David M Yang v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. YANG, DOCKET NUMBER
Appellant, SF-0752-22-0502-I-1
v.
DEPARTMENT OF THE ARMY, DATE: July 23, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shawn A. Luiz , Esquire, Honolulu, Hawaii, for the appellant.
Walter Joseph Folger , Esquire, Fort Shafter, Hawaii, for the agency.
Patsy M. Takemura , Esquire, Honolulu, Hawaii, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his indefinite suspension based on the suspension of his access to
classified information. On petition for review, the appellant argues that the
penalty of an indefinite suspension was not justified, and he reasserts his claims
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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from below that the Director did not have authority to suspend his access to
classified information, that his duties did not require him to have access to
classified information, that the agency engaged in harmful procedural error, and
that the suspension of his access to classified information and subsequent
indefinite suspension were the result of discrimination based on race, disability,
and age, and reprisal for whistleblowing. Petition for Review (PFR) File, Tab 1. 2
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 the facts of the case; the administrative
2
The appellant has filed a reply to the agency’s response to the petition for review.
PFR File, Tab 7. Pursuant to 5 C.F.R. § 1201.114(e), any such reply must be filed
within 10 days of the date of service of the response to the petition for review. Here,
the agency’s response to the petition for review was filed on March 10, 2023, making
any reply thereto due on March 20, 2023. The appellant submitted his reply brief on
April 1, 2023, which makes it untimely filed by 12 days. To establish good cause for
the untimely filing of an appeal, a party must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Alonzo v. Department
of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the reasonableness
of his excuse and his showing of due diligence, whether he is proceeding pro se, and
whether he has presented evidence of the existence of circumstances beyond his control
that affected his ability to comply with the time limits or of unavoidable casualty or
misfortune, which similarly shows a causal relationship to his inability to timely file his
petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d,
79 F.3d 1167 (Fed. Cir. 1996) (Table). The appellant submitted with his motion a
declaration from his counsel, which stated that counsel was out of the country with
limited access to the internet from March 7-20, 2023, on vacation with his family and
that, upon his return, he was ill. PFR File, Tab 6 at 6. He asserts that his first day back
at the office was March 24, 2023. Id. The appellant has not established good cause for
the untimely filing. Appellant’s counsel’s explanation that he was on vacation when the
filing period ran is not a reasonable excuse for missing a filing deadline. See Dooley v.
Department of the Air Force, 57 M.S.P.R. 684, 690-91 (1993). Moreover, by counsel’s
own admission, even after returning to work, it took him another week to submit the
reply pleading. Thus, we conclude that he did not exercise due diligence upon his
return. See Figueroa v. Office of Personnel Management , 81 M.S.P.R. 33, ¶ 9 (1999).
It is well settled that an appellant is responsible for the action or inaction of his chosen
representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
Accordingly, we deny the appellant’s motion to waive the filing deadline for his
untimely reply.
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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. 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. Except as expressly MODIFIED to
supplement the initial decision to find that the penalty of indefinite suspension
was reasonable, we AFFIRM the initial decision.
¶2 In the initial decision, the administrative judge correctly found that the
appellant’s position required a security clearance and eligibility for access to
classified information, his access to classified information was suspended, the
agency complied with the procedural protections set forth in 5 U.S.C. § 7513(b),
the agency did not have a policy entitling the appellant to reassignment in lieu of
an indefinite suspension, and the indefinite suspension from pay and duty statute
included a condition subsequent that would terminate the suspension. Initial
Appeal File (IAF), Tab 35, Initial Decision (ID) at 7-16; see Grimes v.
Department of Justice, 122 M.S.P.R. 36, ¶ 7 (2014); Munoz v. Department of
Homeland Security, 121 M.S.P.R. 483, ¶ 15 (2014); Hernandez v. Department of
the Navy, 120 M.S.P.R. 14, ¶ 6 (2013). She also correctly found that the
appellant failed to establish his affirmative defenses of harmful procedural error,
discrimination on the basis of race, age, and disability, and whistleblower
reprisal. ID at 17-21. The appellant’s arguments on review do not provide a
basis to disturb the initial decision in this regard. The administrative judge
further found that a nexus exists between the appellant’s indefinite suspension
and the efficiency of the service. ID at 16-17. The appellant has not challenged
this finding on review, and we discern no reason to disturb it.
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¶3 Generally, to sustain an indefinite suspension under chapter 75, the agency
must also show that the penalty was reasonable. Hall v. Department of Defense,
117 M.S.P.R. 687, ¶¶ 6, 10 (2012). In the initial decision, the administrative
judge did not make a finding regarding the reasonableness of the penalty, and the
appellant raises in his petition for review arguments concerning the penalty.
Specifically, he asserts that the penalty is too severe given that there was no
finding of wrongdoing, that the agency could and should have adopted a prior
recommendation for a 10-day suspension, and that the agency did not apply the
Douglas factors. PFR File, Tab 1 at 7-10.
¶4 The appellant’s arguments are without merit. As an initial matter, the
Board has explained that a traditional Douglas factors analysis is generally not
applicable in cases when an appellant’s indefinite suspension is based on the
revocation or suspension of a security clearance required for his position and not
the result of misconduct. See Munoz, 121 M.S.P.R. 483, ¶ 15. Regarding the
argument that agency officials should have adopted a prior recommendation for a
10-day suspension, PFR File, Tab 1 at 9-10, the appellant has not adequately
explained to what recommendation he is referring. The notice of proposed action
in this appeal recommends an indefinite suspension and that is the penalty that
was adopted. IAF, Tab 5 at 12-15, 82-85. After our review of the record, it
appears that the appellant was subject to a 10-day suspension by his supervisor at
his prior duty location in Korea, but the appellant had already returned to duty in
Hawaii before serving that suspension. Id. at 96. To the extent this is the 10 -day
suspension to which the appellant refers, that action appears to have been taken or
recommended on the basis of the alleged misconduct that formed the basis of the
Defense Criminal Investigative Service investigation, and not the suspension of
his access to classified information, which did not occur for another several
months.
¶5 Regarding the appellant’s general argument that the indefinite suspension is
too severe and akin to a disciplinary punishment, the Board has consistently
5
upheld indefinite suspensions based on an inability to meet a condition of
employment due to the suspension of access to classified information or
revocation of a security clearance. Palafox v. Department of the Navy,
124 M.S.P.R. 54, ¶¶ 4-5, 14 (2016); Rogers v. Department of Defense,
122 M.S.P.R. 671, ¶ 5 (2015) (stating that an agency may indefinitely suspend an
employee when his access to classified information has been suspended and he
needs such access to perform his job); Helms v. Department of the Army,
114 M.S.P.R. 447, ¶¶ 2, 10 (2010). Further, the U.S. Court of Appeals for the
Federal Circuit has found that, in the absence of a statute or regulation creating a
substantive right to reassignment, the Board is precluded from requiring the
agency to transfer the appellant to a position not requiring a security clearance or
access to classified information. See Ryan v. Department of Homeland Security,
793 F.3d 1368 (Fed. Cir. 2015). Accordingly, we supplement the initial decision
to find that the agency proved that the penalty of an indefinite suspension is
reasonable.
NOTICE OF APPEAL RIGHTS 3
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. 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, 10, 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 visit 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. 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.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. 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, 10, 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 visit 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.