Opinion

Christopher Leonard v. Department of Defense

Court: Merit Systems Protection Board
Filed: Apr 23, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTOPHER W. LEONARD, DOCKET NUMBER

Appellant, AT-0752-21-0185-I-1

DEPARTMENT OF DEFENSE, DATE: April 23, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Vicki S. Fuller , Redstone Arsenal, Alabama, for the appellant.

Katherine Yourth , Esquire, Richmond, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

affirmed his indefinite suspension following the interim suspension of his access

to classified information and/or assignment to duties designated national security

sensitive. On petition for review, the appellant argues the following: (1) his

position did not require a security clearance; (2) the agency should have

reassigned him to a nonsensitive position; and (3) the administrative judge failed

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

to address his claims regarding discrimination, equal employment opportunity

(EEO) reprisal, and a hostile work environment. Petition for Review (PFR) File,

Tab 1 at 4-5, Tab 4 at 3. The appellant also references a prior indefinite

suspension imposed by the agency. PFR File, Tab 1 at 5. Generally, we grant

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

contains erroneous findings of material fact; the initial decision is based on an

erroneous interpretation of statute or regulation or the erroneous application of

the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

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 information 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 lacks the authority to review the

merits of the decision to suspend the employee’s access. Id. Instead, the Board

will only review whether (1) the appellant’s position required access to classified

information, (2) his access to classified information was suspended, and (3) he

was provided with the procedural protections specified in 5 U.S.C. § 7513. Id.

The Board will also consider whether the agency provided the appellant with

minimum due process in taking the indefinite suspension action and whether the

agency provided the procedural protections required under its own regulations.

Id.

The appellant challenges the administrative judge’s conclusion that his

position required a security clearance. PFR File, Tab 1 at 5. To this end, he

avers that his position was merely designated noncritical sensitive. Id. The

appellant’s unsubstantiated disagreement with the administrative judge’s

conclusion regarding the requisite security clearance for his position, however,

does not provide a basis to disturb the same. See Riggsbee v. Office of Personnel

Management, 111 M.S.P.R. 129, ¶ 11 (2009) (explaining that an appellant’s mere

disagreement with the administrative judge’s explained factual findings and legal

conclusions therefrom does not provide a basis to disturb the initial decision).

Moreover, the appellant concedes that his position was designated noncritical

sensitive, and the agency’s action here was premised on his suspension from

access “to classified information and/or assignment to duties designated national

security sensitive.” Initial Appeal File (IAF), Tab 4 at 16, 20, 40 (emphasis

added); see Flores v. Department of Defense, 121 M.S.P.R. 287, ¶¶ 4, 8 (2014)

(sustaining a charge based on the denial of eligibility to occupy a sensitive

position when the appellant’s position was designated noncritical sensitive and he

was denied eligibility to occupy a sensitive position). Thus, a different outcome

is not warranted.

The appellant argues that, following the interim suspension of his access to

classified information and/or assignment to duties designated national security

sensitive, the agency should have reassigned him to a nonsensitive position in lieu

of indefinitely suspending him. PFR File, Tab 1 at 5, Tab 4 at 3. To this end, he

asserts that he “believe[s] that [the a]gency ha[s reassigned] other employees who

had security clearance issues.” PFR File, Tab 1 at 5. The Board may consider

whether an agency has a formal policy requiring reassignment and, if so, whether

a position to which an appellant could have been reassigned existed. See

Blagaich v. Department of Transportation, 90 M.S.P.R. 619, ¶ 16 (2001), aff’d,

63 F. App’x 476 (Fed. Cir. 2003). Here, however, the appellant’s apparent belief

that a policy existed does not provide a basis to disturb the administrative judge’s

conclusion, based on witness testimony, that the agency did not have a formal

reassignment policy. IAF, Tab 19, Initial Decision (ID) at 4; see Haebe v.

Department of Justice, 288 F.3d 1288, 1301-02 (Fed. Cir. 2002) (explaining that,

when an administrative judge’s credibility findings are based, explicitly or

implicitly, on the observation of the demeanor of witnesses testifying at a

hearing, the Board may overturn such determinations only when it has

“sufficiently sound” reasons for doing so). Thus, the appellant’s assertion

regarding reassignment is unavailing. 2

The appellant contends that the administrative judge erred by failing to

consider his allegations regarding discrimination, EEO reprisal, and a hostile

work environment. PFR File, Tab 1 at 5, Tab 4 at 3. We disagree. Indeed, as

correctly set forth in the initial decision, ID at 4 n.3, the Board is not permitted to

adjudicate whether an adverse action premised on the revocation of access to

classified information constitutes impermissible discrimination or reprisal,

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

Thus, a different outcome is not warranted.

Last, the appellant references a prior, rescinded suspension action taken by

the agency and seemingly alleges that the agency failed to properly cancel this

prior action before initiating the subject action. PFR File, Tab 1 at 5. This vague

allegation, however, does not provide a basis to disturb the initial decision. See

Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992) (explaining that

a petition for review must contain sufficient specificity to enable the Board to

ascertain whether there is a serious evidentiary challenge and concluding that the

To the extent the appellant argues that the agency’s purported reassignment of other

employees is indicative of disparate treatment, the Board lacks the authority to consider

his argument.

appellant’s petition contained neither evidence nor argument demonstrating error

by the administrative judge).

Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 3

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 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. 420 (2017). If you have a representative in this case,

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

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

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

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

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

§ 7703(b)(1)(B).

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

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