The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH E. BROWN, DOCKET NUMBER
Appellant, SF-0752-14-0310-C-2
v.
DEPARTMENT OF DEFENSE, DATE: January 6, 2017
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Keith E. Brown, Stockton, California, pro se.
Christine J. Kim, Esquire, Stockton, California, 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 compliance initial
decision, which denied his petition for enforcement. Generally, we grant
petitions such as this one only in the following circumstances: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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 compliance initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The following facts, as set forth in the compliance initial decision, are
undisputed. As a result of a 2012 traffic stop when he was driving his personal
vehicle, the appellant was charged with several criminal offenses. Compliance
File (CF), Tab 21, Compliance Initial Decision (CID) at 2. His police officer
position required him to maintain a security clearance, but the agency suspended
his access to classified information due to the pending criminal charges. CID
at 1-2. Subsequently, the appellant pled no contest to a misdemeanor criminal
offense, and the remaining charges were dismissed. CID at 2. The agency
removed the appellant based on his plea to the lesser charge; the administrative
judge reversed the removal on due process grounds; and the Board found that the
agency’s petition for review was untimely filed without a showing o f good cause
for the delay. Id. The administrative judge’s initial decision therefore became
the Board’s final decision regarding the reversal of the removal. Id. In pertinent
part, the initial decision ordered the agency to cancel the removal and restore the
appellant retroactive to the date of the removal, and to provide him the
appropriate amount of back pay with interest and related benefits. Id.
3
¶3 The appellant filed a petition for enforcement, which the administrative
judge denied in a compliance initial decision. CID at 2-6. Among other things,
the administrative judge found that the agency canceled the removal action and
paid the appellant more than $15,000.00 in back pay. CID at 3. He concluded
that the appellant was not entitled to back pay for the entire period after his
removal because he was not available to perform his duties after the agency
suspended his access to classified information in 2013. CID at 3-4 (citing
5 C.F.R. § 550.805(c)). The administrative judge considered the appellant’s
argument that suspending his access to classified information was unwarranted
and should have ended once the criminal case was resolved, but the
administrative judge concluded that the Board has no authority to review the
substance of the agency’s security clearance determination. CID at 4. 2 Finally,
the administrative judge determined that after reversing the removal action, the
agency appropriately placed the appellant on paid administrative leave, instead of
restoring him to active duty, due to the suspension of his access to classified
information. CID at 5-6.
¶4 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Compliance Petition for Review
(CPFR) File, Tabs 1, 3-4. The appellant has also filed a Motion to Submit an
Additional Pleading. CPFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant argues, among other things, that suspending his security
clearance was unwarranted, and the administrative judge is authorized to review
2
Because the agency ultimately removed the appellant again for some of the same
reasons that originally led it to suspend his security clearance, the administrative judge
found it “unlikely” that it would have restored his access to classified information
sooner. CID at 4 (citing Brown v. Department of Defense, MSPB Docket
No. SF-0752-15-0761-I-1).
4
the basis for it. 3 E.g., CPFR File, Tab 1 at 2-3, 12, 14. He further contends that
the agency’s decision to suspend his access to classified information and /or to
place him on paid administrative leave after reversing the removal constitutes
discrimination and retaliation. E.g., CPFR File, Tab 1 at 3, 5, 14, 16, 19-20,
Tab 4 at 2. For the following reasons, these arguments are unavailing.
¶6 As the administrative judge stated in the compliance initial decision, the
Board does not have the authority to review the merits of an agency’s decision to
suspend an employee’s access to classified information. Rogers v. Department of
Defense, 122 M.S.P.R. 671,¶ 5 (2015). In an adverse action appeal based on the
denial, revocation, or suspension of a security clearance, the Board will generally
review only whether: (1) the employee’s position required a security 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. Rogers,
122 M.S.P.R. 671,¶ 5. Here, however, the underlying removal action was not
based on the denial, revocation, or suspension of his access to classified
information. Moreover, the Board is authorized to enforce compliance only with
orders issued under its adjudication authority. 5 U.S.C. § 1204(a)(2). We are not
persuaded that the Board’s final decision in the removal appeal authorizes the
Board to review the agency’s earlier decision to suspend his access to
classified information.
¶7 Having found that we are unable to review the agency’s decision to suspend
the appellant’s access to classified information, we may briefly address his
remaining arguments. We discern no error with the administrative judge’s
conclusion that the appellant was not entitled to additional back pay from the
effective date of his removal because his access to classified information had
been previously suspended and he was unavailable to perform his duties. See
3
The appellant does not appear to challenge the administrative judge’s conclusion that
the agency canceled the removal action and paid him more than $15,000.00 in back pay.
CID at 3. We do not disturb this conclusion on review.
5
White v. Department of the Army, No. 2007-3135, 2007 WL 2914536 at *3 (Fed.
Cir. Oct. 5, 2007) (finding that, “for the period between October 15, 2004 and the
date White’s security clearance was restored[,] White was ‘unavailable for the
performance of his . . . duties’ because he did not satisfy a necessary condition to
perform his duties, i.e., possess a valid security clearance”); 4 see also 5 C.F.R.
§ 550.805(c)(2) (“[I]n computing the amount of back pay under [ 5 U.S.C.
§ 5596], an agency may not include . . . [a]ny period during which an employee
was unavailable for the performance of his or her duties for reasons other than
those related to, or caused by, the unjustified or unwarranted personnel action.”) .
We also discern no error with the administrative judge’s conclusion that the
agency properly placed the appellant on paid administrative leave, instead of
returning him to his former position. See LaBatte v. Department of the Air Force,
58 M.S.P.R. 586, 594 (1993) (holding that the lack of a security clearance
constitutes a compelling reason not to return an employee to his former position).
¶8 We have considered the appellant’s assertion that the agency’s decision to
suspend his access to classified information and to place him on paid
administrative leave constitutes discrimination and/or retaliation . However, the
Board lacks jurisdiction to adjudicate this claim. King v. Reid, 59 F.3d 1215,
1218-19 (Fed. Cir. 1995); Arredondo v. U.S. Postal Service, 89 M.S.P.R. 40,¶ 6
n.5 (2001).
¶9 The appellant’s petition for review also includes arguments that appear to
relate to the first removal action, the indefinite suspension action and related
compliance appeals, and a second removal action. E.g., CPFR File, Tab 1 at 5, 8,
12, 15; see Brown v. Department of Defense, MSPB Docket
Nos. SF-0752-13-0336-I-1, SF-0752-14-0310-I-1, SF-0752-13-0336-C-1,
4
Although White is an unpublished decision, the Board may rely on it if it finds the
court’s reasoning persuasive. E.g., Herring v. Department of the Navy, 90 M.S.P.R.
165,¶ 13 n.* (2001). Given the similarities between this case and White, we find the
court’s reasoning persuasive.
6
SF-0752-13-0336-C-2, SF-0752-15-0761-I-1. We need not address these
arguments in this compliance matter. 5
¶10 In his motion to submit an additional pleading, the appellant asserts that he
received in a separate equal employment opportunity matter an affidavit from the
deciding official which reveals that he (the deciding official) did not intend to
abide by the Board’s final decision in the underlying removal action. CPFR File,
Tab 6 at 2. Although the appellant properly does not include a copy of the
affidavit with his motion, we believe he is referring to a declaration made under
penalty of perjury which he provided to the Board on petition for review in
Brown v. Department of Defense, MSPB Docket No. SF-0752-13-0336-C-2. In
relevant part, the deciding official stated in this declaration that the appellant
was not issued a common access card because “the agency had no plans to bring
him back to work after reinstatement.” Even if we find for the purposes of our
analysis that this declaration constitutes “new” evidenc e, the Board generally
will not grant a petition for review based on new evidence absent a showing that
it is of sufficient weight to warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
Because the agency has removed the appellant, we are not persuaded that the
deciding official’s statement changes our analysis of the issues raised in this
compliance matter.
¶11 We have considered the appellant’s remaining arguments, but none warrant
a different outcome. We therefore affirm the administrative judge’s decision to
deny the petition for enforcement.
5
The appellant filed petitions for review in his separate matters, Brown v. Department
of Defense, MSPB Docket No. SF-0752-13-0336-C-2, and Brown v. Department of
Defense, MSPB Docket No. SF-0752-15-0761-I-1. The Board issued decisions in those
appeals on December 22 and December 29, 2016, respectively.
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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 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 m ust 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.