Larry Berriochoa v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LARRY BERRIOCHOA, DOCKET NUMBER

Appellant, DE-0752-13-0211-I-1

v.

DEPARTMENT OF HOMELAND DATE: September 19, 2014

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

R. Bobby Devadoss, Esquire, Dallas, Texas, for the appellant.

Jaime L. Preciado, Esquire, San Francisco, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

affirmed the agency’s indefinite suspension action. For the following reasons, we

DENY the appellant’s petition for review. Except as modified by the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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constitutional due process analysis set forth below, we AFFIRM the initial

decision. The agency’s indefinite suspension action is SUSTAINED.

BACKGROUND

¶2 The appellant was formerly employed as a Federal Air Marshal (FAM) with

the Transportation Security Administration (TSA). Initial Appeal File (IAF),

Tab 1 at 1, Tab 16 at 25. As a condition of employment, a FAM is required to

obtain and maintain a top secret security clearance. IAF, Tab 16 at 99. By

memorandum dated January 4, 2013, the TSA’s Personnel Security Section

notified the appellant that his top secret security clearance was suspended,

effective immediately, pending an internal agency review. Id. at 46-47. The

memorandum indicated that the clearance suspension was based on potentially

disqualifying information regarding the appellant’s alcohol consumption and

personal conduct. Id. at 46.

¶3 By notice dated January 24, 2013, the agency proposed to indefinitely

suspend the appellant based on the suspension of his security clearance. Id.

at 41-43. The proposal informed the appellant that he had 7 calendar days from

his receipt of the decision to make an oral and/or written reply. Id. at 42. The

appellant responded in writing to the deciding official. Id. at 33-39. By letter

dated March 1, 2013, the deciding official notified the appellant that he was

suspended without pay, effective that date, and that the suspension would remain

in effect until the resolution of the appellant’s security clearance status. Id.

at 27-31. The appellant timely filed an appeal with the Board on March 11,

2013. 2 IAF, Tab 1.

¶4 The administrative judge issued an initial decision affirming the agency’s

action. IAF, Tab 22, Initial Decision (ID) at 2, 10. He found that the agency had

2

On May 15, 2013, the agency issued a decision removing the appellant from federal

service on that date. See Berriochoa v. Department of Homeland Security, MSPB

Docket No. DE-0752-13-0326-I-1. The appellant has filed a separate appeal of his

removal. Id.

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established the merits of its action by preponderant evidence and that it

established nexus. ID at 3-4, 9-10. He further found that, in the absence of an

agency regulation requiring that the agency attempt to reassign an employee who

has lost his security clearance, the Board lacks the authority to review the

feasibility of reassignment. ID at 9-10.

¶5 In addition, the administrative judge addressed the appellant’s assertion that

the agency had denied him constitutional due process when it indefinitely

suspended him. ID at 4-9. Citing to the Board’s decision in McGriff v.

Department of the Navy, 118 M.S.P.R. 89, ¶¶ 24-25 (2012), the administrative

judge found that the appellant was entitled to due process concerning his

indefinite suspension, and that the Board had authority to review whether due

process was provided. ID at 4-5. Again citing McGriff, the administrative judge

further found that in determining the requirements of due process, he would apply

the balancing test employed in Gilbert v. Homar, 520 U.S. 924 (1997), and

consider the following factors: (1) the private interest affected by the official

action; (2) the risk of erroneous deprivation of the interest through the procedures

used, and the probable value, if any, of additional or substitute procedural

safeguards; and (3) the government’s interest. See McGriff, 118 M.S.P.R. 89,

¶¶ 27-28; see Homar, 520 U.S. at 931-32 (citing Mathews v. Eldridge, 424 U.S.

319, 335 (1976)). In analyzing the Homar—more accurately, the Mathews—

factors the administrative judge determined that the first and third factors were

not dispositive. ID at 6. Regarding the second factor, the administrative judge

found that the agency had adequately informed the appellant of the reasons for

the indefinite suspension. ID at 6-8. The administrative judge further found that,

although the deciding official had no authority to change the decision to suspend

the appellant’s security clearance, he had the authority to choose an alternative to

the proposed indefinite suspension, such as placement on administrative leave.

ID at 9. Hence, the administrative judge concluded, the appellant received a

meaningful opportunity to respond to the proposed indefinite suspension. ID at 9.

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¶6 The appellant timely filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response to the petition for review. PFR File,

Tab 3.

¶7 On review, the appellant reiterates his contention that the agency failed to

provide him with a meaningful opportunity to respond to the proposed indefinite

suspension and thereby denied him constitutional due process in indefinitely

suspending him. PFR File, Tab 1 at 6-9. First, the appellant argues that the

agency denied him a meaningful opportunity to respond to the proposed indefinite

suspension by failing to provide him with all of the materials relating to the

suspension of his security clearance. Id. at 6-7, 9. In particular, the appellant

contends the agency failed to provide him with a copy of the Incident Tracking

Report. Id. at 9. Second, the appellant contends that he was denied a meaningful

opportunity to persuade the deciding official to take an action other than the

proposed indefinite suspension. Id. at 8-9.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 In Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), the

Supreme Court held that in an appeal of an adverse action under chapter 75

based on the denial or revocation of a required security clearance, the Board may

not review the merits of the underlying clearance determination, but may review,

inter alia, 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. The holding in Egan has since been

applied to indefinite suspensions based on the suspension of a security clearance.

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); see

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

While Egan also controls where an adverse action is taken under the TSA

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personnel system, the procedural requirements of section 7513 are not directly

applicable in such cases. Buelna v. Department of Homeland Security, 121

M.S.P.R. 262, ¶ 14 (2014). However, the Board has the authority under section

7701(c)(2)(A) to review the agency’s compliance with its own procedures, which

include the similar provisions of TSA Management Directive (MD) 1100.75-3. 3

Id.

The agency proved its charge and established nexus.

¶9 It is undisputed that the appellant’s position was subject to a top secret

security clearance and the clearance was suspended. IAF, Tab 16 at 46-47, 99.

Accordingly, we agree with the administrative judge’s finding that the agency

proved its charge by preponderant evidence. ID at 10; see Buelna, 121 M.S.P.R.

262, ¶ 11 (sustaining an agency’s charge of suspension of the appellant’s top

secret security clearance where the position required a security clearance and the

clearance was suspended).

¶10 The administrative judge correctly found that an indefinite suspension based

on the suspension of a required security clearance promotes the efficiency of the

service. ID at 9-10; see Buelna, 121 M.S.P.R. 262, ¶ 11; see also Jones v.

Department of the Navy, 978 F.2d 1223, 1226-27 (Fed. Cir. 1992). Such an

action is also expressly authorized under the TSA personnel system.

Buelna, 121 M.S.P.R. 262, ¶ 11; see MD 1100.75-3 Handbook, § J(1)(d) (2009).

¶11 Consideration of the Douglas factors 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

3

The provisions of MD 1100.75-3 and the accompanying Handbook, rather than

chapter 75, govern disciplinary actions against TSA employees. Buelna, 121 M.S.P.R.

262, ¶ 5 n.2.

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of reassignment to a position not requiring a security clearance would have been

feasible. 4 Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 12 (2014).

The appellant has failed to show that the agency violated his constitutional due

process rights in indefinitely suspending him.

¶12 While this appeal was pending on review, the Federal Circuit issued its

decision in Gargiulo v. Department of Homeland Security, 727 F.3d 1181 (2013).

Following Gargiulo, the Board issued its decision in Buelna, in which it

reaffirmed its authority to determine whether an agency afforded an appellant

due process in taking an adverse action based on a security clearance

determination but clarified its recent analysis of the Mathews factors in McGriff.

See Buelna, 121 M.S.P.R. 262, ¶¶ 15, 18. The administrative judge did not have

the benefit of Buelna when the initial decision was issued; accordingly, to the

extent the administrative judge’s constitutional due process analysis is

inconsistent with Buelna, it is hereby modified.

¶13 As noted by the administrative judge, the second Mathews factor—the risk

of erroneous deprivation of the interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards—is

decisive here. ID at 6; see Buelna, 121 M.S.P.R. 262, ¶¶ 16, 21. In considering

this factor, the Board clarified in Buelna that, for purposes of responding to the

charge, due process does not require an opportunity to contest the merits of the

clearance determination. Buelna, 121 M.S.P.R. 262, ¶¶ 23-24. The Board

further clarified that, as to the charge, the agency was not required as a matter of

constitutional due process to notify the appellant of the specific reasons for the

suspension of the security clearance. Id., ¶ 25. Rather, it is sufficient for an

agency to inform the appellant that his position required a security clearance, and

that he could no longer hold his position once his clearance was suspended. Id.

4

As noted by the administrative judge, the appellant does not contend that the agency

has an official policy requiring reassignment following the suspension of a security

clearance. ID at 9.

7

The appellant in this case received adequate notice of these essential facts with

the notice of proposed suspension. Accordingly, we find that the agency

provided the appellant with minimum due process of law regarding the charge.

¶14 Even if due process does not require notice of the factual basis for the

underlying security clearance determination concerning the charge, the appellant

was still entitled to notice of this information if the deciding official’s penalty

determination was influenced by it. See id., ¶ 31. The appellant in this case has

not established that the deciding official relied on any information that had not

already been provided to the appellant along with the proposal notice. As noted

by the administrative judge, the deciding official declared under penalty of

perjury that he relied exclusively on the materials enclosed with the proposal

notice and the appellant’s written response in making his decision to indefinitely

suspend the appellant. ID at 7; IAF, Tab 19 at 23. Moreover, even if the

deciding official did consider additional information beyond what was included

in the proposal notice, the appellant has not established that the information

considered was new and material. See Buelna, 121 M.S.P.R. 262, ¶ 32; see also

Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375 (Fed. Cir.

1999) (explaining factors that are relevant to determining whether an ex parte

communication introduces new and material information).

¶15 The appellant’s contention that he was denied a meaningful opportunity to

persuade the deciding official to take an action other than the proposed indefinite

suspension is also unavailing. PFR File, Tab 1 at 8-9. To the extent there may

have existed viable alternatives to suspension without pay, e.g., placement on

administrative leave, the appellant had a due process right to invoke the

discretion of a deciding official to select such alternatives. See

Buelna, 121 M.S.P.R. 262, ¶ 28. Here, as noted by the administrative judge, the

deciding official declared under penalty of perjury that he had authority to

choose alternatives to the proposed indefinite suspension, including placing the

appellant on administrative leave. ID at 9; IAF, Tab 19 at 23-24. The appellant

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has not rebutted this evidence, and we conclude that he was afforded an

opportunity 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. See Buelna, 121 M.S.P.R. 262, ¶ 28. Based on the foregoing, we

conclude that the appellant has not shown that he was denied due process.

The appellant did not establish harmful procedural error.

¶16 To prove harmful procedural error, an appellant must prove that the agency

committed an error in the application of its procedures that is likely to have

caused the agency to reach a conclusion different from the one it would have

reached in the absence or cure of the error. See 5 C.F.R. § 1201.56(c)(3). The

relevant procedures in this case are set forth in the MD 1100.75-3 Handbook,

which provides, inter alia, that an employee facing an adverse action receive

written notice stating the charges and specifications and a description of the

evidence that supports the charge. MD 1100.75-3 Handbook, § I(2)(a)(i) (2009).

The directive further provides that the employee is entitled to see the materials

relied upon to support each charge and specification. Id., § I(2)(a)(x). In

addition, the employee must be provided an opportunity to respond orally and in

writing to a deciding official who will consider the replies and decide the

outcome based on all of the evidence of record and the applicable Douglas

factors. Id., § I(2)(c).

¶17 To the extent the appellant is attempting to assert that the agency failed to

comply with its procedures in indefinitely suspending him, we find that any such

claim lacks merit. 5 The notice suspending the appellant’s security clearance,

5

In determining whether the agency provided the appellant with requisite procedural

protections, the administrative judge appears to conflate the question of whether the

agency denied the appellant due process with the question of whether it committed

harmful error. See ID at 4-9. In any event, any such error does did not prejudice the

appellant’s substantive rights because the agency correctly provided the appellant with

the procedural protections under MD 1100.75-3 in indefinitely suspending him. See

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory

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coupled with the notice proposing his indefinite suspension, informed him of the

basis for the suspension of his security clearance, i.e., the appellant’s alleged

alcohol consumption and personal conduct. We find this was sufficient

information to allow for an informed response, as required under agency

procedures. See Buelna, 121 M.S.P.R. 262, ¶ 34 (finding the agency provided

the appellant with sufficient information to make an informed response when it

notified him that his security clearance was being suspended based on alleged

fraudulent claims, then informed him he was being indefinitely suspended based

on the suspension of his security clearance).

¶18 As mentioned above, the appellant has not shown by preponderant evidence

that the agency failed to provide any additional evidence on which the deciding

official relied. Assuming arguendo that the agency did commit procedural error

in that regard, the appellant has not shown that the agency was likely to have

reached a different decision in the absence of that error. Furthermore, as

discussed above, the appellant was provided the opportunity to respond orally

and in writing to a deciding official with authority to decide the outcome of the

proposed indefinite suspension. The appellant, therefore, has failed to establish

harmful error. See id., ¶ 35. Accordingly, the appellant’s indefinite suspension

is SUSTAINED.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by 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:

error that is not prejudicial to a party’s substantive rights provides no basis for reversal

of an initial decision).

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United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. 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.

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FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.