The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIPING RIZK, DOCKET NUMBER
Appellant, CH-0752-13-4550-I-3
v.
DEPARTMENT OF DEFENSE, DATE: September 14, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jiping Rizk, Columbus, Ohio, pro se.
Cynthia C. Cummings, Esquire, and Richard L. Byrnes, Esquire,
Indianapolis, Indiana, 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
sustained her removal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous application of the law to the facts of the case; the administrative
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).
¶2 The appellant was removed from her noncritical sensitive (NCS) position of
Accountant, GS-9, with the agency’s Defense Finance and Accounting Service
(DFAS), effective August 10, 2013. The agency based the action on the
appellant’s loss of “eligibility for access to classified information and/or
occupancy of a sensitive position.” Rizk v. Department of Defense, MSPB Docket
No. CH-0752-13-4550-I-1, Initial Appeal File (I-1 IAF), Tab 1. The record
reflects that the appellant moved to the United States from China in 1993 and
became a U.S. citizen. In 2007, she began working as an Accounting Technician
at DFAS and was subsequently promoted to Accountant. In a Statement of
Reasons dated August 4, 2009, the Washington Headquarters Service
Consolidated Adjudication Facility (CAF) proposed to deny the appellant’s
eligibility for access to classified information and/or occupancy of a sensitive
position due to information she provided about foreign travel, close family
members in mainland China, and a Chinese bank account for her son. Rizk v.
Department of Defense, MSPB Docket No. CH-0752-13-4550-I-2, Initial Appeal
File (I-2 IAF), Tab 7 at 30-35, 46-47 of 84 (agency redacted document). The
appellant responded through counsel that her poor English proficiency caused
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misunderstandings regarding her answers. Id. at 30-35 of 84. On June 5, 2012,
the CAF issued a letter revoking her access, and, on April 19, 2013, the CAF’s
clearance appeal Board issued its final determination to deny the appellant’s
eligibility for access to classified information and/or occupancy of a sensitive
position. I-2 IAF, Tab 7 at 4, 41 of 84 (agency redacted document). The agency
proposed the appellant’s removal on May 6, 2013, for failure to meet a
qualification for continued employment in her position. I-2 IAF, Tab 7 at 83 of
90. The deciding official, noting that the appellant’s removal was not
disciplinary in nature, sustained the charge and removed her effective August 10,
2013. I-2 IAF, Tab 7 at 72-79 of 90. The appellant filed this appeal. I-1 IAF,
Tab 1.
¶3 The administrative judge found that the agency demonstrated by
preponderant evidence that the appellant held an NCS position and that the
agency met its burden of proving that the appellant was found ineligible to hold
an NCS position based on the CAF’s revocation of her eligibility to access
classified information and/or occupy a sensitive position. Rizk v. Department of
Defense, MSPB Docket No. CH-0752-13-4550-I-3, Initial Appeal File, Tab 13,
Initial Decision (ID) at 3. The administrative judge further found that the agency
complied with the procedures required by 5 U.S.C. § 7513(b) in removing the
appellant from her position and that the agency established the required nexus
between its adverse action and the efficiency of the service. ID at 4-5. In
addition, the administrative judge found no evidence that a statute or agency
regulation gives the appellant the right to transfer to a nonsensitive position and,
in the absence of a statute or regulation requiring the agency to seek out
alternative employment, the Board lacks the authority to review whether her
reassignment to a position not requiring a security clearance would have been
reasonable. ID at 5-6. Finally, to the extent the appellant alleged that the agency
discriminated against her on the basis of her Chinese national origin by revoking
her eligibility for access to classified information and her ability to occupy an
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NCS position, the administrative judge found that the Board lacks authority to
review this claim because it would involve an inquiry into the validity of the
agency’s reasons for deciding to revoke the appellant’s access. ID at 6.
¶4 The Board’s review of the agency’s action in this case is limited. In an en
banc decision in Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013), cert. denied,
Northover v. Archuleta, 134 S. Ct. 1759 (2014), the U.S. Court of Appeals for the
Federal Circuit held that the Supreme Court’s decision in Department of the Navy
v. Egan, 484 U.S. 518, 530 (1988), prohibits Board review of national security
determinations by the Department of Defense (DOD) concerning the eligibility of
an individual to occupy a “sensitive” position, regardless of whether the position
requires access to classified information. See Conyers, 733 F.3d at 1150-52,
1166-67. 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 Conyers, 733 F.3d at 1158-60; Ingram v. Department of Defense,
120 M.S.P.R. 420, ¶ 9 (2013).
¶5 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 also 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 that 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)
transfer to a nonsensitive position was feasible when another source, such as a
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statute or regulation, provides the employee a substantive right to such
reassignment. Conyers, 733 F.3d at 1150-52 (citing Egan, 484 U.S. at 530). 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
therefore is limited to the issues set forth in Egan.
¶6 On review, the appellant challenges the merits of the security clearance
determination that led to her removal. Petition for Review (PFR) File, Tabs 1, 7.
Specifically, she questions why she did not pass the security clearance. Id. The
appellant argues that, if the Board lacks authority to review the security clearance
determination, how can it be found that the agency’s decision to remove her was
valid. Id. She asserts that she has worked for the government for more than 6
years and that the loss of her security clearance does not justify removing her.
She contends that the agency should place her in a position that does not require a
clearance. PFR File, Tab 7.
¶7 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 Accountant position required that she maintain eligibility to occupy
an NCS position. I-2 IAF, Tab 7 at 52-56 of 84. Further, the CAF issued a final
decision denying the appellant’s eligibility for access to classified information
and/or occupancy of a sensitive position. Id. at 4 of 84. In addition, the agency
complied with the procedural protections specified in 5 U.S.C. § 7513 in
removing her from her position. Specifically, the agency provided the appellant
with 30 days’ advanced written notice of the proposed removal, reasons for the
proposed action, and a reasonable opportunity to reply. Id. at 83-85 of 90; see
5 U.S.C. § 7513(b)(1)-(2). The agency notified the appellant of her right to be
represented by an attorney and provided her with a written decision letter. I-2
IAF, Tab 7 at 72-79, 82-85 of 90; see 5 U.S.C. § 7513(b)(3)-(4). Therefore, we
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find that the agency complied with the requirements set forth at 5 U.S.C. § 7513
in removing the appellant. 2
¶8 Additionally, while the appellant argues that the agency should have placed
her in a position that does not require a security clearance, in the absence of a
statute or regulation requiring the agency to seek out alternative employment, the
Board lacks the authority to review whether an employee’s reassignment to a
position not requiring a security clearance would have been feasible. Munoz v.
Department of Homeland Security, 121 M.S.P.R. 483, ¶ 15 (2014); see Griffin v.
Defense Mapping Agency, 864 F.2d 1579, 1580-81 (Fed. Cir. 1989) (finding that,
in the absence of a statute, regulation, or policy mandating the transfer or
reassignment of an employee who is denied a security clearance, “the Board has
no role” in reviewing whether an employee should have been reassigned instead
of receiving an adverse action). Here, because the record does not indicate that
the agency was required to consider transferring the appellant to a nonsensitive
position, the Board has no authority to review whether the agency could have
reassigned her to a different position. I-2 IAF, Tab 7.
¶9 The appellant also reasserts on review that she was essentially fired for
being Chinese and for keeping in contact with her family members who remain in
China, and she argues that the agency discriminated against her on the basis of
her Chinese national origin. PFR File, Tabs 1, 7. As the administrative judge
correctly found, the Board cannot decide a discrimination claim in an appeal from
an action that was based on the suspension or revocation of access to classified
material because deciding the discrimination allegation would involve an inquiry
into the validity of the agency’s reasons for deciding to revoke the appellant’s
access. Helms v. Department of the Army, 114 M.S.P.R. 447, ¶ 9 (2010); Hesse v.
2
It is undisputed that the agency also complied with its own procedures at chapter 8 of
DOD 5200.2-R prior to CAF’s revocation of the appellant’s eligibility. I-2 IAF, Tab 7
at 45, 75-80 of 84; see Schnedar v. Department of the Air Force, 120 M.S.P.R. 516
(2014).
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Department of State, 82 M.S.P.R. 489, ¶ 9 (1999), aff’d, 217 F.3d 1372 (Fed. Cir.
2000). In Egan, the Supreme Court prohibited such inquiry in the context of
security clearances. Egan, 484 U.S. at 530-31. Thus, in this appeal, the Board
lacks authority to review the appellant’s discrimination claim and cannot address
it on the merits. See Helms, 114 M.S.P.R. 447, ¶ 9.
¶10 Accordingly, because the appellant held an NCS position and was found
ineligible to hold that position, and the agency followed the procedural
requirements of 5 U.S.C. § 7513 in processing her removal, we find no basis upon
which to disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
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:
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
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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. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.