finding that the Government was not barred from demonstrating “ministerial error” in the execution of the appellant’s Standard Form 50 and/or 52, and that “[n]either form is conclusive in face of error in its execution”
How later courts described this case
- finding that the Government was not barred from demonstrating “ministerial error” in the execution of the appellant’s Standard Form 50 and/or 52, and that “[n]either form is conclusive in face of error in its execution”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANA O’QUINN, DOCKET NUMBERS
Appellant, AT-0752-18-0001-I-1
AT-1221-22-0478-W-1
v.
DEPARTMENT OF HOMELAND
SECURITY, DATE: January 30, 2025
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Dana O’Quinn , Folkston, Georgia, pro se.
Stephanie M. Lewis , Glynco, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member**
*The Board members voted on this decision before January 20, 2025.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision in
O’Quinn v. Department of Homeland Security, MSPB Docket No. AT-0752-18-
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
0001-I-1 (O’Quinn I), which sustained her indefinite suspension, and a petition
for review of the initial decision in O’Quinn v. Department of Homeland Security,
MSPB Docket No. AT-1221-22-0478-W-1 (O’Quinn II), which dismissed her
individual right of action (IRA) appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT both petitions, JOIN the appeals, VACATE both
initial decisions, and REMAND the joined appeal to the regional office for
further adjudication in accordance with this Remand Order. 2
BACKGROUND
Events leading to the appellant’s indefinite suspension
The appellant occupies the position of Chief, Protocol and Communications
Office (PCO), GS-0301-15, in the Director’s Office of the Federal Law
Enforcement Training Center (FLETC) in Glynco, Georgia. O’Quinn v.
Department of Homeland Security, MSPB Docket No. AT-0752-18-0001-I-1,
Initial Appeal File (0001 IAF), Tab 1 at 1. The position description for the PCO
Chief position comprises a cover sheet, known as the Optional Form (OF) 8, and
a narrative portion. 0001 IAF, Tab 20 at 9, 12-23. Box 24 of the OF-8 includes a
remark, in a font noticeably different from that used elsewhere on the form,
2
Following the close of the record on review, the appellant filed a motion requesting
leave to file an additional pleading in O’Quinn I. The Board’s regulations did not
provide for pleadings other than a petition for review, a cross petition for review, and a
reply to a response to a petition for review. 5 C.F.R. § 1201.114(a)(5) (2022). For the
Board to consider a pleading other than one of those set forth above, the party must
have described the nature of and need for the pleading. 5 C.F.R. § 1201.114(a)(5)
(2022). If a party wished to submit a pleading after the record has closed, the party
must also have shown that the evidence was not readily available before the record
closed. 5 C.F.R. § 1201.114(a)(5), (k) (2022). The appellant asserts that she has
obtained “additional exculpatory information/evidence not available before April 25,
2022,” but she has not described the nature of the evidence or explained why it was not
available before that date. In the absence of any further details, we DENY her motion.
However, this ruling does not preclude the appellant from submitting additional
evidence on remand in accordance with the Board’s regulations and the administrative
judge’s instructions.
3
indicating “Top Secret Clearance.” Id. at 12. The narrative portion contains no
reference to classified information or a clearance requirement. Id. at 14-23.
On February 21, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC). O’Quinn v. Department of Homeland Security, MSPB
Docket No. AT-1221-22-0478-W-1, Initial Appeal File (0478 IAF), Tab 11
at 146-64. In her complaint, she alleged that the agency had retaliated against her
for various whistleblowing disclosures and activities, including reporting unfair
hiring practices at FLETC, providing a statement during an investigation by the
Office of Inspector General, and reporting that agency officials were soliciting
and approving organizations to hold conferences at FLETC. Id. at 149-50. She
identified various retaliatory actions including placing her under investigation;
moving her out of her position (twice); placing a hold on her clearance; creating a
hostile work environment; instructing her to sign a nondisclosure agreement that
did not include the language required under 5 U.S.C. § 2302(b)(13); and failing to
provide performance standards, a mid-year review, or a rating for FY 2016. Id.
On April 14, 2017, OSC informed the appellant of its determination that further
investigation was warranted into her allegations for possible violations of
5 U.S.C. § 2302(b)(8), (9), and (13). Id. at 145.
By letter dated July 19, 2017, the agency’s Office of the Chief Security
Officer notified the appellant that it was suspending her eligibility for access to
classified information, i.e., her security clearance. 3 0001 IAF, Tab 4 at 56-58.
The following day, D.A., then Acting Chief of Staff, proposed to indefinitely
suspend the appellant based on the suspension of her security clearance, stating
that it was a condition of her employment. Id. at 54-55. The appellant provided
the agency a written response in which she argued, among other things, that her
position did not require access to classified information. Id. at 22-49. It appears
that at some point in July 2017, the appellant amended her pending OSC
3
At times the letter refers simply to “access to classified information,” but it is
apparent from context that this was intended as shorthand for eligibility for access.
4
complaint to include the proposed indefinite suspension. See O’Quinn v.
Department of Homeland Security, MSPB Docket No. AT-1221-22-0478-W-1,
Petition for Review (0478 PFR) File, Tab 1 at 7. 4
By letter dated August 31, 2017, D.A. notified the appellant of his decision
to indefinitely suspend her pending final adjudication of her eligibility for access
to classified information. 0001 IAF, Tab 4 at 19-21. In the notice of appeal
rights, under the subheading “Whistleblower Retaliation,” the letter explained
that if the appellant wished to allege that the action was being taken against her in
reprisal for whistleblowing activity, she could elect one of the following
remedies: (a) filing an appeal with the Board under 5 U.S.C. § 7701; or (b) filing
a complaint with OSC under 5 U.S.C. § 1214, potentially to be followed by an
IRA appeal under 5 U.S.C. § 1221. 0001 IAF, Tab 4 at 21. Under the same
subheading, the notice stated that an election would be “deemed to have been
made based upon which of the three [sic] actions is filed first,” but the notice did
not explicitly state that the remedies for alleged whistleblowing reprisal were
mutually exclusive. Id.
The appellant’s indefinite suspension began September 1, 2017. Id. at 18.
As discussed further below, it is unclear from the record whether the appellant
subsequently amended her OSC complaint to include the effected action, or on
what date she may have done so.
O’Quinn I
On September 28, 2017, the appellant filed an appeal with the Board
challenging her indefinite suspension. 0001 IAF, Tab 1. She requested a hearing
and contended that her indefinite suspension was improper on the grounds that:
4
The available correspondence between the appellant and OSC does not explicitly refer
to a notice of proposed indefinite suspension. However, OSC’s preliminary
determination letter includes the following statement: “In July 2017, you informed
OSC that FLETC had indefinitely suspended you.” Id. As of the end of July 2017, the
agency had not yet made a final decision to indefinitely suspend the appellant, so we
infer that she amended her complaint to include the proposed action.
5
(1) the PCO Chief position did not require access to classified information;
(2) she was eligible for reassignment to another position that also did not require
classified information; and (3) the action was the result of sex discrimination and
reprisal for protected equal employment opportunity and whistleblowing activity.
Id. at 6.
During the discovery phase, the appellant challenged the veracity of the
clearance designation on the OF-8 and, citing Gamboa v. Department of the Air
Force, 120 M.S.P.R. 594 (2014), sought to compel discovery concerning the
question of whether the PCO Chief position in fact required a clearance or access
to classified information. 0001 IAF, Tab 16 at 5-12. The administrative judge
denied the appellant’s request for discovery on that issue, reasoning that Gamboa
was inapposite because the position description “clearly contains the words ‘Top
Secret Clearance.’” 0001 IAF, Tab 21 at 2-3. In the same order, the
administrative judge also granted the agency’s motion to dismiss the appellant’s
affirmative defenses, reasoning that the Board lacked authority to adjudicate such
defenses in an appeal of an adverse action based on the suspension of a security
clearance. Id. at 3-4. In response, the appellant withdrew her hearing request,
explaining that the administrative judge’s rulings had “constrained [her] ability to
present her claims.” 0001 IAF, Tab 24 at 5.
On June 18, 2018, the administrative judge issued an initial decision
sustaining the indefinite suspension. 0001 IAF, Tab 30, Initial Decision
(0001 ID). He first found that, contrary to the appellant’s assertions, her position
did in fact require a security clearance. 0001 ID at 6-10. In reaching that
conclusion, he reasoned that the designation on the OF-8 was “very strong, if not
dispositive evidence,” and that it was “unnecessary to give significant weight to
evidence outside the position description itself.” 0001 ID at 6. The
administrative judge further found that the appellant’s clearance was suspended;
that the agency complied with the procedural requirements of 5 U.S.C. § 7513;
that the appellant failed to establish the existence of a statute, regulation, or
6
agency policy requiring her reassignment to a position not requiring a clearance;
and that the indefinite suspension had a valid condition subsequent. 0001 ID
at 10-12. Finally, he reiterated his previous ruling that the Board lacked
jurisdiction over the appellant’s affirmative defenses. 0001 ID at 12.
On August 19, 2018, the appellant filed a petition for review, in which she
again challenged the veracity of the clearance designation on the OF-8 and argued
that the administrative judge improperly excluded evidence on that issue.
O’Quinn v. Department of Homeland Security, MSPB Docket No. AT-0752-18-
0001-I-1, Petition for Review (0001 PFR) File, Tab 3 at 4-16. She further
contended that the administrative judge erred in dismissing her affirmative
defenses. Id. at 6. In support of her petition, she provided various documents,
including a new declaration by K.L., former FLETC Chief of Staff. 5 Id. at 19-21.
The agency filed a response, to which the appellant replied. 0001 PFR File,
Tabs 5, 7. The appellant’s petition for review in O’Quinn I has since remained
pending before the Board.
Closure of OSC investigation
Meanwhile, on March 8, 2022, OSC issued the appellant a letter stating its
preliminary findings on her complaint. 0478 PFR File, Tab 1 at 7-8. In the letter,
OSC related that when the appellant originally filed her complaint, she alleged
that the agency had placed her on a detail in retaliation for several disclosures,
including allegations of prohibited personnel practices made in February 2016 on
behalf of a terminated employee and violations of 18 U.S.C. § 205 in connection
with multiple conferences. Id. at 7. The letter further stated: “In July 2017 [sic],
you informed OSC that FLETC had indefinitely suspended you, and we began to
evaluate that allegation.” Id. OSC noted that the appellant had since filed a
Board appeal of her indefinite suspension (i.e., O’Quinn I), in which she argued
5
We accept the appellant’s explanation that the K.L. declaration was unavailable before
the close of the record despite her due diligence. 0001 PFR File, Tab 3 at 4; s ee
5 C.F.R. § 1201.115(d).
7
that her position did not require a security clearance and that the appeal was then
pending before the Board. Id. OSC explained that, under Department of the
Navy v. Egan, 484 U.S. 518 (1988), it was prevented from reviewing any
personnel action that occurred because of an agency decision on a security
clearance and that the preliminary legal issue OSC would need to address, i.e.,
whether the appellant’s position in fact required a security clearance, was already
before the Board. 0478 PFR File, Tab 1 at 7. Thus, OSC explained, it could not
obtain any corrective action for the appellant at that point, and any action on the
preliminary legal question would be duplicative of the current Board proceeding.
Id. at 8. OSC further noted that its authority to consider the appellant’s
retaliation claims was unclear and concluded that it would decline to make any
determination on the merits of those claims. Id.
By letter dated April 25, 2022, OSC notified the appellant that it had
terminated its investigation into her complaint and informed her of her IRA
appeal rights. 0478 IAF, Tab 1 at 15. The letter stated that the appellant had
alleged that in retaliation for her February 2016 disclosures on behalf of a
terminated employee about prohibited disclosures, and her subsequent disclosures
concerning violations of 18 U.S.C. § 205, the agency “suspended [her]
indefinitely in July 2017 [sic] based on the erroneous belief that [her] position
required a clearance.” Id. Unlike the preliminary determination letter, the
closure letter neither explained the basis for OSC’s decision to terminate the
investigation, nor referred to any of the other alleged retaliatory actions the
appellant had raised in her complaint. Id.
O’Quinn II
On June 29, 2022, the appellant filed an IRA appeal seeking corrective
action for the ongoing indefinite suspension and various other alleged retaliatory
actions, including involuntary directed reassignments, failure to provide annual
performance plans from 2016 through 2021, and placement in hostile work
environments. 0478 IAF, Tab 1 at 4-5. She requested a hearing and specifically
8
asked that the IRA appeal not be assigned to the administrative judge who had
handled O’Quinn I. Id. at 2, 4. She alleged that OSC had told her that the
administrative judge in O’Quinn I should not have taken jurisdiction in that case
and that his decision should be withdrawn. Id. at 4. She further alleged that the
agency had committed additional prohibited personnel practices, including
retaliation for EEO activity, and had denied her due process. Id. at 5.
The IRA appeal was assigned to a second administrative judge, who
advised the appellant of her burden of proof on jurisdiction and the merits of her
appeal. 0478 IAF, Tab 3. In response, the appellant provided copies of her
original OSC complaint and other correspondence with OSC. 0478 IAF, Tab 11.
Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction in a July 29, 2022 initial decision.
0478 IAF, Tab 17, Initial Decision. Relying exclusively on OSC’s closure letter,
while ignoring the appellant’s original complaint and other correspondence with
OSC, the administrative judge found that the appellant had exhausted her
remedies with OSC only with regard to the indefinite suspension. Id. at 3. The
administrative judge further found that the appellant had apparently elected to
contest her indefinite suspension with OSC before filing with the Board. Id. at 4.
In making that finding, the administrative judge seems to have relied on the fact
that the appellant filed her original OSC complaint in February 2017, which was
months before the indefinite suspension was even proposed. Id. The
administrative judge went on to find that, regardless of which action was filed
first, the Board lacked IRA jurisdiction over the indefinite suspension. Id. at 4-5.
In reaching that conclusion, the administrative judge cited Roach v. Department
of the Army, 82 M.S.P.R. 464 (1999), for the broad proposition that the Board
lacks IRA jurisdiction over retaliation claims “involving” the denial or
suspension of a security clearance. 6 0478 ID at 4. Finally, the administrative
6
The Board held in Roach that a security clearance determination is not a personnel
action under 5 U.S.C. § 2302(a)(2)(A) and cannot itself be reviewed in an IRA appeal.
9
judge noted that the Board lacked jurisdiction to consider EEO retaliation claims
in an IRA appeal and that it was unnecessary to address whether the appeal might
be precluded by res judicata or collateral estoppel. 0478 ID at 5.
The appellant filed a petition for review, in which she argues, among other
things, that the administrative judge erred in finding that she had exhausted her
remedies with OSC only with regard to the indefinite suspension. 0478 PFR,
Tab 1. The agency filed a response to the appellant’s petition. 0478 PFR, Tab 3.
ANALYSIS
We cannot determine based on the existing record whether the appellant is bound
by the election of remedies provisions of 5 U.S.C. § 7121(g) or, if so, whether she
made a binding election to challenge her indefinite suspension before OSC before
filing her first Board appeal.
Under 5 U.S.C. § 7121(g), an “employee” who claims to have suffered an
adverse action in retaliation for whistleblowing may elect no more than one of the
following remedies: (1) a direct appeal to the Board under 5 U.S.C. § 7701; (2) a
negotiated grievance procedure under 5 U.S.C. § 7121, if applicable; 7 or (3) a
request for corrective action under 5 U.S.C. chapter 12, subchapters II and III,
i.e., an OSC complaint, potentially to be followed by an IRA appeal. Ordinarily,
an individual who first requests corrective action from OSC will be deemed to
have made a binding election to proceed in that forum. 5 U.S.C. § 7121(g)(4)(C).
In such a case, the jurisdictional requirements for an IRA appeal apply, even if
the contested personnel action would have been directly appealable to the Board.
See Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 14 (2013).
However, an election under 5 U.S.C. § 7121(g) is binding only if made knowingly
and voluntarily. Id., ¶ 16.
Roach, 82 M.S.P.R. 464, ¶ 53.
7
In this case, the appellant was not covered by a collective bargaining agreement.
0001 IAF, Tab 4 at 10.
10
For purposes of chapter 71, the term “employee” includes “an individual
employed in an agency” but not “a supervisor or a management official.”
5 U.S.C. § 7103(a)(2); see 5 U.S.C. § 7103(a)(10)-(11) (defining supervisor and
management official). Accordingly, the Board has held that supervisors and
management officials are not bound by the election of remedies provisions of
5 U.S.C. § 7121(g). Requena v. Department of Homeland Security, 2022 MSPB
39, ¶ 11. Here, the record suggests that the appellant may have been a
“supervisor,” as defined by 5 U.S.C. § 7103(a)(10), rather than an “employee,” as
defined by 5 U.S.C. § 7103(a)(2). If that is so, then the appellant is not covered
under 5 U.S.C. § 7121(g). However, the nature of the appellant’s position as it
relates to this statutory scheme was not argued below or on review.
Moreover, assuming the appellant is covered by 5 U.S.C. § 7121(g), the
record contains conflicting evidence as to whether she made a binding election to
contest her indefinite suspension through an OSC complaint before filing her
Board appeal. OSC’s preliminary determination and closure letters imply that the
appellant was indefinitely suspended in July 2017, and amended her pending
complaint that same month to allege that the action was the result of
whistleblowing reprisal. 0478 IAF, Tab 1 at 15; 0478 PFR File, Tab 1 at 7-8.
However, while the agency issued a proposal to indefinitely suspend the appellant
on July 20, 2017, it did not make a final decision on the proposed action until
August 31, 2017, and the indefinite suspension did not begin until September 1,
2017. 0001 IAF, Tab 4 at 18-21, 54-55. Given this discrepancy, it is unclear
from the record whether the appellant in fact amended her OSC complaint to
include the effected indefinite suspension, as opposed to the proposal notice. It is
also unclear whether, if the appellant did amend her OSC complaint to include the
effected action, she did so before filing her Board appeal on September 28, 2017,
or whether such an election would have been binding.
In order to determine the scope of the Board’s jurisdiction in these appeals,
it is necessary to remand for further development of the record. On remand, the
11
administrative judge should first determine whether the appellant is an
“employee” subject to the election of remedies provisions of 5 U.S.C. § 7121(g).
If the administrative judge finds that the appellant is covered by 5 U.S.C.
§ 7121(g), he should next determine whether the appellant made a binding
election to challenge her indefinite suspension through OSC before filing directly
with the Board. In the event the record indicates that the appellant has not yet
made a binding election of remedies, i.e., one that was both knowing and
informed, 8 the administrative judge should provide the appellant an opportunity to
choose whether to continue challenging her indefinite suspension through her
pending adverse action appeal, i.e., O’Quinn I, or through the procedures set forth
in 5 U.S.C. chapter 12, subchapters II and III. 9 After resolving the election issue,
the administrative judge should further adjudicate the appeals as follows.
AT-0752-18-0001-I-1 ( O’Quinn I )
If the administrative judge determines that (1) the appellant is subject to
the election of remedies provisions of 5 U.S.C. § 7121(g), and (2) either the
appellant made a binding election to challenge the effected indefinite suspension
before OSC prior to filing her September 28, 2017 appeal in O’Quinn I or the
appellant did not previously make a binding election of remedies but indicates
that she now prefers to challenge the indefinite suspension through an IRA
appeal, the administrative judge should dismiss O’Quinn I for lack of jurisdiction.
Otherwise, the administrative judge should reconsider the merits of the agency’s
action and issue a new decision consistent with the analysis below.
8
Should the administrative judge reach the question of whether the appellant previously
made a binding election of remedies, he should bear in mind the Board’s decision in
Kaszowski v. Department of the Air Force, 2023 MSPB 15, ¶ 7 (finding that the
appellant’s election to challenge her removal through the negotiated grievance
procedures was not binding where the agency did not specifically notify her that
electing to file a grievance would result in a waiver of her Board appeal rights).
9
Depending on whether the appellant previously exhausted her remedies with OSC
concerning the effected indefinite suspension, the latter option could involve either
further adjudication in her pending IRA appeal (O’Quinn II) or a new OSC complaint.
12
In an appeal of an adverse action based on the denial, revocation, or
suspension of a security clearance, the Board does not have the authority to
review the substance of the underlying security clearance determination but may
review: (1) whether the employee’s position required a security clearance;
(2) whether the security clearance was denied, revoked, or suspended; and
(3) whether the agency followed the procedures set forth in 5 U.S.C. § 7513.
Egan, 484 U.S. at 530-31 (1988); Hesse v. Department of State, 217 F.3d 1372,
1376 (Fed. Cir. 2000); Gamboa, 120 M.S.P.R. 594, ¶ 5. With limited exceptions,
the Board’s review is confined to these issues. 10
With respect to issue (1), the Board does not have authority to review an
agency’s reasons for imposing a security clearance requirement. Gamboa,
120 M.S.P.R. 594, ¶ 5. The Board must, however, determine whether a security
clearance was, in fact, a requirement for the appellant’s position. Id. If the
agency fails to meet its burden of proving by preponderant evidence that the
10
In an appropriate case, the Board may also review whether it was feasible to reassign
the appellant to a position not requiring the withheld security credential. Egan,
484 U.S. at 530-31. However, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) has clarified that Egan does not create a substantive entitlement to
reassignment, and that the Board’s authority to review whether reassignment was
feasible arises only when a substantive right to reassignment is available from some
other source, such as a statute, regulation, or agency policy. Griffin v. Defense
Mapping Agency, 864 F.2d 1579, 1580 (Fed. Cir. 1989). The administrative judge
found below that the appellant did not establish the existence of such a statute,
regulation, or policy, 0001 ID at 10-11, and the appellant does not contest that finding
on review. The Federal Circuit has also held that, pursuant to 5 U.S.C. § 7701(C)(2)
(A), the Board may review whether an agency committed harmful procedural error in
taking an adverse action based on a security clearance determination. Romero v.
Department of Defense, 527 F.3d 1324, 1328 (Fed. Cir. 2008). In addition, while a
security clearance determination does not by itself implicate any due process concerns,
the Board may review whether the agency provided due process in taking the resulting
adverse action. Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 15
(2014). The Board has also held open the possibility of other viable affirmative
defenses that would not require the Board to review the substance of the underlying
security clearance determination, e.g., a discrimination defense that solely goes to the
issue of penalty and is based on the agency’s treatment of similarly situated individuals
outside of the appellant’s protected class. See Helms v. Department of the Army,
114 M.S.P.R. 447, ¶ 9 n.* (2010).
13
appellant’s position required a security clearance, the Board will not sustain an
adverse action based on a negative clearance determination. See id., ¶ 11.
The facts of this case differ somewhat from those in Gamboa, where the
position description was entirely silent as to the requirement for a security
clearance. See id., ¶ 6. Here, by contrast, the OF-8 indicates that a Top Secret
clearance was a requirement for the PCO Chief position. We find, however, that
the OF-8 is not dispositive evidence of a clearance requirement, and that it is
necessary to consider the appellant’s claim that the clearance designation on the
form was inauthentic or the result of ministerial error. 11 Cf. Grigsby v.
Department of Commerce, 729 F.2d 772, 775-76 (Fed. Cir. 1984) (finding that the
Government was not barred from demonstrating “ministerial error” in the
execution of the appellant’s Standard Form 50 and/or 52, and that “[n]either form
is conclusive in face of error in its execution”); Fox v. Department of the Army,
120 M.S.P.R. 529, ¶ 22 (2014) (“While an executed SF-50 is the customary
documentation for a personnel action, it does not constitute the personnel action
itself and does not on its face control an employee’s status and rights.”). Under
these circumstances, it was error to deny the appellant’s effort to obtain and
present evidence in support of her challenge to the authenticity of the clearance
designation. See West v. Department of the Navy, 63 M.S.P.R. 86, 89 (1994)
(finding that the administrative judge erred in excluding testimony proffered by
the appellant on the issue of whether his position required a security clearance).
The current record contains conflicting evidence as to whether the remark
in Box 24 of the OF-8 accurately reflects a security clearance requirement for the
PCO Chief position. The OF-8 bears the signatures of three individuals: K.L.,
11
In its response to the appellant’s motion to compel, the agency cited Robinson v.
Department of Homeland Security, 498 F.3d 1361, 1365 (Fed. Cir. 2007), for the
proposition that an adverse action is warranted if an employee fails to maintain the
security clearance “required by the job description.” 0001 IAF, Tab 14 at 6. We agree
with the appellant that Robinson is distinguishable because the appellant in that case did
not challenge the authenticity of the clearance designation. 0001 IAF, Tab 16 at 9-10.
14
then FLETC Chief of Staff; C.P., then FLETC Director; and P.A., a Human
Resources Specialist. 0001 IAF, Tab 20 at 12. C.P. stated in her declaration that
the position description for the PCO Chief position “does not include the need for
a clearance and was never adjudicated by the department to need one.” 0001 IAF,
Tab 4 at 37. She went on to state that K.L. “required it locally because he
believed that the job may require access to classified information.” Id. However,
in his own declaration, K.L. stated unequivocally that the appellant’s position did
not require a security clearance; that he did not order or request that the position
include a security clearance as a condition of employment; and that he never
requested that security or human resources personnel place a clearance
requirement in the position description. 0001 PFR File, Tab 1 at 19-20. In his
declaration, P.A. explained that he attached a sticker indicating a “Top Secret
Clearance” to the OF-8 he received from management, presumably after it had
been signed by C.P. and K.L. 0001 IAF, Tab 20 at 9. P.A. described the sticker
as a “correction,” but he did not explain the basis for his belief that the position
required a clearance, nor did he indicate who, if anyone, authorized him to make
the alteration. 12 Id. In addition, the record contains a declaration by former
FLETC Chief of Special Security/Assistant Chief Security Officer J.D., who
stated that a position description for a position requiring a clearance must contain
a written justification clearly explaining how the incumbent’s duties are related to
classified information, and that this requirement was not met in the appellant’s
12
In addition to placing a sticker on Box 24, P.A. also altered Box 12 of the OF-8,
which purportedly indicates the position’s sensitivity level. Block 12 was originally
marked as “Non-Critical Sensitive” and still bears traces of ink in that box. 0001 IAF,
Tab 20 at 12. In his declaration, P.A. explains that he whited out the original mark and
changed it to “Critical Sensitive” to accord with a Top Secret clearance. Id. at 9. As
discussed above, however, it is unclear whether the Top Secret clearance designation
was correctly added to the OF-8 in the first instance. Moreover, the narrative portion of
the position description does not specify a sensitivity level. Id. at 14-23. Under these
circumstances, it would be circular reasoning to treat the “Critical Sensitive” checkmark
as evidence of a security clearance requirement.
15
case. 0001 IAF, Tab 28 at 32-33. Under these circumstances, we cannot rule out
the possibility of ministerial error in the execution of the OF-8.
Nor does the record apart from the OF-8 contain sufficient evidence to
support a finding that the PCO Chief position requires a clearance. As noted
above, the narrative portion of the position description contains no reference to
classified information or a clearance requirement. 0001 IAF, Tab 20 at 14-23.
The administrative judge found that, notwithstanding that conspicuous omission,
“certain portions of the narrative could . . . be read to suggest that a situation
could arise where the appellant would need to access classified information.”
0001 ID at 7-8. However, that finding is inconsistent with the statements made
by several agency officials, under penalty of perjury, that the appellant’s duties
did not in fact require a clearance or access to classified information. See 0001
PFR, Tab 3 at 19, Tab 28 at 22, Tab 4 at 41, 44. Moreover, while it appears the
appellant may have supervised employees with clearances, see 0001 IAF, Tab 28
at 42-51, this alone does not compel a conclusion that her own position required a
clearance, especially in light of the written testimony noted above.
In sum, the current record contains contradictions, and we cannot presently
determine whether the appellant’s position in fact required a clearance.
Accordingly, should the administrative judge determine that the Board has
jurisdiction in O’Quinn I, he should allow for further development of the record
on this issue. In light of the administrative judge’s erroneous decision to deny
discovery on that issue, the appellant may renew her request for a hearing. The
administrative judge should then make a new finding on the merits of the
indefinite suspension action. We stress that the burden of proof lies with the
agency to demonstrate by preponderant evidence that the appellant’s position
required a clearance. Gamboa, 120 M.S.P.R. 594, ¶ 11.
The administrative judge should also make a new finding as to whether,
under the particular circumstances of this case, the Board has authority to
consider the appellant’s affirmative defenses of discrimination, EEO retaliation,
16
and whistleblowing reprisal. If the administrative judge determines that it is
possible to adjudicate some or all of these defenses without reviewing the merits
of the agency’s decision to suspend the appellant’s security clearance—which
may or may not have been a requirement of her position in the first instance—he
should allow for further development of the record on those defenses and
adjudicate them accordingly. See Helms v. Department of the Army,
114 M.S.P.R. 447, ¶ 9 n.* (2010) (noting the possibility of a viable affirmative
defense that would not require the Board to review the substance of the
underlying security clearance determination).
AT-1221-22-0478-W-1 ( O’Quinn II )
If the administrative judge determines that (1) the appellant is covered by
the election of remedies provisions of 5 U.S.C. § 7121(g), and (2) either the
appellant made a binding election to contest her indefinite suspension before the
Board or the appellant did not previously make a binding election of remedies but
indicates that she now wishes to continue the proceedings in O’Quinn I, the
administrative judge should find that the Board lacks IRA jurisdiction with
respect to the indefinite suspension. Otherwise, the administrative judge should
make a new jurisdictional finding regarding that action. In doing so, the
administrative judge should consider whether, under the particular circumstances
of this case, it is possible to adjudicate the appellant’s claim of retaliation in
connection with her indefinite suspension without reviewing the merits of the
agency’s decision to suspend her security clearance. 13
Regardless of whether the Board has IRA jurisdiction with regard to the
appellant’s indefinite suspension, the administrative judge should also determine
on remand whether the Board has jurisdiction with regard to any of the other
whistleblowing reprisal claims the appellant exhausted before OSC. See
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 11 (explaining
13
A relevant consideration may be whether the appellant’s position required a security
clearance in the first instance.
17
that an appellant may demonstrate exhaustion through the initial complaint,
subsequent correspondence with OSC, or other sufficiently reliable evidence,
such as an affidavit or declaration attesting that the appellant raised with OSC the
substance of the facts in the Board appeal). Should the administrative judge
conclude that the Board has jurisdiction over any of the appellant’s
whistleblowing reprisal claims, he should provide the appellant her requested
hearing and adjudicate those claims on the merits.
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.