Harold Anthony Coghlan v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD ANTHONY COGHLAN, DOCKET NUMBER
Appellant, AT-0752-16-0163-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 16, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mark Wonders, Ozark, Alabama, for the appellant.
Elizabeth A. Bidwill, Esquire, Fort Rucker, Alabama, 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 when: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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 appellant is an Airspace System Inspection Pilot for the agency’s Air
Traffic Services Command, in Fort Rucker, Alabama. Initial Appeal File (IAF),
Tab 1 at 1, Tab 5 at 34-38. The position requires that he maintain a secret
security clearance. IAF, Tab 5 at 35, 37. In January 2015, the agency initiated an
investigation into allegations that the appellant falsely documented work time or
claimed the same time for both his civilian and reservist positions. IAF, Tab 20
at 5-6. After collecting pertinent evidence, including a statement from the
appellant, the investigating official issued an Army Regulation (AR) 15-6 report,
which concluded that he had engaged in several associated improprieties. Id.
at 7-14.
¶3 Based on the AR 15-6 report, the agency suspended the appellant’s access
to classified information and placed him on administrative leave. IAF, Tab 5
at 31-33. The agency also referred the matter to the Department of Defense
Consolidated Adjudications Facility (DODCAF), which informed the appellant
that it intended to revoke his security clearance. Id. at 18-25.
¶4 In October 2015, the agency proposed the appellant’s indefinite suspension
“based on [his] local suspension of access to classified and sensitive
information.” Id. at 14-15. After the appellant responded, the deciding official
3
sustained the action, effective November 23, 2015. Id. at 10-13. This appeal
followed. IAF, Tab 1.
¶5 The administrative judge held the requested hearing and affirmed the
indefinite suspension. IAF, Tab 28, Initial Decision (ID). The appellant has filed
a petition for review. Petition for Review (PFR) File, Tab 1. The agency has
filed a response, and the appellant has replied. PFR File, Tabs 4-5.
¶6 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. Rogers v. Department of Defense, 122 M.S.P.R. 671, ¶ 5 (2015). The
Board lacks authority to review the merits of the decision to suspend access. Id.
Rather, in an appeal of an adverse action based on the denial, revocation, or
suspension of a security clearance, the Board generally will review only whether:
(1) the employee’s position required a security clearance; (2) the clearance was
denied, revoked, or suspended; and (3) the employee was provided with the
procedural protections specified in 5 U.S.C. § 7313. Rogers, 122 M.S.P.R. 671,
¶ 5.
¶7 On review, the appellant does not dispute that his position requires a
security clearance or that his clearance was suspended. He does, however,
reassert that the agency improperly denied him access to pertinent evidence,
“including the AR 15-6 legal review and all supporting documents.” 2 PFR File,
Tab 1 at 4-8. We disagree.
2
Both below and on review, the appellant appears to conflate the process for
adjudicating his clearance and the process for adjudicating his indefinite suspension.
E.g., IAF, Tab 1 at 5; PFR File, Tab 1 at 5-6. For example, the appellant asserts that
the agency failed to respond to a number of information requests that postdate his
suspension of access to classified materials but predate the proposal to indefinitely
suspend him. PFR File, Tab 1 at 5-6. He also asserts that it was improper for
DODCAF adjudicators to receive the full AR 15-6 report, while his copy contained
redactions. Id. at 8. We have considered these allegations only to the extent that they
relate to the appellant’s indefinite suspension appeal. See Rogers, 122 M.S.P.R. 671,
¶ 5.
4
¶8 In the context of an indefinite suspension stemming from the suspension of
an employee’s security clearance, an agency is not obliged as a matter of
constitutional due process to notify the employee of the specific reasons for the
suspension of his clearance. Buelna v. Department of Homeland
Security, 121 M.S.P.R. 262, ¶ 25 (2014). For purposes of due process, it is
sufficient for an agency to inform the employee that his position required a
security clearance and that he can no longer hold his position once he lost his
clearance. Id. Here, the agency provided the appellant with this information. 3
IAF, Tab 5 at 14-15.
¶9 Separate from constitutional due process, the Board will reverse an
indefinite suspension based on the suspension of a security clearance if an
appellant is able to prove a harmful procedural 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 the application of 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 Pursuant to the statutory requirement of 5 U.S.C. § 7513(e), an employee
facing an adverse action must be notified of the specific reasons for a proposed
adverse action. Buelna, 121 M.S.P.R. 262, ¶ 25. In the context of an indefinite
suspension based on the suspension of a security clearance, section 7513 requires
that the appellant be provided sufficient information to make an informed reply,
including a statement of the reasons for the clearance suspension. Id., ¶ 34.
Further, a provision of the applicable collective bargaining agreement requires
that an employee facing formal discipline “be given, upon request, copies of all
3
We recognize that the appellant invoked the phrase “due process” in his petition for
review. PFR File, Tab 1 at 6-7. However, he did so in the context of alleging that he
was denied the procedural protections of 5 U.S.C. § 7513. PFR File, Tab 1 at 6-7. It
appears that he made no substantive due process argument. Id. Accordingly, we will
not address due process any further.
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documentation pertaining to the offense in accordance with applicable law.” IAF,
Tab 11 at 12.
¶11 In this case, the agency’s proposal to indefinitely suspend the appellant
because of his clearance suspension did not include a statement of the reasons for
that clearance suspension. IAF, Tab 5 at 14-15. When the appellant requested
the documents supporting the proposed indefinite suspension, he reportedly
received only two emails, neither of which discussed the reasons for the
underlying clearance suspension. IAF, Tab 5 at 32-33, Tab 25 at 12-13.
Nevertheless, we agree with the administrative judge’s determination that he
received adequate notice. ID at 6-11.
¶12 When the agency notified the appellant that it was suspending his access to
classified and sensitive information, it cited the AR 15-6 investigation as the
basis for doing so. IAF, Tab 5 at 31. Subsequently, when DODCAF informed the
appellant that it intended to revoke his clearance, it included a “statement of
reasons,” which detailed the allegations underlying the AR 15-6 investigation and
report, as well as the associated security concerns. 4 Id. at 18, 21-25. After that,
in response to a Freedom of Information Act request, the agency provided the
appellant with a copy of the agency’s AR 15-6 report, with redactions for attorney
work product, attorney-client communications, and personal privacy. Id.
at 16-17.
¶13 The appellant received all of the aforementioned information in the months
leading up to the agency’s proposal to indefinitely suspend him “based on [his]
local suspension of access to classified and sensitive information.” Id. at 14-15.
Under these circumstances, it is evident that the appellant had sufficient
information to make an informed reply to the proposed indefinite suspension,
including the reasons for the clearance suspension. Therefore, the requirements
4
Prior to the agency’s proposal to indefinitely suspend the appellant, the appellant
presented a substantive and detailed response to DODCAF concerning the allegations
contained within the AR 15-6 report. IAF, Tab 7 at 15, 17-24.
6
of section 7513 were satisfied, and the agency did not commit harmful error by
failing to provide additional documentation. See King v. Alston, 75 F.3d 657, 662
(Fed. Cir. 1996) (finding that the agency provided an employee with sufficient
information to make an informed reply when it notified him that his security
clearance was being suspended because of “a potential medical condition” and
then informed him that he was being indefinitely suspended from duty based on
the suspension of his security clearance); Buelna, 121 M.S.P.R. 262, ¶ 34 (finding
that the notice suspending an appellant’s security clearance, coupled with the
notice proposing his indefinite suspension, adequately informed him of the basis
for the suspension of his security clearance, i.e., alleged fraudulent claims); cf.
Cheney v. Department of Justice, 479 F.3d 1343, 1353 (Fed. Cir. 2007) (finding
that an employee was not provided with the opportunity to make a meaningful
response to the notice of proposed suspension when he had to guess at the reasons
for his security clearance suspension). Accordingly, we affirm the initial decision
sustaining the appellant’s indefinite suspension.
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.
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See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 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 as well as other sections of the United
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 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 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.