Opinion

James King v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jun 28, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding that, because an employee does not have a property interest in a security clearance, its revocation does not implicate due process

How later courts described this case

finding that, because an employee does not have a property interest in a security clearance, its revocation does not implicate due process

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES E. KING, DOCKET NUMBER

Appellant, AT-0752-21-0271-I-1

DEPARTMENT OF THE ARMY, DATE: June 28, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael I. Sheeter and Morgan Smith, Esquire, Dallas, Texas, for the

appellant.

Mary Rae Dudley, Fort Gordon, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision,

which sustained his removal. On petition for review, the appellant argues that the

administrative judge erred in sustaining the three charges of misconduct, erred in

finding that he did not establish his affirmative defenses of harmful error, equal

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

employment opportunity (EEO) retaliation, and disability discrimination, and

erred in finding that the penalty of removal was within the bounds of

reasonableness. 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 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. Except as expressly MODIFIED to

address the appellant’s disparate penalty claim, we AFFIRM the initial decision. 2

To the extent that the appellant alleges that the agency committed harmful procedural

error because it failed to provide him with due process rights, i.e. notice and

an opportunity to respond, regarding its decision to decertify him from the Individual

Responsibility Program (IRP), Petition for Review File, Tab 4 at 17, due process rights

are not extended to an agency’s discretionary decision to revoke a previously granted

privilege. See Holton v. Department of the Navy, 123 M.S.P.R. 688, ¶ 29 (2016)

(finding that the agency was entitled to revoke the appellant’s privilege to report to

duty, although he remained in a pay status, after a failed drug test without affording him

due process), aff’d, 884 F.3d 1142 (Fed. Cir. 2018); see, e.g., Department of the Navy v.

Egan, 484 U.S. 518, 528-29 (1988) (observing that an employee does not have a right to

a security clearance because granting of such a clearance is a discretionary act);

Gargiulo v. Department of Homeland Security, 727 F.3d 1181, 1184-85 (Fed. Cir. 2013)

(finding that, because an employee does not have a property interest in a security

clearance, its revocation does not implicate due process) . Because granting the IRP

certification is a discretionary act by the agency, the agency has a right to revoke it

without extending due process rights. The appellant did receive all appropriate due

process rights regarding his removal from the Federal service, which was based, in part,

on his failure to a maintain a condition of employment, namely the IRP certification.

¶2 The appellant has alleged below and on review that his first-line supervisor

is a comparator and that the agency treated him more leniently for purposes of the

penalty determination in this case. Initial Appeal File (IAF), Tab 24 at 11,

Tab 25 at 4; Petition for Review File, Tab 4 at 15-16. Although not addressed in

the initial decision, we find that the appellant has not proven this claim.

¶3 To establish disparate penalties, the appellant must show that the charges

and the circumstances surrounding the charged behavior are substanti ally similar

to those in the comparator’s case. Archuleta v. Department of the Air Force,

16 M.S.P.R. 404, 4007 (1983); see Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305 (1981) (calling for a comparison with penalties “imposed

upon other employees for the same or similar offenses”). As explained by the

administrative judge in his analysis of the appellant’s clam of retaliation for EEO

activity, IAF, Tab 29, Initial Decision (ID) at 16-18, the circumstances

surrounding the appellant’s first-line supervisor’s conduct are significantly

different from the charges in this appeal. Moreover, the proper inquiry is whether

the agency knowingly treated employees differently “in a way not justified by the

facts, and intentionally for reasons other than the efficiency of the service.”

Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988). The

appellant has not shown such treatment here. Thus, he has not shown that his

first-line supervisor is a proper comparator.

¶4 In any event, the consistency of the penalty with those imposed upon other

employees for the same or similar offenses is simply one of a nonexhaustive list

of 12 factors that are relevant for consideration in determining the

appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305-06. The deciding

official and the administrative judge otherwise properly weighed those factors in

finding the penalty of removal reasonable in this case. ID at 21-23.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of yo ur case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your c ase, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, and 11.

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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the