Knapp v. MSPB

Case: 20-2122 Document: 41 Page: 1 Filed: 11/17/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LINDSEY KNAPP,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-2122
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-20-0331-W-1.
______________________
Decided: November 17, 2021
______________________
JAMES SOLOMON, Solomon, Maharaj & Kasimati, P.A.,
Tampa, FL, argued for petitioner.
STEPHEN FUNG, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
argued for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before PROST, CLEVENGER, and STOLL, Circuit Judges.
Case: 20-2122 Document: 41 Page: 2 Filed: 11/17/2021
2 KNAPP v. MSPB
STOLL, Circuit Judge.
Petitioner Lindsey Knapp challenges the Merit Sys-
tems Protection Board’s dismissal of her individual right of
action appeal for lack of jurisdiction. Ms. Knapp claimed
that the Department of the Army subjected her to adverse
personnel action in retaliation for protected whistleblowing
activity. Because we conclude that the Board did not have
jurisdiction, we affirm the Board’s dismissal.
BACKGROUND
I
Ms. Knapp was employed as a civilian Sexual Harass-
ment/Assault Response and Prevention Victim Advocate
for the United States Army Special Operations Command
(USASOC) at Fort Bragg, North Carolina. On March 12,
2018, Ms. Knapp wrote to a senator regarding retaliation
against soldiers who reported sexual harassment and as-
sault during her time as a Victim Advocate. On August 10,
2018, Ms. Knapp emailed classified information over an
unclassified network, which is referred to as “spillage.” On
August 23, 2018, Ms. Knapp disclosed additional violations
of Department of Defense reporting procedures during a
meeting with USASOC officials. That same day, USASOC
officials ordered the removal of Ms. Knapp’s computer,
quarantined the device, and erased the hard drive. On Sep-
tember 21, 2018, Ms. Knapp forwarded the August 10th
email containing classified information to the Equal Em-
ployment Opportunity Commission. On October 1, 2018,
Ms. Knapp’s security clearance was suspended, and she
was placed on administrative leave because of this addi-
tional spillage. Resp. Br. 3. On February 26, 2019, the
Army proposed indefinite suspension from duty and pay
status for Ms. Knapp based on the two spillage incidents.
On April 8, 2019, Ms. Knapp filed a complaint with the
Office of Special Counsel (OSC) alleging that she made sev-
eral protected whistleblowing disclosures during her
Case: 20-2122 Document: 41 Page: 3 Filed: 11/17/2021
KNAPP v. MSPB 3
employment as a Victim Advocate. She also alleged that
less than a month after making protected disclosures to the
USASOC, she was accused of spillage, subjected to an ad-
ministrative investigation, and indefinitely suspended
from duty and pay status while her security clearance was
reviewed. Ms. Knapp also alleged that she received a per-
formance appraisal of “unacceptable” even though she was
rated as “outstanding” in the prior year. Upon filing an
administrative grievance, Ms. Knapp’s appraisal was
changed to “fully successful.” On November 21, 2019, OSC
informed Ms. Knapp that it had terminated its investiga-
tion into her complaint and that she had the right to file an
individual right of action (IRA) appeal with the Merit Sys-
tems Protection Board. J.A. 394–95.
II
Ms. Knapp filed an IRA appeal with the Board on Jan-
uary 27, 2020, alleging that the Army retaliated against
her for engaging in protected whistleblowing activity.
J.A. 1. The alleged reprisal actions by the agency included:
(1) mandatory additional security training to regain access
to the agency network and her computer; (2) an adminis-
trative investigation into the spillage; (3) administrative
leave; (4) clearance suspension; (5) an “unsatisfactory” per-
formance rating (that was later changed to a “fully success-
ful” rating after protest); (6) proposed indefinite
suspension; and (7) requiring her to perform filing in the
office while her computer was confiscated. J.A. 84–85; see
J.A. 4–6.
The Administrative Judge issued an order requesting
that Ms. Knapp make nonfrivolous allegations that would
establish jurisdiction over the appeal. The Administrative
Judge noted that the personnel actions identified by
Ms. Knapp were based on “the agency’s determination re-
garding national security matters,” and thus were not
within the Board’s jurisdiction. J.A. 422. Ms. Knapp’s re-
sponse to the order did not explain why the Board had
Case: 20-2122 Document: 41 Page: 4 Filed: 11/17/2021
4 KNAPP v. MSPB
jurisdiction over personnel actions related to the security
clearance actions as required by the jurisdiction order.
On April 28, 2020, the Administrative Judge issued an
initial decision dismissing the appeal for lack of jurisdic-
tion because Ms. Knapp’s allegations “all arise from the
agency’s determination that she mishandled classified in-
formation or the agency’s actions taken in response to that
determination.” J.A. 8. The Administrative Judge ex-
plained that it was precluded from reviewing allegations of
reprisal when such claims relate to agency determinations
regarding security clearances. J.A. 7 (citing Dep’t of the
Navy v. Egan, 484 U.S. 518 (1988)). Therefore, it concluded
that “[t]he Board lacks jurisdiction over the personnel ac-
tions identified by [Ms. Knapp] because they were taken
due to decisions related to the [Ms. Knapp’s] access to clas-
sified information.” Id. The Administrative Judge also
found “no merit in [Ms. Knapp’s] claims that certain rea-
lignments or changes in supervision were additional acts of
reprisal” because “[a]ll these events flowed from the deter-
mination that [Ms. Knapp] had failed to safeguard classi-
fied materials.” J.A. 9. Therefore, the Administrative
Judge concluded that Ms. Knapp “failed to make nonfrivo-
lous allegations of fact sufficient to establish Board juris-
diction.” J.A. 10. This initial decision became the final
decision of the Board when Ms. Knapp did not timely peti-
tion the full Board for review of the Administrative Judge’s
decision.
Ms. Knapp appeals the Board’s decision. We have ju-
risdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
I
We review determinations of the Board concerning its
jurisdiction de novo. Parrot v. Merit Sys. Prot. Bd.,
519 F.3d 1328, 1334 (Fed. Cir. 2008). The Board has juris-
diction over an IRA appeal if the appellant has exhausted
Case: 20-2122 Document: 41 Page: 5 Filed: 11/17/2021
KNAPP v. MSPB 5
her administrative remedies before the OSC and makes
non-frivolous allegations that (1) she engaged in whistle-
blowing activity by making a protected disclosure under
5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contrib-
uting factor in the agency’s decision to take or fail to take
a personnel action as defined by § 2302(a). Yunus v. Dep’t
of Veterans Affs., 242 F.3d 1367, 1371 (Fed. Cir. 2001).
II
In Egan, the Supreme Court held that the Board does
not have authority to review the substance of an underly-
ing security clearance determination while reviewing an
adverse action because the power to grant and revoke a se-
curity clearance is a judgment call exclusively retained by
the executive branch. 484 U.S. at 520, 529–30; see also
Hesse v. Dep’t of State, 217 F.3d 1372, 1374, 1377 (Fed. Cir.
2000) (explaining that the Board lacks jurisdiction to con-
sider the merits of an agency’s security clearance determi-
nation). Here, Ms. Knapp asks the Board to do exactly
that. Ms. Knapp’s August 10 and September 21, 2018
emails contained classified information sent over an un-
classified network. The Army responded to these two spill-
age incidents with a security clearance investigation and
disciplinary actions directly related to Ms. Knapp’s secu-
rity access.
All of the actions taken by the Army were based either
on its determination that Ms. Knapp committed security
violations or on the Army’s decision to suspend her clear-
ance because of these violations. Because the personnel ac-
tions taken against Ms. Knapp all related to her access to
classified information and spillage, Egan is controlling.
While Ms. Knapp’s situation may be sympathetic, the law
is clear and we cannot provide the relief Ms. Knapp re-
quests.
Ms. Knapp also argues that the Board had jurisdiction
to consider her argument that she did not receive the re-
quired procedural protections under 5 U.S.C. § 7513 for her
Case: 20-2122 Document: 41 Page: 6 Filed: 11/17/2021
6 KNAPP v. MSPB
indefinite suspension. As the respondent correctly notes,
however, Ms. Knapp did not exhaust this claim before the
OSC. As such, the Board also did not have jurisdiction over
this claim for at least this reason. Young v. Merit Sys. Prot.
Bd., 961 F.3d 1323, 1330 (Fed. Cir. 2020) (affirming the
Board’s dismissal for lack of jurisdiction because the peti-
tioner did not present her claims to the OSC and therefore
failed to exhaust her administrative remedies); see Yunus,
242 F.3d at 1371 (Fed. Cir. 2001) (“[T]he Board has juris-
diction over an IRA appeal if the appellant has exhausted
his administrative remedies before the OSC and makes
‘non-frivolous allegations’ that (1) he engaged in whistle-
blowing activity by making a protected disclosure under
5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contrib-
uting factor in the agency’s decision to take or fail to take
a personnel action as defined by 5 U.S.C. § 2302(a).”).
We therefore affirm the Board’s determination that it
lacked jurisdiction.
CONCLUSION
For the reasons set forth above, we affirm the Board’s
decision.
AFFIRMED
COSTS
No costs.