Opinion

Gregory Prewitt v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Apr 19, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.1%

explaining that the Federal statutory employment scheme creates a property interest in continued employment but this property interest is not defined by, or conditioned on, Congress’ choice of procedures for deprivation of the interest

How later courts described this case

explaining that the Federal statutory employment scheme creates a property interest in continued employment but this property interest is not defined by, or conditioned on, Congress’ choice of procedures for deprivation of the interest
holding that review of the merits of a security clearance determination is not within the Board’s jurisdiction

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GREGORY PREWITT, DOCKET NUMBER

Appellant, DC-0752-16-0598-I-1

DEPARTMENT OF THE NAVY, DATE: April 19, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ryan C. Nerney, Esquire, Encinitas, California, for the appellant.

Daniel Patrick Doyle, Quantico, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

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

sustained the agency’s indefinite suspension action. Generally, we grant petitions

such as this one only in the following circumstances: the initial decision contains

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 The appellant serves as a Criminal Investigator with the agency’s Naval

Criminal Investigative Service (NCIS). Initial Appeal File (IAF), Tab 8 at 15.

The appellant’s position requires him to maintain a Top Secret security clearance

with access to Sensitive Compartmented Information. Id. at 24-28. On

September 29, 2014, the agency’s Office of Inspector General (OIG) initiated an

investigation into allegations that the appellant violated NCIS policy or engaged

in other misconduct, including using illegal drugs, possessing contraband images,

and committing security violations. IAF, Tab 17 at 7. The OIG investigation

resulted in the issuance of a February 9, 2015 interim Report of Investigation

(ROI) detailing the investigation; a final ROI was issued on December 1, 2015.

IAF, Tab 17 at 5-13, Tab 18 at 42-43. 3 On August 19, 2015, the agency proposed

to suspend the appellant for 45 days based on misconduct described in the interim

ROI. IAF, Tab 16 at 38-42. The appellant provided an oral and written reply to

A few pages of the final ROI appear to be omitted from the ROI in the record. IAF,

Tabs 17, 18.

the proposed suspension, and on November 20, 2015, the deciding official for this

suspension action issued a decision that mitigated the penalty to a 14-day

suspension. IAF, Tab 19 at 33-40.

¶3 In a January 20, 2016 memorandum, the agency notified the appellant that it

had suspended his access to classified information, based on agency regulation

SECNAV M-5510.30 and the ROI, pending a favorable or unfavorable security

determination by the Department of Defense Consolidated Adjudications Facility,

Navy Division. IAF, Tab 8 at 22. In a February 4, 2016 notice, the agency

proposed the appellant’s indefinite suspension based on the suspension of his

access to classified information, pending a final adjudication of his security

clearance. Id. at 20-21. On February 23, 2016, the appellant submitted a written

reply to the notice of proposed indefinite suspension, and on April 12, 2016, he

provided an oral reply. Id. at 17, 29-55. On April 20, 2016, the agency issued a

decision indefinitely suspending the appellant, effective on April 23, 2016. Id.

at 17-19.

¶4 The appellant timely filed an appeal to the Board in which he argued that

the suspension did not promote the efficiency of the service and that the penalty

was excessive, and he asserted affirmative defenses of age discrimination,

harmful procedural error, retaliation for participation in protected activity, due

process defects, res judicata, collateral estoppel, and laches. IAF, Tab 1

at 1, 8-28. Prior to the hearing held in this matter, the administrative judge ruled

that the appellant’s age and disability discrimination claims were “inextricably

intertwined” with the merits of the agency’s security access determination and

could not be adjudicated in the instant proceeding. IAF, Tab 29 at 4. The

administrative judge also ruled that, to the extent the appellant was arguing that

the notice proposing the indefinite suspension was defective because it did not

inform him of any misconduct and that his access to classified information was

suspended in retaliation for filing a grievance, those issues pertained to the

agency’s decision to suspend the appellant’s access to classified information and

would not be adjudicated in the instant proceeding. Id. at 5-6. Finally, the

administrative judge ruled that the 14-day suspension action the agency took in

2015 was based on separate issues and causes of action from the instant

proceeding; thus, res judicata and collateral estoppel did not apply to the instant

proceeding, nor was the appellant subject to double or excessive punishment. Id.

at 6-7. The administrative judge also notified the appellant of the elements of his

burden to prove harmful procedural error. Id. at 4-5.

¶5 Following a hearing, the administrative judge issued an initial decision

sustaining the agency’s indefinite suspension action. IAF, Tab 31, Initial

Decision (ID). Specifically, the administrative judge found that the agency

proved that the appellant’s position required access to classified information as a

condition of employment, the appellant’s access to classified information was

suspended, and the appellant was afforded the minimum due process required

under 5 U.S.C. § 7513. ID at 2-5. The administrative judge also found that the

appellant did not show that the agency committed harmful procedural error ;

accordingly, he sustained the indefinite suspension. ID at 5 -10.

¶6 The appellant has timely filed a petition for review in which he argues that

(1) the administrative judge erred in finding that the appellant was afforded

minimum due process under 5 U.S.C. § 7513, (2) the administrative judge erred in

interpreting agency regulation SECNAV 5510.30 and finding that the agency did

not violate this regulation or commit harmful procedural error regarding this

regulation, and (3) the administrative judge erred in findi ng agency witnesses

credible. Petition for Review (PFR) File, Tab 1, Tab 4 at 6. The agency has filed

a response opposing the petition, and the appellant has filed a reply. PFR File,

Tabs 3, 4. As set forth below, we find the appellant’s arguments to be without

merit.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 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); Rogers v.

Department of Defense, 122 M.S.P.R. 671, ¶ 5 (2015). An agency may

indefinitely suspend an employee when his access to classified information has

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

122 M.S.P.R. 671, ¶ 5. In such a case, the Board lacks the authority to review the

merits of the decision to suspend an employee’s access to classified information.

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

that review of the merits of a security clearance determination is not within the

Board’s jurisdiction). Rather, the Board retains the authority to review whether

(1) the employee’s position required access to classified information, (2) the

employee’s access to classified information was 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 (citing Hesse v. Department of State, 217 F.3d

1372, 1376 (Fed. Cir. 2000)). In addition, the Board has the authority to review

whether the agency provided the procedural protections required under its own

regulations. 5 U.S.C. § 7701(c)(2)(A); Rogers, 122 M.S.P.R. 671, ¶ 7; see

Romero v. Department of Defense, 527 F.3d 1324, 1329-30 (Fed. Cir. 2008).

Finally, because a tenured Federal employee has a property interest in continued

employment, the Board also has the authority to determine whether the agency

provided the employee with minimum due process in taking the indefinite

suspension action. See Buelna v. Department of Homeland Security,

121 M.S.P.R. 262, ¶¶ 13-15 (2014) (reaffirming the Board’s authority to

determine whether an agency afforded an appellant due process in taking an

adverse action based on a security clearance determination).

¶8 On review, the appellant does not challenge the administrative judge’s

findings that his position required access to classified information and that his

access was suspended. ID at 2-4. We affirm the administrative judge’s findings

that the agency proved the elements of its charge and address the appellant’s

allegations that the agency denied him due process and committed harmful

procedural error and that the administrative judge erred in his credibility findings .

The appellant has not established that the agency did not afford him minimum

due process.

¶9 On review, the appellant argues that he was not afforded minimum due

process under 5 U.S.C. § 7513 because (1) the notice of proposed indefinite

suspension did not contain sufficient notice and an explanation of the charges

against him, (2) he did not receive the interim ROI in sufficient time to analyze it

before his oral reply, (3) he did not receive the final ROI, which the deciding

official relied upon to issue his decision, until after the suspension was effected,

and (4) the deciding official did not have the authority to choose an alternative

penalty to indefinite suspension. PFR File, Tab 1 at 8-12. The initial decision

did not distinguish the appellant’s constitutional right to procedural due process

from the procedural protections provided by statute under 5 U.S.C. § 7513, and

on review, it is unclear whether the appellant is alleging a violation of one or both

sets of rights. 4 ID at 4-5; PFR File, Tab 1 at 8-12. As set forth below, the

appellant’s arguments are without merit under either avenue.

Although 5 U.S.C. § 7513 is inclusive of the due process rights independently

guaranteed under the U.S. Constitution, the inquiry as to whether an agency provided

due process is, in certain respects, a distinct inquiry from whether the agency has

complied with the procedures set forth in section 7513. Buelna, 121 M.S.P.R. 262, ¶ 15

n.6. The right to due process is conferred by constitutional guarantee and is not subject

to the harmful error test. Id.; see Stone v. Federal Deposit Insurance Corporation,

179 F.3d 1368, 1375, 1377 (Fed. Cir. 1999) (explaining that the Federal statutory

employment scheme creates a property interest in continued employment but this

property interest is not defined by, or conditioned on, Congress’ choice of procedures

for deprivation of the interest). Conversely, the procedural protections enumerated in

section 7513 are statutory, and an appellant must show that the agency committed

harmful error in applying its procedures to warrant reversing an action. See Rawls v.

U.S. Postal Service, 94 M.S.P.R. 614, ¶¶ 22-24 (2003) (examining whether the

appellant showed that the agency committed harmful error in effecting the appellant’s

indefinite suspension and removal under 5 U.S.C. § 7513(b)), aff’d, 129 F. App’x 628

(Fed. Cir. 2005); cf. Gargiulo v. Department of Homeland Security, 727 F.3d 1181,

¶10 The essential requirements of constitutional due process for a tenured public

employee are notice of the charges against him, with an explanation of the

evidence, and an opportunity for the employee to present his account of events

prior to the deprivation of his property right to continued employmen t. Cleveland

Board of Education v. Loudermill, 470 U.S. 532, 546-48 (1985). Here, the

agency provided the appellant with the minimum notice, explanation of the

evidence, and opportunity to respond that due process required.

¶11 We find that the agency afforded the appellant sufficient notice and an

explanation of the charges against him. In the context of an indefinite suspension

stemming from the suspension of an employee’s access to classified information,

the only relevant factual disputes that could be raised regarding the charge are

whether the position required access to classified information and whether that

access was suspended. See Buelna, 121 M.S.P.R. 262, ¶ 23. Thus, in this

context, an agency is not obligated as a matter of constitutional due process to

notify the employee of the specific reasons for suspending his access to classified

information. Id., ¶ 25. For the purposes of due process, it is sufficient for an

agency to inform the employee that his position required access to classified

information and that he could no longer hold his position once he had lost access

to classified information. Id. Here, the agency provided the appellant with this

information in the notice of proposed indefinite suspension. IAF, Tab 8 at 20.

¶12 We similarly find that the appellant had an opportunity to respond to the

proposed indefinite suspension prior to its imposition. Due process requires, at a

minimum, that an employee being deprived of his property interest be given “the

opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo,

1186 (Fed. Cir. 2013) (holding that the right to notice of the reasons for suspending an

employee’s access to classified information, when that is the reason for placing an

employee on enforced leave pending a decision on the employee’s security clearance, is

not constitutional but statutorily provided by 5 U.S.C. § 7513(b)).

380 U.S. 545, 552 (1965)). It is undisputed that the appellant had the opportunity

to respond to the deciding official, both in writing and orally, before the

indefinite suspension was imposed; accordingly, we conclude that the appellant

had the opportunity to be heard at a meaningful time. IAF, Tab 8 at 17, 29-55;

Buelna, 121 M.S.P.R. 262, ¶ 21.

¶13 The opportunity to be heard in a meaningful manner in connection with an

adverse action based on the suspension of access to classified information is

limited to “invok[ing] the discretion of a deciding official with authority to

change the outcome of the proposed action to the extent that may have been

feasible.” Id., ¶ 28. The appellant argues that the deciding official did not have

the authority to change his decision based on the deciding official’s testimony

that (1) he had no other option than to suspend the appellant if he found his

position required access to classified information and that access wa s suspended,

and (2) suggested he did not read or consider all of the evidence. 5 PFR File,

Tab 1 at 9-12. We find the appellant’s assertions that the deciding official had

limited authority are unsupported by the record. The deciding official testified

that he had the authority to consider other options and considered the appellant’s

request for relief other than indefinite suspension, but he did not consider

administrative leave a good use of agency resources, and he did not find that

reassignment to other duties usually worked out well. IAF, Tab 30, Hearing

Compact Disc (HCD) (testimony of the deciding official). Due process does not

demand that the deciding official consider alternatives to the proposed adverse

action that are prohibited, impracticable, or outside management’s purview.

Buelna, 121 M.S.P.R. 262, ¶ 27. Here, the record reflects that the deciding

official had the authority to consider and did, in fact, consider the appellant’s

In his reply to the agency’s opposition to the petition for review, the appellant asserts

that he was unable to cite specifically to the hearing record because he and his

representatives were unable to open the hearing compact disc. PFR File, Tab 4

at 7-8, 11. We have reviewed the relevant hearing testimony and do not find support

for the appellant’s characterization of the deciding official’s testimony.

requests and alternative penalties but chose not to impose a lesser penalty. See

HCD (testimony of the deciding official).

¶14 The appellant also argues that the deciding official’s testimony that he did

not know the appellant was working in a nonclassified environment for a period

of time prior to the indefinite suspension and that another individual had

allegedly remained in an unclassified position pending a security clearance

determination as evidence that the deciding official did not read or consider the

appellant’s replies prior to making his decision. PFR File, Tab 1 at 11 -12. Our

review of the record reflects that the deciding official testified that he was not

aware the appellant was placed in a nonclassified position from January to April

2016. HCD (testimony of the deciding official). Even if the appellant provided

the deciding official with this information during his replies, it is not sufficient to

establish that the deciding official did not consider the appellant’s replies and did

not have the authority to impose a different penalty. The deciding official

testified that he considered all of the written documents provided by the appellant

and his oral reply, and he also stated in his April 20, 2016 decision that he

considered the appellant’s written and oral replies. IAF, Tab 8 at 17 ; HCD

(testimony of the deciding official). We do not find the appellant’s work in a

nonclassified position so material to the deciding official’s consideration of the

appellant’s replies as to demonstrate that the deciding official did not consider the

replies. Accordingly, we conclude that the appellant received an opportunity to

invoke the deciding official’s authority to change the o utcome of the indefinite

suspension and has not shown that he was denied due process.

The appellant has not established that the agency failed to provide the appellant

with the procedural protections set forth in 5 U.S.C. § 7513.

¶15 Alternatively, the appellant may establish that the agency failed to provide

him with the procedural protections provided under 5 U.S.C. § 7513, but he has

not made such a showing. An employee cannot be deprived of his interest in

continued employment without the procedural protections provided by 5 U.S.C.

§ 7513(b). 6 King v. Alston, 75 F.3d 657, 661 (Fed. Cir. 1996). The Board will

reverse an indefinite suspension based on the suspension of a security cleara nce if

the appellant shows harmful error in the application of 5 U.S.C. § 7513(b) in

arriving at the decision to impose the suspension. 5 U.S.C. § 7701(c)(2)(A); see

Buelna, 121 M.S.P.R. 262, ¶¶ 33-34; Rawls, 94 M.S.P.R. 614, ¶¶ 22-23. To prove

harmful procedural error, the appellant must show both that the agency committed

procedural error and that the error was harmful. Rogers, 122 M.S.P.R. 671, ¶ 7.

Harmful error cannot be presumed; an agency error is harmful only wh ere the

record shows that the 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. The appellant bears the burden of proving by preponderant

evidence that the agency committed harmful error in reaching its decision.

5 C.F.R. § 1201.56(b)(2)(i)(C), (c)(1).

¶16 On review, the appellant argues that the administrative judge erred in

finding that the appellant received the protections afforded by 5 U.S.C. § 7513

because the notice of proposed indefinite suspension was insufficiently detailed

as to the reasons for the suspension. PFR File, Tab 1 at 8-9. The administrative

judge found that it was sufficient that the notice referenced the

suspension-of-access letter, which referenced the ROI upon which the suspension

Section 7513(b) provides:

An employee against whom an action is proposed is entitled to —

(1) at least 30 days’ advance written notice, unless there is reasonable

cause to believe the employee has committed a crime for which a

sentence of imprisonment may be imposed, stating the specific reasons

for the proposed action;

(2) a reasonable time, but not less than 7 days, to answer orally and in

writing and to furnish affidavits and other documentary evidence in

support of the answer;

(3) be represented by an attorney or other representative; and

(4) a written decision and the specific reasons therefor at the earliest

practicable date.

of access was based, and we agree. ID at 5. Under 5 U.S.C. § 7513(b)(1), an

employee facing an adverse action must be notified of the specific reasons for a

proposed adverse action. Buelna, 121 M.S.P.R. 262, ¶ 25. In the context of an

indefinite suspension based on the suspension of access to classified information,

section 7513(b)(1) requires that the appellant be provided sufficient information

to make an informed reply, including a statement of the reasons for suspending

the access. Id., ¶ 34. Here, the February 4, 2016 notice of proposed indefinite

suspension did not state the reasons for suspending the appellant’s access to

classified information; however, it stated that, “As documented by reference (c),

you received a letter from the NCIS security office suspending your access to

classified information pending a final adjudication of your security clearance,”

and referred to reference (c) as the January 20, 2016 memorandum notifying the

appellant that his access to classified information had been suspended. IAF,

Tab 8 at 20-22. The appellant has not disputed that he received the January 20,

2016 notice. Id. at 22. The January 20, 2016 notice stated that, “Per references

(a) and (b), your access to classified information has been suspended,” and

referred to reference (b) as the ROI. Id. The ROI contained a narrative statement

detailing the allegations leveled against the appellant upon which the

investigation was based, as well as a 9-page investigative report and 19 exhibits

attached to the report. IAF, Tabs 17, 18. The record reflects that the appellant’s

representative in the proposed 45-day suspension action received the interim ROI

by October 2015, and even if the appellant did not receive the ROI at that time

from his representative, he received the ROI 1 week prior to his oral reply to the

proposed indefinite suspension. 7 IAF, Tab 19 at 58; HCD (testimony of the

The appellant claimed that he did not receive the ROI prior to 1 week before his oral

reply in the proposed indefinite suspension action. HCD (testimony of the appellant).

However, the August 19, 2015 proposed 45-day suspension for the appellant referenced

the interim ROI. IAF, Tab 16 at 38-42. The proposing official in the 45-day

suspension action, who was also the proposing official in the indefinite suspension

action, testified that the ROI was an enclosure to the proposal to suspend and that

appellant); PFR File, Tab 1 at 8. Thus, the February 4, 2016 notice of proposed

indefinite suspension directed the appellant, via the January 20, 2016 notice

suspending his access to classified information, to a statement in the ROI of the

reasons for suspending his access to classified information that was sufficiently

detailed for the appellant to make an informed reply. See Buelna, 121 M.S.P.R.

262, ¶ 34 (concluding that the notice suspending the appellant’s security

clearance, coupled with the notice proposing his indefinite suspension, adequately

informed him of the basis for suspending his security clearance).

¶17 The appellant also argues that his receipt of the interim ROI after his

written reply and 1 week prior to his oral reply to the proposed indefinite

suspension provided an insufficient amount of time to analyze the interi m ROI.

PFR File, Tab 1 at 8-10. He does not contend that he was unable to review the

ROI during that time period. Although the record reflects that the appellant’s

first representative received the interim ROI in October 2015, even if the

appellant did not receive the ROI until 1 week before the oral reply to the

proposed indefinite suspension, we nevertheless find that receipt of the interim

ROI 1 week prior to the oral reply was a reasonable amount of time for the

appellant to review it and make an informed reply. See 5 U.S.C. § 7513(b)(2)

(providing for a reasonable amount of time, but no less than 7 days, to answer

orally and in writing).

¶18 Finally, the appellant argues that it was error that he did not receive the

final ROI until after the decision to impose the indefinite suspension was issued

because the deciding official relied upon it in issuing the decision. PFR File,

Tab 1 at 8. As the only information material to an agency’s charge involving the

suspension of access to classified information is whether the employee’s position

although he did not personally deliver the proposal and enclosures to the appellant, he

provides them to his staff to provide to the employee. HCD (testimony of the proposing

official). During the appellant’s October 30, 2015 oral reply to the proposed 45-day

suspension, the appellant’s representative acknowledged receiving the August 19, 2015

proposal and materials relied upon. IAF, Tab 19 at 58.

required access to classified information and whether that access was suspended,

there is no evidence that any differences between the interim and final ROI

constituted new and material information regarding the charge. See Buelna,

121 M.S.P.R. 262, ¶ 31. To the extent the deciding official’s penalty

determination was influenced by the factual basis for the underlying suspension

of access to classified information, an appellant is entitled to notice of the

information on which he relied; however, the appellant does not make this

argument, nor does the record reflect that the deciding official considered the

underlying suspension of access to classified information in his choice of penalty.

IAF, Tab 8 at 17-19; HCD (testimony of the deciding official); see Buelna,

121 M.S.P.R. 262, ¶¶ 31-32. Accordingly, we affirm the administrative judge’s

findings that the appellant did not prove that the agency did not provide him with

the procedural protections set forth in 5 U.S.C. § 7513(b).

The appellant has not established that the agency committed harmful procedural

error in applying its regulations.

¶19 On review, the appellant argues that the administrative judge erred in ruling

that referencing the ROI in the notice of proposed indefinite suspension was

sufficient to satisfy agency regulation SECNAV 5510.30 § 9-2(2)(a). PFR File,

Tab 1 at 15-16. He further argues that the agency violated SECNAV 5510.30

because it failed to attach the ROI to the notice of proposed indefinite suspension ,

and he did not receive the interim ROI until 1 week before his oral reply and did

not receive the final ROI until after the suspension was effected. Id. at 12-14.

He contends that the agency’s alleged violation prevented him from responding to

the agency’s specific concerns, and the deciding official would likely have

changed his decision had he done so. Id. at 13-14.

¶20 The Board will reverse an agency decision if the appellant proves harmful

error in the agency’s application of its procedures in arrivin g at such a decision.

5 U.S.C. § 7701(c)(2)(A); Rogers, 122 M.S.P.R. 671, ¶ 7. The agency procedure

at issue, contained in SECNAV M-5510.30 § 9-7(2)(a), provides that whenever a

determination is made to suspend access to classified information, “The

individual concerned must be notified of the determination in writing within

10 days by the commanding officer or designee, to include a brief statement of

the reason(s) for the suspension action consistent with the interests of national

security.” SECNAV M-5510.30 § 9-7(2)(a) (2006), available at

https://usna.edu/Training/_files/documents/References/3C%20MQS%20Reference

s/SECNAV%20Manual%205510.30%20Personnel%20Security%20Program.pdf

(emphasis in the original) (last visited on Apr. 12, 2023). 8 The appellant argues,

as he did below, that the January 20, 2016 notice suspending his access to

classified information did not state the reasons for the suspension action. IAF,

Tab 16 at 9-10; PFR File, Tab 1 at 15-16. The administrative judge found that the

notice indicated that the reason the appellant was suspended was based on the

ROI. ID at 9. We agree with the administrative judge that, however brief, the

January 20, 2016 notice provided a statement of the reason for suspen ding the

appellant’s access to classified information. IAF, Tab 8 at 22.

¶21 The appellant argues that referencing the document on which the suspension

is based, and the agency’s alleged failure to provide the document, is insufficient

to meet the regulation’s requirements; however, the regulation is silent as to

whether such a reference is sufficient. The agency official that issued the

January 20, 2016 notice testified that the January 20, 2016 notice was in

compliance with the agency regulation, and the appellant has not presented any

evidence to rebut the agency’s interpretation of its regulation. HCD (testimony of

the NCIS security manager). Where a governing statute is silent and the

implementing regulations are ambiguous on the issue to be resolved, the

implementing agency’s interpretation of its own regulations is entitled to

The record does not contain a copy of the regulation at issue . The agency’s

prehearing statement cited to an online copy of SECNAV M-5510.30 that is no longer

available. IAF, Tab 20 at 5. The initial decision and petition for review incorrectly

cited the quoted agency regulation as SECNAV M-5510.30 § 9-2(2)(a).

deference when it is reasonable and does not conflict with a governing statute,

even if other interpretations are possible. Phillips v. Department of the Interior,

95 M.S.P.R. 21, ¶ 9 (2003) (citing Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984), and Wassenaar v. Office of

Personnel Management, 21 F.3d 1090, 1092 (Fed. Cir. 1994)), aff’d,

131 F. App’x 709 (Fed. Cir. 2005). We find that the agency’s interpretation is

entitled to deference, particularly in light of our decisions finding that it is

sufficient for the purpose of 5 U.S.C. § 7513(b)(1) for the agency notice setting

forth a proposed adverse action concerning the suspension of access to classified

information to direct the appellant to another document in his possession that sets

forth the specific reasons for the action at issue. See, e.g., Buelna, 121 M.S.P.R.

262, ¶ 34. Accordingly, we do not find that the administrative judge erred in

interpreting SECNAV M-5510.30 § 9-7(2)(a).

¶22 The appellant argues that the agency official that issued the January 20,

2016 notice acknowledged that the notice of suspension of access to classified

information would be defective if the appellant did not have the ROI to which it

referred and that the appellant did not receive the ROI; therefore, the notice was

defective. HCD (testimony of the NCIS security manager); PFR File, Tab 1

at 12-13. The administrative judge did not explicitly make findings as to whether

the January 20, 2016 notice would have been defective if the appellant had not

received the ROI prior to or concurrently with receipt of the notice and whether

the appellant possessed the ROI at the time he received the January 20, 2016

notice. ID at 9-10. As set forth above, the appellant’s first representative

received the interim ROI prior to the issuance of the January 20, 2016 notice.

IAF, Tab 19 at 58. Even if the appellant did not receive the interim ROI from his

first representative and was not in receipt of the ROI at the time he received the

January 20, 2016 notice, we need not determine whether the appellant established

that the agency erred in this regard because the appellant has not established that

any such error would have been harmful. Even if the agency violated its

regulation, the appellant has not established that it would have led the agency to

reach a different conclusion concerning the proposed indefinite suspension. See

Robinson v. Department of the Treasury, 96 M.S.P.R. 600, ¶¶ 11-13 (2004)

(holding that the appellant failed to prove harmful procedural error when she did

not show that the agency’s failure to comply fully with the procedural

requirements of 5 U.S.C. § 7513(b) caused the agency to reach a conclusion

different from the one it would have reached in the absence or cure of the error ),

aff’d, 135 F. App’x 423 (Fed. Cir. 2005). The appellant claims that if he had

known the specific reasons for his suspension, he “would have been able to

structure his appeal to address the specific concerns of the Agency,” including

providing documentation to show he was fit for duty and that he had not

communicated with foreign nationals or had substance abuse issues. PFR File,

Tab 1 at 13-15. Even if the notice of suspension of the appellant’s access to

classified information required more specificity, the appellant nevertheless

received the ROI, which provided the entire basis for the suspension of his access

to classified information, prior to his oral reply to the proposed indefinite

suspension. Id. at 8. Moreover, the appellant’s written reply, submitted prior to

the date on which he allegedly received the ROI, addressed his mental health and

fitness for duty, as well as his disclosure of foreign contacts. IAF, Tab 8

at 30-41. There is no evidence that receiving a more detailed statement of the

reasons for suspending the appellant’s access to classified information or the ROI

at an earlier time would have changed the appellant’s response or the deciding

official’s decision regarding the charge or the penalty. We thus affirm the

administrative judge’s finding that the agency did not commit harmful procedural

error in applying SECNAV M-5510.30 § 9-7(2)(a) to the appellant.

The appellant has not established that the administrative judge erred in finding

agency witnesses credible.

¶23 On review, the appellant argues that the administrative judge erred in

finding agency witness testimony credible. PFR File, Tab 1 at 14-15.

Specifically, the appellant appears to argue that (1) the administrative judge

should not have found the testimony of the agency officials that suspended the

appellant’s access to classified information and proposed the indefinite

suspension credible because they did not know that the appellant never received

the ROI, (2) the administrative judge should not have found the deciding

official’s testimony credible because the testimony suggested that he did not

know material information before making his decision, and (3) the administrative

judge did not take into account testimony that if the appellant did not receive the

ROI, then the notice of indefinite suspension would have been defective. Id.

¶24 The Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002). Although the Board may decline to defer

to an administrative judge’s credibility findings that are abbreviated, based on

improper considerations, or unsupported by the record, Redschlag v. Department

of the Army, 89 M.S.P.R. 589, ¶ 13 (2001), it may not overturn an administrative

judge’s demeanor-based credibility findings merely because it disagrees with

those findings, Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1372

(Fed. Cir. 2016) (quoting Haebe, 288 F.3d at 1299). Although the administrative

judge did not make detailed credibility findings, our review of the relevant

testimony reflects that his findings are supported by the record. Although neither

the proposing official in the proposed indefinite suspension nor the proposing

official in the suspension of the appellant’s access to classified information

directly delivered the ROI, both testified that, to their knowledge, the appellant

had received the ROI and provided the basis of that knowledge. HCD (testimony

of the proposing official, testimony of the NCIS security officer). For example,

the official who proposed the appellant’s indefinite suspension testified that he

provided the ROI to his staff, who had an obligation to provide it to the appellant,

and the official who suspended the appellant’s access to classified information

testified that another official briefed him that the ROI was part of the disciplina ry

action. HCD (testimony of the proposing official, testimony of the NCIS security

officer). The appellant has not disputed the veracity of the agency officials’

testimony regarding the basis of their belief that the appellant received the ROI

and has thus not provided a valid challenge to their credibility. We have

addressed above the appellant’s other two assertions regarding the testimony of

the deciding official and the testimony regarding the deficiencies in the notice

suspending the appellant’s access to classified information and find them without

merit. Accordingly, we deny the appellant’s petition for review and affirm the

initial decision.

NOTICE OF APPEAL RIGHTS 9

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 your case by your chosen forum.

Please read carefully each of the three main possible choices of revi ew

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

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.

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).

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 b y 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, o r 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. 10 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

following address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.