Petition for Writ of Certiorari — Jiping Rizk, Petitioner v. Defense Finance and Accounting Service

Case: 2:18-cv-00575-ALM-KAJ Doc #: 29 Filed: 12/03/19 Page: 1 of 2 PAGEID #: 110

(8

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JIPING RIZK,

Case No. 2:18-cv-00575

Plaintiff,

JUDGE ALGENON L. MARBLEY

v.

Magistrate Judge Jolson

DEPARTMENT OF DFAS,

Defendant.

ORDER

I. INTRODUCTION

This matter is before the Court on Plaintiff Jiping Rizk’s Motion to Proceed on Appeal In

Forma Pauperis. (Doc. 26.) For the reasons that follow, the Court CERTIFIES, pursuant to

Federal Rule of Appellate Procedure 24(a)(2) and 28 U.S.C. § 1915(a)(3), that an appeal of the

above-captioned action cannot be taken in good faith. Accordingly, the Court DENIES Plaintiff s

Motion [#26].

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II. ANALYSIS

Federal Rule of Appellate Procedure 24(a)(2) provides that if a district court denies a

motion to proceed on appeal in forma pauperis, then “it must state its reasons in writing.” Fed. R.

App. P. 24(a)(2). 28 U.S.C. § 1915(a)(3), in turn, states that “[a]n appeal may not be taken in

forma pauperis if the trial court certifies that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3).

An appeal is not taken in good faith “if the issue presented is frivolous.” Smith v. ABN AMRO

Mortg. Grp., Inc., 2008 WL 11351578, at *2 (S.D. Ohio Dec. 11, 2008).

1

APfflHPlX A

Case: 2:18-cv-00575-ALM-KAJ Doc #: 29 Filed: 12/03/19 Page: 2 of 2 PAGEID #: 111

Plaintiff initiated this action against her former employer -- Defendant United States

Department of Defense, Finance, and Accounting Service — after Defendant revoked her security

clearance and terminated her employment. The Court, however, dismissed Plaintiffs Complaint,

finding that executive decisions regarding security clearances are generally immune from judicial

scrutiny. (See Doc. 22 at 2-3.) Because Plaintiff did not allege that her constitutional rights were

violated or that Defendant failed to follow its own regulations in the process of revoking her

security clearance, the Court held that Plaintiff failed to state a claim upon which relief could be

granted. See Tenenbaum v. Caldera, 45 F. App’x 416, 418 (6th Cir. 2002) (“Executive decisions

regarding security clearance are not completely immune from scrutiny. Judicial review may be

appropriate, for example, where the plaintiff alleges a violation of constitutional rights .... Courts

may also be permitted to hear cases in which an agency violates its own regulations in the process

of revoking a security clearance.”). The Court concludes that any appeal of this decision would

be frivolous, and thus, not taken in good faith.

III. CONCLUSION

For the reasons stated herein, the Court CERTIFIES that any appeal of the abovecaptioned action would not be taken in good faith. Accordingly, the Court DENIES Plaintiffs

Motion to Proceed on Appeal In Forma Pauperis [#26].

IT IS SO ORDERED.

Is/ Algenon L. Marblev

ALGENON L. MARBLEY

CHIEF UNITED STATES DISTRICT JUDGE

DATED: December 3, 2019

2

No. 19-4110

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JIPING RIZK,

Plaintiff-Appellant,

v.

DEFENSE FINANCE AND ACCOUNTING

SERVICE,

Defendant-Appellee.

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Apr 27, 2020

DEBORAH S. HUNT, Clerk

ORDER

Before: GILMAN, Circuit Judge.

Jiping Rizk, proceeding pro se, moves the court to grant her permission to proceed in forma

pauperis in her appeal from a district court’s judgment dismissing her civil complaint filed under

the Civil Service Reform Act of 1978. See Fed. R. App. P. 24(a)(5).

In 2018, Rizk, a naturalized United States citizen of Chinese nationality, sued the

Department of Defense’s Finance and Accounting Service (“DFAS”), claiming that DFAS had

improperly terminated her employment. She stated that her security clearance was revoked five

years after she failed to note in an employment-related security-clearance application that she had

visited China, and that her employment was terminated as a result. Rizk argued that there was no

justifiable reason to revoke her security clearance and that DFAS could not properly fire her

without an advanced showing of cause. The defendant moved to dismiss the complaint, arguing

that Rizk: (1) had not exhausted her administrative remedies; and (2) failed to state a claim upon

which relief could be granted because decisions concerning security clearances are generally

beyond judicial scrutiny, and Rizk did not allege facts bringing her case within one of two

exceptions that would allow review of her claim.

WLHD1X

&

No. 19-4110

-2The district court granted the defendant’s motion, concluding that Rizk failed to state a

claim upon which relief could be granted. Rizk appealed and moves to proceed in forma pauperis.

An appeal in this case would be frivolous because any challenge to the district court’s

decision lacks an arguable basis in law. See Neitzke v. Williams, 490 U.S. 319, 325 (1989);

Callihan v. Schneider, 178 F.3d 800, 804 (6th Cir. 1999).

As the district court properly

determined, executive decisions concerning an individual’s security clearance are generally

immune from judicial scrutiny, see Dep’t ofNavy v. Egan, 484 U.S. 518, 529-30 (1988); Oryszak

v. Sullivan, 576JF.3d 522, 526 (D.C. Cir. 2009); Tenenbaum v. Caldera, 45 F. App’x 416, 418 (6th

Cir. 2002), and the exceptions that this court has recognized do not apply here, see Tenenbaum, 45

F. App’x at 418 (citing Webster v. Doe, 486 U.S. 592, 603-04 (1988); Service v. Dulles, 354 U.S.

363,382 (1957)).

Accordingly, the motion to proceed in forma pauperis is DENIED. Unless Rizk pays the

$505 filing fee to the district court within thirty days of the entry of this order, this appeal will be

dismissed for want of prosecution.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Case No. 19-4110

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

JIPING RIZK

Plaintiff - Appellant

v.

DEFENSE FINANCE AND ACCOUNTING SERVICE

Defendant - Appellee

Appellant having previously been advised that failure to satisfy certain specified

obligations would result in dismissal of the case for want of prosecution and it appearing that the

appellant has failed to satisfy the following obligation(s):

The proper fee was not paid by May 27, 2020.

It is therefore ORDERED that this cause be, and it hereby is, dismissed for want of

prosecution.

ENTERED PURSUANT TO RULE 45(a),

RULES OF THE SIXTH CIRCUIT

Deborah S. Hunt, Clerk

Issued; June 03, 2020

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December 12,2012

To whom it may concern::

I remember that Jiping asked me one question which says: Which Foreign country you

have visited and I told her that you come from China and you do not need to write down

China but you must write down other countries which you visited. I know that she travel

with American passport and every visits she had is bang displayed on the American

passport, no one can make any fraud or fool to an American passport.

HEATHS} A. FROST

Notary Public, Slate of Ohio

My Commission Expires

January 28,2018

Sincerely

‘isev Fr. Joven V Maljmyaon

Diocese of Toledo

Hispanic Ministry Office

1933 Spielbush Avenue

Toledo, Ohio 43624

Email: jmalanyaon@yahoo.com

Phone: 419-705-6302

419-381-0709

APPE-HD1X *c

©

July 11, 2012

To whom it may concern,

J.pmg Rzik has been an employee in my organization under my direction since F

ebruary 1, 2010. Ms.

witnessed any actions or behaviors that I would deem suspicious in

I have not

nature.

Sincerely,

Theresa Roach, Director FMS

DFAS Columbus

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SHANNON TINNEY

Nofesy Public, State of Ohio

My Commission Expires

03-23-2016

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Print

Page 1 of 1

Subject FW: Rewards & Recognition Reward

From:

RIZK, J1PING CIV DFAS (JIPINaRIZK@DFAS.MIL)

To:

jipingrizk@yahoo.com;.

Date:

Thursday, September 23, 2010 12:38 PM

---- Original Message---From; Rewards and Recognition [mailto:reward.recognition@dfas.mil]

Sent; Monday, August 16,2010 3:46 PM

To: RIZK, JIPING CIV DFAS

Subject: Rewards & Recognition Reward

You have received a reward via the DFAS Rewards & Recognition Program.

From: THERESA A ROACH

For: Jiping, thank you for your hard work, exceptional work etKitFand

patience while transitioning workload. I appreciate youand amfgla”d to

have'you in the branch!’

You may view your Rewards and Recognition account information at:

http://reward s .dfas. mi 1/

This message delivered by the Defense Finance and Accounting Service.

/NPPEHDIX E

httn7/nfi-m<?6 mail vahnn mm/nen/laiinr.h? rand=ftnvraa0d64n3n

8/28/2.013

September 17,2012

To Whom It May Concern:

As Aping's acting supervisor, there have been numerous occasions when Jiping had to request her

accesses for systems that pertained to her working NUlOs. The requirement Is that you have to be

active in an account for at least 30 days or else they wiitibe suspended. Jiping had to re-submit new

Access Request forms to regain access.

if you have any questions or need additional lnformatioji,piease let me know.

Thank you,

Lisa K. Wingfield

(614) 701-3305- Office

(614) 975-4517 - Ceil

hannim

Mofan^ Public

rfcsssg*!

WdW

APPEHPIX f

SHANNON TINNEY

| Notary Public, Stats of Ohio

My Commission Ejqjirss

03-20-2016

Roberta A. Wetherbee

DeCA A/P Maintenance Supervisor

DFAS CC Bldg 21 Cube 5B 222

EXT: 614.701.3803 DSN: 791

roberta.a.wetherbee@dfas.mil

July, 31.2012

SUBJECT: JipingRizk

To Whom It May Concern:

I have known Jiping since 2005. I was her supervisor for a short period

but I remember her enthusiasm as she was a new hire to DFAS. This was during

the BRAC for ARMY St. Louis to Columbus.

Jiping was a conscious, independent, and skilled worker. She displayed

great ethical habits by being a positive roll model regarding work regulations,

policies and procedures. She was honest, dependable, and reliable in her daily

interactions with internal and external customers. Her ability to be mature and

dependable made her a key player in the team.

Jiping was trustworthy regarding internal review recommendations that

would deem sensitive information. She practiced vigilance in her daily routine

access to sensitive system access, Privacy Act information; Information

Technology (IT), and provide services that demand public trust and confidence.

These practices were followed internally, externally as some of the work

extended into other Defense agencies and customers.

Jiping complied with all security mandatory training and information and

technology annual requirements.

I would be pleased to have her on my team again.

Respectfully,

/s/

Roberta A. Wetherbee

5

EDUARDO and THELMA SHEA

Home:419-381-9709

Cell: 419-704-5276

2154 Eastedge Drive

Toledo. Ohio 43614___________

July 30,2012

TO WHOM IT MAY CONCERN:

RE: Jiping Rizk

This is to inform you that, to my personal knowledge, the above person is of excellent moral

character. Academically, Ms. Rizk finished her collegiate studies at the University of Toledo

(Ohio) which she has successfully applied to her present employment with remarkable results.

It is with great pride that we could claim her for an acquaintance.

RiuMo V. Shea, M.D?

H

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t».i --- .—

CIVILIAN PERFORMANCE RATING

For use of this form. SEE DFAS 1426 3-R

PART l - ADMIN STRATIVE DATA

1- NAME (Last, Fast, Ml)

2. NAME AND LOCATION OF EMPLOYING OFFICE

DEFENSE FINANCE AND ACCOUNTING SERVICE

COLUMBUS CENTER

Rfzk, Jiping NMI E00024538

3. POSITION TITLE AND NUMBER, PAY PLAN, SERIES AND GRADE LEVEL

Accountant GS-510-07 ND512

A. PERIOD COVERED

5. UNDER SUPERVISON OF

CURRENT SUPERVISOR

FROM: May 1,2009

DFAS-JAK ARMY FMS Branch

3990 E. BROAD STREET

COLUMBUS, OHIO 43218

6. TYPE OF RATING

E3 I ANNUAL

| SPECIAL

Entire Period

TO: April 30.2010

PART II - PERFORMANCE EVALUATION

RATING

JOB ELEMENT

C

a.

7. JOB ELEMENT

A

CE

b

1. NULO Resolution/Root Cause

Analysis

Y

M

2. Prepare Accounting Documents

Y

E

3. Customer Service

Y

E

4. Teamwork

N

E

5. Growth and Learning

N

E

CE

b

8. ELEMENT RATING EXPLANATION

~

RATING

C

------------ ----------------

1.

Jiping performs research resulting in accounting adjustments, clearing 15-18 NULOs each month. She has strong

analysis skills and can effectively determined the root cause of NULOs assigned to her. She makes every effort to

share her findings with TACOM ARMY customers. Jiping researches contracts to ensure all funding modifications

have been processed to dear the out of balance issue. Jiping’s source document review and accurate analysis to

reconstruct the history of commitments, obligations and payments aid in clearing NULOs. She is competent usinq

SDW, MOCAS, CAPS, ODS and ORLV, EDA and EDM to research FMS out of balance conditions.

2.

Jiping is detail oriented as evidenced by her accounting adjustment packages. Her JVs, 1080s and 1081s are

correct, dear and complete to exceed this element of preparing accounting documents. Jiping works 6 Army

commands to clear out of balances for the 112 and 218 trial balance. She determines the corrective action and

prepares accounting adjustment vouchers to process and clear NULOs. Jiping is a fast study and her college

education combined with FMS experience provide a strong basis for her to excel at preparing accurate adjustment

document packages with little oversight and no errors to resolve FMS account issues quickly.

3.

Jiping builds customer confidence by conducting thorough research and fast turnaround on corrective actions.

She excels at customer requests for research and corrective actions, which include investigating the root cause of

the negative balance, comparing funds in various systems to determine if the NULO was a duplicate payment or

shortage of obligation funds to correct the NULO. Jiping methodically pulls source accounting documents to

review the recon request and makes suggestions to share with command customers. Jiping’s excellent customer

service skills have generated customer appreciation messages from ARMY customers such as Julie Bunch for

clearing NULOs before reaching 120 days, often within days of the NULO appearing. She seeks to satisfy

customers and co-workers by doing the very best job she can. Jiping received notes of appreciation from TACOM

Warren Command who appreciated Jiping's fast action to clear NULOs. Her positive attitude and willingness to

accept new skills for FMS accounting makes her exceed the element for excellent customer service.

COPY:

p_j EMPLOYEE

|

| SUPERVISOR

f

I OPF/EPF

RECORD

APPEMPIX

I

i

| OTHER

‘i O —\f-

8.

PART II - PERFORMANCE EVALUATION (CONTINUED)

ELEMENT RATING EXPLANATION (Continued)

4. Jiping is a dependable, conscientious employee and adheres to all DOD FMR Regulations for Trust Fund Account

maintenance. She clearly communicates to customers her findings and foliows-up to ensure the customer is

satisfied with action taken to clear issue. Jiping embraces every aspect of her job, including learning the process

to clear tab and edit errors on a permanent basis. During this rating period, Jiping worked NULO resolution for 8

months and then the Treasury Reports, usually performed by a GS-9. With minimal training, she worked with a

variety of internal and external process partners to learn the job and assist others. Jiping lends her help to all co­

workers and excels at managing her work assignments. She understands the importance of her job and

sacrafices weekends to meet reporting deadlines. Jiping has a positive attitude and friendly demeanor that

makes her an asset to our team.

PART III - INDIVIDUAL DEVELOPMENT PLAN

PART IV - COMMENTS

10.

Face to Face discussions were held quarterly with this employee 8/14/09,10/27/09 and 2/12/10.

PART V - PERFORMANCE AWARDS

II.

CASH AWARDS

f~X~] APPROVED

AMOUNT

|

$ 550.00

| DISAPPROVED

RECOMMENDING OFFICIAL

*

SIGNATURE & DATE

ilfajurUJlUaelAPPROVING OFFICIAL

SIGNATURE & DATE

PART VI - SUMMARY RATING LEVEL

|

| EXCEPTIONAL

| X | HIGHLY SUCCESSFUL

|

| FULLY

SUCCESSFUL

13. SUPERVISOR NAME AND TITLE

Regina S Zaglanis

Chief, Army Branch JAK

|'| MINIMALLY

ACCEPTABLE/

SATISFACTORY

PART VII-SUMMARY RATING LEVEL .

b. SIGNATURE

|

| UNACCEPTABLE/

UNSATISFACTORY

c.DATE.

(t/2? /•

14. REVIEWING OFFICIAL (OPTIONAL) NAME & TITLE

b. SIGNATURE

c. DATE

15. APPROVING OFFICIAL NAME & TITLE

b. SIGNATURE

c. DATE

Theresa Roach

Director, FMS

16. EMPLOYEE NAME

Jiping Rizk

Accountant

6>(>§f/o

b. SIGNATURE

c. DATE

R.'tA

* Employee signaluylndicatgs that discussion, not necessarily agreement, has occurred.

<$ A? 9/«*>/»

%

*

'*4

4

■'

J.

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5. Jiping seeks out Army training classes to enhance her current skills. Jiping has a current IDP

on file and completes all mandatory classes. She participates in team meetings, functions

and enjoys interaction with all team members. She is mentored through the DFAS Mentoring

program.

;

DFAS FORM 430-2

which is obsolete.

Replaces previous edition

\

7

/

/

No

Yes

YOUR MILITARY HISTORY

0

Have you served in the United States military?

Q

Have you served in the United States Merchant Marine?

X

X

List all of your military service below, including service in Reserve, National Guard, and U.S. Merchant Marine. Start with the most recent period of service (#1) and work

backward. If you had a break in service, each separate period should be listed. ’

•Code. Use one of the codes listed below to identify your branch of service:

1 - Air Force

2 - Army

3 - Navy

4 - Marine Corps

5 - Coast Guard

6 - Merchant Marine

"7 - National Guard

•O/E. Mark "O’ block for Officer or "E" block for Enlisted.

•Status. "X" the appropriate block for the status of your service during the time that you served. If your service was in the National Guard, do not use

an "X": use the two-letter code for the state to mark the block.

•Country. If your servioe was with other than the U.S. Armed Forces, identify the country for which you served.

Month/Year

Month/Year

O

Service/Certrficate No.

Code

E

Active

Status

Inactive

Active

Reserve

Reserve

Country

National

Guard

(State)

To

To

No

Yes

^ YOUR SELECTIVE SERVICE RECORD

x

Q

Are you a male bom after December 31,1959? If "No," go to 18. If "Yes," go to b.

Q

Have you registered with the Selective Service System? If "Yes," provide your registration number. If "No," show the reason for your legal

exemption below.

Legal Exemption Explanation

Registration Number

Yes

YOUR INVESTIGATIONS RECORD

0

Has the United States Government ever investigated your background and/or granted you a security clearance? If "Yes,” use the codes that

follow to provide the requested.information below. If "Yes," but you cant recall the investigating agency and/or the security clearance

received, enter "Other' agency cod#,or clearance code, as appropriate, and "Don’t know" or "Don't recall" under the "Other Agency"

heading, below. If your response teTNo/oryou dont know or cant recall if you were investigated and cleared, check the "No* box.

Codes for Investigating Agency

1 - Defense Department

2 - State Department

3 - Office of Personnel Management

Month/Year

Agency

Code

08/2002

6

0

Clearance

Code

Other Agency

department of Justice

Month/Year

Agency

code

6-L

7 - Other

Clearance

Code

Other Agency

7

To your knowledge, have you ever had a clearance or access authorization denied, suspended, or revoked, or have you ever been debarred

from government employment? If "Yes,* give date of action and agency. Note: An administrative downgrade or termination of a security

clearance is not a revocation.

Department or Agency Taking Action

Month/Year

0

x

Codes for Security Clearance Received

3 - Top Secret

0 - Not Required

4 - Sensitive Compartmented Information

1 - Confidential

2 - Secret

5-Q

4-FBI

5 - Treasury Department

6 - Other (Specify)

No

Yes

No

X

Department or Agency Taking Action

Month/Year

FOREIGN COUNTRIES YOU HAVE VISITED

List foreign countries you have visited, except on travel under official Government orders, beginning with the most current (#1) and working back 7 years. (Travel as a

dependent or contractor must be listed.)

•Use one of these codes to indicate the purpose of your visit: 1-Business

2-Pleasure

3-Education

4-Other

•Indude short trips to Canada or Mexico. If you have lived near a border and have made short (one day or less) trips to the neighboring country, you do

not need to list each trip. Instead, provide the time period, the code, the country, and a note ("Many Short Trips").

•Do not repeat travel covered in items 9,10, or 11.

Month/Year

Month/Year

„ 03/2005 To 03/2005

Code

Month/Year

Country

France

United Kingdom

Month/Year

#5

To

#6

To

#2

03/2005 To 03/2005

#3

To

#7

To

#4

To

#8

To

Enter your Social Security Number before going to the next page

Page 6

APPENDIX J'

Code

Country

281-96-3795