Opinion

Kip Brailey v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Apr 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KIP BRAILEY, DOCKET NUMBER

Appellant, DC-0752-19-0391-I-1

DEPARTMENT OF THE TREASURY, DATE: April 26, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

William A. Lichtenfels , Esquire, Guilford, Connecticut, for the appellant.

Joseph Capone , Cynthia Clark , and Phillip John Dickerson , Esquire,

Vienna, Virginia, for the agency.

Adrienne F. Boone , Washington, D.C., 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 the agency’s indefinite suspension action based on his failure to

maintain eligibility to access classified information and to maintain a security

clearance. Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

For the reasons provided in the initial decision, we agree with the

administrative judge’s finding that the appellant received sufficient notice under

5 U.S.C. § 7513(b) to be able to make a meaningful response to the underlying

suspension of his security clearance and access to classified information. Initial

Appeal File (IAF), Tab 33, Initial Decision (ID) at 11-13. In particular, she

found that the agency informed the appellant that the suspension of his security

clearance and access to classified information was based on his alleged conduct in

the workplace that led to his removal from duty and placement on administrative

leave. Id. She further found that the nature of his alleged conduct was clear to

him based on his awareness of a detailed search warrant that was executed against

him at the workplace and a newspaper article discussing an ongoing investigation

related to his employment. Id.

On petition for review, the appellant challenges the administrative judge’s

finding that he received sufficient notice under 5 U.S.C. § 7513(b) by raising the

following arguments: (1) the agency’s notices regarding the suspension of his

access to classified information and his indefinite suspension did not mention any

investigation, complaint, warrant, or newspaper articles; (2) the search warrant

did not contain any detailed information regarding his alleged conduct; and

(3) the administrative judge mischaracterized the nature of his attorney’s

comments in a newspaper article. Petition for Review (PFR) File, Tab 1 at 6-7,

11-13. 2 In addition, he relies on Cheney v. Department of Justice, 479 F.3d 1343,

1352-53 (Fed. Cir. 2007), in which our reviewing court found that the employee

was not provided with the opportunity to make a meaningful response to the

notice of proposed indefinite suspension when he had to guess at the reasons for

his security clearance suspension. PFR File, Tab 1 at 9-10.

After considering the appellant’s arguments and reviewing the record, we

discern no basis to disturb the administrative judge’s well-reasoned findings.

Specifically, the record reflects that the search warrant included an attachment

specifying the nature and time period of the appellant’s allegedly unlawful

conduct in the workplace. IAF, Tab 14 at 14-19. Further, the appellant has failed

to provide a reason to disturb the administrative judge’s finding that his

testimony that he did not recall receiving a search warrant or being made aware of

one lacks credibility. ID at 12; see Crosby v. U.S. Postal Service, 74 M.S.P.R.

98, 106 (1997) (finding no reason to disturb the administrative judge’s credibility

findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions). Moreover, the appellant does not

dispute that the agency provided his attorney with a copy of the search warrant

with the notice of proposed indefinite suspension and that his attorney referenced

the warrant in his written reply to the proposed action. ID at 6, 12; IAF, Tab 5

at 37, 39. In addition, we find that any mischaracterization of his attorney’s

comments in the newspaper article is immaterial because it does not provide a

reason to disturb the administrative judge’s finding that the appellant was aware

of the ongoing investigation related to his employment after reading the article.

With his petition for review, the appellant has included a copy of the hearing

transcript that already is a part of the record before the administrative judge. PFR File,

Tab 1 at 17-157; IAF, Hearing Transcript.

ID at 5, 13; IAF, Tab 14 at 49-53. Therefore, unlike in Cheney, we find that the

appellant here did not have to guess at the reasons for his security clearance

suspension.

Further, the appellant generally asserts on review that the Board denied him

the ability to obtain information about the basis of his suspension through

discovery, citing Mason v. Department of the Navy, 70 M.S.P.R. 584 (1996).

PFR File, Tab 1 at 14. Unlike in Mason, 70 M.S.P.R. at 587-88, the agency here

provided specific information prior to the hearing regarding the appellant’s

alleged conduct that led to the suspension of his security clearance and access to

classified information. IAF, Tab 14 at 10-55. Although the appellant

subsequently filed a renewed motion to compel to depose two agency witnesses,

IAF, Tab 18 at 4-6, the administrative judge stated in the Order and Summary of

Prehearing Conference that the parties were able to resolve the motion to compel

and that they arrived at stipulations prior to the prehearing conference, IAF,

Tab 20 at 2. Moreover, the appellant did not object to the contents of such

summary prior to the start of the hearing despite being informed that he could do

so. Id. at 5; IAF, Hearing Transcript at 5-8. Therefore, we find that the

appellant’s argument regarding discovery is unavailing.

Finally, the appellant argues that the administrative judge failed to consider

his past work record. PFR File, Tab 1 at 5-6. In Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board recognized that an

employee’s past work record is one of 12 nonexhaustive factors that are relevant

for consideration in determining the appropriateness of an imposed penalty for

alleged misconduct. For the reasons provided in the initial decision, we agree

with the administrative judge’s finding that the Douglas factors do not apply to

this case. ID at 14; see Munoz v. Department of Homeland Security,

121 M.S.P.R. 483, ¶¶ 15-16 (2014). Thus, we discern no error in the

administrative judge’s failure to consider the appellant’s past work record.

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