Opinion

Dirk Huffman v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Apr 5, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DIRK A. HUFFMAN, DOCKET NUMBERS

Appellant, DC-0752-14-0047-I-1

DC-0752-15-0714-I-1

DEPARTMENT OF THE NAVY,

Agency. DATE: April 5, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dirk A. Huffman, Hampton, Virginia, pro se.

Patricia Reddy-Parkinson, Esquire, Sandra E. Dickerson, Esquire, and

Daniel Fevrin, Esquire, Norfolk, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

two joined appeals, which found that the agency rescinded his indefinite

suspension, concluded that he failed to prove his affirmative defenses, and

sustained his removal. Generally, we grant petitions such as this one only in the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpre tation 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 these appeals, 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

clarify why the appellant’s affirmative defenses to his indefinite suspension are

unavailing, we AFFIRM the initial decision.

BACKGROUND

¶2 This matter involves an indefinite suspension appeal, Huffman v.

Department of the Navy, MSPB Docket No. DC-0752-14-0047-I-1, Initial Appeal

File (0047 IAF), Tab 1, and a removal appeal, Huffman v. Department of the

Navy, MSPB Docket No. DC-0752-15-0714-I-1, Initial Appeal File (0714 IAF),

Tab 1. The administrative judge joined them after the close of record in each and

issued a single initial decision. 0047 IAF, Tab 25; 0714 IAF, Tab 44.

¶3 The appellant most recently held an Information Technology Specialist

position at the Ship Liaison Unit of the agency’s Military Sealift Command.

0714 IAF, Tab 5 at 21, 39. The position required that he maintain a security

clearance. 0714 IAF, Tab 5 at 72, Tab 6 at 18. In March 2013, the appellant

reported a breach of personally identifiable information (PII) pertaining to a large

number of agency employees. 0047 IAF, Tab 4 at 83 -85. In doing so, he first

sent a message to the agency’s Chief Information Officer from his personal email

account with a link to the compromised PII. Id. at 83, 85-86. He subsequently

forwarded the link to compromised PII to 17 Ship’s Communications Officers

from his official email account. Id. at 84. As a result, the agency suspended his

access to classified information and areas where it was maintained because

he failed to follow proper protocol for handling both the PII itself and the PII

breach. Id. at 166, 171. Based on this access suspension, the agency also

imposed an indefinite suspension from service. Id. at 80-82, 158-62.

¶4 In October 2013, the appellant timely appealed his indefinite suspension.

0047 IAF, Tab 1. Although the agency later cancelled the indefinite suspension, 2

the administrative judge allowed the appeal to proceed for adjudication of the

appellant’s affirmative defenses of whistleblower reprisal and retaliation for

engaging in protected equal employment opportunity (EEO) activity. 0047 IAF,

Tab 12 at 2-3, Tab 15 at 16-17, Tab 18; 0714 IAF, Tab 45, Initial Decision (ID)

at 3, 5-11. While that matter was pending, the agency removed the appellant for

conduct unbecoming a Federal employee based on the same incidents underlying

the suspension of his access to classified information. 0047 IAF, Tab 4 at 80;

0714 IAF, Tab 5 at 22-26, 39-42.

¶5 After the appellant timely appealed his removal, the agency propounded

discovery requests to the appellant in the removal appeal, to which he failed to

respond. 0714 IAF, Tab 1, Tab 12 at 7-25. The agency then filed a motion to

The agency indicated that it cancelled the indefinite suspension “in an abundance of

caution” following the Board’s decisions, as relevant here, in Ulep v. Department of the

Army, 120 M.S.P.R. 579 (2014), and Schnedar v. Department of the Air Force,

120 M.S.P.R. 516 (2014). 0047 IAF, Tab 15 at 4. In each of those decisions, the Board

found harmful error caused by the agencies’ failure to comply with Department of

Defense procedures when indefinitely suspending the employees involved based on the

suspension or revocation of their security clearances; thus, the Board reversed the

indefinite suspensions. Ulep, 120 M.S.P.R. 579, ¶¶ 4‑6; Schnedar, 120 M.S.P.R. 516,

¶¶ 3, 8-12. However, the Board later clarified in Rogers v. Department of Defense,

122 M.S.P.R. 671, ¶¶ 7‑13 (2015), that the procedures at issue in Ulep and Schnedar

are not required for indefinite suspensions based on interim access suspensions pending

final adjudication of an employee’s security clearance, such as the indefinite su spension

here. 0047 IAF, Tab 4 at 80-81.

compel. 0714 IAF, Tab 12 at 4-6, Tab 15. After the administrative judge granted

the agency’s motion to compel, the appellant provided both initial and

supplemental responses. 0714 IAF, Tab 16 at 1, Tab 17 at 28-37, Tab 19 at 6-13.

The agency moved to dismiss the appeal, arguing that the respon ses were

deficient. 0714 IAF, Tab 17 at 4-8, 28-37, Tab 19 at 4-13, 16-19. While that

motion was pending, the agency filed a second motion to dismiss after the

appellant failed to appear at his deposition. 0714 IAF, Tab 21 at 4 -8, 19-23,

27-33. After the appellant responded to the agency’s motions, the administrative

judge declined to dismiss the removal appeal but sanctioned the appellant by

prohibiting him from testifying at the hearing or offering information that would

have been responsive to the agency’s discovery requests. 0714 IAF, Tab 23

at 4-5.

¶6 The appellant waived his right to a hearing, and the administrative judge

issued a decision on the written record. 0047 IAF, Tab 11; 0714 IAF, Tab 36;

ID at 4. Concerning the indefinite suspension appeal, she found that the agency

fully rescinded the adverse action. ID at 4-5. She also found that the

appellant failed to prove his EEO and whistleblower reprisal affirmative defenses.

ID at 5-11. Concerning the removal appeal, the administrative ju dge found that

the agency met its burden of proving the charge, nexus, and reasonableness of the

penalty. ID at 11-14, 18-19. She also found that the appellant failed to meet his

burden of proving his affirmative defenses. ID at 14-18. The appellant has filed

a petition for review. Petition for Review (PFR) File, Tab 1. The agency has

filed a response, and the appellant has replied. PFR File, Tabs 5-6.

ANALYSIS

MSPB Docket No. DC-0752-14-0047-I-1: Indefinite Suspension Appeal

¶7 As previously mentioned, the agency presented argument and evidence that

it cancelled the appellant’s indefinite suspension during the adjudication of his

appeal. 0047 IAF, Tab 15. The administrative judge found that the agency’s

actions amounted to a full rescission; therefore, she did not need to adjudicate the

merits of the indefinite suspension except to the extent necessary to address the

appellant’s affirmative defenses. ID at 4. The appellant does not dispute that

finding on review, and we discern no basis for reaching a different conclusion. 3

¶8 The administrative judge next found that the indefinite suspension appeal

was not moot because the appellant had raised claims of reprisal for EEO and

whistleblowing activity that, if proven, could result in damages. Id. On review,

the appellant has alluded to these affirmative defenses. PFR File, Tab 1 at 5-7.

For the reasons that follow, we modify the administrative judge’s analysis of

these affirmative defenses while still finding them unproven.

¶9 An indefinite suspension lasting more than 14 days is an adverse action

appealable to the Board under 5 U.S.C. § 7513(d). 5 U.S.C. § 7512(2); Palafox v.

Department of the Navy, 124 M.S.P.R. 54, ¶ 8 (2016). An agency may

indefinitely suspend an appellant when his access to classified infor mation has

been suspended and he needs such access to perform his job. Palafox,

124 M.S.P.R. 54, ¶ 8. In such a case, the Board has the authority to review

whether: (1) the appellant’s position required access to classified information;

(2) the appellant’s access to classified information was suspended; and (3) the

appellant was provided with the procedural protections specified in 5 U.S.C.

§ 7513. Id. In addition, the Board has the authority under 5 U.S.C.

On petition for review, the appellant appears to assert that the agency committed

harmful error by relying on “Privacy Act information” to indefinitely suspend him,

allegedly in violation of agency policy. PFR File, Tab 1 at 4-5, 11. This appears to be

a new argument but may be related to his argument below that the agency violated the

Privacy Act by placing him on administrative leave and indefinitely suspending him

without questioning him first. 0047 IAF, Tab 8 at 6-7. The administrative judge

addressed this claim in connection with the appellant’s removal appeal, finding no

procedural error because the Privacy Act does not concern how an agency investigates

an allegation of employee wrongdoing. ID at 16-17. We agree. The Privacy Act

concerns maintenance and disclosure of, and access to, Federal agency records about an

individual that contain an “identifying particular assigned to the individual.” 5 U.S.C.

§ 552a. It does not address how an agency conducts disciplinary investigations.

§ 7701(c)(2)(A) to review whether the agency provided t he procedural protections

required under its own regulations. Id. Because a tenured Federal employee has

a property interest in continued employment, the Board also may consider

whether the agency provided minimum due process in taking the indefinite

suspension action. Id.

¶10 Although the Board has the authority described above, it lacks the authority

to review the merits of an agency’s decision to suspend access to classified

information. Id. Therefore, the Board is precluded from reviewing allegations of

prohibited discrimination and EEO and whistleblower reprisal when such

affirmative defenses relate to a security clearance determination. See Grimes v.

Department of Justice, 122 M.S.P.R. 36, ¶¶ 8, 15 (2014) (finding that an

administrative judge appropriately declined to adjudicate the appellant’s

whistleblower reprisal claim in connection with a security clearance -based

removal because such a claim went to the merits of the agency’s underlying basis

for finding the appellant ineligible to access noncritical sensitive information);

Putnam v. Department of Homeland Security, 121 M.S.P.R. 532, ¶¶ 18-19 (2014)

(finding that the Board cannot review an appellant’s disability discrimination

claim in connection with a security clearance-based indefinite suspension). That

is because analysis of discrimination and reprisal claims in such cases would

require the Board to assess the validity of the agency’s reason for taking the

challenged action, i.e., the validity of the security clearance determination.

Grimes, 122 M.S.P.R. 36, ¶ 15; Putnam, 121 M.S.P.R. 532, ¶ 18.

¶11 However, the Board has held open the possibility of a viable affirmative

defense that is brought in such a way that it would no t require the Board to

review the substance of the underlying security clearance determination, e.g., a

defense that solely goes to the issue of penalty and is based on the agency’s

treatment of similarly situated individuals outside of the appellant’s protected

class. Helms v. Department of the Army, 114 M.S.P.R. 447, ¶ 9 n.* (2010).

Relying on Helms, the administrative judge in this case appropriately addressed

the appellant’s EEO and whistleblower reprisal affirmative defenses to determine

whether his indefinite suspension was tainted by EEO or whistleblower reprisal.

ID at 4 n.3, 5.

We discern no basis to disturb the administrative judge’s determination

that the appellant failed to prove EEO reprisal but modify her reasoning to

apply the correct standard.

¶12 For the appellant’s EEO reprisal claim, the administrative judge recognized

that the deciding official was aware of the appellant’s EEO activity, but she found

that the appellant failed to prove a “genuine nexus” between his EEO activity and

his indefinite suspension. ID at 5-7. In reaching this conclusion, the

administrative judge relied on the standard set out in Warren v. Department of the

Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). The Warren standard applies to

alleged retaliation for “the exercise of any appeal, complaint, or grievance right

granted by any law, rule, or regulation” in which an appellant did not allege EEO

discrimination or retaliation, or seek to remedy whistleblower reprisal . Pridgen

v. Office of Management and Budget, 2022 MSPB 31, ¶ 32. The use of this

standard was in error, because the appellant raised a claim of retaliation for

engaging in EEO activity. Id. We therefore modify the decision to apply the

correct standard.

¶13 An appellant may prove an affirmative defense of retaliation for Title VII

activity by showing that his protected activity was a motivating factor, i.e.,

played any part in the agency’s action. Id., ¶¶ 20-22. The agency may then assert

a defense that it would have taken the same action anyway, and in that instance

the appellant’s relief may be limited. 42 U.S.C. § 2000e-5(g)(2)(B); Desert

Palace, Inc. v. Costa, 539 U.S. 90, 94-95 (2003). For the appellant to obtain the

full measure of relief under the statute, including damages, his protected activity

must have been “a but-for cause” of the action. Pridgen, 2022 MSPB 31, ¶ 22

(citation omitted). The appellant may meet this burden by submitting any

combination of direct or indirect evidence, including (a) evidence of “suspicious

timing, ambiguous statements oral or written, behavior toward or comments

directed at other employees in the protected group, and other bits and pieces from

which an inference of discriminatory intent might be drawn,” also known as

“convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether

or not rigorously statistical, that employees similarly situated to the plaintiff

other than in the characteristic . . . on which an employer is forbidden to base a

difference in treatment received systematically better treatment ”; or (c) evidence

that the agency’s stated reason for its action is “unworthy of belief, a mere

pretext for discrimination.” Id., ¶¶ 23-24 (citations omitted). The motivating

factor standard does not apply to a claim of retaliation for activity protected

under the Americans with Disabilities Act. See id., ¶ 47 (rejecting the use of a

mixed-motive standard for such claims). Instead, an appellant must prove that

retaliation was a “but-for” cause of the agency’s action. Id., ¶¶ 44-47.

¶14 Here, the administrative judge cited the Warren standard. However,

she also explicitly reasoned that the appellant failed to explain what his EEO

activity was about, much less how it might have “motivated” relevant parties to

retaliate against him. ID at 6-7. The administrative judge further credited the

deciding official because he provided sworn testimony that the EEO activity

played no role in the appellant’s indefinite suspension and that an indefinite

suspension from service was the agency’s usual response to any employee’s

security clearance suspension. ID at 7. We discern no basis for disturbing these

findings of fact or reaching a different conclusion. Because the appellant

failed to prove that his EEO activity was a motivating factor in his

indefinite suspension, we do not reach the question of whether his EEO activity

was a “but-for” cause of the suspension.

¶15 Although the appellant has alluded to his EEO reprisal claim on review, his

argument is little more than a misunderstanding of the administrative ju dge’s

findings. According to the administrative judge, the deciding official knew of the

appellant’s EEO activity, ID at 6, but there was no evidence that the proposing

official or anyone else involved in the indefinite suspension knew of his EEO

activity, ID at 6 n.4. The appellant mistakenly reads those two finding in

isolation to assert that they are contradictory. PFR File, Tab 1 at 5-6. Read

together, the administrative judge distinguished between those who knew, i.e., the

deciding official, and those who did not, i.e., everyone else. Accordingly, the

appellant’s argument is unavailing.

The administrative judge properly found that the agency proved by clear

and convincing evidence that it would have suspended the appellant absent

his whistleblowing.

¶16 When whistleblower retaliation claims are made in the context of

an otherwise appealable action, as here, the appellant must prove by preponderant

evidence that he made a protected disclosure or engaged in protected activity and

that the disclosure or activity was a contributing factor in the personnel action at

issue. See Pridgen, 2022 MSPB 31, ¶ 49. If he does so, the burden of persuasion

shifts to the agency to show by clear and convincing evidence that it would have

taken the same personnel action absent the protected disclosure or activity. Id.

In determining whether an agency has met this burden, the Board will consider

the following factors: (1) the strength of the agency’s evidence in support of its

action; (2) the existence and strength of any motive to retaliate on the part of the

agency officials who were involved in the decision; and (3) any evidence that the

agency takes similar actions against employees who are not whistleblowers but

who are otherwise similarly situated. Carr v. Social Security Administration,

185 F.3d 1318, 1323 (Fed. Cir. 1999).

¶17 The administrative judge applied this standard to find that the appellant

presented a prima facie case of reprisal regarding his March 2013 disclosures

about PII and the indefinite suspension from service that followed, ID at 8-9, but

the agency proved that it would have taken the same indefinite suspension in the

absence of those disclosures, ID at 9-11. She reasoned that the evidence in

support of the indefinite suspension was very strong because the appellant’s

access to classified information was indisputably suspended; the relevant parties

had only a slight motive to retaliate; and there was strong evidence of the agency

taking similar actions against similarly situated nonwhistleblowers. Id.

¶18 Although the administrative judge otherwise analyzed this claim correctly,

she included a footnote suggesting that the agency’s decision to suspend the

appellant’s access to classified information was due to his disclosure of PII.

ID at 9 n.10. We vacate this finding. It was not necessary to the administrative

judge’s analysis of the appellant’s whistleblower reprisal claim, and it improperly

veered into the merits of the security clearance determination, which is beyond

the scope of Board review. Supra ¶¶ 10-11.

¶19 For the same reason, the appellant’s only argument on review about this

affirmative defense is unavailing. The appellant has alluded to his whistleblower

reprisal claim, but only to argue that his disclosures did not contain PII .

PFR File, Tab 1 at 7. Yet that argument suggests that we should look at the

strength of the evidence in support of his security clearance suspension, rather

than the strength of the evidence in support of his indefinite suspension from

service (which was based on the suspended security clearance but was not based

on the disclosure of PII), which we cannot do for purposes of the appellant’s

affirmative defense in his indefinite suspension appeal. Supra ¶¶ 10-11.

MSPB Docket No. DC-0752-15-0714-I-1: Removal Appeal

The administrative judge properly sanctioned the appellant.

¶20 On July 31, 2015, the agency filed a motion to compel in the appellant’s

removal appeal, with argument and evidence that he had not responded to its

interrogatories, requests for documents, or requests for admissions, despite the

agency’s good faith efforts to communicate with him regarding his failure to

respond. 0714 IAF, Tab 12 at 4-25; see 5 C.F.R. § 1201.73(c)(1) (requiring a

party to first attempt to resolve any discovery disputes before filing a motion to

compel). On August 27, 2015, the agency requested a ruling on that

motion because the appellant still had not responded to its discovery requests.

0714 IAF, Tab 15 at 4.

¶21 The administrative judge granted the agency’s motion to compel on

September 16, 2015, instructing the appellant to immediately respond to the

discovery requests and warning that he could be subject to sanctions if he did not

comply. 0714 IAF, Tab 16 at 1. On October 6, 2015, the agency moved to

dismiss the appeal as a sanction, with argument and evidence that, although the

appellant did submit something, his discovery submission was deficient and

nonresponsive. 0714 IAF, Tab 17. For example, in response to interrogatories

asking that he specify the basis of his unexplained prohibited personnel practice

and harmful error claims, the appellant asserted that “it is not the job of the

[a]ppellant to conduct legal research for another party.” Id. at 29. As another

example, he declined to explain his claim for damages or provide supporting

evidence because he had not yet “formulated” his request. Id. at 30. Days later,

the appellant submitted additional responses, which the agency filed to

supplement its motion to dismiss. 4 0714 IAF, Tab 19.

On review, the appellant acknowledges that the agency supplied the additional

discovery responses to supplement its motion to dismiss but argues that the agency was

not “candid and forthright” concerning his purported cooperation to resolve their

discovery dispute. PFR File, Tab 1 at 8. However, he has failed to provide any

substantive explanation for this assertion. He had the opportunity to raise the agency’s

alleged impropriety below but did not do so. Compare 0714 IAF, Tab 17 (the agency’s

initial motion to dismiss), Tab 19 (the agency’s supplemental motion to dismiss), and

Tab 21 (the agency’s second motion to dismiss), with 0714 IAF, Tab 18 (the appellant’s

response to the agency’s initial motion to dismiss), Tab 20 (the appellant’s response to

the agency’s supplemental motion to dismiss), and Tab 22 (the appellant’s response to

the agency’s second motion to dismiss); see Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980) (explaining that the Board generally will not consider an

argument raised for the first time in a petition for review ab sent a showing that it is

based on new and material evidence not previously available despite the party’s due

diligence). Further, the evidence in the record does not support the appellant’s claims

that he was cooperative in resolving the discovery disput e. E.g., 0714 IAF, Tab 22

at 24‑27 (reflecting the agency’s efforts to obtain the appellant’s responses to its

written discovery).

¶22 On October 29, 2015, before the administrative judge ruled on the initial

motion to dismiss, the agency filed another motion to dismiss, asserting that the

appellant also failed to appear for his deposition the day before. 0714 IAF,

Tab 21 at 4-5. The agency presented argument and evidence that after the

appellant ignored its request for his availability, it unilaterally scheduled his

deposition. Id. at 19-23. The appellant did not respond to the

agency’s deposition notice or appear for his deposition on the scheduled date.

Id. at 20, 27-33.

¶23 The administrative judge denied the agency’s motions to dismiss but

sanctioned the appellant by precluding him from testifying or from submitting

evidence that was the subject of the September 16, 2015 order granting the

agency’s motion to compel. 0714 IAF, Tab 23 at 1. As a result, the

administrative judge did not consider several of the appellant’s prehearing

exhibits. ID at 11-12 (referencing 0714 IAF, Tab 26 at 7-23).

¶24 Administrative judges may impose sanctions upon the parties as necessary

to serve the ends of justice. 5 C.F.R. § 1201.43. When a party fails to comply

with an order, the administrative judge may “[p]rohibit the party failing to

comply with the order from introducing evidence concerning the information

sought, or from otherwise relying upon testimony related to that information.”

5 C.F.R. § 1201.43(a)(2). The imposition of sanctions is a matter within the

administrative judge’s sound discretion, and absent a showing that such discretion

has been abused, the administrative judge’s determination will not be found to

constitute reversible error. Smets v. Department of the Navy, 117 M.S.P.R. 164,

¶ 11 (2011), aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012).

¶25 On review, the appellant argues that it was improper for the administrative

judge to impose sanctions because he resolved the discovery dispute as reflected

in “pleading 2015051490,” which he describes as missing from the record.

PFR File, Tab 1 at 4, 6-9. The appellant made a similar assertion below,

indicating that “pleading number 2015053506” responded to the agency’s

discovery requests but was removed from e-Appeal Online. 0714 IAF, Tab 18 at

4-5. We are not persuaded.

¶26 Although the appellant suggests that his pleadings are missing from

e-Appeal Online, the Board’s electronic filing system, it appears that they were

simply rejected because he mistakenly filed them with the Board. Compare 0714

IAF, Tab 3 at 2-3 (instructing the parties that discovery responses should not be

filed with the Board and indicating that, if they are filed with the Board, they will

be rejected, and referencing 5 C.F.R. § 1201.71, which provides for filing

discovery requests and responses with the Board only in connection with a motion

to compel), with 0714 IAF, Tab 18 at 4-5 (the appellant’s assertion that he

uploaded compelled discovery to e-Appeal Online and the pleading was

removed). Some, if not all, of the corresponding documents were attached to the

agency’s motion for sanctions. 0714 IAF, Tab 17 at 28 -37, Tab 19 at 6-19. As

previously discussed, those documents demonstrate that the appellant failed to

provide substantive responses to many of the agency’s discovery requests.

¶27 Under the circumstances described above, we find no abuse of discretion in

the administrative judge’s imposition of sanctions. 5 See, e.g., Smets,

117 M.S.P.R. 164, ¶¶ 5, 11-12 (finding no abuse of discretion when

an administrative judge prohibited the appellant from submitting ad ditional

evidence on an affirmative defense because she failed to comply with an order to

appear for her deposition). Therefore, we will not consider the excluded evidence

or the appellant’s reassertion of his harmful error affirmative defense, which

relies on that evidence. PFR File, Tab 1 at 6. Similarly, because we find the

The administrative judge’s order granting sanctions did not provide details concerning

the appellant’s response to the order compelling discovery. 0714 IAF, Tab 23 at 1. It

simply indicated that the appellant failed to comply. Id. The administrative judge later

described her sanctions as stemming from the appellant’s failure to cooperate in

discovery. ID at 3-4, 11. To clarify, the appellant did provide responses to the agency

after being ordered to do so, but the nature of those responses and lack of cooperation,

generally, warranted the sanctions imposed.

imposition of sanctions proper, we will not revisit the appellant’s unequivocal

hearing waiver, which he now attributes to the sanctions precluding him from

testifying. Id. at 9; see 0714 IAF, Tab 36 at 4.

The administrative judge properly determined that the agency proved its

charge.

¶28 As further detailed in its proposal letter, the agency’s conduct unbecoming

charge included two specifications, alleging that the appellant mishan dled PII and

failed to follow the agency’s protocols for reporting a PII breach when

he (1) reported a compromise of PII on March 26, 2013, with a link to that PII, to

the wrong agency official and from his private email account, and (2) reported the

compromise of PII on March 27, 2013, with a link to that PII, to 17 other agency

employees. 0714 IAF, Tab 5 at 39-40. The administrative judge found that the

agency met its burden of proving both specifications underlying the single charge.

ID at 12-14.

¶29 In finding that the agency met its burden, the administrative judge indicated

that “[t]he record shows, and the appellant does not dispute, that he sent the two

emails in question and that both emails included a link to the compromised PII.”

ID at 13. On review, the appellant asserts that he did dispute the agency’s

allegations. PFR File, Tab 1 at 6-7. In doing so, he cites to evidence

he submitted with his indefinite suspension appeal. Id. at 6 (referencing

0047 IAF, Tab 1 at 25-26). 6 That evidence is a September 2013 letter he sent to

the Federal Bureau of Investigation (FBI), containing a number of allegations,

one of which seems to assert that the emails underlying his removal did not link

to the compromised PII. 0047 IAF, Tab 1 at 24-27.

In his petition for review, the appellant identified the evi dence to which he was

referring as “initial appeal DC-0752-14-0047-I-1 at 22-23.” PFR File, Tab 1 at 6. We

have concluded that the appellant was citing his own pagination and referring to 0047

IAF, Tab 1 at 25-26.

¶30 Even if we were to find that the administrative judge should have but failed

to consider this evidence from the appellant’s other appeal that he now

references, we find that it would not warrant a different result. That single letter

from the appellant to the FBI, alleging that he did nothing wrong, does not

outweigh the agency’s probative evidence in support of the charge. See, e.g.,

0714 IAF, Tab 5 at 47-56, 65-66, Tab 6 at 20-21, Tab 42 at 12-13. Among other

things, that agency evidence included sworn declarat ions of multiple agency

officials indicating that the appellant’s emails did, in fact, link to the

compromised PII. 0714 IAF, Tab 5 at 47-49, Tab 42 at 11-12. Accordingly, we

agree with the administrative judge’s conclusion that the agency proved its

charge. 7

The administrative judge correctly found that the agency proved nexus and

the reasonableness of the penalty.

¶31 In addition to the requirement that the agency prove its charge, the agency

also must prove that there is a nexus, i.e., a clear and direct relationship between

the articulated grounds for the adverse action and either the appellant’s ability to

accomplish his duties satisfactorily or some other legitimate Government interest.

Campbell v. Department of the Army, 123 M.S.P.R. 674, ¶ 24 (2016). Here, the

administrative judge indicated that the nexus requirement was met because the

appellant’s misconduct occurred on duty. ID at 18. We agree. See Campbell,

123 M.S.P.R. 674, ¶ 24 (recognizing that there is a presumption of a nexus when

the misconduct occurred in part at work). Although the appellant disputes nexus,

As to the appellant’s affirmative defenses in his removal appeal, on review he only

alleges that the administrative judge erred in finding that the agency returned him to

duty upon reinstatement of his security clearance. PFR File, Tab 1 at 9 (citing

ID at 18). He argues that the agency’s failure to return him to work was “arbitrary” and

thus violated merit systems principles. Id. However, contrary to the appellant’s claims,

the administrative judge found that the agency declined to return the appellant to work,

and instead proposed his removal. ID at 12. The language that the appellant challenges

is the administrative judge’s characterization of his claims. ID at 18; 0714 IAF, Tab 43

at 6-7. We find no reason to disturb the administrative judge’s fi ndings that the

appellant failed to prove this and his other affirmative defenses. ID at 14 -18.

generally, he has failed to present any substantive argument warranting further

analysis or a different conclusion. PFR File, Tab 1 at 9.

¶32 In an adverse action appeal such as this, the Board also will review

an agency-imposed penalty, but only to determine if the agency considered all the

relevant factors and exercised management discretion within tolerable limits of

reasonableness. Campbell, 123 M.S.P.R. 674, ¶ 25. In making this

determination, the Board must give due weight to the agency’s primary discretion

in maintaining employee discipline and efficiency, recognizing that the Board’s

function is not to displace management’s responsibility, but to ensure that

managerial judgment has been properly exercised. Id. It is not the Board’s role

to decide what penalty it would impose, but, rather, to determine whether the

penalty selected by the agency exceeds the maximum reasonable penalty. Id.

¶33 The administrative judge found that the agency did consider the relevant

penalty factors and that removal was within the tolerable limits of reasonableness.

ID at 18-19. She noted, inter alia, that the appellant had not expressed any

remorse for his behavior. Id. at 19. On review, the appellant disputes that

penalty factor. PFR File, Tab 1 at 7-8. He asserts that he properly reported the

compromised PII and did nothing wrong, so it was inappropriate to consider his

lack of remorse. Id. This argument is unavailing because the agency proved its

charge. ID at 12-14. It also further supports the administrative judge’s

conclusion that the appellant has not expressed remorse. Absent any other

argument concerning the penalty, we discern no basis for disturbing the

administrative judge’s well-reasoned conclusion that removal was reasonable.

¶34 To conclude, in the appellant’s indefinite suspension appeal, we affirm the

administrative judge’s determination that the agency rescinded the adverse action.

We modify the standards and reasons for why the appellant failed to prove his

claims of EEO and whistleblower reprisal in that appeal. In the appellant’s

removal appeal, we affirm the administrative judge’s findings, sustaining the

action.

NOTICE OF APPEAL RIGHTS 8

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. Failu re to file

within the applicable time limit may result in the dismissal of your 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 case, 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 rev iew either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 9 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