Department of Defense, 122 M.S.P.R. 671, ¶¶ 6-7 (2015). The Board
will reverse an adverse action based on revoking a security clearance if an
appellant is able to prove harmful error. Buelna, 121 M.S.P.R. 262, ¶ 33;
5 C.F.R. § 1201.56(c)(1). To do so, an appellant must prove that the agency
committed an error in applying its procedures that is likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Buelna, 121 M.S.P.R. 262, ¶ 33; 5 C.F.R.
§ 1201.4(r).
10
On appeal, the pro se appellant raised an affirmative defense of harmful
error alleging that the agency failed to follow Executive Order 12,968, PPD-19,
agency HR Order 1200.1, agency Order 2610.2B, and several regulations during
its processing of her security clearance revocation and the resulting removal
action, and she reasserts this affirmative defense on review. Specifically, the
appellant asserts that she never signed her nondisclosure agreement reflecting that
her position requires a security clearance in accordance with agency Order
2610.2B, that the agency never conducted an evaluation of the risk level of her
position in violation of OPM regulations, and that the agency violated Executive
Order 12,968 by failing to provide her with the documents underlying her security
clearance revocation; violated agency regulations by reinvestigating her security
clearance; did not conduct an investigation as required by PPD-19 and Executive
Order 12,968; failed to provide her adequate appeal rights under HR Order
1200.1; violated OPM regulations by failing to evaluate the risk level of her
position; and violated agency regulations by removing her before the decision on
her security clearance was final. 10 IAF, Tab 14 at 4, Tab 28 at 4-7, Tab 39 at 4-9,
12-15; PFR File, Tab 1 at 6-10.
Despite these arguments, the administrative judge did not identify the
appellant’s harmful error claim as an issue for adjudication, and there is no
indication that the appellant was informed of the means for proving this
affirmative defense by the administrative judge or in the agency’s pleadings. See
Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008) (finding that a
deficiency in notice can be cured if the agency’s pleadings contain the notice that
was lacking in the acknowledgment order or the initial decision puts the appellant
10
The appellant also alleges that the agency violated HR Order 1200.1 when it failed to
remove a letter of reprimand from her personnel file after her removal. IAF, Tab 28
at 7. Because this allegation concerns the agency’s post-removal activity, it cannot
form the basis for a harmful error claim here. See Schnedar v. Department of the Air
Force, 120 M.S.P.R. 516, ¶ 8 (2014) (explaining that the Board may not sustain an
adverse action if the employee can show harmful error in the application of the agency’s
procedures for revoking a security clearance or for taking an adverse action based on
such revocation).
11
on notice of her burden, thus giving her the opportunity to meet her burden on
review).
The Board consistently has required administrative judges to apprise
appellants of the applicable burdens of proving a particular affirmative defense,
as well as the kind of evidence required to meet those burdens. See Thurman v.
U.S. Postal Service, 2022 MSPB 21, ¶ 17 & n.7. Further, nothing in the record
reflects that the appellant abandoned or withdrew her harmful error claim. Id.,
¶¶ 17-18 (setting forth the standard for determining whether an appellant
abandoned an affirmative defense). Accordingly, we find that the administrative
judge should have informed the appellant of the burdens of proving her
affirmative defense and this claim must be remanded.
The Board has no authority to consider the appellant’s affirmative defenses of
whistleblower reprisal and reprisal for prior EEO complaints.
On review, the appellant reasserts the affirmative defenses that she raised
on appeal alleging whistleblower reprisal and reprisal for prior EEO complaints.
PFR File, Tab 2 at 6-10; IAF, Tab 39 at 15. The administrative judge did not
address these issues in the initial decision, but this error did not prejudice the
appellant’s substantive rights because the Board cannot adjudicate an affirmative
defense that would require it to assess the merits of a security clearance
determination. 11 See Doe v. Department of Justice, 121 M.S.P.R. 596, ¶ 10
(2014); see generally Gargiulo, 727 F.3d at 1187 (finding that the Board has no
authority to consider whether an agency has reasonable grounds for revoking an
employee’s security clearance). To the extent that the Board might have limited
authority to adjudicate a claim of reprisal that goes solely to the issue of penalty,
11
In this regard, we find the appellant’s argument that the agency failed to notify her of
her mixed-case appeal rights without merit, as the agency provided her with mixed-case
appeal rights in the removal decision letter. IAF, Tab 10 at 11-12. In any event, as
explained above, the Board does not have the authority to adjudicate her affirmative
defenses. See Doe, 121 M.S.P.R. 596, ¶ 10.
12
see Helms v. Department of the Army, 114 M.S.P.R. 447, ¶ 9 & n.* (2010), we
find that the appellant’s claims are not of that nature.
The appellant has not proven bias by the administrative judge.
On review, the appellant raises a claim of bias against the administrative
judge. PFR File, Tab 1 at 9. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Tyler v. U.S. Postal
Service, 90 M.S.P.R. 545, ¶ 6 (2002). For the reasons discussed below, we find
that the appellant has not met that burden here.
The appellant alleges that the administrative judge “informed [her] that the
[a]gency would prevail” on appeal before the appellant had the opportunity to
respond to the removal decision. PFR File, Tab 1 at 9. She asserts that the
administrative judge raised his voice to her in response to her “obvious
confusion” about the Board’s jurisdiction in security clearance cases involving
whistleblowers. Id. She also asserts that the administrative judge rejected her
request to stay the proceedings on appeal to exhaust her “DOJ Appeal Rights,”
although she only filed a Board appeal out of fear that she would lose the
opportunity to file it in the future. Id.We reject as unproven the appellant’s claim of bias because the appellant
has not shown that the administrative judge’s comments or actions during the
course of the Board proceedings evidence “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Bieber v. Department of
the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). Although the administrative judge may have
become somewhat abrupt and impatient with the appellant, such conduct did not
establish bias. Tyler, 90 M.S.P.R. 545, ¶ 8. Moreover, the fact that the
administrative judge denied her request for a stay does not prove bias. Id., ¶ 6(finding the fact that an administrative judge ruled against a party is insufficient
evidence to show bias).
13
ORDER
For the reasons discussed above, we remand this case to the Office of
Regional Operations for further adjudication of the appellant’s affirmative
defense of harmful error in accordance with this Remand Order. On remand, the
administrative judge shall apprise the appellant of her burden and the elements of
proof regarding her harmful error claim and afford the parties an opportunity to
develop the record by submitting evidence and argument on this issue.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.