The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAOFEEK QUADRI, DOCKET NUMBER
Appellant, DA-0752-14-0258-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 24, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Taofeek Quadri, Texarkana, Arkansas, pro se.
Craig Paulson, Texarkana, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal based upon his loss of security clearance. 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 the erroneous application of the law to
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant was an Information Technology Specialist at the agency’s
Red River Army Depot (RRAD). 2 See IAF, Tab 1 at 1, Tab 4 at 22. His position
required that he maintain a secret security clearance. IAF, Tab 4 at 101, 104. At
some point in 2013, the agency revoked his security clearance. See id. at 100.
The appellant appealed the revocation to the agency’s Personnel Security Appeals
Board, but his appeal was denied on November 1, 2013. Id.
¶3 On December 4, 2013, the agency proposed the appellant’s removal due to
the revocation of his security clearance. Id. at 98-99. The appellant provided a
response to the proposed removal on January 9, 2014. Id. at 23 (noting
appellant’s oral response), 30-49 (appellant’s written response), 50-97
(documents submitted in support of appellant’s response). On January 21, 2014,
the agency issued its decision to remo ve the appellant due to the revocation of his
security clearance. Id. at 22 (Standard Form 50), 23-29 (decision letter).
2
In a prior Board appeal, the agency removed the appellant for failure to follow
instructions, but the administrative judge mitigated the removal to a 15-day suspension.
See Quadri v. Department of the Army, MSPB Docket No. DA-0752-12-0624-I-1, Initial
Decision (July 3, 2013); Initial Appeal File (IAF), Tab 4 at 67-95.
3
¶4 The appellant appealed his removal to the Board. IAF, Tab 1. The
administrative judge affirmed the removal. 3 IAF, Tab 24, Initial Decision (ID).
The appellant has filed a petition for review. 4 Petition for Review (PFR) File,
Tab 3. The agency has filed a response, and the appellant has replied. PFR File,
Tabs 5-6.
¶5 Generally, in an appeal of an adverse action based on the denial or
revocation of a security clearance, the Board may only review whether: (1) the
employee’s position required a security clearance; (2) the clearance was denied or
revoked; and (3) the employee was provided with the procedural protections
specified in 5 U.S.C. § 7513. See Ulep v. Department of the Army, 120 M.S.P.R.
579, ¶ 4 (2014); see also Department of the Navy v. Egan, 484 U.S. 518, 530-31
(1988). The Board may also review whether the agency complied with its own
procedures in imposing an adverse action based on a security clearance. Romero
v. Department of Defense, 527 F.3d 1324, 1328-29 (Fed. Cir. 2008);
Ulep, 120 M.S.P.R. 579, ¶ 4.
¶6 Here, the appellant does not dispute that his position required a security
clearance, that his clearance was revoked, or that the agency provided the
procedural protections required by statute. Instead, on review, the appellant
argues that the agency’s action was retaliation for a protected disclosure; the
agency did not comply with its own regulations; agency officials submitted false
information in concert with his appeal; and the administrative judge denied him
due process. See PFR File, Tab 3 at 4-8.
3
Although the appellant initially requested a hearing, he later withdrew that request.
IAF, Tab 1 at 2, Tab 18 at 4. Accordingly, the administrative judge issued the decision
on the written record, without a hearing.
4
Although he raised the issues below, the appellant did not present any argument of
racial discrim ination, national origin discrimination, equal employment opportunity
(EEO) reprisal, or violation of a merit system princip le in his petition for review. See,
e.g., IAF, Tab 1 at 3, Tab 13 at 4-8; PFR File, Tab 3. Therefore, we will not revisit the
administrative judge’s well-reasoned findings as to those arguments. See ID at 5-8.
4
The Board will not consider the appellant’s allegation of whistleblower reprisal.
¶7 For the first time, the appellant argues on review that he made a protected
disclosure of gross mismanagement to his RRAD commander in 2011, 5 and that
the revocation of his security clearance was retaliation for the same. PFR File,
Tab 3 at 4. We will not consider the argument.
¶8 In his initial appeal, the appellant presented arguments of discrimination
based upon race and national origin, reprisal for prior EEO activity, and harmful
procedural error. See IAF, Tab 1 at 3. He later alleged that the agency’s action
also violated a merit system principle by treating him differently than
similarly-situated coworkers. See IAF, Tab 12 at 4-5 (responding to the
administrative judge’s summary of the issues in dispute). However, at no point
below did the appellant argue that his removal resulted from a protected
disclosure of gross mismanagement. See IAF, Tabs 1, 13, 20, 22. Because the
appellant has not shown that this argument was previously unavailable, despite
due diligence, we need not consider it. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence). Moreover, even if raised below, the Board will not consider an
affirmative defense of reprisal for whistleblowing in the context of an adverse
action based on a security clearance determination. Doe v. Department of
Justice, 121 M.S.P.R. 596, ¶ 10 & n.5 (2014).
5
Although the appellant alleged that he made a protected disclosure of gross
mismanagement, he did not identify what this purported disclosure was. See PFR File,
Tab 3 at 4.
5
The agency did not err by removing, rather than reassigning, the appellant.
¶9 The appellant has reasserted that it was harmful error for the agency to
remove him, rather than reassign him, due to his loss of security clearance. See
IAF, Tab 1 at 3, Tab 20 at 6; see also PFR File, Tab 3 at 5-6. We disagree.
¶10 As stated above, the Board may not sustain an agency’s decision to impose
an adverse action if the employee can show harmful error in the application of the
agency’s procedures in arriving at such decision. 5 U.S.C. § 7701(c)(2)(A);
Ulep, 120 M.S.P.R. 579, ¶ 6 (reversing an indefinite suspension based on the
decision to informally suspend the appellant’s security clearance because the
agency failed to comply with any of the procedures that its regulations required
prior to instituting an adverse action); Schnedar v. Department of the Air
Force, 120 M.S.P.R. 516, ¶ 12 (2014) (reversing an indefinite suspension based
on the revocation of the appellant’s security clearance because the suspension
was effected prior to the appellant’s receipt of a Personnel Security Appeals
Board decision, in violation of agency regulations). However, the Board may
only review whether an employee’s transfer to a nonsensitive position is feasible
where a statute or regulation provides the employee a substantive right to such a
reassignment. Schnedar, 120 M.S.P.R. 516, ¶ 7 n.1 (citing Griffin v. Defense
Mapping Agency, 864 F.2d 1579, 1580 (Fed. Cir. 1989)).
¶11 The appellant bears the burden of proof by preponderant evidence with
regard to establishing harmful error. 5 C.F.R. § 1201.56(a)(2)(iii), (b)(1), (c)(3). 6
Below, the appellant argued that the agency had a “common practice of
reassigning, rather than removing, employees whose security clearances have
been suspended, revoked, or otherwise removed.” IAF, Tab 13 at 7-8, Tab 20
at 6, Tab 22 at 10. However, he provided no evidence of this purported practice,
other than his own assertion. In addition, while he alleged that such reassignment
6
Effective March 30, 2015, 5 C.F.R. § 1201.56 is amended, but the changes do not
affect the appellant’s burden of proof regard ing an allegation of harmful error. 80 Fed.
Reg. 4489, 4496 (Jan. 28, 2015).
6
was common practice, he failed to point to any requirement of the same. By
comparison, the agency presented sworn statements from agency officials
indicating that they were not aware of anyone at the appellant’s installation being
reassigned, rather than removed, after losing a security clearance and that they
were not aware of any requirement of the same. IAF, Tab 21 at 12, 17-18.
¶12 On review, the appellant presented new argument and evidence in support
of his argument that the agency should have reassigned, rather than removed,
him. See PFR File, Tab 3 at 6, 9. He alleged that the agency did not comply with
the procedures established at “DoD 5200.2-R stat[ing] at DL1.1.30:
‘. . . reassignment to a position of lesser sensitivity or to a nonsensitive
position . . . .’” Id. at 6. In addition, he submitted a sworn statement by a former
RRAD employee, C.C., claiming that she was aware of employees being
accommodated in nonsecurity clearance positions after losing or failing to get a
clearance during her 25-year career. Id. at 9.
¶13 Again, the Board generally will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks,
4 M.S.P.R. at 271. In addition, the Board ordinarily will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
¶14 Here, the appellant has not shown that his new argument or evidence was
previously unavailable, despite due diligence. He provided no explanation for the
new argument, and his only explanation for the new evidence, C.C.’s affidavit,
was that he ran into C.C. at a restaurant after the initial decision was issued. See
PFR File, Tab 6 at 3. Moreover, even if we were to consider the appellant’s new
argument and evidence, neither warrants a different result. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will not grant a petition
for review based on new evidence absent a showing that it is of sufficient weight
7
to warrant an outcome different from that of the initial decision). In the absence
of any context, the appellant’s quotation of an agency regulation purportedly
stating “reassignment to a position of lesser sensitivity or to a nonsensitive
position” is meaningless, and the sworn statement from C.C. contains no
indication that a statute or regulation mandated that the agency consider
reassigning him. Accordingly, the appellant has not shown that the agency erred
by removing, rather than reassigning, him after his security clearance was
revoked because he has not shown that the agency was required to do so.
The appellant has not shown that the initial decision was tainted by perjury.
¶15 The appellant next suggests that agency officials committed perjury,
violating the Uniform Code of Military Justice in the process. See PFR File,
Tab 3 at 5, 7, Subtab JN2 at 3-9. We find no merit to the argument.
¶16 As best we understand his argument, agency officials were untruthful in
submitting sworn statements indicating that they were not required to consider
reassigning, rather than removing, the appellant. See PFR File, Tab 3,
Subtab JN2 at 3-4. However, as discussed above, the appellant has not shown
that this was a requirement. Therefore, while the appellant suggests that agency
officials were untruthful, he has failed to present any persuasive proof of this
allegation.
¶17 Next, the appellant asserts that when an agency official reviewed whether
the agency had reassigned, rather than removed, anyone for losing their clearance,
she erred by limiting that review from 2007 through the present. Id. at 5; IAF,
Tab 21 at 19. However, the appellant has not shown how any earlier information
would have been relevant or that the agency nefariously limited the scope of the
information provided. Instead, it is evident that the agency official limited the
scope of her review consistent with the appellant’s discovery request. See IAF,
Tab 14 at 5 (appellant interrogatory requesting information regarding the
revocation of any employee clearance “from 2007 to present”).
8
¶18 The appellant’s remaining assertions, suggesting that agency officials were
otherwise untruthful, are similarly meritless. See PFR File, Tab 3, Subtab JN2
at 6-9. They are bare allegations, without support, and do not qualify as a basis
for granting his petition for review.
The appellant was not denied due process by virtue of the agency submitting a
rebuttal to his final pleadings.
¶19 The appellant asserts that he was denied due process during the proceedings
below because he was not given the opportunity to respond to the agency’s final
submission. See PFR File, Tab 3 at 6. He alleges that the administrative judge
“relied largely upon agency new and material information in reaching her
conclusion.” Id. We disagree.
¶20 If the appellant waives the right to a hearing, as was the case here, the
record will close on the date specified by the administrative judge. See 5 C.F.R.
§ 1201.58(b); 7 see also IAF, Tab 18 at 4 (appellant’s withdrawal of his hearing
request). Once the record closes, additional evidence or argument will ordinarily
not be accepted. 5 C.F.R. § 1201.58(c). However, an exception exists for
evidence or argument submitted in rebuttal to new evidence or argument
submitted by the other party just before the record closed. 5 C.F.R.
§ 1201.58(c)(2).
¶21 Here, the administrative judge issued an order indicating that the record
would close on August 1, 2014, but that parties had until August 12, 2014, to
respond to any new argument or evidence submitted just before the August 1,
2014 close of record. IAF, Tab 19 at 1. The appellant and the agency both
submitted their final arguments on August 1, 2014, the last day for doing so.
IAF, Tabs 20-22. The agency then submitted a rebuttal on August 12, 2014, the
deadline set by the administrative judge for doing so. IAF, Tab 23.
7
Effective March 30, 2015, 5 C.F.R. § 1201.58 is redesignated 5 C.F.R. § 1201.59.
80 Fed. Reg. 4489, 4496 (Jan. 28, 2015).
9
¶22 While the appellant argues in his petition for review that he was not given
the opportunity to respond to the agency’s August 12, 2014 rebuttal, he has not
alleged that he tried to submit a response or that he sought the administrative
judge’s permission to do so. Moreover, he did not object to the rebuttal pleading
below. During the 37 days between the agency’s rebuttal and the administrative
judge’s decision, neither party submitted anything. Compare IAF, Tab 23
(agency’s August 12, 2014 rebuttal), with ID at 1 (initial decision dated
September 18, 2014). In addition, while the appellant alleges that the
administrative judge “relied largely” on this rebuttal, PFR File, Tab 3 at 6, the
decision suggests otherwise. The decision does not contain a single citation to
the agency’s August 12, 2014 rebuttal. Finally, even if the appellant should have
been given the opportunity to respond to the agency’s August 12, 2014 rebuttal,
as he alleges, the petition for review process presented a sufficient opportunity
for doing so. See generally Panter v. Department of the Air Force, 22 M.S.P.R.
281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
11
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 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 the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. 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 you
choose to file, be very careful to file on time.
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.