# John Webb v. Department of the Air Force

> Merit Systems Protection Board · May 16, 2024

URL: https://www.frixlaw.com/law-library/cases/9969817

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** May 16, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

0UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JOHN K. WEBB, DOCKET NUMBER
Appellant, AT-0752-16-0540-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
3

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
4

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

2
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.
5

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
6

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

3
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.
7

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
4
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).
5
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.
8

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.
9

(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:
10

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).

6
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.
11

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:
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9969817. Public record. Not legal advice.