Angelo T. Marshall v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANGELO T. MARSHALL, DOCKET NUMBER

Appellant, CH-0752-10-0903-I-2

v.

DEPARTMENT OF DEFENSE, DATE: September 16, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

J. Ward Morrow, Esquire, Washington, D.C., for the appellant.

Neil Bloede, Indianapolis, Indiana, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

reversed the appellant’s removal. For the reasons discussed below, we GRANT

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 petition for review, REVERSE the initial decision, and SUSTAIN the

appellant’s removal. 2

¶2 The agency removed the appellant from his Management Assistant position

with the Defense Finance and Accounting Service (DFAS) based on a decision of

the Washington Headquarters Service (WHS) Clearance Appeal Board (CAB) to

uphold the decision of the WHS Consolidated Adjudications Facility (CAF)

denying the appellant eligibility to occupy a noncritical sensitive (NCS) position.

MSPB Docket No. CH-0752-10-0903-I-1 (I-1), Initial Appeal File (IAF), Tab 6,

Subtabs 4a, 4b, 4d.

¶3 After a hearing on appeal, the administrative judge reversed the removal

action. MSPB Docket No. CH-0752-10-0903-I-2 (I-2), IAF, Tab 23, Initial

Decision (ID) at 2, 14. Applying the Board’s decisions in Conyers v. Department

of Defense, 115 M.S.P.R. 572 (2010), and Northover v. Department of Defense,

115 M.S.P.R. 451 (2010), the administrative judge found that the Board may

review the merits of the agency’s decision to deny the appellant eligibility to

occupy an NCS position, and that the agency must prove that the removal action

is supported by preponderant evidence, promotes the efficiency of the service,

and is a reasonable penalty. ID at 3-5. The administrative judge held that the

agency failed to prove its charge that the appellant is ineligible to occupy an NCS

position, failed to show that discipline for the appellant’s conduct promoted the

efficiency of the service, and failed to prove that the penalty of removal was

reasonable even assuming that the agency had properly sustained its charge. ID

at 5-13. Regarding the penalty, the administrative judge found that the deciding

official did not truly determine the penalty because he had no choice but to

remove the appellant, and that the real decision-makers were the CAB, through its

2

Except as otherwise noted in this decision, we have applied the Board’s regulations

that became effective November 13, 2012. We note, however, that the petition for

review in this case was filed before that date. Even if we considered the petition under

the previous version of the regulations, the outcome would be the same.

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decision upholding a letter of decision issued by the WHS CAF, and the agency’s

human resources department, through its instruction to remove the appellant from

service. ID at 12. The administrative judge noted that the deciding official

testified that he did not know of any positions not requiring an NCS clearance,

and that the record did not demonstrate that the deciding official viewed the

appellant’s conduct as warranting removal or that he had an opportunity to

mitigate the penalty. ID at 12-13. Finally, the administrative judge found that

the appellant did not prove his affirmative defenses of harmful error and a

violation of due process. ID at 13-14.

¶4 The agency asserts on review that the administrative judge erred in applying

Conyers and Northover because those decisions were not yet final, and should

have applied an abuse of discretion standard in reviewing the agency’s decision to

deny the appellant eligibility to occupy an NCS position. I-2, Petition for Review

(PFR) File, Tab 1 at 7-12. The agency also challenges the administrative judge’s

findings on the merits of the appeal. Id. at 12-23. The appellant has filed an

opposition to the agency’s petition for review. PFR File, Tab 3.

¶5 The Clerk of the Board thereafter issued an Order informing the parties that

the U.S. Court of Appeals for the Federal Circuit’s decision in Gargiulo v.

Department of Homeland Security, 727 F.3d 1181 (Fed. Cir. 2013), may affect the

outcome of the case, and inviting the parties to file briefs addressing the possible

application of Gargiulo to the appellant’s constitutional due process claims. PFR

File, Tab 6. The parties have filed responses to the Order issued by the Clerk of

the Board. Id., Tabs 7, 8.

¶6 In Conyers, 115 M.S.P.R. 572, ¶ 13, and Northover, 115 M.S.P.R. 451,

¶ 13, the Board held that the U.S. Supreme Court’s decision in Department of the

Navy v. Egan, 484 U.S. 518 (1988), limited Board review of an otherwise

appealable action only if that action was based upon a denial, revocation, or

suspension of a “security clearance,” i.e., a denial of access to classified

information or eligibility for such access. Accordingly, the Board found in

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Conyers and Northover that an adverse action based on the agency’s decision that

an employee was not eligible to occupy an NCS position was subject to the same

review as other actions under 5 U.S.C. chapter 75, including review of the merits

of the agency’s decision on eligibility. See Conyers, 115 M.S.P.R. 572, ¶¶ 13,

32-34; Northover, 115 M.S.P.R. 451, ¶¶ 13, 30-33.

¶7 A divided Federal Circuit panel reversed the Board’s decisions in Conyers

and Northover, holding that the Board cannot review the merits of an agency’s

national security determinations regarding an employee’s eligibility to occupy a

sensitive position that implicates national security. Berry v. Conyers, 692 F.3d

1223, 1225, 1237 (Fed. Cir. 2012). The court later vacated the above panel

decision and granted rehearing en banc. Berry v. Conyers, 497 F. App’x 64

(Fed. Cir. 2013). The court then issued an en banc decision in which a majority

of the court reversed and remanded the Board’s decision in Northover and

dismissed the appeal in Conyers for lack of jurisdiction. Kaplan v. Conyers,

733 F.3d 1148, 1150-52, 1166-67 (Fed. Cir. 2013), cert. denied, Northover v.

Archuleta, 134 S. Ct. 1759 (2014). In its en banc decision in Conyers, 733 F.3d

at 1158-60, the Federal Circuit held that Egan prohibits Board review of

Department of Defense (DoD) national security determinations concerning the

eligibility of an individual to occupy a “sensitive” position, regardless of whether

the position requires access to classified information. In support of this holding,

the court found that “there is no meaningful difference in substance between a

designation that a position is ‘sensitive’ and a designation that a position requires

‘access to classified information.’ Rather, what matters is that both designations

concern national security.” Id. at 1160. Accordingly, under the Federal Circuit’s

decision in Conyers, the limited scope of review set forth in Egan applies to

appeals such as this one, where an adverse action is based on the decision that an

employee is not eligible to occupy an NCS position. See id. at 1158-60; Ingram

v. Department of Defense, 120 M.S.P.R. 420, ¶ 9 (2013).

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¶8 In Egan, the Supreme Court held that the Board does not have authority to

review the substance of a security clearance determination, contrary to what is

required generally in other adverse action appeals. Egan, 484 U.S. at 530-31.

The Court held that, in an appeal under 5 U.S.C. § 7513 based on the denial of a

security clearance, the Board has authority to review only whether: (1) an

executive branch employer determined the employee’s position required a

security clearance; (2) the clearance was denied or revoked; (3) the employee was

provided with the procedural protections specified in 5 U.S.C. § 7513; and

(4) whether transfer to a nonsensitive position was feasible when another source,

such as a statute or regulation, provides the employee a substantive right to such

reassignment. See Conyers, 733 F.3d at 1151 (citing Egan, 484 U.S. at 530);

Griffin v. Defense Mapping Agency, 864 F.2d 1579, 1580 (Fed. Cir. 1989);

Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 14 n.5 (2014).

The Court ruled that “[n]othing in the [statute enacting 5 U.S.C. § 7513] . . .

direct[ed] or empower[ed] the Board to go further.” Egan, 484 U.S. at 530. Our

review is therefore limited to the issues set forth in Egan.

¶9 In applying the limited scope of review under Egan, we must affirm the

agency’s removal action. See Ingram, 120 M.S.P.R. 420, ¶¶ 12-13. The

appellant’s position of Management Assistant required that he maintain eligibility

to occupy an NCS position. I-1, IAF, Tab 6, Subtab 4j, Tab 7 at 15; Hearing

Compact Disc (HCD), MP3-1 (testimony of the proposing and deciding officials).

Furthermore, the WHS CAF issued a letter denying the appellant eligibility for

access to classified information and/or occupancy of a sensitive position. I-1,

IAF, Tab 6, Subtabs 4h, 4i; I-2, IAF, Tab 17 at 24. The CAB affirmed that

decision. I-1, IAF, Tab 6, Subtab 4e; I-2, IAF, Tab 18 at 160. In addition, the

agency complied with the procedural protections specified in 5 U.S.C. § 7513 in

removing the appellant from his position. The agency provided the appellant with

30 days’ advance written notice of the proposed removal, reasons for the

proposed action, and a reasonable opportunity to reply. I-1, IAF, Tab 6, Subtab

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4d; see 5 U.S.C. § 7513(b)(1)- (2). The agency notified the appellant of his right

to be represented by an attorney and provided him with a written decision letter.

I-1, IAF, Tab 6, Subtabs 4b, 4d; see 5 U.S.C. § 7513(b)(3)- (4). Therefore, the

agency complied with the requirements of 5 U.S.C. § 7513 in removing the

appellant. There is no indication that the agency was required to consider

transferring the appellant to a nonsensitive position. See I-1, IAF, Tab 6, Subtab

1 at 12.

¶10 Regarding the due process issue in this case, employees do not have a

property interest in access to classified information, and the termination of that

access does not implicate any due process concerns. Flores v. Department of

Defense, 121 M.S.P.R. 287, ¶ 9 (2014). Like a security clearance, the granting of

eligibility to occupy a sensitive position is a matter within the executive’s broad

discretion to make determinations concerning national security. Id. Therefore,

just as it is obvious that no one has a right to a security clearance, it is likewise

clear that an employee has no property interest in eligibility to occupy a sensitive

position, and the denial of the appellant’s eligibility to occupy a sensitive position

is not itself subject to due process requirements. Id.

¶11 Nevertheless, by virtue of being an employee under 5 U.S.C. § 7511, and

thus removable only for cause, the appellant did have a property interest in his

continued employment. Id., ¶ 10. Therefore, he was entitled to due process,

including notice and a meaningful opportunity to respond, prior to being

removed. Id.; see Gargiulo, 727 F.3d at 1185 (although Mr. Gargiulo had no due

process rights relating to the procedures used to determine whether to suspend or

revoke his security clearance, he did have due process rights concerning his

indefinite suspension). It is the appellant’s removal, not his loss of eligibility to

occupy a sensitive position, that triggered due process protections. Flores,

121 M.S.P.R. 287, ¶ 10. The Board may review the due process protections

afforded in the removal proceedings without second guessing the underlying

eligibility determination. Id.; see Buelna, 121 M.S.P.R. 262, ¶ 15 (the Court did

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not have occasion in Egan to decide if the Board was authorized to consider a

claim that an agency denied due process in taking an adverse action based on a

security clearance determination).

¶12 In Buelna, 121 M.S.P.R. 262, ¶¶ 3-4, 26-28, which involved an indefinite

suspension based in part on the suspension of a security clearance, the Board held

that, if there are “viable alternatives” to the indefinite suspension, due process

requires that the employee be afforded an opportunity to invoke the discretion of

a deciding official with authority to select such alternatives. The Board found

that the right to invoke the deciding official’s discretion exists only in such cases

where there is doubt as to the appropriateness or necessity of the penalty, and that

due process does not demand that the deciding official consider alternatives that

are prohibited, impracticable, or outside management’s purview. Id., ¶ 27.

¶13 In response to the appellant’s argument that the agency could retain him as

a DFAS employee because he performed union representational duties instead of

the duties of his assigned position, the deciding official indicated in his decision

letter that, “to stay on DFAS rolls, an employee must be assigned to an official,

funded DFAS position for which he is qualified.” I-1, IAF, Tab 6, Subtab 4b at 1.

Thus, the deciding official rejected the appellant’s request that he be allowed to

remain in the position for which he no longer qualified and simply perform

nonsensitive duties. Id. The deciding official also noted in the decision letter

that there were no vacant nonsensitive positions to which the appellant could be

reassigned. Id. at 2; see HCD, MP3-1 (testimony of the deciding official that all

of the positions at DFAS were categorized as NCS, and that he had to remove the

appellant and could not reassign him because the appellant was not eligible to

occupy a NCS position). Thus, the deciding official testified that he did not

consider any penalty other than removal because the appellant did not have the

credentials required for his position. HCD, MP3-1.

¶14 The appellant has not identified any viable alternatives to his removal in

this case, and we find no such alternatives. Given the record evidence

8

establishing that all positions within DFAS were classified as NCS, any

alternative to removal that would have retained the appellant in his Management

Assistant position, reassigned him to another position within DFAS, or

indefinitely assigned him to nonsensitive duties without his being assigned to a

position in the civil service was either prohibited, impracticable, or outside the

purview of DFAS management. See 5 U.S.C. § 2105(a)(1) (defining “employee”

as an individual appointed in the civil service); 5 U.S.C. § 2101(1) (the “civil

service” consists of all appointive positions in the executive, judicial, and

legislative branches); Bracey v. Office of Personnel Management, 236 F.3d 1356,

1359 (Fed. Cir. 2001) (“We are aware of no setting in the federal employment

system in which an employee is considered to hold a ‘position’ consisting of a set

of ungraded, unclassified duties that have been assigned to that employee on an

ad hoc basis.”); cf. McFadden v. Department of Defense, 85 M.S.P.R. 18, ¶ 20

(1999) (an agency is not obligated to accommodate a disabled employee by

permanently assigning her to light-duty tasks when those tasks do not comprise a

complete and separate position).

¶15 When an agency has effected an indefinite suspension without pay pending

the completion of an investigation and/or resolution of an appellant’s security

clearance status, the Board has suggested that placement on administrative leave

“may” be a viable alternative to suspension without pay. See Buelna,

121 M.S.P.R. 262, ¶¶ 4, 28. Here, however, there was no pending adjudication of

the appellant’s eligibility to occupy a NCS position. Rather, such eligibility had

been denied and the appellant’s removal had been proposed. Even assuming that

there was a “practicable” alternative in the sense that someone in DFAS

management may have had the authority to create a nonsensitive position for the

appellant to occupy, see Haeuser v. Department of Law, Government of Guam,

97 F.3d 1152, 1159 n.4 (9th Cir. 1996) (contrasting the terms “practicable” and

“practical,” with “practicable” referring to something that can be put into effect,

and “practical” referring to something that is also sensible and worthwhile), the

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Board does not have the authority to determine whether such an alternative would

be practicable, see Skees v. Department of the Navy, 864 F.2d 1576, 1578 (Fed.

Cir. 1989) (“If the Board cannot review the employee’s loss of security clearance,

it is even further beyond question that it cannot review the Navy’s judgment that

the position itself requires the clearance.”); see also Conyers, 733 F.3d at 1155

(“Egan, at its core, explained that it is essential for the President and the DOD to

have broad discretion in making determinations concerning national security.”).

The Board is not permitted to second-guess the agency’s determination to classify

positions as NCS. We find that the appellant has not established a due process

violation in the absence of a showing that there were viable alternatives to his

removal. Brown v. Department of Defense, 2014 MSPB 74, ¶ 16; see Buelna,

121 M.S.P.R. 262, ¶¶ 26-28.

¶16 Accordingly, the agency’s petition for review is GRANTED, the initial

decision is REVERSED, and the appellant’s removal is SUSTAINED.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

This Final Order constitutes the Board’s final decision in this matter.

5 C.F.R. § 1201.113. You have the right to request the United States Court of

Appeals for the Federal Circuit to review this final decision. 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

10

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.