Carter D. Mansfield v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CARTER D. MANSFIELD, DOCKET NUMBER

Appellant, AT-0752-13-4111-I-1

v.

DEPARTMENT OF JUSTICE, DATE: August 5, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joel J. Kirkpatrick, Esquire, Plymouth, Michigan, for the appellant.

Carol A. Joffe, Springfield, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

Vice Chairman Wagner issues a separate, dissenting opinion.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the erroneous application of the law to the facts of the case; the 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, and based on the following points and authorities, 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).

BACKGROUND

¶2 The appellant is a GS-13 Criminal Investigator with the Drug Enforcement

Agency (DEA) in Miami, Florida. Initial Appeal File (IAF), Tab 5 at 24. The

appellant’s position has been designated as critical sensitive, and therefore

requires eligibility to access National Security Information (NSI). 2 IAF, Tab 16

at 10, 28, 35.

¶3 On February 1, 2013, the Acting Deputy Chief Inspector, Office of Security

Programs, issued the appellant a preliminary decision to revoke the appellant’s

eligibility for access to NSI. IAF, Tab 5 at 124-56. The decision letter explained

2

Pursuant to Order DOJ 2610.2B, NSI is defined as classified information, or

information requiring protection against unauthorized disclosure. IAF, Tab 16 at 12-13;

see also Exec. Order No. 12,968, 50 Fed. Reg. 40,245, § 1.1(d) (Aug. 2, 1995). Access

to NSI is granted by the Department Security Officer (DSO) or designee on a need-to-

know basis. IAF, Tab 16 at 12-13, 20; see also Exec. Order No. 12,968, §§ 1.2(c), 2.5,

3.1; 28 C.F.R. §§ 17.41(a), 17.45. The DSO or designee also denies, suspends, or

revokes employee access to NSI in accordance with Executive Order 12,968. IAF,

Tab 16 at 15, 20. Where the DSO or designee has made a final decision denying or

revoking an employee’s access to NSI, the employee may file an appeal of that decision

with the Access Review Committee. IAF, Tab 16 at 22; 28 C.F.R. §§ 17.15, 17.47(d).

3

that the proposed action was based on the appellant’s alleged violation of foreign

influence, sexual behavior, and personal conduct guidelines under Executive

Order 12,968. Id. The agency alleged that the appellant violated these guidelines

when he assisted with the arrangement of services of a sexual services provider

for a U.S. Secret Service Supervisory Agent and himself to be performed in the

appellant’s government-provided living quarters in Cartagena, Colombia. Id.

The agency also contended that, on a separate occasion while on official U.S.

government travel in Medellin, Colombia, the appellant solicited and attempted to

use the services of another sexual services provider. Id. After providing the

appellant with the opportunity to respond verbally and in writing, the Acting

Deputy Chief Inspector 3 issued a May 17, 2013 decision revoking the appellant’s

eligibility for access to NSI. Id. at 73-74. The appellant filed an appeal of that

decision with the Access Review Committee (ARC). IAF, Tab 16 at 6.

¶4 On June 11, 2013, the agency issued the appellant a letter proposing his

indefinite suspension based on the Acting Deputy Chief Inspector’s decision “to

revoke [his] access to [NSI] (Top Secret Clearance).” IAF, Tab 5 at 69-71. The

appellant was provided with the opportunity to respond to the notice of proposed

indefinite suspension verbally and in writing. Id. at 70.

¶5 On July 22, 2013, the deciding official issued a final decision indefinitely

suspending the appellant without pay from his position as a Criminal Investigator.

Id. at 31-32. In explaining the basis for his decision, the deciding official stated

that the appellant’s position of Criminal Investigator is classified as critical

sensitive, thereby requiring eligibility to access NSI and a Top Secret Clearance.

Id. at 31. The deciding official stated that both the appellant’s eligibility to

access NSI and his Top Secret Clearance were revoked on May 17, 2013. Id.

The deciding official further stated that the indefinite suspension would remain in

3

The Acting Deputy Chief Inspector of the Office of Security Programs was authorized

to make decisions regarding employees’ eligibility for access to NSI and the issuance

and revocation of security clearances. IAF, Tab 16 at 9.

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effect until a final decision by ARC concerning the appellant’s security clearance

was issued and any administrative action was finalized. Id. at 31. The

appellant’s indefinite suspension was effected on July 29, 2013. Id. at 24.

¶6 Thereafter, the appellant filed an appeal with the Board. IAF, Tab 1. After

the appellant waived his request for a hearing, the administrative judge issued an

initial decision on the written record affirming the agency’s action. IAF, Tab 19,

Initial Decision (ID).

¶7 The appellant timely filed a petition for review, in which he alleges that the

penalty of indefinitely suspending him was unreasonable because the agency

condoned his continued access to NSI following the preliminary revocation of his

security clearance in February 2013 until his indefinite suspension in July 2013.

Petition for Review (PFR) File, Tab 1 at 5, 17-23. The agency has filed a

response to the appellant’s petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 In an appeal of an indefinite suspension based on the revocation of a

security clearance, the Board may review, among other things, whether the

employee’s position required a security clearance, whether the security clearance

was revoked, and whether the procedures set forth in 5 U.S.C. § 7513(b) were

followed. See Cheney v. Department of Justice, 479 F.3d 1343, 1352 (Fed. Cir.

2007) (defining the Board’s scope of review in a case involving an indefinite

suspension based on the suspension of the appellant’s security clearance); Hesse

v. Department of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000) (same). The Board

may not, however, review the merits of the underlying security clearance

determination. Cheney, 479 F.3d at 1349-50.

The agency proved its charge.

¶9 The agency proved its charge of revocation of access to NSI (Top Security

Clearance). In a charge involving denial of eligibility for a security clearance or

access to classified information, all that the agency is required to prove is that the

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appellant’s position required such clearance or access, and that it was revoked.

Buelna v. Department of Homeland Security, 121 M.S.P.R. 262 ¶ 23 (2014)

(upholding a charge of suspension of Top Secret security clearance); see also

Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 8 (2014) (upholding a

charge of denial of eligibility to occupy a sensitive position). Here, it is

undisputed that the appellant’s critical sensitive position required him to have

access to NSI and maintain a security clearance. IAF, Tab 16 at 5. In the initial

decision, the administrative judge found that the appellant’s eligibility to access

NSI, and thereby his security clearance, was revoked on May 17, 2013. ID at 4.

The administrative judge found that, accordingly, the agency had proven the

reason for the indefinite suspension by preponderant evidence. 4 ID at 4. The

parties do not dispute these findings, and we discern no basis for disturbing them

on review. 5

¶10 Rather, in his petition for review, the appellant contends that the agency

failed to establish nexus and the reasonableness of the penalty. In particular, the

appellant asserts that the agency’s action did not meet the efficiency of the

service standard because after the revocation of his eligibility to access NSI and

during the pendency of the proposed indefinite suspension, his duties did not

change. PFR File, Tab 1 at 5, 17, 19-23. The appellant further contends that the

penalty was not reasonable because the agency could have reassigned him to the

position he encumbered during the pendency of the proposed indefinite

4

The administrative judge stated in the initial decision that the appellant was

indefinitely suspended for one cited reason: the revocation of his access to NSI. ID

at 4. However, the agency’s proposal notice and final decision letter specifically refer

to both the revocation of the appellant’s access to NSI and the revocation of his security

clearance as the bases for the agency’s indefinite suspension action. IAF, Tab 5 at 31,

69. In any event, in finding that the agency had proven the reason for the indefinite

suspension, the administrative judge found that the agency had revoked both the

appellant’s access to NSI and his security clearance. ID at 4.

5

The parties also do not dispute the administrative judge’s finding that the agency

provided the appellant with the procedural protections of 5 U.S.C. § 7513(b). ID at 4-5.

Accordingly, we do not further discuss this finding here.

6

suspension. Id. at 18-23. The appellant also asserts that the deciding official

erred in failing to address “the continued viability of keeping [him] in place

pending the ARC appeal process.” Id. at 20.

The agency’s action promoted the efficiency of the service and the Board lacks

authority to review whether reassignment was feasible.

¶11 It is well settled that, where an adverse action is based on the failure to

maintain a security clearance required by the job description, the action promotes

the efficiency of the service because “the absence of a properly authorized

security clearance is fatal to the job entitlement.” Robinson v. Department of

Homeland Security, 498 F.3d 1361, 1365 (Fed. Cir. 2007). Because the

appellant’s critical sensitive position required eligibility to access NSI and a

security clearance, the revocation of the appellant’s eligibility to access NSI and

the revocation of his security clearance were fatal to the job requirement. See

Flores, 121 M.S.P.R. 287, ¶ 12 (loss of eligibility to occupy a sensitive position

was fatal to the job entitlement where the appellant occupied a sensitive position).

Although the appellant contends that he continued to perform the duties of his

position after the revocation of his access to NSI and during the pendency of the

proposed indefinite suspension, his assertion does not show that the agency’s

action was inconsistent with the efficiency of the service. To the extent that the

appellant is challenging the agency’s decision to indefinitely suspend him before

the issuance of a decision regarding his security clearance by ARC, an agency

may place an employee on indefinite suspension pending a final determination of

his eligibility for a required security clearance, as such an action promotes the

efficiency of the service. Jones v. Department of the Navy, 978 F.2d 1223, 1226

(Fed. Cir. 1992).

¶12 Regarding the appellant’s contention that the agency failed to consider the

feasibility of reassignment, he has failed to identify any statute or regulation that

would have provided him with the right to reassignment to a nonsensitive

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position. Consideration of the Douglas factors 6 would be inappropriate in this

case because, in the absence of a statute or regulation requiring the agency to

seek out alternative employment, we lack authority to review whether the lesser

sanction of reassignment to a nonsensitive position would have been feasible. 7

Flores, 121 M.S.P.R. 287, ¶ 12; see also Griffin v. Defense Mapping Agency,

864 F.2d 1579, 1580-81 (Fed. Cir. 1989) (5 U.S.C. § 7513 contains no obligation

to transfer an applicant who unsuccessfully sought to obtain a security clearance

to a nonsensitive position if possible).

The appellant has failed to show that the agency violated its own procedures in

imposing the indefinite suspension.

¶13 Section 7513 is not the only source of procedural protections for employees

subject to adverse actions based on the denial, revocation, or suspension of a

security clearance; agencies must also comply with the procedures set forth in

their own regulations. Romero v. Department of Defense, 527 F.3d 1324,

6

See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981) (setting forth the

standard for the Board’s review of agency-imposed penalties).

7

To the extent that the appellant intends to argue that the agency denied him due

process in connection with the penalty, we find that the Board’s recent decision in

Buelna does not provide a basis for review. See IAF, Tab 1 at 6 (raising the failure to

transfer to a different position as a due process issue). In an order and summary of

conference call, the administrative judge stated that the Board could not consider

constitutional due process claims in connection with the appeal. IAF, Tab 12 at 2.

Since the issuance of the initial decision, however, the Board issued Buelna,

121 M.S.P.R. 262, in which it reaffirmed its authority to determine whether an agency

has afforded an appellant due process in taking an adverse action based on a security

clearance determination, id., ¶ 15. However, due process does not demand that the

deciding official consider alternatives that are prohibited, impracticable, or outside

management’s purview. Id., ¶ 27. To the extent that there may have existed viable

alternatives to suspension without pay, the appellant had a due process right to invoke

the discretion of a deciding official with authority to change the outcome of the

proposed action to the extent that may have been feasible. Id., ¶ 28. The appellant in

this case has failed to submit any evidence or argument suggesting that the deciding

official lacked the authority to consider any such alternatives or that any such

alternatives existed. See Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92

(1992) (a petition for review must contain sufficient specificity to enable the Board to

ascertain whether there is a serious evidentiary challenge justifying a complete review

of the record).

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1328-30 (Fed. Cir. 2008) (the Board may consider whether the agency committed

harmful error by violating its own procedures in revoking a security clearance);

Schnedar v. Department of the Air Force, 120 M.S.P.R. 516, ¶ 8 (2014) (same).

Hence, the Board may review whether the agency complied with its own

procedures for revoking a security clearance and for taking an adverse action

based on such revocation. Schnedar, 120 M.S.P.R. 516, ¶ 8.

¶14 As previously noted, the appellant asserts on review that the deciding

official erred in failing to address “the continued viability of keeping [him] in

place pending the ARC appeal process.” PFR File, Tab 1 at 20. To the extent

that the appellant is contending in his petition for review that the agency

committed harmful procedural error by effecting his indefinite suspension before

the issuance of a decision regarding his clearance by ARC, the appellant has not

identified any agency regulation stating that the agency may not take an adverse

action if the employee concerned has filed an appeal with ARC and is still

awaiting a decision on that appeal. The appellant has not otherwise raised any

argument that would suggest that the agency violated its regulations in revoking

his access to NSI, and thereby his security clearance, and in effecting his

indefinite suspension.

¶15 Based on the foregoing, we discern no basis for disturbing the initial

decision affirming that agency’s indefinite suspension action.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States 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

9

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. 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 your court

appeal, you may visit our website at http://www.mspb.gov/probono for a list of

attorneys who have expressed interest in providing pro bono representation for

Merit Systems Protection Board appellants before the court. 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: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.

DISSENTING OPINION OF VICE CHAIRMAN ANNE M. WAGNER

in

Carter D. Mansfield v. Department of Justice

MSPB Docket No. AT-0752-13-4111-I-1

¶1 I respectfully dissent from the Majority’s decision to affirm the initial

decision, which sustained an indefinite suspension based on the agency’s

preliminary decision to revoke the appellant’s security clearance. Specifically,

the Majority’s nonprecedential final order illustrates the concerns raised in my

separate opinion in Buelna v. Department of Homeland Security, 121 M.S.P.R.

262 (2014) that the Board has unduly restricted the scope of our review in

adverse actions based on national security determinations, including an

appellant’s entitlement to due process under the Fifth Amendment.

¶2 In this appeal, the appellant has asserted that the agency denied him due

process in connection with the imposition of the penalty. IAF, Tabs 1, 13. In

particular, the appellant indicated that he intended to seek discovery from the

deciding official concerning whether reassignment or action other than indefinite

suspension would have been ineffective or reasonable. IAF, Tab 13 at 5.

However, in the order and summary of the close of record conference, the

administrative judge granted the agency’s motion for protective order and limited

the scope of the appellant’s deposition of the deciding official, and the issues in

the appeal, solely to “whether the security clearance was denied, whether the

security clearance was a requirement of the appellant’s position, and whether the

procedures set forth in [5 U.S.C. § 7513] were followed,” citing the Federal

Circuit’s decision in Gargiulo v. Department of Homeland, 727 F.3d 1181, 1185

(Fed. Cir. 2013) (quoting Hesse v. Department of State, 217 F.3d 1372, 1376

(Fed. Cir. 2000)). IAF, Tab 12 at 2. The administrative judge further determined

that the Board may not consider the appellant’s claims of denial due process.

This determination was erroneous because it was based on an overly broad

2

interpretation of Gargiulo and is contrary to the Majority’s subsequent decision

in Buelna. See 121 M.S.P.R. 262, ¶¶ 26-28 (due process requires that the

appellant be afforded an opportunity to invoke the discretion of a deciding

official with authority to select an alternative punishment).

¶3 The Majority recognizes this error in its decision. Majority Opinion at

¶ 12, n.7. Nevertheless, despite the fact that the administrative judge severely

limited the scope of discovery and the development of the record, the Majority

finds that the appellant failed to submit any evidence or argument to prove that he

was denied due process. Id. I dissent from this determination and would remand

this appeal for further adjudication because the appellant was denied the

opportunity to obtain discovery and to present evidence on this due process

claim.

______________________________

Anne M. Wagner

Vice Chairman