Ida Vernett Shelley v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

IDA VERNETT SHELLEY, DOCKET NUMBER

Appellant, AT-0752-15-0377-I-1

v.

DEPARTMENT OF DEFENSE, DATE: March 18, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ida Vernett Shelley, Stockbridge, Georgia, pro se.

James J. Delduco, Esquire, Redstone Arsenal, Alabama, for the agency.

BEFORE

Susan Tsui Grundmann, 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 indefinite suspension on harmful error grounds. For the

reasons discussed below, we GRANT the agency’s petition for review and

REVERSE the initial decision. The indefinite suspension is AFFIRMED.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2 The following facts are undisputed. The appellant is an NH-IV Program

Analyst for the agency’s Missile Defense Agency (MDA). Initial Appeal File

(IAF), Tab 1 at 10. A requirement of the appellant’s position is that she hold a

security clearance. IAF, Tab 21 at 47, Tab 22 at 1. On or about October 21,

2013, the agency suspended the appellant’s access to classified information,

barred her from MDA property, and placed her on administrative leave. IAF,

Tab 4 at 26-28. After affording the appellant notice and an opportunity to

respond, the agency indefinitely suspended her effective December 9, 2013, based

on the “suspension of [her] access to classified information and MDA facilities.”

Id. at 19-25.

¶3 The appellant filed a formal equal employment opportunity complaint and,

after the agency returned a finding of no discrimination, she filed a Board appeal.

IAF, Tabs 1, 26. After a hearing, the administrative judge issued an initial

decision reversing the indefinite suspension on harmful error grounds. IAF,

Tab 28, Initial Decision (ID). Specifically, she found that, prior to taking an

adverse action against the appellant based on a suspension of access to classified

information, the agency was required to follow its regulatory “unfavorable

administrative action procedures” set forth in 32 C.F.R. § 154.56, but failed to do

so. 2 ID at 3-4.

¶4 The agency has filed a petition for review, arguing that the initial decision

should be reversed under Rogers v. Department of Defense, 122 M.S.P.R. 671

(2015), which the Board issued shortly after the initial decision in this appeal and

2

The appellant raised discrimination and whistleblower reprisal defenses, but the

administrative judge correctly found that the Board lacks jurisdiction to consider such

claims in the context of an appeal in which the underlying adverse action is based on a

loss of access to classified information. IAF, Tab 6 at 24-27, 30, Tab 22 at 1-2; see

Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 39 (2012); Helms v. Department of

the Army, 114 M.S.P.R. 447, ¶ 9 (2010). The appellant also argued that the agency

violated her due process rights. IAF, Tab 6 at 28-29. The administrative judge found

that the appellant failed to prove this claim, ID at 4-5, and the appellant has not

challenged that finding on review.

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which held that a suspension of access to classified information is not an

unfavorable administrative action under the agency’s regulations. Thus, the

agency argued that it may take an adverse action based on a suspension of access

to classified information without first affording the employee the unfavorable

administrative action procedures under 32 C.F.R. § 154.56. Petition for Review

(PFR) File, Tab 1. The appellant has filed a response, and the agency has filed a

reply. 3 PFR File, Tabs 3-4.

¶5 For the reasons explained in the petition for review, we agree with the

agency that Rogers is the controlling law and that we must reverse the initial

decision and uphold the indefinite suspension. PFR File, Tab 1. In Rogers,

which was issued after the administrative judge issued the initial decision in this

appeal but before the initial decision became final, the Board found that the

agency is only required to apply the unfavorable administrative action procedures

of 32 C.F.R. § 154.56(b) when an individual has been affected by an unfavorable

administrative action. 4 122 M.S.P.R. 671, ¶ 8. The Board further found that an

unfavorable administrative action is an adverse action based on a “personnel

security determination.” Rogers, 122 M.S.P.R. 671, ¶ 9; see 32 C.F.R.

§ 154.3(bb). However, a suspension of access to classified information is not an

“unfavorable personnel security determination” within the meaning of the

agency’s regulations. Rogers, 122 M.S.P.R. 671, ¶¶ 11-13; see 32 C.F.R.

§ 154.3(cc). Therefore, an adverse action based on a suspension of access to

3

The appellant has filed a motion for leave to file an additional pleading in response to

the agency’s reply. PFR File, Tab 6. She argues that this pleading is necessary to

address several misrepresentations in the agency’s reply. Id. at 4-5. We find, however,

that even if the agency’s reply contains errors or misrepresentations as the appellant

claims, she has not shown that any of these are material to the outcome of the appeal.

The appellant’s motion therefore is denied.

4

For some reason, the agency maintains parallel sets of very similar, but not completely

identical, regulations governing its personnel security program—32 C.F.R. part 154,

and Department of Defense (DOD) regulation 5200.2-R. The Board in Rogers cited to

DOD 5200.2-R, but for purposes of this appeal we will cite to 32 C.F.R. part 154, the

applicable provisions of which are materially identical to those in DOD 5200.2-R.

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classified information is not an unfavorable administrative action, and the

agency’s unfavorable administrative action procedures do not apply. Rogers,

122 M.S.P.R. 671, ¶ 13. As in Rogers, we find that the indefinite suspension

underlying the instant appeal was based on the suspension of the appellant’s

access to classified information, and therefore was not an unfavorable

administrative action for which the agency was required to apply the procedures

at 32 C.F.R. § 154.56(b). See id. We therefore find that the appellant failed to

establish that the agency committed procedural error, and that she did not prove

her harmful procedural error defense. See id.

¶6 In her response to the petition for review, the appellant argues that the

Standard Form (SF) 50 documenting her indefinite suspension indicates that it

was based on her security clearance being revoked—not suspended. PFR File,

Tab 3 at 7. We have reviewed the SF-50 documenting the appellant’s indefinite

suspension, and we find that it says nothing about a security clearance revocation;

rather, consistent with the agency’s notice and decision letters, it indicates that

the indefinite suspension was due to suspension of the appellant’s security

clearance and access to MDA facilities. IAF, Tab 4 at 19-20, 23; Tab 21 at 42.

Moreover, we find that, to the extent that the SF-50 and the notice and decision

letters are inconsistent, the latter controls. See Grigsby v. Department of

Commerce, 729 F.2d 772, 776 (Fed. Cir. 1984) (explaining that an SF-50 is not a

legally operative document controlling on its face an employee’s status

and rights).

¶7 The appellant also argues that, during the interim relief period, the agency

placed her in a position that did not require access to classified information even

though it asserted below that no such positions were available. PFR File, Tab 3

at 11-12. It appears to us that the appellant is challenging the agency’s penalty

determination. However, in the absence of an agency policy of reassigning

employees who have lost access to classified information, the Board is not

authorized to inquire into the feasibility of reassignment to an alternative

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position. Griffin v. Defense Mapping Agency, 864 F.2d 1579, 1581 (Fed.

Cir. 1989).

¶8 The remainder of the appellant’s arguments on review appear to go to the

merits of the agency’s decision to deny her access to classified information. PFR

File, Tab 3. It is well settled that, in an appeal under 5 U.S.C. § 7513 based on an

agency determination regarding access to classified information, the Board lacks

the authority to review the substance of the underlying access determination.

Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988); Jones v.

Department of the Navy, 48 M.S.P.R. 680, 690, aff’d as modified on recons.,

51 M.S.P.R. 607 (1991), aff’d, 978 F.2d 1223 (Fed. Cir. 1992).

¶9 An agency may indefinitely suspend an employee when her access to

classified information has been suspended and she needs such access to perform

her job. Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ¶ 13

(2010). The appellant stipulated to both of these facts below. IAF, Tab 22 at 1.

As explained above, the appellant did not prove her affirmative defenses, and

there is no basis for the Board to mitigate the penalty. Supra ¶¶ 3 n.2, 5, 7.

Accordingly, the indefinite suspension is affirmed.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS 5

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.

5

The administrative judge did not afford the appellant notice of appeals rights under the

Whistleblower Protection Enhancement Act of 2012 or notice of her mixed-case right to

appeal her discrimination claims to the Equal Employment Opportunity Commission and/or

the United States District Court. We notify the appellant of her proper appeal rights in this

Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183, 186-87 (1988).

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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 U.S. 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

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 U.S. 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,

7

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.

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 U.S. 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 U.S. 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 U.S. Code, at our

website, http://www.mspb.gov/appeals/uscode/htm. Additional information about

the U.S. 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 the link below:

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

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

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

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for Merit Systems Protection Board appellants before the Federal Circuit. 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.