The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK GERAGHTY WONDERS, DOCKET NUMBER
Appellant, AT-0752-13-0055-B-1
v.
DEPARTMENT OF THE ARMY, DATE: March 22, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Mark Geraghty Wonders, Ozark, Alabama, pro se.
Jack McKimm, Esquire, Fort Rucker, Alabama, 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 remand initial decision,
which found that he failed to prove his affirmative defense of harmful error in
this appeal of his removal following the revocation of his 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 interpretation of statute or regulation or the 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, 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 agency removed the appellant from his Public Affairs Specialist
position after the agency revoked his security clearance, which was a requirement
of his position. The appellant appealed and the administrative judge sustained the
removal. On review, however, the Board found that the agency had violated two
internal agency regulations concerning procedures the agency has committed to
provide during the agency’s internal security clearance revocation proceedings.
Wonders v. Department of the Army, MSPB Docket No. AT-0752-13-0055-I-1,
Remand Order (RO) at 5-7 (June 25, 2014). The Board remanded the appeal for
the administrative judge to reconvene the hearing and develop the record on the
issue of whether the agency’s errors constituted harmful error within the meaning
of 5 U.S.C. § 7701(c)(2)(A). Id. at 7-9. On remand, the administrative judge
convened a hearing and, after considering the parties’ evidence and arguments,
she concluded that the appellant had not shown that the errors were harmful.
Remand Initial Decision (RID) at 6-8.
¶3 The Board will not sustain an agency decision if the appellant proves the
affirmative defense of harmful error in the agency’s application of its procedures
in arriving at such decision. Doe v. Department of Justice, 123 M.S.P.R. 90, ¶ 7
3
(2015). Harmful error cannot be presumed; an agency error is harmful only
where the record shows that the procedural error was 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. Id.
¶4 The Board found in its remand order that the agency violated its own
regulations during the adjudication of the appellant’s security clearance when the
Central Clearance Facility (CCF), the entity that makes decisions on security
access, failed to provide the appellant with copies of all of the releasable
documents upon which it relied in deciding to revoke his clearance, and when the
CCF considered a recommendation from the appellant’s garrison commander
without affording the appellant the opportunity to rebut it. RO at 5-7. In addition
to these two issues, the administrative judge permitted the appellant to raise an
additional five allegations of harmful error. Remand File (RF), Tab 55 at 3.
¶5 We agree with the administrative judge that the appellant did not prove
harm. The appellant appears to have parsed the agency’s regulations to identify
every minor deviation from the rules. He then lets the fact that the error occurred
stand for itself. However, when an agency commits a procedural error in the
course of an adverse action, the Board may not assume that the employee was
harmed. Schnedar v. Department of the Air Force, 119 M.S.P.R. 246, ¶ 12
(2013); see Brown v. Department of Defense, 121 M.S.P.R. 584, ¶ 20 (2014) (a
showing that it is possible that the agency may have reached a different outcome
in the absence or cure of the error is insufficient to establish harmful error). The
appellant was put on notice of his burden of proving that any errors were harmful
in the Board’s Remand Order, RO at 7-8, in the administrative judge’s Summary
of Telephonic Prehearing Conference, RF, Tab 55 at 4, in the Agency’s
Post-Hearing Brief, RF, Tab 62 at 13-14, and in the Remand Initial Decision, RID
at 5. Even on review, the appellant complains that the administrative judge
overlooked the agency’s errors but fails to allege that any of the errors likely
affected the outcome of the agency’s deliberations. Petition for Review (PFR)
4
File, Tab 1 at 6-8. In fact, the appellant had the opportunity to review the
releasable documents relied upon and the commander’s recommendation during
the agency’s internal appeal process and it is not disputed that he addressed the
errors extensively in his submissions before the agency. Because the appellant
was able to provide appropriate rebuttal to the withheld documents while the
internal appeal process was still underway, i.e., before his appeal rights were
exhausted and the revocation of his clearance became final with no further avenue
of review, and because the appellant made no attempt to prove that the agency’s
decision would have been different had the errors not occurred, the administrative
judge correctly found that he failed to prove that the agency’s errors
were harmful.
¶6 The appellant argues on review that the administrative judge erred by
failing to allow him to pursue discovery. PFR File, Tab 1 at 4-8. The appellant
had the opportunity to engage in discovery when his appeal was before the
administrative judge prior to remand. He has not shown that the administrative
judge’s decision not to allow a second round of discovery constituted an abuse of
her broad discretion in discovery matters. Moreover, to the extent that the
appellant alleges that the administrative judge erred by not directing the agency to
provide him with an unredacted copy of the so-called Ranchino Legal Review, id.
at 8-9, the administrative judge determined that the document was covered by the
attorney-client privilege after an in camera review, IAF, Tab 55 at 5-6. We see
no basis to disturb her determination.
¶7 The appellant also argues on review that the administrative judge erred by
finding that he failed to show harm because the Board had already found in its
Remand Order that the agency’s errors were harmful. PFR File, Tab 1 at 5. A
plain reading of the Remand Order belies this contention.
¶8 For the above reasons, we affirm the initial decision.
5
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
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.
6
If you are interested in securing pro bono representation for an 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 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.