Lewis Hicks v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEWIS A. HICKS, DOCKET NUMBER
Appellant, AT-0752-13-7338-X-1
v.
DEPARTMENT OF THE NAVY, DATE: May 17, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lewis A. Hicks, Americus, Georgia, pro se.
Denise Gillis, Quantico, Virginia, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 On May 8, 2015, the administrative judge issued a compliance initial
decision finding the agency in noncompliance with the Board’s January 2, 2015
nonprecedential final order. For the reasons discussed below, we DISMISS the
petition for enforcement as moot. This is the final decision of the Merit Systems
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
BACKGROUND
¶2 Effective July 31, 2013, the agency removed the appellant from his
Engineer Technician position at the Marine Corps Logistics Base, Albany,
Georgia, based on the appellant’s guilty plea to a criminal charge. Hicks v.
Department of the Navy, MSPB Docket No. AT-0752-13-7338-I-1, Initial Appeal
File (IAF), Tab 4 at 19, 27-28; Hicks v. Department of the Navy, MSPB Docket
No. AT-0752-13-7338-I-1, Final Order at 2 (Jan. 2, 2015) (7338-I-1 Final Order);
Petition for Review (PFR) File, Tab 10. The appellant filed a Board appeal
challenging his removal, and on December 17, 2013, an administrative judge
issued an initial decision reversing the appellant’s removal, finding that the
agency failed to prove a nexus between the appellant’s misconduct , which
occurred when he was off duty, and the efficiency of the service. IAF, Tab 13,
Initial Decision at 3-11. The agency filed a petition for review of the initial
decision, and on January 2, 2015, the Board issued a nonprecedential final order
affirming the initial decision. 7338-I-1 Final Order. The Board ordered the
agency to reinstate the appellant, effective July 31, 2013, and to pay him the
correct amount of back pay, including all interest and other benefits to which he
was entitled. Id. at 7-8.
¶3 On February 17, 2015, the appellant filed a petition for enforcement, in
which he contended that the agency had failed to reinstate him to the Engineer
Technician position or a comparable position. Hicks v. Department of the Navy,
MSPB Docket No. AT-0752-13-7338-C-1, Compliance File (CF), Tab 1 at 3. In
response, the agency asserted that it had provided the appellant with the back pay
and benefits to which he was entitled but admitted that it had placed him on
administrative leave instead of returning him to duty, because the Commander of
the Marine Corps Logistics Base, Albany, Georgia, had barred the appellant’s
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access to that installation based on the same conduct that the agency had relied on
in the removal action. CF, Tab 3 at 4-6.
¶4 On May 8, 2015, the administrative judge issued a compliance initial
decision finding the agency in noncompliance with the Board’s final order
because the agency had placed the appellant on administrative leave instead of
restoring him to duty. CF, Tab 5, Compliance Initial Decision (CID) at 2 -3. The
administrative judge found that the Commander of the Marine Corps Logistics
Base, a commanding officer of the agency, could not refuse to comply with the
Board’s final order requiring the agency to reinstate the appellant. CID at 2-3.
The administrative judge ordered the agency to restore the appellant to the
Engineer Technician position that he held prior to his removal, in a duty status,
or, if the agency had compelling reasons to do so, to reassign him to another
position with duties and responsibilities substantially equivalent in scope and
status to those of his former Engineer Technician position. CID at 3; CF, Tab 7,
Erratum Order.
¶5 Neither party filed a petition for review of the compliance initial decision ,
and on June 17, 2015, the Clerk of the Board ordered the agency to submit
evidence that it had taken the actions required by the compliance initial decision.
Hicks v. Department of the Navy, MSPB Docket No. AT-0752-13-7338-X-1,
Compliance Referral File (CRF), Tab 1 at 3.
¶6 In a July 2, 2015 response to the Clerk’s order, the agency stated that it had
maintained the appellant in a paid administrative leave status instead of returning
him to duty, but argued that it had good cause for doing so. CRF, Tab 2 at 4-5.
The agency submitted evidence that on June 17, 2015, more than a month after
the compliance initial decision was issued, the Department of Defense
Consolidated Adjudications Facility (DODCAF) notified the Security Director of
the Marine Corps System Command that the DODCAF had decided to revoke or
deny the appellant’s eligibility for access to classified information and/or
assignment to duties that have been designated national security sensitive. Id.4
at 8, 10-16. The agency also submitted an affidavit from the Security Director of
the Marine Corps System Command, in which he asserted that all Department of
Defense employees must have a Common Access Card (CAC) to access agency
computer systems and that, because the DODCAF had denied or revoked the
appellant’s eligibility for access to classified information, the agency could not
issue him a CAC. Id. at 8. The agency submitted evidence that the appellant’s
former Engineer Technician position was designated as a noncritical sensitive
position and that the position required him to be able to obtain and maintain a
secret security clearance. Id. at 21, 23. The agency contended that it did not
have a policy requiring it to detail or reassign the appellant to nonsensitive duties
following the loss of a security clearance but that it would continue to maintain
the appellant in a paid administrative leave status while he appealed the
DODCAF’s denial or revocation of his eligibility for access to classified
information and/or assignment to duties that have been designated national
security sensitive to a Personnel Security Appeals Board (PSAB). Id. at 6-7.
¶7 In a July 19, 2017 reply to the agency’s response, the appellant asserted that
the agency had filled the Engineer Technician position that he held prior to his
removal with another employee. CRF, Tab 3 at 4-5. He argued that it therefore
was unclear which position the agency should restore him to and whether that
position would require him to be able to maintain or obtain a secret security
clearance. Id. at 5.
¶8 On March 14, 2016, the agency submitted evidence that on March 10, 2016,
a PSAB upheld the DODCAF’s revocation or denial of the appellant’s eligibility
for access to classified information and/or assignment to duties that have been
designated national security sensitive (i.e., his former position). CRF, Tab 4
at 6-7. The agency stated that it continued to maintain the appellant in a paid
administrative leave status but that it was in the process of proposing his removal
on the ground that he could no longer maintain the required security clearance.
Id. at 4-5.
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¶9 Effective June 11, 2016, more than a year after the administrative judge
issued the compliance initial decision, the agency removed the appellant a second
time based on the loss of his security clearance and his ineligibility to occupy a
noncritical sensitive position. Hicks v. Department of the Navy, MSPB Docket
No. AT-0752-16-0745-I-1, Initial Appeal File (0745-I-1 IAF), Tab 1 at 10-11.
The appellant filed a Board appeal challenging his second removal on due process
grounds. Id. at 5. An administrative judge dismissed that appeal without
prejudice pending the resolution of the instant compliance matter. 0745 -I-1 IAF,
Tab 9, Initial Decision; Hicks v. Department of the Navy, MSPB Docket
No. AT-0752-16-0745-I-2, Appeal File, Tab 4, Initial Decision.
¶10 On September 21, 2016, the Clerk of the Board issued an order in the
instant compliance matter, which directed the appellant to submit evidence and
argument as to why the compliance matter should not be dismissed as moot in
light of the loss of his security clearance and his resulting ineligibility to occupy
the Engineer Technician position. CRF, Tab 6 at 2. In response, the appellant
reiterated his prior arguments that the Engineer Technician position had been
filled with another employee, and that the agency should have reassigned him to a
different position. CRF, Tab 8 at 3. The agency did not submit a reply to the
appellant’s response, although the Clerk’s order afforded the ag ency an
opportunity to do so. CRF, Tab 6 at 2.
ANALYSIS
The agency had a compelling reason not to reinstate the appellant to the Engineer
Technician position, and he is ineligible for reinstatement to that position.
¶11 When the Board orders an agency action canceled, the aim is to place the
appellant, as nearly as possible, in the situation he would have been in had the
wrongful personnel action not occurred. Kerr v. National Endowment for the
Arts, 726 F.2d 730, 733 (Fed. Cir. 1984); Tubesing v. Department of Health &
Human Services, 112 M.S.P.R. 393, ¶ 5 (2009). This is known as status quo ante
relief. Tubesing, 112 M.S.P.R. 393, ¶ 5. Generally, to be in compliance with a
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Board order to reinstate an employee, an agency must return an employee to his
former position. Id., ¶ 6. When an agency has not reinstated the appellant to his
former position and duties, the agency must have a strong overriding interest or
compelling reasons for not doing so. Id.¶12 Here, the DODCAF’s revocation of the appellant’s eligibility for access to
classified information and/or assignment to duties that have been designated
national security sensitive, which occurred more than a month after the
compliance initial decision was issued, was a compelling reason for the agency
not to reinstate the appellant to his Engineer Technician position. CRF, Tab 2
at 10-16; see LaBatte v. Department of the Air Force, 58 M.S.P.R. 586, 594
(1993) (finding that the lack of a security clearance constituted a compelling
reason not to return an appellant to his former position, which required him to
have a security clearance); Hill v. Department of the Air Force, 49 M.S.P.R. 271,
275 (1991) (finding that the suspension of an appellant’s access to classified
information constituted a compelling reason not to return her to her former
position, which required her to handle classified materials); Gray v. Department
of the Navy, 29 M.S.P.R. 281, 283-84 (1985) (finding that the lack of a security
clearance constituted a compelling reason not to return an appellant to his former
position, which required him to have a security clearance).
¶13 On March 10, 2016, more than 10 months after the compliance initial
decision was issued, a PSAB affirmed the DODCAF’s revocation or denial of the
appellant’s eligibility for access to classified information and/or assignment to
duties that have been designated national security sensitive. CRF, Tab 4 at 6 -7.
It is well settled that the Board lacks authority to review the substance of an
agency’s determination that an employee is ineligible for a secret security
clearance or to occupy a noncritical sensitive position. Department of the Navy v.
Egan, 484 U.S. 518, 530-31 (1988); Kaplan v. Conyers, 733 F.3d 1148, 1158-60
(Fed. Cir. 2013); see also King v. Department of the Navy, 98 M.S.P.R. 547, ¶ 20
(2005) (finding that, in the context of a compliance proceeding, the Board cannot
7
examine the substance of an agency’s decision not to grant a security clearance to
an appellant), aff’d, 167 F. App’x. 191 (Fed. Cir. 2006). The Board also lacks
authority to order the agency to place the appellant into a position that requires
him to possess a security clearance or to be eligible for access to classified
information or assignment to sensitive duties, when he does not hold such a
clearance or possess such eligibility. See LaBatte, 58 M.S.P.R. at 594; Hill,
49 M.S.P.R. at 275; Gray, 29 M.S.P.R. at 283-84. Accordingly, the evidence
reflects that the appellant is ineligible to occupy his former Engineer Technician
position, and the Board cannot order the agency to restore him to that position.
The agency is not required to reassign the appellant to a different position that
does not require a security clearance or eligibility for access to classified
information and/or assignment to duties that have been designated national
security sensitive.
¶14 Moreover, under the circumstances at issue, we find that the agency is not
required to reassign the appellant to a different position that did not require him
to maintain or obtain a security clearance or to be eligible for access to classified
information and/or assignment to duties that have been designated national
security sensitive. Although the compliance initial decision stated that if the
agency had compelling reasons to do so, it could restore the appellant to “another
position which has duties and responsibilities that are substantially equivalent in
scope and status to those of the position the appellant previously held,” the
compliance initial decision was issued prior to both the DODCAF’s revocation or
denial of the appellant’s eligibility for access to classified information and/or
assignment to duties that have been designated national security sensitive, and the
PSAB’s affirmance of the DODCAF’s revocation or denial. CID; CF, Tab 7 at 1.
¶15 The agency has asserted, and the appellant does not dispute, that the agency
does not have a policy requiring it to reassign him to nonsensitive duties
following the loss of a security clearance. CRF, Tab 2 at 7. Whe n a security
clearance is a requirement of an appellant’s position, and an appellant has lost
eligibility for such a clearance and there is no agency regulation or policy
8
requiring an agency to reassign employees who lose their security clearances to
nonsensitive positions, the Board lacks authority to inquire into the feasib ility of
an appellant’s transfer to an alternative position. Griffin v. Defense Mapping
Agency, 864 F.2d 1579, 1581 (Fed. Cir. 1989); Putnam v. Department of
Homeland Security, 121 M.S.P.R. 532, ¶ 13 (2014). Thus, if the agency had
never removed the appellant from his Engineer Technician based on his guilty
plea in the first instance, the Board would lack authority to order the agency to
reassign him to a different position after his eligibility for access to classified
information and/or assignment to duties that have been designated national
security sensitive was revoked.
¶16 Status quo ante relief does not entitle the appellant to be placed in a better
position than he would have enjoyed if he had not been removed. See Sink v.
Department of Energy, 110 M.S.P.R. 153, ¶¶ 19, 22 (2008); King, 98 M.S.P.R.
547, ¶ 19. Thus, to be in compliance with the Board’s final order, the agency was
not required to reassign the appellant to an alternative position following the
revocation of his eligibility for access to classified information and/or assignment
to duties that have been designated national security sensitive. See, e.g., King,
98 M.S.P.R. 547, ¶ 23 (finding that an agency was not required to search for a
position that did not require a security clearance to be in compliance with a Board
order requiring that the agency afford the appellant priority consideration for a
position).
¶17 We find the circumstances at issue here to be distinguishable from Board
decisions finding that agencies properly complied with orders to reinstate
appellants by detailing them to alternative positions while their security
clearances were in the process of being reinstated or were temporarily suspended.
See LaBatte, 58 M.S.P.R. at 594-95 (finding an agency in compliance with an
order to reinstate an appellant when it detailed him to a different position that did
not require a security clearance while the reinstatement of his security clearance
was pending); Hill, 49 M.S.P.R. at 274-75 (finding an agency in compliance with
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an order to reinstate an appellant when the agency detailed her to a different
nonsensitive position while her security clearance was temporarily suspended).
Here, the DODCAF’s revocation or denial of the appellant’s eligibility for access
to classified information and/or assignment to duties that have been designated
national security sensitive was not temporary, and was affirmed by a PSAB on
appeal. CRF, Tab 4 at 6-7. Neither the Board’s nonprecedential final order nor
the compliance initial decision immunizes the appellant from a second removal
based on his subsequent failure to meet the requirements of the Engineer
Technician position. See Sink, 110 M.S.P.R. 153, ¶¶ 19-23 (finding that a
Board’s decision that an appellant’s retirement was involuntary did not prevent
the agency from acting on a separate pending proposal to remove him for refusal
to accept a directed reassignment).
¶18 We also have considered the appellant’s argument that, if the agency had
timely complied with the Board’s final order, it might have restored him to a
different position that would not have required him to be able to maintain or
obtain a secret security clearance, because the agency had filled the Engineer
Technician position with another individual. CRF, Tab 3 at 5, Tab 8 at 3. We
find this argument unpersuasive. The fact that the agency filled the appellant’s
Engineer Technician position with another individual would not have established
a compelling reason for the agency to reinstate the appellant to some different
position that might not have required a security clearance, rather than his former
position. See Taylor v. Department of the Treasury, 43 M.S.P.R. 221, 227 (1990)
(finding that an agency’s assertions that an appellant’s former position had been
filled by another individual did not establish a compelling reaso n not to reinstate
an appellant to that position); Williams v. Department of Health & Human
Services, 32 M.S.P.R. 259, 262 (1987) (same). Nor does it require the agency to
place the appellant in a different position at this juncture.
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The appellant’s petition for enforcement must be dismissed as moot.
¶19 Events subsequent to the compliance initial decision have rendered the
appellant ineligible to occupy his Engineer Technician position, and the agency
was entitled to effectuate a second removal action based on the appellant’s
inability to meet the requirements of that position. The appellant does not dispute
that the agency has provided him with the back pay and benefits to which he was
entitled pursuant to the Board’s final order, and that the agency placed him on
paid administrative leave through the effective date of his seco nd removal action.
Accordingly, there is no further relief that the Board can provide in the context of
his claims in these compliance proceedings, and we must dismiss the appellant’s
petition for enforcement as moot. See Allen v. Department of Veterans Affairs,
110 M.S.P.R. 111, ¶ 3 (2008) (recognizing that a petition for enforcement is moot
when there is no effective remedy that the Board can provide); Adair v. U.S.
Postal Service, 69 M.S.P.R. 431, 435 (1996) (concluding that a matter is moot
when the Board can grant no meaningful or effective relief). Any relief that the
appellant may be entitled to following the effective date of his second removal
will be resolved in his separate Board appeal challenging that removal, once that
appeal has been refiled. See Strope v. U.S. Postal Service, 76 M.S.P.R. 539, 542
n.1 (1997) (finding that an appellant’s right to relief following a second removal
action would be resolved in a separate Board appeal challenging that second
removal, rather than in a compliance matter regarding an order reversing the
appellant’s first removal).
NOTICE OF APPEAL RIGHTS 2
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
2
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.
11
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 claims and carefully follow a ll
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.
12
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 war rants that
any attorney will accept representation in a given case.
(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 t he 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. distri ct 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. ____ , 137 S. Ct. 1975 (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
13
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:
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 2 302(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. 3 The court of appeals must receive your petition for
3
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
14
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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.
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.
15
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.