Opinion

John Webb v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: May 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.1%

The opinion

0UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN K. WEBB, DOCKET NUMBER

Appellant, AT-0752-16-0540-I-1

DEPARTMENT OF THE AIR FORCE, DATE: May 16, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

John K. Webb , Pensacola, Florida, pro se.

William Vincent Cochrane and Holly L. Buchanan , Eglin Air Force Base,

Florida, 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

sustained his removal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

The appellant was removed from his position of Computer Scientist,

GS-12, at the 96th Range Control Squadron, at Eglin Air Force Base, Florida.

Initial Appeal File (IAF), Tab 6 at 14. The agency based the action on the

appellant’s failure to meet a condition of his employment—the requirement to

maintain his security clearance. Id. at 26. The record reflects that on

November 20, 2014, the Department of Defense Consolidated Adjudications

Facility (DODCAF) rendered a preliminary decision to revoke the appellant’s

eligibility for access to classified information or employment in sensitive duties.

Id. at 74-75. The appellant was provided with instructions on how to submit a

response, which he did on January 30, 2015. IAF, Tab 15, at 17-64. On June 21,

2015, the DODCAF revoked the appellant’s “eligibility for access to classified

information and/or assignment to duties that have been designated national

security sensitive.” IAF, Tab 6 at 71-72. Although the appellant appealed the

decision to the Personnel Security Appeal Board (PSAB), the PSAB upheld the

revocation on October 16, 2015. Id. at 69-70. The agency proposed the

appellant’s removal on February 25, 2016, and he submitted both a written and an

oral response to the proposal. Id. at 20-28. The deciding official issued a

decision removing the appellant effective April 30, 2016. Id. at 15-19. The

appellant then filed this Board appeal. IAF, Tab 1.

Because the appellant withdrew his request for a hearing, the administrative

judge decided this appeal based on the written record. IAF, Tab 27, Initial

Decision (ID) at 2; IAF, Tab 21 n.1. In her initial decision, the administrative

judge found that the agency demonstrated by preponderant evidence that the

appellant’s Computer Scientist position required him to maintain a Secret level

security clearance. ID at 4; IAF, Tab 6 at 22, 65, Tab 22 at 10, 12. The

administrative judge also found that the record established that the DODCAF

revoked the appellant’s access to classified information and that the PSAB upheld

the revocation. ID at 4; IAF Tab 6 at 69-75; Tab 15 at 66-69. The administrative

judge found further that the agency complied with the procedures required by

5 U.S.C. § 7513(b) when removing the appellant from his position, and that the

agency established the required nexus between its adverse action and the

efficiency of the service. ID at 4. In addition, the administrative judge found no

evidence of a formal agency policy that gives the appellant the right to transfer to

a nonsensitive position, and absent a statute or regulation requiring the agency to

seek out alternative employment, the Board lacks the authority to review whether

an employee’s reassignment to a position not requiring a security clearance would

have been reasonable. ID at 3-4. To the extent the appellant alleged that the

agency discriminated against him on the basis of his age by showing favoritism to

younger employees by helping them keep their security clearances, the

administrative judge found that the Board lacks authority to review this claim

because it would involve an inquiry into the validity of the agency’s reasons for

deciding to revoke the appellant’s access. ID at 4-5. Finally, regarding the

appellant’s claim that the agency failed to follow its own procedural protections

when it did not consider certain documents he provided, the administrative judge

found that because the appellant failed to prove by preponderant evidence that the

agency committed any procedural error that would have resulted in him not being

removed for failure to maintain a requirement of his position, he failed to

establish harmful error. ID at 5-6. Thus, the administrative judge affirmed the

agency’s removal action. ID at 6.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response, and the appellant has filed a reply

to the agency’s response. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

In Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), the U.S.

Supreme Court held that, in an appeal under 5 U.S.C. § 7513 based on the denial

or revocation of a security clearance, the Board lacks authority to review the

substance of the underlying security clearance determination, but may review,

inter alia, whether the employee’s position required a security clearance, whether

the security clearance was revoked, and whether the procedures set forth in

5 U.S.C. § 7513(b) were followed. Here, it is undisputed that the appellant’s

position required a security clearance, that it was revoked, and that the agency

complied with the requirements of 5 U.S.C. § 7513(b) in taking the removal

action.

The U.S. Court of Appeals for the Federal Circuit also has held that,

pursuant to 5 U.S.C. § 7701(c)(2)(C), the Board may review whether an agency

complied with its procedures leading to the adverse action, including its

procedures for revoking a security clearance, provided the Board does not review

the substance of the revocation decision. 2 Romero v. Department of Defense,

527 F.3d 1324, 1328-29 (Fed. Cir. 2008). To prevail with a harmful error

affirmative defense, the appellant must prove by preponderant evidence not only

The Board has further held that, although a security clearance determination does not

implicate any due process concerns, the Board may review whether the agency provided

the procedural due process guaranteed under the Fifth Amendment in taking the

resulting adverse action. Buelna v. Department of Homeland Security , 121 M.S.P.R.

262, ¶ 15 (2014). The appellant has not asserted that the agency denied him

constitutional due process.

that the agency violated its own procedures, but also that the procedural 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. Stephen v. Department of

the Air Force, 47 M.S.P.R. 672, 681, 685 (1991); 5 C.F.R. § 1201.56(c)(1).

Here, the appellant appears to be reasserting that the agency committed

harmful error when it did not consider certain updated documents he provided

concerning his financial situation with his creditors. PFR File, Tab 1 at 17-22.

For instance, he contends that the agency failed to consider documents he

submitted to the agency and that he was prevented from obtaining relevant

documents during the agency’s discovery process. Id. at 11. He also reiterates

that he is a valuable employee and that the deciding official prevented him from

using Air Force Article 8.7 to have his security clearance reinstated. Id. at 11-14.

However, even considering the appellant’s claims that the agency did not

consider all of the documents he provided, we nonetheless lack authority to

review the substance of the security clearance determination, see Romero,

527 F.3d at 1329, and the appellant has not otherwise shown by preponderant

evidence that the alleged error would likely have resulted in him not being

removed for failure to maintain a requirement of his position. Further, the record

establishes that the agency complied with its own internal procedures when it

provided the appellant at least 30 days’ advance written notice of the proposed

action; afforded him a reasonable time, but not less than 7 days, to respond; to

submit an answer; advised him that he had the right to be represented by a

representative of his choice; and provided him with a written decision explaining

the agency’s reasons for its decision to remove him. IAF, Tab 6 at 20-21, 26-28.

The appellant also appears to be reasserting his claim that the agency

committed harmful error because the agency’s decision letter was deceptive and

he “did not have 20 days to get legal representation from AFGE Union.” Id.

at 23. However, as the administrative judge correctly found, the decision letter

informed the appellant that, pursuant to the parties’ collective bargaining

agreement, he had 20 days from the effective date of his removal to file a

grievance. IAF, Tab 6 at 15-17. Furthermore, both the decision letter and the

notice of proposed removal advised the appellant that he had the right to

designate a representative of his choice, including the union, if he so desired. Id.

at 17, 27. Thus, we find no merit to the appellant’s argument.

The appellant further argues that the administrative judge erred in finding

that the Board lacks jurisdiction over his age discrimination claim. PFR File,

Tab 1 at 18-19. He asserts that, because his discrimination claim was against an

official at Eglin Air Force Base and not the DODCAF, his claim should not be

exempt from Board jurisdiction. Id. However, the substance of the appellant’s

discrimination claim is that the official in question exhibited favoritism toward

younger engineers by helping them maintain their security clearances while his

was revoked. Id. at 18. The Board is not permitted to review allegations of

prohibited discrimination relating to an adverse action premised on the

suspension or revocation of a security clearance where doing so would involve a

prohibited inquiry into the validity of the security clearance determination. 3

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

Thus, we find that the administrative judge correctly refrained from reviewing the

appellant’s age discrimination claim.

Finally, the appellant also appears to object to the agency’s failure to

respond to his discovery requests during the Board appeal process. PFR File,

Tab 1 at 24-26. However, the record reflects that the appellant did not timely or

properly file a motion to compel. Further, even though the administrative judge

did not address his discovery argument below or the agency’s assertion that the

The Board has held open the possibility of considering a discrimination claim that

would not require the Board to review the substance of the underlying security

clearance determination, e.g., a claim that solely goes to the issue of penalty and is

based on the agency’s treatment of similarly situated individuals outside of the

appellant’s protected class. See Helms v. Department of the Army, 114 M.S.P.R. 447,

¶ 9 n.* (2010). Here, the appellant’s age discrimination claim implicates the substance

of the underlying security clearance determination, and so it is not reviewable.

appellant’s discovery requests were untimely filed, we discern no resulting harm

because the appellant failed to submit a motion to compel that meets the

requirements of 5 C.F.R. § 1201.73(c)(1). IAF, Tab 25 at 4-5; see Johnson v.

Department of Justice, 104 M.S.P.R. 624, ¶ 30 (2007) (finding that the

administrative judge’s failure to rule on a motion to compel was not harmful

because the motion failed to meet the Board’s regulatory requirements and did not

state how the information in the discovery responses sought was relevant and

material).

In sum, because the appellant held a position that required him to maintain

a security clearance and his clearance was revoked, and because the agency

complied both with the procedural requirements under 5 U.S.C. § 7513 and its

own internal procedures in processing his removal, we find that the administrative

judge correctly sustained the agency’s removal action. 4

NOTICE OF APPEAL RIGHTS 5

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

Absent a statute or regulation requiring the agency to seek out alternative

employment, the Board lacks authority to review whether the appellant’s reassignment

to a position not requiring a security clearance would have been feasible. Griffin v.

Defense Mapping Agency, 864 F.2d 1579, 1580 (Fed. Cir. 1989); see Hornseth v.

Department of the Navy, 916 F.3d 1369, 1374-75 (Fed. Cir. 2019).

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.

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).

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. 6 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).

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.

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