Tamarah T. Grimes v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 87

Docket No. AT-0752-09-0698-I-5

Tamarah T. Grimes,

Appellant,

v.

Department of Justice,

Agency.

December 8, 2014

Stephanie L. Ayers, Esquire, and Thad M. Guyer, Esquire, Medford,

Oregon, for the appellant.

Jill A. Weissman, Esquire, and Kimya Jones, Washington, D.C., for the

agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

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

sustained her removal from employment. For the reasons that follow, the

appellant’s petition for review is DENIED and the administrative judge’s initial

decision is VACATED IN PART AND AFFIRMED IN PART.

BACKGROUND

¶2 At the time of her removal, the appellant served as a Paralegal Specialist

with the U.S. Attorney’s Office for the Middle District of Alabama. MSPB

2

Docket No. AT-0752-09-0698-I-1, Initial Appeal File (IAF), Tab 12 at 38 of 83.

Pursuant to the agency’s employment security regulations, the appellant’s

position was designated as a critical-sensitive (Level 3) position, which included

positions within the agency that could require, among other things: (1) access to,

or afford a ready opportunity to gain access to, secret and/or confidential national

security information (NSI) and material; or (2) access to grand jury information.

Id. at 61, 68 of 91. 1 Based upon a report prepared by the agency’s Office of

Inspector General, the agency’s Chief of Personnel Security determined that the

appellant should not be afforded the opportunity to gain access to secret and/or

confidential NSI material or grand jury information, and she further found that

the appellant’s “continued assignment as a Paralegal Specialist poses an

unnecessary and unacceptable operational security risk to the [Department of

Justice].” Id. at 61 of 91. Citing this finding, the agency proposed the

appellant’s removal on two charges: failure to maintain a qualification of her

position and misrepresentation under oath. Id. at 36-45 of 78.

¶3 In its notice of proposed removal, the agency afforded the appellant the

opportunity to submit a written response simultaneously addressing both her

proposed removal and the agency’s determination that she was ineligible to have

access to secret and/or confidential NSI and that she posed an unnecessary and

unacceptable operational security risk. See id. at 40-43 of 78. The appellant

submitted a written response addressing both issues, id. at 62-66 of 83, and, after

reviewing the appellant’s response, the Chief of Personnel Security determined

that her “initial decisions to revoke [the appellant’s] eligibility to obtain access to

secret and/or confidential NSI material, and that her continued assignment as a

Paralegal Specialist posed an unnecessary and unacceptable operational security

risk to the Department, were correct,” id. at 49 of 83. In her written

1

NSI is synonymous with classified information. See Executive Order 13,526, § 6.1(i);

see also Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 20 (2012).

3

reconsideration decision, the Chief of Personnel Security also stated that she had

never met the appellant and had “no further information regarding her [equal

employment opportunity (EEO)] activity, and her EEO activity played no role in

[her] initial or current determination.” Id. at 50 of 83.

¶4 After considering the appellant’s response, including her response to the

Personnel Security Chief’s reconsideration decision, the deciding official

sustained the charges and imposed the appellant’s removal. Id. at 40-47 of 83. In

reaching his decision, the deciding official explained that the “Chief of the

Personnel Security Section has made a final determination to revoke [the

appellant’s] eligibility for access to Secret and/or Confidential NSI material and

that [the appellant] pose[s] an operational security risk to the Department,” and

that “[t]hese are required qualifications for [her] position.” Id. at 46 of 83. In

rendering his decision, the deciding official also considered and rejected the

appellant’s allegation that the decisions to revoke her eligibility to hold a

critical-sensitive position and to propose her removal were in reprisal for her

prior EEO activity. Id. at 45-46 of 83.

¶5 The appellant filed an initial appeal of her removal and raised a

whistleblower reprisal affirmative defense. 2 IAF, Tab 1. After several dismissals

without prejudice, the administrative judge held a hearing and issued an initial

decision sustaining the appellant’s removal. MSPB Docket No. AT-0752-09-

0698-I-5, Initial Appeal File (IAF-5), Tab 35, Initial Decision (ID). In his initial

decision, the administrative judge applied the Supreme Court’s decision in

Department of the Navy v. Egan, 484 U.S. 518 (1988), and sustained the agency’s

charge that the appellant failed to maintain a qualification of her position under

the limited scope of review employed in such cases. ID at 10-15. Additionally,

2

Although the appellant alleged reprisal for prior EEO activity in response to the

proposal to remove her, she did not raise EEO reprisal as an affirmative defense in this

appeal. See IAF, Tab 1.

4

the administrative judge concluded that the deciding official did not consider ex

parte information under Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir.

2011), when he reviewed the Chief of Personnel Security’s decision to reaffirm

her prior decision because the reconsideration decision, and the information

contained therein, was cumulative of the prior decision. ID at 13-15. Lastly, the

administrative judge found that the appellant could not maintain her affirmative

defense of whistleblower reprisal because she was removed based upon a security

clearance determination, ID at 15, and he also rejected her claim that the agency’s

Chief of Personnel Security incorrectly applied the agency’s adjudicative

guidelines when deciding whether to deny her access to sensitive and/or

confidential NSI, ID at 16-21. Because the administrative judge sustained the

appellant’s removal under the agency’s first charge of failure to maintain a

qualification of her position, the administrative judge did not adjudicate the

agency’s second charge of misrepresentation. ID at 21.

¶6 The appellant has filed a petition for review focusing primarily on the

administrative judge’s decision to admit certain testimony at the hearing, and the

agency has filed a response. Petition for Review (PFR) File, Tabs 2, 4.

Following the issuance of the U.S. Court of Appeals for the Federal Circuit’s

(Federal Circuit) decision in Gargiulo v. Department of Homeland Security,

727 F.3d 1181 (Fed. Cir. 2013), 3 the Board issued an order inviting the parties to

submit additional argument as to the applicability of that decision. PFR File,

Tab 6. The agency has filed a response asserting that Gargiulo supports the

manner in which the administrative judge reviewed the agency’s charge, and the

3

In Gargiulo, 727 F.3d at 1186-87, the Federal Circuit subsequently held that the Board

cannot consider the reasonableness of an agency’s security clearance determination in

adjudicating an adverse action based on the suspension or revocation of a security

clearance.

5

appellant has filed a response arguing that Gargiulo is inapposite because the

appellant never held a security clearance. PFR File, Tabs 7, 9.

ANALYSIS

The charge of failure to maintain a qualification of the position is sustained.

¶7 In an appeal of an adverse action under 5 U.S.C. § 7513 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. Ryan v. Department of Homeland Security, 121 M.S.P.R. 460, ¶ 5

(2014). Rather, the Board only has the authority to review whether: (1) the

appellant’s position required a clearance; (2) the clearance was denied, revoked,

or suspended; and (3) the employee was provided with the procedural protections

specified in 5 U.S.C. § 7513. Ryan, 121 M.S.P.R. 460, ¶ 5. Section 7513,

however, is not the only source of procedural protections for employees subject

to adverse actions; agencies must also comply with the procedures set forth in

their own regulations. Id. An employee also has a due process right to notice of

the grounds in support of the adverse action and a meaningful opportunity to

invoke the discretion of a deciding official with the authority to select an

alternative outcome, to the extent an alternative penalty may have been feasible.

Id.; see Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 10 (2014).

¶8 We agree with the administrative judge that the agency has met these

standards and has established by preponderant evidence that the appellant failed

to meet a qualification of her position when she was denied eligibility to hold a

critical-sensitive position. The record reflects that the appellant’s Paralegal

Specialist position was designated as a Level 3 critical-sensitive position, which

required her to maintain eligibility to access classified information, and that the

agency’s Chief of Personnel Security revoked the appellant’s eligibility to hold a

6

critical-sensitive position and to obtain access to secret and/or confidential NSI. 4

IAF, Tab 12 at 49 of 83 and 68 of 91. The record further reflects that the agency

complied with 5 U.S.C. § 7513(b) by providing the appellant 30-days’ advance

notice of the proposed adverse action, a period of more than 7 days to reply, the

right to be represented, and a written decision on the proposed adverse action. Id.

at 36-45 of 78 and 40-47 of 83. The agency’s adverse action based on the

appellant’s loss of eligibility to hold a critical-sensitive position and to obtain

access to classified information is SUSTAINED. 5

The agency did not violate the appellant’s right to due process.

¶9 During the prehearing conference, the administrative judge identified a

potential due process violation based upon the deciding official’s consideration of

the Chief of Personnel Security’s reconsideration decision without giving the

appellant an opportunity to respond to that decision. IAF-5, Tab 28. In his initial

decision, however, the administrative judge found that the Chief of Personnel

Security’s reconsideration decision was not new and material information because

the information within the reconsideration decision was cumulative of the

original decision to deny the appellant eligibility to hold a critical-sensitive

4

The Board has found that an agency’s decision to revoke an employee’s eligibility to

obtain access to classified information is subject to the Board’s limited scope of review

under Egan. See Doe, 118 M.S.P.R. 434, ¶ 19 (citing Conyers v. Department of

Defense, 115 M.S.P.R. 572, ¶ 17 (2010), rev’d on other grounds sub nom. Kaplan v

Conyers, 733 F.3d 1148, 1160 (Fed. Cir. 2013), cert denied sub nom. Northover v.

Archuleta, 134 S. Ct. 1759 (2014)).

5

Pursuant to the limited scope of review under Egan, the Board does not have the

authority to review the merits of the agency’s reasons for revoking the appellant’s

eligibility to obtain access to classified information. See Brown v. Department of

Defense, 121 M.S.P.R. 584, ¶¶ 8-9 (2014). We thus do not reach the appellant’s

arguments on review that the administrative judge erred in admitting certain testimony

below, see PFR File, Tab 2 at 3-5; insofar as the administrative judge reviewed and

adjudicated the grounds for the agency’s decision to revoke the appellant’s eligibility to

hold a critical-sensitive position and to obtain access to classified information, those

portions of the initial decision are VACATED.

7

position; and he concluded that the deciding official therefore did not consider

any new information in rendering his decision to which the appellant did not have

an opportunity to respond. ID at 14-15.

¶10 The Federal Circuit has held that, when a deciding official receives new

and material information by means of an ex parte communication, “a due process

violation has occurred and the former employee is entitled to a new and

constitutionally correct removal procedure.” Stone v. Federal Deposit Insurance

Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999). Both the Federal Circuit and

the Board have found, however, that not all ex parte communications rise to the

level of due process violations; rather, only ex parte communications which

introduce new and material information to the deciding official are

constitutionally infirm. Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 8

(2013). In Stone, the Federal Circuit identified the following factors to be used to

determine whether ex parte information is new and material: (1) whether the

ex parte information introduces cumulative, as opposed to new, information;

(2) whether the employee knew of the information and had an opportunity to

respond; and (3) whether the communication was of the type likely to result in

undue pressure on the deciding official to rule in a particular manner. Stone,

179 F.3d at 1377. In the context of security clearance determinations, moreover,

the Board has found that an appellant is entitled to notice of the information the

deciding official relied upon in making his penalty determination, including the

factual basis for the underlying security clearance determination, even if the

appellant does not have a due process right to notice of the factual basis

supporting the charge alone. See Buelna v. Department of Homeland Security,

121 M.S.P.R. 262, ¶ 31 (2014).

¶11 We agree with the administrative judge that the deciding official did not

commit a due process violation when he considered and relied upon the Chief of

Personnel Security’s reconsideration decision revoking the appellant’s eligibility

to hold a critical-sensitive position. The record reflects that the Chief of

8

Personnel Security’s reconsideration decision merely reaffirmed the prior

decision to revoke the appellant’s eligibility to obtain access to NSI and that it

did not rely upon any new bases or grounds for revoking the appellant’s

eligibility to which she did not have an opportunity to respond. See IAF, Tab 12

at 49-50. A deciding official does not commit a due process violation when he

considers ex parte information that merely “confirms or clarifies information

already contained in the record.” Blank v. Department of the Army, 247 F.3d

1225, 1229 (Fed. Cir. 2001). Here, we find that the Chief of Personnel Security’s

reconsideration decision confirmed her prior decision and therefore did not

introduce new and material information to the deciding official. We further find

that this case is dissimilar from instances where, for example, deciding officials

have drawn negative credibility findings against appellants based on ex parte

communications or have considered aggravating factors which were not contained

within the agencies’ proposal notices without giving the appellants an opportunity

to respond. See, e.g., Young v. Department of Housing & Urban Development,

706 F.3d 1372, 1377 (Fed. Cir. 2013) (finding that the deciding official believed

the appellant was lying based on an ex parte interview); Solis v. Department of

Justice, 117 M.S.P.R. 458, ¶¶ 9-10 (2012) (ex parte information consisted of

deciding official’s consideration of appellant being Giglio-impaired).

¶12 We also find that the deciding official did not commit a due process

violation when he considered, and rejected, the arguments the appellant raised in

response to her notice of proposed removal. In her written reply submitted to

both the deciding official and the Chief of Personnel Security, the appellant

argued, among other things, that she was wrongly denied eligibility to obtain

access to classified information, that she did not engage in the underlying

misconduct, and that her proposed removal was in retaliation for her filing prior

EEO complaints. IAF, Tab 12 at 62-66 of 83. After considering the appellant’s

allegations, however, the deciding official concluded that the Chief of Personnel

Security properly revoked the appellant’s eligibility to obtain access to classified

9

information, and he rejected the appellant’s allegation that her removal was

motivated by retaliatory animus. Id. at 40-45 of 83.

¶13 We find no due process error with the deciding official’s actions. Rather,

these facts are similar to Wilson v. Department of Homeland Security,

120 M.S.P.R. 686, ¶ 11 (2014), in which the appellant raised certain allegations

in her response to the proposed removal and the deciding official rejected those

allegations in the course of rendering his decision. Under such circumstances,

the Board explained that a deciding official does not violate an employee’s right

to due process when he considers issues raised by the appellant in her response to

the proposed adverse action and then rejects those arguments in reaching a

decision. Id., ¶¶ 11-12; see Blank, 247 F.3d at 1229; 5 C.F.R. § 752.404(g)(1) (in

rendering a decision on a proposed adverse action, the agency will consider the

reasons specified in the notice and any answer of the employee or her

representative, or both, made to a designated official). In reaching this

conclusion, the Board explained that an employee is not entitled to know the

particular weight the deciding official will attach to her arguments raised in

response to the proposed adverse action in advance of the final decision. See

Wilson, 120 M.S.P.R. 686, ¶ 12; cf. Harding v. U.S. Naval Academy, 567 F.

App’x 920, 925-26 (Fed. Cir. 2014) (the appellant was “not deprived of due

process by not being advised in advance that the deciding official might draw

[an] inference from the nature of the charged conduct”). Thus, consistent with

Wilson, we find that the deciding official did not commit a due process violation

when he considered and rejected the arguments the appellant raised in her reply

to the notice of proposed removal. 6

6

The Chief of Personnel Security also stated in her reconsideration decision that the

appellant’s EEO activity played no role in her decision to revoke the appellant’s

eligibility to access NSI. IAF, Tab 12 at 50 of 83. We similarly find that this statement

was in response to the appellant’s allegation of EEO reprisal and does not constitute

new and material information under Ward/Stone. See id. at 62 of 83; see also Wilson,

10

The agency established nexus and the reasonableness of the penalty.

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

maintain a security clearance—or in this case, the failure to maintain eligibility to

hold a critical-sensitive position and to obtain access to classified information—

the adverse action promotes the efficiency of the service because the absence of a

properly authorized security clearance is fatal to the job entitlement. See Munoz

v. Department of Homeland Security, 121 M.S.P.R. 483, ¶ 13 (2014) (quoting

Robinson v. Department of Homeland Security, 498 F.3d 1361, 1365 (Fed. Cir.

2007)). We therefore find that the agency established a nexus between its

adverse action and the efficiency of its operational mission. Id.; see ID at 21.

We similarly agree with the administrative judge’s decision to sustain the penalty

of removal. ID at 21. There is no evidence in the record that the agency has a

mandatory policy of considering employees for reassignment prior to removing

them for the loss of eligibility to hold a critical-sensitive position and to obtain

access to NSI, see Ryan, 121 M.S.P.R. 460, ¶¶ 7, 10-11, and the appellant has

presented no other basis on review to disturb the agency’s imposed penalty.

The administrative judge correctly declined to adjudicate the appellant’s

whistleblower reprisal affirmative defense.

¶15 Finally, we agree with the administrative judge’s decision not to adjudicate

the appellant’s affirmative defense of whistleblower reprisal because such a claim

would go to the merits of the agency’s underlying basis for determining that the

appellant is not eligible to hold a critical-sensitive position and obtain access to

NSI. See Doe v. Department of Justice, 121 M.S.P.R. 596, ¶ 10 n.5 (2014)

120 M.S.P.R. 686, ¶ 11. We note, moreover, that the appellant appears to have argued

only to the deciding official that the proposed removal was retaliatory, not that her

eligibility to obtain access to classified information was revoked in retaliation for her

prior EEO activity. IAF, Tab 12 at 50 of 83. Regardless of the nature of the appellant’s

allegation, the Board is without the authority to consider whether EEO retaliation

played a role in the agency’s security clearance determination. See Putnam v.

Department of Homeland Security, 121 M.S.P.R. 532, ¶ 18 (2014).

11

(finding that an appellant cannot maintain a whistleblower reprisal claim

challenging a security clearance determination under the Whistleblower

Protection Enhancement Act of 2012); see also Hesse v. Department of State,

82 M.S.P.R. 489, ¶ 9 (1999), aff’d, 217 F.3d 1372 (Fed. Cir. 2000). Thus, to the

extent that the administrative judge declined to adjudicate this issue, we AFFIRM

the initial decision. ID at 15-16.

ORDER

¶16 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

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.

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 want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the United States Court of Appeals

for the Federal Circuit or any court of appeals of competent jurisdiction. The

court of appeals must receive your petition for review within 60 days after the

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If

12

you choose to file, be very careful to file on time. You may choose to request

review of the Board’s decision in the United States Court of Appeals for the

Federal Circuit or any other court of appeals of competent jurisdiction, but not

both. Once you choose to seek review in one court of appeals, you may be

precluded from seeking review in any other court.

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 about the United States Court of Appeals for the Federal

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is

contained within the court's Rules of Practice, and Forms 5, 6, and 11.

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed through

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to

the United States Court of Appeals for the Federal Circuit, 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 Federal Circuit. The Merit Systems

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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.