Regina Miles v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

REGINA LORRAINE MILES, DOCKET NUMBER

Appellant, DC-0752-17-0177-I-1

v.

DEPARTMENT OF JUSTICE, DATE: March 11, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Regina Lorraine Miles , Oxon Hill, Maryland, pro se.

Eric S. Daniels and Melanie Russell , Esquire, Washington, D.C., for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

sustained her removal. For the reasons discussed below, we GRANT the

appellant’s petition for review, AFFIRM the administrative judge’s findings that

the appellant’s position required a security clearance, the clearance was revoked,

and the appellant received the procedural protections specified in 5 U.S.C.

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

§ 7513, MODIFY the initial decision to clarify the administrative judge’s analysis

of the appellant’s due process claim and to address her claims of reprisal and

bias, and REMAND this case to the Office of Regional Operations for further

adjudication of the appellant’s affirmative defense of harmful error.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant served as an Investigative Analyst with INTERPOL

Washington. Initial Appeal File (IAF), Tab 10 at 4-10. The Investigative Analyst

position description specified that it was a critical-sensitive position (level 3),

requiring that the appellant maintain access to classified National Security

Information (NSI) and eligibility for a top secret clearance subject to background

reinvestigations every 5 years. IAF, Tab 13 at 8, 19, Tab 14 at 31-32. On

September 19, 2016, the agency’s Department Security Officer revoked the

appellant’s access to classified NSI after she failed to complete the forms

required to initiate her 5-year security reinvestigation. IAF, Tab 12 at 10, Tab 14

at 4-5, Tab 41, Initial Decision (ID) at 2. In the letter of revocation, the agency

provided the appellant with the following information: (1) her procedural options

under Executive Order 12,968 of August 2, 1995, as amended; 2 (2) how to request

reconsideration of the revocation decision; (3) her right to appeal an unfavorable

reconsideration decision to the agency’s Office of Inspector General (OIG) if she

believed that the action affecting her NSI access was taken in reprisal for making

a protected disclosure under Presidential Policy Directive 19 (Oct. 19, 2012)

(PPD-19); 3 and (4) her right to appeal the revocation decision to the agency’s

Access Review Committee (ARC). IAF, Tab 14 at 4-5. On November 7, 2016,

2

Executive Order 12,968 establishes standards for access to classified information and

the review procedures for revocations of eligibility. See Doe v. Department of Justice,

118 M.S.P.R. 434, ¶¶ 26-28 (2012).

3

PPD-19 provides protection for whistleblowers with access to classified information

and requires the intelligence community to develop and implement procedures to

protect employees from whistleblower retaliation. See Van Lancker v. Department of

Justice, 119 M.S.P.R. 514, ¶ 12 n.1 (2013).

3

the Department Security Officer denied the appellant’s request for

reconsideration of his decision revoking her access to NSI and advised the

appellant of her right to ARC review. IAF, Tab 26 at 9-12.

Based on the revocation of the appellant’s access to classified NSI, the

agency proposed to remove her for the charge of failure to maintain a

qualification of her position. IAF, Tab 11 at 4-6. The appellant submitted a

written response to the agency’s proposal. IAF, Tab 10 at 14-15. The deciding

official sustained the charge and the removal action, effective November 17,

2016. Id. at 10-13. This appeal followed. 4 IAF, Tab 1.

On appeal, the appellant made the following allegations: (1) she never

processed top secret or classified information at INTERPOL Washington; (2) the

agency violated “Federal removal protocols”; and (3) the agency retaliated

against her for her prior whistleblowing and equal employment opportunity

(EEO) activity. IAF, Tab 1 at 5, Tab 39 at 11, 15. She also raised an affirmative

defense of harmful error, claiming that the agency violated Executive

Order 12,968, PPD-19, agency Human Resources (HR) Order 1200.1 (pertaining

to disciplinary and adverse actions of agency employees), agency Order 2610.2B

(setting forth responsibilities under the agency employment security program),

and several agency regulations during the security clearance revocation and

subsequent removal process. IAF, Tab 14 at 14-28, Tab 28 at 6-7, Tab 39 at 4-15.

The appellant waived her right to a hearing, and the administrative judge

issued a decision based on the written record affirming the agency’s removal

action. ID at 2; IAF, Tab 1 at 2. He found that the appellant’s position required

her to have a top secret security clearance and access to NSI, the agency revoked

4

The appellant elected to voluntarily retire on the effective date of her removal. IAF,

Tab 10 at 4. On appeal, the administrative judge properly found that the Board retained

jurisdiction over the agency’s removal action despite the appellant’s retirement. ID

at 1 n.1; see Mays v. Department of Transportation , 27 F.3d 1577, 1579-80 (Fed. Cir.

1994) (holding that the Board retains jurisdiction over an appeal if an employee retires

when faced with an agency’s final decision to remove her); Krawchuk v. Department of

Veterans Affairs, 94 M.S.P.R. 641, ¶ 6 (2003) (same).

4

her access to NSI, the agency afforded her the procedural protections specified in

5 U.S.C. § 7513, and the agency provided her with minimum due process in

revoking her NSI access and in the removal action. 5 ID at 2-4. The

administrative judge did not address the appellant’s affirmative defenses alleging

that the agency engaged in reprisal and harmful error in applying its security

clearance regulations.

The appellant has filed a petition for review disputing the administrative

judge’s finding that her position required top secret clearance and access to

classified NSI. Petition for Review (PFR) File, Tab 1 at 9, 12. She challenges

the administrative judge’s finding that the agency provided her with due process

in revoking her NSI access and in the removal proceedings, and she reasserts the

affirmative defenses that she raised on appeal. Id. at 6-10; IAF, Tab 1 at 5,

Tab 39 at 11-12, 15. The appellant also reasserts arguments she made on appeal,

challenging the agency’s penalty determination and raising a claim of bias against

the administrative judge. 6 PFR File, Tab 1 at 7, 9; IAF, Tab 39 at 13, 87. The

agency has responded in opposition to her petition. PFR File, Tab 5.

The administrative judge properly found that the appellant’s position required a

security clearance, the clearance was revoked, and the appellant received the

procedural protections specified in 5 U.S.C. § 7513.

As properly noted by the administrative judge, in an appeal of a removal

action under chapter 75 based on the revocation of a security clearance, the Board

5

During the pendency of her appeal, the appellant filed a request to stay the removal

and the proceedings on her Board appeal. IAF, Tab 25. The appellant argued that a

stay would allow her to exhaust her “DOJ Appeal Rights as a Whistleblower” and

pursuant to Executive Order 12,968 and any other laws and protections, contending that

the results of the Department of Justice appeal process might make her Board appeal

unnecessary. Id. at 4. The administrative judge denied her request. IAF, Tab 27.

6

The appellant also suggests that the Board should grant her petition for review because

the agency did not state in its e-Appeal Online filings that it had personal knowledge of

its pleadings. PFR File, Tab 1 at 9. We disagree. The statements of a party’s

representative in a pleading generally do not constitute evidence, and the appellant does

not explain how the alleged error affected the outcome of her appeal. See, e.g.,

Brown v. Department of Interior, 86 M.S.P.R. 546, ¶ 16 (2000).

5

may not review the merits of the underlying clearance determination. ID at 2; see

Flores v. Department of Defense, 121 M.S.P.R. 287, ¶¶ 7-8 (2014). Rather, the

Board only has the authority to review whether the following conditions were

met: (1) the appellant’s position required a security clearance; (2) the clearance

was denied, revoked, or suspended; and (3) the appellant was provided with the

procedural protections specified in 5 U.S.C. § 7513. 7 Ulep v. Department of the

Army, 120 M.S.P.R. 579, ¶ 4 (2014). For the reasons stated below, we agree with

the administrative judge that the agency met these standards.

The administrative judge found it undisputed that the appellant’s

Investigative Analyst position required a top secret clearance and access to

classified NSI. 8 On review, the appellant disputes this finding but submits no

evidence to support her argument. PFR File, Tab 1 at 9. The appellant asserts

that she raised this issue below, but she provides no citation to the record. Id.

Moreover, the record reflects that the appellant’s Investigative Analyst position

with INTERPOL Washington was designated as a critical-sensitive position

(level 3), which required her to maintain a top secret clearance and eligibility to

access classified information. IAF, Tab 13 at 8, 10, 19, Tab 14 at 31-32. We

reject as unproven the appellant’s argument to the contrary.

Moreover, to the extent that the appellant reasserts the argument she made

on appeal disputing the agency’s action designating her former position as

critical-sensitive requiring top secret clearance eligibility and NSI access, the

Board lacks authority to determine whether the agency properly designated the

position. PFR File, Tab 1 at 9, 12-13; IAF, Tab 39 at 10; see Doe v. Department

7

The Board also may consider whether the appellant’s transfer to a nonsensitive

position was feasible but only when an agency policy statement or regulation provides

the appellant with a substantive right to such a reassignment. See Rogers v. Department

of Defense, 122 M.S.P.R. 671, ¶ 14 (2015). The administrative judge found it

undisputed that the agency had no such policy, and the appellant does not contest this

finding on review. ID at 3 n.2.

8

NSI is synonymous with classified information. Grimes v. Department of Justice,

122 M.S.P.R. 36, ¶ 2 n.1 (2014) (citing Exec. Order No. 13,526, § 6.1(i) (2009)).

6

of Justice, 118 M.S.P.R. 434, ¶ 17 (2012) (finding that the Board lacks authority

to determine whether an agency’s designation of a position was proper ) .

Finally, the undisputed record reflects that the agency followed the

procedural requirements of 5 U.S.C. § 7513, by providing the appellant with at

least 30 days’ advance written notice of the proposed adverse action; 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 her answer; to be

represented by an attorney or other representative; and a written decision giving

the specific reasons for the agency’s action. ID at 3-4; IAF, Tab 10 at 10-15,

Tab 11 at 4-5. Accordingly, we agree with the administrative judge’s findings in

this regard. ID at 3-4.

We affirm the administrative judge’s finding that the agency did not violate the

appellant’s right to due process, as modified herein.

The administrative judge found that the agency afforded the appellant due

process protections by providing her with notice of the proposed security

clearance revocation and an opportunity to respond. ID at 4. The appellant

disputes this finding on review, alleging that the agency denied her due process

rights under Executive Order 12,968 and PPD-19 in revoking her NSI access.

PFR File, Tab 1 at 6, 8-10. We disagree but nonetheless modify the

administrative judge’s reasoning on the alleged due process violation. In the

initial decision, the administrative judge found that the minimum due process to

be afforded the appellant here included advance notice of the reasons for revoking

her access to classified NSI and a meaningful opportunity to respond. ID at 4.

Our reviewing court, however, has clarified that, because an employee has no

property interest in a security clearance, an agency is not obliged as a matter of

constitutional due process to notify the employee of the specific reasons for

revoking her clearance. See Gargiulo v. Department of Homeland Security,

727 F.3d 1181, 1185-86 (Fed. Cir. 2013); see Buelna v. Department of Homeland

Security, 121 M.S.P.R. 262, ¶ 25 (2014). Rather, for purposes of due process, it

7

is sufficient for an agency to inform the employee in the proposed removal that

her position required a security clearance and that she cannot retain her position

after she loses her clearance. See Buelna, 121 M.S.P.R. 262, ¶ 25. Contrary to

the appellant’s arguments on review, the record reflects that the agency provided

her with this information. PFR File, Tab 1 at 12, Tab 10 at 10-11, Tab 11 at 4-5;

IAF, Tab 12 at 6-10.

On review, the appellant also reasserts her argument that the agency did not

afford her due process right to “a meaningful opportunity to invoke the discretion

of a deciding official with the authority to select an alternative outcome.” PFR

File, Tab 1 at 6; IAF, Tab 39 at 14. In support of her argument, the appellant

reasserts the claim she made on appeal that INTERPOL Washington could have

contacted the Office of Personnel Management (OPM) to determine if her

security reinvestigation was necessary and allowed her to continue working

because she was less than 1 year from retirement. PFR File, Tab 1 at 6, 10; IAF,

Tab 39 at 13. She also makes a claim of bias against the deciding official. PFR

File, Tab 1 at 10. For the reasons discussed below, we find that the agency

provided the appellant with minimal due process.

An employee has a due process right to notice of the grounds in support of

the adverse action and a meaningful opportunity to invoke the discretion of a

deciding official with the authority to select an alternative outcome, to the extent

that an alternative penalty may have been feasible. Grimes v. Department of

Justice, 122 M.S.P.R. 36, ¶ 8 (2014). We affirm the administrative judge’s

finding that the agency provided the appellant with minimal due process because

the record reflects that the deciding official determined that her removal was

warranted after considering the appellant’s arguments in response to the notice of

proposed removal and providing her with notice of the grounds in support of her

removal. 9 IAF, Tab 10 at 10-13, Tab 11 at 4-7; see Grimes, 122 M.S.P.R. 36, ¶ 8

9

Although unclear, the appellant may be arguing that the administrative judge or the

deciding official in her removal action was required to consider mitigating factors such

as her pending retirement date. PFR File, Tab 1 at 6-7, 10; IAF, Tab 39 at 13. We

8

(finding no due process error when the deciding official considered and rejected

the arguments the appellant raised in her reply to the proposed removal).

On review, the appellant cites the Board’s decision in Ryan v. Department

of Homeland Security, 121 M.S.P.R. 460 (2014), to support her argument that she

was denied her due process right to have a meaningful opportunity to invoke the

discretion of the deciding official because the agency did not pursue alternatives

to removal. PFR File, Tab 1 at 10. However, the Board held in Ryan that it had

no authority to review whether an employee should have been reassigned instead

of subjected to an adverse action, absent a statute, regulation, or policy mandating

the transfer or reassignment of an employee who is denied a security clearance.

Ryan, 121 M.S.P.R. 460, ¶¶ 6, 8, overruled on other grounds by Freeze v.

Department of the Navy, 122 M.S.P.R. 179, ¶ 11 n.2 (2015). Because the

appellant does not contest the administrative judge’s finding that the agency did

not have a policy requiring her transfer or reassignment, the Board has no

authority to consider these alternatives. ID at 3 n.2.

On review, the appellant also appears to argue that the deciding official in

the removal action was biased to the extent that his selection violated due

process. PFR File, Tab 1 at 8, 10-11. An employee has a due process right to

have an unbiased decision maker adjudicate her case. Holton v. Department of

the Navy, 123 M.S.P.R. 688, ¶ 30 (2016), aff’d, 884 F.3d 1142 (Fed. Cir. 2018).

To establish a due process violation based on the identity of a deciding official,

an appellant must assert a specific allegation indicating that the agency’s choice

of deciding official made the risk of unfairness to the appellant intolerably high.

Id. For the reasons discussed below, we find that the appellant has not met that

burden here.

disagree because mitigation is not appropriate in this type of case. See Doe,

118 M.S.P.R. 434, ¶ 41 (finding mitigation inappropriate in a removal action based on

the appellant’s failure to maintain a qualification of his position requiring him to have

access to classified information).

9

To support her claim of bias, the appellant argues that the deciding official

in this removal action, and all of the agency officials who wanted to remove her,

were individuals alleged to have engaged in discriminatory conduct in her past

EEO complaints. PFR File, Tab 1 at 8, 10-12; IAF, Tab 39 at 14-15. However,

we find that the agency’s choice of a deciding official did not make the risk of

unfairness to the appellant intolerably high considering that she was required to

maintain access to classified NSI as a qualification of her position, her proposed

removal was based on her failure to maintain that qualification of her position,

and she does not dispute that access was revoked. See Robinson v. Department of

Homeland Security, 498 F.3d 1361, 1365 (Fed. Cir. 2007) (finding that the

absence of a properly authorized security clearance is fatal in a removal action

based on failure to maintain the security clearance required by the job

description). Accordingly, we are not persuaded by the appellant’s arguments

that the agency violated her due process rights.

We remand this appeal for the administrative judge to adjudicate the appellant’s

affirmative defense of harmful error.

Separate from constitutional due process, the Board has the authority under

5 U.S.C. § 7701(c)(2)(A) to review whether an agency taking an adverse action

complied with required procedural protections for security clearance

determinations, including those set forth in an agency’s own regulations.

Rogers v. Department of Defense, 122 M.S.P.R. 671, ¶¶ 6-7 (2015). The Board

will reverse an adverse action based on revoking a security clearance if an

appellant is able to prove harmful error. Buelna, 121 M.S.P.R. 262, ¶ 33;

5 C.F.R. § 1201.56(c)(1). To do so, an appellant must prove that the agency

committed an error in applying its procedures that is 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. Buelna, 121 M.S.P.R. 262, ¶ 33; 5 C.F.R.

§ 1201.4(r).

10

On appeal, the pro se appellant raised an affirmative defense of harmful

error alleging that the agency failed to follow Executive Order 12,968, PPD-19,

agency HR Order 1200.1, agency Order 2610.2B, and several regulations during

its processing of her security clearance revocation and the resulting removal

action, and she reasserts this affirmative defense on review. Specifically, the

appellant asserts that she never signed her nondisclosure agreement reflecting that

her position requires a security clearance in accordance with agency Order

2610.2B, that the agency never conducted an evaluation of the risk level of her

position in violation of OPM regulations, and that the agency violated Executive

Order 12,968 by failing to provide her with the documents underlying her security

clearance revocation; violated agency regulations by reinvestigating her security

clearance; did not conduct an investigation as required by PPD-19 and Executive

Order 12,968; failed to provide her adequate appeal rights under HR Order

1200.1; violated OPM regulations by failing to evaluate the risk level of her

position; and violated agency regulations by removing her before the decision on

her security clearance was final. 10 IAF, Tab 14 at 4, Tab 28 at 4-7, Tab 39 at 4-9,

12-15; PFR File, Tab 1 at 6-10.

Despite these arguments, the administrative judge did not identify the

appellant’s harmful error claim as an issue for adjudication, and there is no

indication that the appellant was informed of the means for proving this

affirmative defense by the administrative judge or in the agency’s pleadings. See

Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008) (finding that a

deficiency in notice can be cured if the agency’s pleadings contain the notice that

was lacking in the acknowledgment order or the initial decision puts the appellant

10

The appellant also alleges that the agency violated HR Order 1200.1 when it failed to

remove a letter of reprimand from her personnel file after her removal. IAF, Tab 28

at 7. Because this allegation concerns the agency’s post-removal activity, it cannot

form the basis for a harmful error claim here. See Schnedar v. Department of the Air

Force, 120 M.S.P.R. 516, ¶ 8 (2014) (explaining that the Board may not sustain an

adverse action if the employee can show harmful error in the application of the agency’s

procedures for revoking a security clearance or for taking an adverse action based on

such revocation).

11

on notice of her burden, thus giving her the opportunity to meet her burden on

review).

The Board consistently has required administrative judges to apprise

appellants of the applicable burdens of proving a particular affirmative defense,

as well as the kind of evidence required to meet those burdens. See Thurman v.

U.S. Postal Service, 2022 MSPB 21, ¶ 17 & n.7. Further, nothing in the record

reflects that the appellant abandoned or withdrew her harmful error claim. Id.,

¶¶ 17-18 (setting forth the standard for determining whether an appellant

abandoned an affirmative defense). Accordingly, we find that the administrative

judge should have informed the appellant of the burdens of proving her

affirmative defense and this claim must be remanded.

The Board has no authority to consider the appellant’s affirmative defenses of

whistleblower reprisal and reprisal for prior EEO complaints.

On review, the appellant reasserts the affirmative defenses that she raised

on appeal alleging whistleblower reprisal and reprisal for prior EEO complaints.

PFR File, Tab 2 at 6-10; IAF, Tab 39 at 15. The administrative judge did not

address these issues in the initial decision, but this error did not prejudice the

appellant’s substantive rights because the Board cannot adjudicate an affirmative

defense that would require it to assess the merits of a security clearance

determination. 11 See Doe v. Department of Justice, 121 M.S.P.R. 596, ¶ 10

(2014); see generally Gargiulo, 727 F.3d at 1187 (finding that the Board has no

authority to consider whether an agency has reasonable grounds for revoking an

employee’s security clearance). To the extent that the Board might have limited

authority to adjudicate a claim of reprisal that goes solely to the issue of penalty,

11

In this regard, we find the appellant’s argument that the agency failed to notify her of

her mixed-case appeal rights without merit, as the agency provided her with mixed-case

appeal rights in the removal decision letter. IAF, Tab 10 at 11-12. In any event, as

explained above, the Board does not have the authority to adjudicate her affirmative

defenses. See Doe, 121 M.S.P.R. 596, ¶ 10.

12

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

find that the appellant’s claims are not of that nature.

The appellant has not proven bias by the administrative judge.

On review, the appellant raises a claim of bias against the administrative

judge. PFR File, Tab 1 at 9. In making a claim of bias or prejudice against an

administrative judge, a party must overcome the presumption of honesty and

integrity that accompanies administrative adjudicators. Tyler v. U.S. Postal

Service, 90 M.S.P.R. 545, ¶ 6 (2002). For the reasons discussed below, we find

that the appellant has not met that burden here.

The appellant alleges that the administrative judge “informed [her] that the

[a]gency would prevail” on appeal before the appellant had the opportunity to

respond to the removal decision. PFR File, Tab 1 at 9. She asserts that the

administrative judge raised his voice to her in response to her “obvious

confusion” about the Board’s jurisdiction in security clearance cases involving

whistleblowers. Id. She also asserts that the administrative judge rejected her

request to stay the proceedings on appeal to exhaust her “DOJ Appeal Rights,”

although she only filed a Board appeal out of fear that she would lose the

opportunity to file it in the future. Id.

We reject as unproven the appellant’s claim of bias because the appellant

has not shown that the administrative judge’s comments or actions during the

course of the Board proceedings evidence “a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Bieber v. Department of

the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United

States, 510 U.S. 540, 555 (1994)). Although the administrative judge may have

become somewhat abrupt and impatient with the appellant, such conduct did not

establish bias. Tyler, 90 M.S.P.R. 545, ¶ 8. Moreover, the fact that the

administrative judge denied her request for a stay does not prove bias. Id., ¶ 6

(finding the fact that an administrative judge ruled against a party is insufficient

evidence to show bias).

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ORDER

For the reasons discussed above, we remand this case to the Office of

Regional Operations for further adjudication of the appellant’s affirmative

defense of harmful error in accordance with this Remand Order. On remand, the

administrative judge shall apprise the appellant of her burden and the elements of

proof regarding her harmful error claim and afford the parties an opportunity to

develop the record by submitting evidence and argument on this issue.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.