The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE COBB, DOCKET NUMBER
Appellant, DC-0752-20-0183-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 8, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert Edward Harris, Jr. , Esquire, North Las Vegas, Nevada, for the
appellant.
Daniel Fevrin , Esquire, and Kathleen A. O’Neill , Washington, D.C., for the
agency.
Lauren Leathers , Esquire, Falls Church, Virginia, 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
The appellant has filed a petition for review of the initial decision, which
sustained her indefinite suspension based upon the suspension of her security
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
clearance. On review, the appellant disputes the appropriateness of the
administrative judge’s legal analysis and several of his rulings throughout the
processing of her appeal. Petition for Review (PFR) File, Tab 1. 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 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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly affirmed the appellant’s indefinite suspension.
We agree with the administrative judge’s determination to sustain the
appellant’s indefinite suspension. Initial Appeal File (IAF), Tab 37, Initial
Decision (ID). As a General Engineer, the appellant occupied a noncritical
sensitive position that required her to obtain and maintain a security clearance.
IAF, Tab 12 at 509. Once the appellant’s access to classified information,
assignment to a sensitive position, and physical access to the Naval Sea Systems
Command (NAVSEA) Headquarters facilities were suspended, she became unable
to perform the essential functions of her position, or any position within
NAVSEA. IAF, Tab 11 at 6, Tab 12 at 10, Tab 13 at 4-6. Therefore, we agree
3
with the administrative judge’s findings that the appellant’s indefinite suspension
was for an authorized reason, had an ascertainable end, was reasonable, and
promoted the efficiency of the service. ID at 9-14.
The administrative judge correctly applied the harmful procedural error doctrine.
On review, the appellant argues that the agency’s correction of the
shortened notice period should be considered an attempt to moot her appeal
through the rescission of the action. PFR File, Tab 1 at 4. As a result, the
appellant asserts that the administrative judge applied the incorrect analysis of
harmful procedural error when analyzing the shortened notice period, and should
have applied the case law applicable to an agency’s incomplete efforts at
rescission. Id. We agree with the administrative judge’s use of the harmful
procedural error standard. ID at 10-13.
The Board has analyzed shortened notice periods in violation of 5 U.S.C.
§ 7513(b)(1) using a harmful procedural error analysis. Callery v. Department of
Justice, 50 M.S.P.R. 158, 162 (1991); Metzger v. Department of Housing and
Urban Development, 6 M.S.P.R. 434, 436 (1981) (finding that an appellant failed
to establish harmful procedural error when he was terminated via a reduction in
force 2 days before the required 70-day notice period ended). To prove harmful
procedural error, the appellant must prove that the agency committed an error in
application of its procedures and that it 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. Forte v. Department of the Navy, 123 M.S.P.R. 124, ¶ 9 (2016);
5 C.F.R. § 1201.4(r). Although the agency erred in placing the appellant in an
indefinite suspension status less than 30 days after providing her notice, the
appellant has not shown that had the agency given her the full 30 days, it would
have resulted in an outcome different than the imposition of an indefinite
suspension. 2 ID at 12-13. Thus, because the shortened notice period did not
2
Generally, in the absence of a showing of harm, where an agency improperly shortens
the requisite 30-day period, the Board remedies the error by ordering the agency to
4
affect the outcome of this matter, the appellant did not establish harmful
procedural error. Id.
Although the administrative judge abused his discretion in excluding the
appellant’s exhibits, the error did not affect the outcome of this appeal.
On review, the appellant argues that the administrative judge abused his
discretion in excluding her exhibits because she failed to mark her exhibits
pursuant to the administrative judge’s instructions in the January 3, 2020 Order
and Notice of Hearing, Status Conference, and Prehearing Conference (Hearing
Order). PFR File, Tab 1 at 5-6. An administrative judge has wide discretion to
control the proceedings of an appeal. Sanders v. Social Security Administration,
114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R. § 1201.41. In order to obtain a reversal
of an initial decision based upon an abuse of discretion, the petitioning party must
show that the resulting error affected the outcome of the case. Sanders,
114 M.S.P.R. 487, ¶ 10; 5 C.F.R. § 1201.115(c). While we find that the
administrative judge abused his discretion in excluding the appellant’s exhibits,
we do not find that the error affected the outcome of the case.
The Hearing Order directed the parties to submit prehearing submissions,
including “a copy of exhibits accompanied by an index identifying the
documents. [The parties] must separately mark for identification every document
in the lower right hand corner. The appellant must mark exhibits by letter, the
agency by number. Each exhibit exceeding 10 pages in length must be
paginated.” IAF, Tab 19 at 2. The Hearing Order did not advise either party of
any consequences for failing to adhere to the directives. Id. at 1-4.
The appellant timely filed her prehearing submission, including citations to
relevant cases, statutes, rules, and other authorities, a copy of various agency
policies, a table of exhibits, a statement of facts and argument related to various
compensate the appellant for the full 30-day period. Callery, 50 M.S.P.R. at 162. The
record establishes that the agency did correct the effective date of the suspension and
provided back pay to the appellant. IAF, Tab 32 at 5-9. The appellant does not dispute
that she was provided with back pay. PFR File, Tab 1 at 6.
5
defenses, and approximately forty pages of emails, letters, and screenshots of text
messages. IAF, Tab 27. Although the appellant’s filing was jumbled, the
appellant included a table of exhibits, Bates-stamped the documents in the bottom
right-hand corner, and marked the exhibits in the upper right-hand corner with a
letter. Id. at 6-7, 84-114. Nonetheless, the administrative judge excluded the
appellant’s exhibits, stating that none of the exhibits were marked in accordance
with the Hearing Order. 3 IAF, Tab 29 at 5. However, the administrative judge
did note that the appellant could refer to the relevant sections of agency
regulations, as the Board can take judicial notice of regulations. Id.
We find that the administrative judge abused his discretion in excluding the
appellant’s exhibits. Although the appellant’s manner of identifying her exhibits
was peculiar, it appears that she made a good-faith effort to follow the
instructions contained within the Hearing Order, including a table of exhibits,
paginating the exhibits, and identifying the exhibits with a letter in the top
right-hand corner. 4 IAF, Tab 27 at 6-7, 84-114. Furthermore, the administrative
judge failed to provide the appellant with an opportunity to cure any errors in
markings and also failed to provide her with notice that mismarking the exhibits
would result in exclusion of her exhibits. IAF, Tabs 19, 29. Given that the
appellant attempted to comply with the Hearing Order and the administrative
judge failed to provide the appellant with an opportunity to correct her errors or
any notice as to the consequences of her errors, the administrative judge abused
3
In his summary of the prehearing conference, the administrative judge stated that
“none were unmarked as exhibits as directed in the Hearing Order of January 3, 2020.
Accordingly they will not be accepted as hearing exhibits.” IAF, Tab 29 at 5. We
assume, based upon the context and the appellant’s prehearing submissions, that the
exhibits were excluded due to a marking issue.
4
Although it is unclear why the appellant lettered her exhibits in a non-consecutive
manner, the Hearing Order did not require that the letters or numbers be consecutive.
IAF, Tab 19 at 2, Tab 27 at 84-114. Additionally, while the Order required documents
over 10 pages to be paginated, the appellant Bates-stamped the entire document instead
of separately paginating each exhibit over 10 pages. IAF, Tab 19 at 2, Tab 27
at 84-114.
6
his discretion in excluding the appellant’s exhibits. See Hart v. Department of
Agriculture, 81 M.S.P.R. 329, ¶ 8 (1999) (concluding that the administrative
judge abused her discretion by excluding exhibits after failing to provide the
appellant with a reasonable opportunity to comply with the judge’s order).
However, the appellant must establish that the disallowed exhibits would
have changed the outcome of the appeal to prevail on a petition for review.
Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 14 (2013) (finding
that the appellant did not prevail because she failed to establish how the
disallowed exhibits would have changed the outcome of the case). While we
believe that the administrative judge abused his discretion by excluding the
appellant’s exhibits, the appellant has not explained the impact of the disallowed
exhibits on the outcome of the case. PFR File, Tab 1 at 5-6. The proposed
exhibits included: a letter to the appellant regarding her Freedom of Information
Act (FOIA) request from 2016, a memorandum for the record written by the
appellant about the suspension of her security clearance, an information
technology department work ticket from 2016, a property pass authorizing the
appellant to take a laptop from the agency facility from 2018, an email from the
appellant regarding her computer, another property pass from 2019, confirmation
of her submission of the FOIA request from 2016, and a series of text messages
that appear to be largely personal in nature, dated 2015 to 2016. IAF, Tab 27
at 84-114. Although the appellant states on review that she believes the exclusion
was unwarranted and unjust, she does not explain how the exclusion tangibly
affected the outcome of the case, except to claim that the exhibits establish that
the indefinite suspension was “personal.” PFR File, Tab 1 at 7-8.
However, the exhibits do not rebut the facts that led the administrative
judge to affirm the indefinite suspension, namely that the appellant’s security
clearance was suspended, that she could not perform the essential functions of her
job or any other position within NAVSEA without a security clearance, that the
indefinite suspension would end upon final disposition of the security clearance,
7
and that she was afforded rights under 5 U.S.C. § 7513. ID at 9-14. Because the
administrative judge’s abuse of discretion did not result in an error that affected
the outcome of this appeal, there is no need to disturb the administrative judge’s
findings. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
(stating that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision).
The administrative judge did not exhibit bias or favoritism in his rulings.
The appellant asserts that the administrative judge exhibited favoritism or
bias in his rulings, to include allowing the agency to supplement the agency file
with evidence of a corrected effective date for the indefinite suspension and
payment of back pay in response to the appellant’s claim of harmful procedural
error. PFR File, Tab 1 at 6.
The administrative judge has wide discretion to control his proceedings.
Sanders, 114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R. § 1201.41. 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. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386
(1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if her comments or actions 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). The appellant has not identified any conduct by the
administrative judge that would reflect antagonism or favoritism, nor has she
raised any allegations that would support a finding of bias. The fact that an
administrative judge ruled against the appellant is insufficient evidence to
show bias. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 11 (2004). Thus,
we find that the appellant has not overcome the presumption of honesty and
integrity that accompanies an administrative judge or established that the
8
administrative judge abused his discretion in allowing the agency to supplement
the agency file. 5
NOTICE OF APPEAL RIGHTS 6
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 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.
5
The appellant also asserts that the administrative judge improperly limited the scope
of the appeal by declining to hear the appellant’s numerous affirmative defenses. PFR
File, Tab 1 at 7. We see no error in the administrative judge’s framing of the issues in
this matter. IAF, Tab 19 at 1. The Board is limited in its authority to review adverse
actions based upon the suspension or revocation of a security clearance and is unable to
review the substance of the underlying security clearance determination, including
affirmative defenses of discrimination and reprisal. Wilson v. Department of the Navy,
843 F.3d 931, 935 (Fed. Cir. 2016); Grimes v. Department of Justice, 122 M.S.P.R. 36,
¶ 7 (2014).
6
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.
9
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.
(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,
10
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:
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
11
(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. 7 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).
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.
7
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.
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 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.