# Petition for Writ of Certiorari — Parker v. Department of Defense

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 904

## Text

Supreeé- ~ 4 US.

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4931103 DEC 4 2003
ems TICE CE THE Cpe

In The
Supreme Court of the United States

GLENDA GAIL CROOK, U.S. citizen
Veteran and Pro se Petitioner

DEPARTMENT OF DEFENSE
Respondent

On Petition For Writ Of Certiorari
To The Federal Circuit Court Of Appeals

PETITION FOR A WRIT OF CERTIORARI

GLENDA GAIL CROOK

(aka GLENDA GAIL PARKER)
Petitioner

5902 Mt. Eagle Drive, # 307
Alexandria, VA 22303

(703) 960-5602

Writ of Certiorari

A. QUESTIONS PRESENTED FOR REVIEW:

1. Does the Fifth Amendment guarantee a civil servant U.S.
citizen the right to discovery, when filed and served, in Due
Process of Law in an employment termination action by the
U.S. Department of Defense?

2. Does the Fifth Amendment protect a civil servant U.S.
citizen’s property, goodwill, and liberty of contract interest in
a TS/SCI security clearance held for 16 years?

3. Does Article II require the Executive Branch to comply
with the Civil Rights Act of 1964, The Privacy Rights Act of
1974, the Health Insurance Portability and Accountability Act
(HIPAA), with 28 U.S.C. § 3486(e), and the Whistleblower
Protection Act in matters of administrative investigations
involving termination of employment?

4. Does signing ‘“Petitioner’s Fed. Cir. R. 15(c) Statement
Concerning Discrimination” and checking item (4), “The
case involves an application to the Office of Personnel
Management for benefits.” require a petitioner to de facto
give up her Constitutionally protected civil rights in order to
appeal in the Federal Court of Appeais?

5. The Department of Defense did not publish or have a
hearing on a regulation under 28 U.S.C. §§ 3901, 3902, and
3903 to prevent the unauthorized use of health information in
an administrative investigation/hearing or permitting the
publication of medical information to a Merit Systems
Protection Board.

6. May a Government employer release confidential health or
falsified health information to a Merit System Protection

il

Writ of Certiorari

Board or other administrative hearing without the permission

of the person identified in the confidential health information

in violation of Title Il (HIPAA) amending 28 U.S.C. §
3486(e)?

7. Does Article Il of the U.S. Constitution require the
Department of Defense to re-employ the petitioner upon her
return to duty from military service in accordance with 38
U.S.C. Chapter 43?

B. PARTIES TO THE PROCEEDINGS - None

else

OF

S

ill
Writ of Certiorari

TABLE OF CONTENTS

QUESTIONS PRESENTED i
PARTIES TO THE PROCEEDINGS ii

TABLE OF CITED AUTHORITIES ~ Vv
1. CONSTITUTIONAL AUTHORITY Vv
2. STATUTORY AUTHORITY

3. REGULATORY AUTHORITY Vi

CORPORATE DISCLOSURE STATEMENT 1
OPINIONS AND ORDERS ENTERED
JURISDICTION

DATE OF ORDER TO BE REVIEWED
RULE 11 STATEMENT |

N/A — NO CROSS-PETITION FILED
STATUTE CONFERING JURISDICTiON
. RULE 29.4 NOTIFICATION
AUTHORITIES INVOLVED IN THIS CASE
1. CONSTITUTIONAL PROVISIONS

2. STATUTES INVOLVED

3. REGULATIONS INVOLVED

FACTS MATERIAL TO CONSIDERATION
1. STATEMENT OF FACTS

2. JURISDICTION OF FIRST COURT
RULE 10(c) STATEMENT

CONCLUSION

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VI.

IV
Writ of Certiorari

APPENDIX

OPINIONS, ORDERS, FINDINGS OF FACT,
CONCLUSION OF LAW, AND TRANSCRIPTS

1-24
OTHER RELEVANT OPINIONS
25 —32
ORDER ON REHEARING
- 33
JUDGEMENT TO BE REVIEWED
34 — 37
COPY OF AUTHORITIES
38 — 276

OTHER MATERIAL ESSENTIAL TO
UNDERSTAND THE PETITION

277 - 283

om

Writ of Certiorari

C. TABLE OF CITED AUTHORITIES
1. CONSTITUTIONAL AUTHORITY

AUTHORITY

RELEVANCE

Fifth Amendment to the

Protects a U.S. Citizen’s

U.S. Constitution (App. | property interests and due

V, pg 41)

process rights

Article II to the U.S.
Constitution

(App. V, pg 38)

Requires the Department of
Defense to abide by laws

Section 8 of the U.S.

Relegates the authority to

Constitution (App. | make and approve arms sales

to the U.S. Congress

V, pgs 39 — 40)

2. STATUTORY AUTHORITY

AUTHORITY

RELEVANCE

28 U.S.C. §§-1253
3904 (App. V, pgs
101 & 111)

Establishes jurisdiction

Fifth Amendment to
the U.S. Constitution

(App. V, pg 41)

Establishes jurisdiction

Title 5, § 7703 (App.
V, pgs 90 — 91)

Establishes jurisdiction

38 U.S.C. § 4324
(App. V, pgs 147 -
149)

Establishes jurisdiction

The Westfall Act

28 U.S.C. §§ 1346(g)
and 2679(d) (App. V,
pgs 104 & 107 — 110)

Permits civil action/Constitutional
torts against government employees
who act outside of their duties.

5 U.S.C. §§ 552(b)
and 552(g)(1)(D)
(App. V, pgs50& ~~
58-59)

Establishes jurisdiction and prohibits
release of plaintiff's grievance record
outside of the grievance channels
without her written permission.

Vi
Writ of Certiorari

AUTHORITY

RELEVANCE

a

The Health Insurance
Portability and
Accountability Act
(HIPAA) SECs
248(e) & 262(a)(6)
(App. V, pgs 209 &
214)

Prohibits the exploitation of an
individual’s medical records by the
DOD in an administrative ;
investigation [to revoke a security
clearance or terminate a civil
servant].

18 U.S.C. §§ 24 and _
1025, as amended by
HIPAA (App. V, pgs
92 — 93)

Prohibits defendant(s) from making
false statements relating to the health
of the plaintiff that could result in
defrauding the government of health
care benefits. .

18 U.S.C. § 3486(e),
as amended by
HIPAA (App. V, pgs
99-100) .

Prevent the.defendant(s) from using
health information in any
administrative investigation directed
against the plaintiff.

38 U.S.C. § 4314,
4322, 4323, 4324,
5425 (App. V, pgs
130 - 132, 142 - 150)

Requires the DOD to reemploy the
petitioner/plaintiff.

VA Code §§ 18.2-499
and 18.2-500

Codifies defendants and plaintiff's
fiduciary duty

3. REGULATORY AUTHORITY

AUTHORITY

RELEVANCE

DODI 1205.12, April 4,
(App. V, pgs 243 -270)

1996 | Regulatory requirement to re-
employ plaintiff upon return
from military service even if
no longer qualified for
vreviously held position.

DODD 5200.2-R, paragraphs | De facto proof that no
clearance was required for

3-102, 1-322, and 3-101
(App. V, pgs 271 — 276)

the plaintiffs position.

~

Vil
Writ of Certiorari

AUTHORITY ~ RELEVANCE
DODD 7050.6, paragraphs DOD Directive protecting
4.1 and 4.4 (by reference) whistleblowers from

termination.

Writ of Certiorari

D. CORPORATE DISCLOSURE STATEMENT:
Not Applicable (N/A)

E. CITATIONS OF OPINIONS AND ORDERS
ENTERED IN THE CASE

1. Per Curiam Decision July 14, 2003, opinion not
citable as precedent (App. I, pgs 1 - 9)

a. 5 U.S.C. § 7703(c) (2000), pg 2

b. 5 U.S.C. § 7701(c)(1)(B) (2000), pg 2

c. Hesse v. Dept of State, 217 F.3d, 1377-80
(Fed. Cir. 2000), pg 3 & 4

d. Id at 1381, 1382 (citing Jones v. Dept of the
Navy, 978 F.2d 1223, 1225-26 (Fed. Cir. 1992), pg 3

e. Spears v. Merit Systems Protection Board,
766 F.2d 520, 522 (Fed. Cir. 1985), pg 4

2. MSPB Decision, January 17, 2002 (App. I, pgs

17 - 24)

a. 5 USC. §§ 7511(a)(1)(A), 75120),
7513(d), pg 17

b. 5C.F.R. § 1201.58, pg 17 footnote

c. 5 U.S.C. Chapter 75, pg 21

d. DOD 5200.2-R paragraph C3.1.2, pg 20

e. 5C.F.R. § 1201.112(a)(5), pg 5

f. Germino v. Department of Defense, 61
M.S.P.R. 686-87 (1994), pg 20

g. Hesse v. Department of State, 82 M.S.P.R.
489, 492, 493 (1999), citing Hinton v. Department of the
Navy, 61 M.S.P.R. 692, 697 (1994), pg 21

h. Holley v. Department of the Navy, 62
M.S.P.R. 300, 303-04 (1994), citing Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487,
1495, 84 L.Ed.2d 494 (1985), pg 19

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NO

Writ of Certiorari

i. Jones vy. Department of the Navy, 48
M.S.P.R. 680, 689 (1991), aff'd’ 978 F.2d 1223 (Fed. Cir.
1992), pg 18

j. Id at 690 (citing, Department of the Navy v.
Egan, 484 U.S. 518, 527-32, 108 S.Ct. 818, 824-26, 98
L.Ed.2d 918 (1998), pg 19

k. Kriner vy. Department of the Navy, 61
M.S.P.R. 526 (1994), pg 19

I> Matos v. Department of the Navy, 62
M.S.P.R. 117, 119 (1994), pg 19

m. Stephen v. Department of the Air Force,
47 M.S.P.R. 672, 681 (1991), pg 19

n. Vanduzer v. Department of the Navy, 41
M.S.P.R. 357, 361-62 (1989), pg 21

0. West v. Department of the Navy, 63
M.S.P.R. 86, 88-89 (1994), pg 20

ae Motion for Rehearing DENIED September
10, 2003 (App. III, pg 33)

_a. No additional cites provided.

4. U.S. District Court for the Eastern District of
Virginia Amended Memorandum Opinion on Civil Action
No. 03-431-A, dated October 27, 2003 (App. II, pgs 25 —
32)

a. Rule 12(b)(6) of the Federal Rules of Civil
Procedure, pg 25, 29 & 31

b. Federal Circuit Rule 15(c), pg 3, 5,6 & 8

c. Federal Rule of Civil Procedure 58. Fed. R.
Civ. P. 58, pg 32

d. Conley v. Gibson, 355 U.S. 41, 45-46
(1957), pg 27

=

Writ of Certiorari

e. Crook v. Department of Defense, 71 Fed.
Appx. 54, 2003 WL 21675126, at *1 (Fed. Cir. July 14,
2003), pg 27 footnote

f. Daniels v. United States Postal Service, 726
F.2d 723, 724 (Fed. Cir. 1984), pg 30

g. Davidson v. United States Postal Service,
24 F.3d 223, 223-224 (Fed. Cir. 1994), pg 30

h. Mylan Lab., Inc. v. Matkari, 7F.3d 1130,
1134 (4" Cir. 1993), pg 27

i. Smith v. Horner, 846 F.2d 1521, 1522,
1523, 1524 (D.C. Cir. 1988), pg 30 & 31

5 j. Williams v. Department of the Army, 715
F.2d 1485 (Fed. Cir. 1983), pg 30

F. JURISDICTION — 28 U.S.C. §§ 1253, 1346(g),
2679(d), 3901, 3992, 3903, 3904, 3905, and the Fifth
Amendment to the U.S. Constitution protecting property
interests and due process rights.

1. DATE OF ORDER TO BE REVIEWED:

a. Per Curiam Federal Circuit Court’s July 14,
2003 decision, re-hearing motion denied September 10, 2003.

b. United States District Court Amended
Memorandum Opinion dated October 27, 2003, on Civil
Action Case No. 03-431-A*

2. RULE 11 STATEMENT: It is appropriate for the
U.S. Supreme Court to decide this federal-question case
under 28 U.S.C. Section 3904. The nature of this case is of
such public importance that it justifies deviation from normal
appellate practice. Virginia state code codified civil servant’s
fiduciary duty. Opinion entered by the Federal Circuit Court
on July 14, 2003 and by the U.S. District Court on October

? See 28 U.S.C. § 2101(e).

Writ of Certiorari

27, 2003 contradicts numerous rulings on the Fifth
Amendment. U.S. Supreme Court decision in Hesse vs the
Department of State, 1998 prevents the MSPB from making
security clearance determinations as it did in this case.
Allowing the termination of a U.S. citizen’s civil service
employment without cause destroys the merit promotion
system and opens the door to unfettered retribution for
whistleblowing, to discrimination, and to political purging of
the Executive Department and its contractors —all without
judicial review.

3. NOT APPLICABLE — NO CROSS-PETITION
FILED

4. STATUTE CONFERING JURISDICTION:
28 U.S.C. §§ 1253 and 3904; Fifth Amendment to the U.S.
Constitution; 5 U.S.C. § 7703(b)(1); and 28 U.S.C. § 2101 (e).

5. RULE 29.4 NOTIFICATION STATEMENT:
Notification is required to the Solicitor General of the United
States, Room 5614, Department of Justice, 950 Pennsylvania
Avenue, N.W., Washington, DC 20530-0001. Certificate of
service provided.

G. AUTHORITIES INVOLVED IN THIS CASE:

1. CONSTITUTIONAL PROVISIONS
INVOLVED:

a. Fifth Amendment, which extends
protection against arbitrary state legislation, affecting
life, liberty and property and due process of law
protection to U.S. citizens.

b. Article II of the Constitution which makes
it incumbent upon the Executive Branch to take care
to faithfully execute the laws.

Writ of Certiorari

2. STATUTES INVOLVED:
a. 3 U.S.C. §§ 401, 402, 451 and 453

b. 5 U.S.C. § 552a (The Privacy Rights Act of
1974)

c. 5 U.S.C. § 1221 (Individual Right of
Action in Certain Reprisal Cases)

d. 5 U.S.C. § 2302(b)(10) & (11) (Prohibited
Personnel Actions)

e. 5U.S.C. § 7703(b)(1)
f 18 U.S.C. §§ 24, 1035, 3231 and 3486(e)
g, 28 U.S.C. § 1253 (Jurisdiction)
h. 28 U.S.C. § 1346(g)
i. 28 U.S.C. § 2101(e)
j. 28 U.S.C. §§ 2674 and 2679
_ k. 28 US.C. §§ 3904 and 3905
|. 38 U.S.C. Chapter 43

m. H.R. 169 Notification & Federal Employee
Antidiscrimination and Retaliation Act of 2002

n. Health Insurance Portability and
Accountability Act of 1996

o. Taft-Hartley Act (Section 305)

p. Title 5 C.F.R., Chapter II, Subchapter A,
Part 1208.16, and 5 C.F.R. §§ 1201.73 & 1207.73(c)

q. The Whistleblower Protection Act, as
amended by the MSPB and OSC FY 2003
Authorizations Act

r. Title VII of the Civil Rights Act of 1964

3. REGULATIONS INVOLVED:

a. DODI 1205.12, April 16, 1997, “Civilian
Employment and Reemployment Rights of Applicants
for, and Service Members and Former Service
Members of the Uniformed Services.”

Writ of Certiorari

b. DODD 5200.1-R, paragraphs 3-102, 1-322,
and 3-101.

c. DODD 7050.6, paragraphs 4.1 and 4.4

H. FACTS MATERIAL TO CONSIDERATION On
action arising from the United States Court of Appeals for the
Federal Circuit and arising from the United States District
Court for the Eastern District of Virginia, this petitions the
Court for Writ of Certiorari under Rules 11 and 10(c) of the
Rules of the Supreme Court of the United States, adopted
January 27, 2003.

In accordance with William K. Suter’s December 10,
2003 letter, this corrects, amends and re-submits for
docketing in the correct format the petition and appendix
filed December 4, 2003 and received by the Office of the
Clerk of the Supreme Court, U.S., on Dec 5, 2003 and
incorporates amendment filed December 8, 2003 and other
typographical corrections.

1. STATEMENT OF FACTS:

a. On March 28, 2001, with only two days
notice the DOD suspended the plaintiff indefinitely
upon her return from military service alleging failure
to maintain her security clearance.

b. Plaintiff, a civilian and a U.S. citizen
employed with the DOD for 34 years, filed an instant
appeal, alleging retaliation for protected disclosures
and violations of the Uniformed Services
Employment and Reemployment Rights Act
(USERRA).

e DOD advertised two vacancies not
requiring a security clearance and the plaintiff applied
for both positions.

d. On August 2, 2001, the DOD revoked the
plaintiff's security clearance.

Writ of Certiorari

1. STATEMENT OF FACTS Cont'd:

e. On August 28, 2001, the DOD notified
plaintiff that her employment would be terminated
effective September 25, 2001.

f. The plaintiff requested and was granted a
discontinued service retirement effective the date of
her request September 15, 2001.

g. The MSPB concluded that a clearance was
required for the plaintiff's position and on January 17,
2002 affirmed the DOD’s indefinite suspension action
without fully responsive discovery by the DOD.

h. On December 19, 2002, the MSPB denied
the plaintiff materia!ly relevant discovery and issued a
final order affirming DOD’s termination action.

i. The plaintiff complied with all military
service notification requirements of 38 U.S.C.
Chapter 43.

j. Between June 18, 1999 and November 2001
the plaintiff made protected disclosures containing
irrefragable proof and legal cites of statutes violated
by DOD to the following offices: the DOD Inspector
General, the Air Force Office of Special
Investigations, to the Office of Special Counsel, to the
Merit Systems Protection Board, to the Government
Accountability Project, to the U.S. Congress
(November 16, 1999 and subsequent dates), to the
GAO and to the FBI.

k. In pursuing redress through the Federal
Circuit Court, the petitioner did not consent to waive
her Constitutionally guaranteed rights. Written
guidance for pro se claimants provided by the MSPB
was ambiguous. Clarifying pro se guidance received
from the Federal Circuit Court Clerk’s office was that
the Federal Circuit Court could only address the issue

ie nee

Writ of Certiorari

1. STATEMENT OF FACTS Cont'd:

ruled upon by the MSPB and that the plaintiff should
file her discrimination claims with the District Court.

2. JURISDICTION OF COURT OF FIRST
INSTANCE:

a. 5 U.S.C. § 7703(b)(1)
b. 38 U.S.C. §§ 4324, 4301- 4333

c. Title 5 C.F.R., Chapter II, Subchapter A,
Part 1208.16, and 5 C.F.R. §§ 1201.73 & 1207.73(c)

I. RULE 10(c) STATEMENT: _ It is appropriate for
the U.S. Supreme Court to decide this federal-question case.
The Federal Circuit Appeals Court Opinion dated July 14,
2003 misapplied the Hesse v. Department of State (1998)
decision of this Court in a way that conflicts with the Fifth
Amendment to the U.S. Constitution. This case is of such
public importance in ensuring the execution of civil servant’s
fiduciary duty’ and in preserving the public’s trust in the
government that a deviation from normal appellate practice is
justified.

Expedited review is requested under 28 U.S.C. §
3904. Allowing U.S. citizens’ civil service employment to be
terminated without cause and without limitation destroys the
merit promotion system and opens the door to unfettered
retribution for whistleblowing, to discrimination, to
violations of privacy and to political purging of the Executive
Department and its contractors —all without judicial review.

* Virginia Code §§ 18.2-499 and 18.2-500 makes a breach of fiduciary
duty a litigatible cause of action under Virginia law.

Writ of Certiorari

J. CONCLUSION: WHEREFORE, the petitioner
requests that a writ of certiorari be granted.

Respectfully submitted,

& @ fev fein
Lonsla tot’

GLENDA GAIL PARKER, U.S. Citizen, pro se
5902 Mt. Eagle Dr. # 307

Alexandria, VA 22303

703-960-5602

Of Counsel:

O. William (Bill) Davis, Attorney at Law
2145 Eagle Blvd

Kingston, Oklahoma 73439
580-564-3876/4732

IV.

IV.

VI.

Appendix

APPENDIX

OPINIONS, ORDERS, FINDINGS OF FACT,
CONCLUSION OF LAW, AND TRANSCRIPTS

1-24
OTHER RELEVANT OPINIONS
25-32
ORDER ON REHEARING
33
JUDGEMENT TO BE REVIEWED
34 — 37
COPY OF AUTHORITIES
38 — 276

OTHER MATERIAL ESSENTIAL TO
UNDERSTAND THE PETITION

277 - 283

NRE eres etree rs Wen nore ena aA

il
Table of Contents

Table of Contents
for
Appendix

Location Date Document Description

Appendix | July 14,2003 Fed. Circuit. Court PER
App. 1 -9 CURIAM Decision, 03-
3152

Appendix | Dec 19,2002 Transcript of MSPB Hearing
App. — 10- 11

Appendix I Dec 19,2002 Merit Systems Protection
App.-12 - 16 Board Final Order

DC-0752-02-0053-I-1

Appendix I Jan 17,2002 Merit Systems Protection
App. — 17 - 24 Board Final Order

DC-0752-02-0053-I-1

Appendix II Oct 27,2003 Fed District Court: Opinion,
App. - 25 -32 Civil Action No. 03-431-A

Appendix III Sep 10,2003 Fed Circuit Court Order
App. — 33 DENIED a rehearing.

Appendix IV July 14, 2003 Fed Circuit Court Judgment,
App. — 34 - 35 03-3152

Appendix IV Oct 27,2003 District Court Judgment and
App. — 36 - 37 Amended Judgment

Location

Appendix V
App. — 38

Appendix V
App. — 39 - 40

Appendix V
App. 41

Appendix V
App. -42 - 45

Appendix V
App. — 46 - 76

Appendix V
App. — 77 - 81

Appendix V
App. — 82 - 89

Appendix V
App. — 90 - 91

Appendix V
App.—92 - 100

Appendix V
App.-101

Undated

Undated

Undated

Undated

Undated

Undated

Undated

Undated

Undated

Undated

ill

~ Table of Contents

Document Description

Civil Action No. 04-431-A
Article II, U.S. Constitution

Section 8, U.S. Constitution

Bill of Rights, USS.
Constitution

3 U.S.C. §§ 401, 402, 45T,
453

5 U.S.C. § 552a

5 U.S.C. § 1221

5 US.C. § 2303(b)€10),
(11)& (12) & (e)

5 U.S.C. § 7703

18 U.S.C. §§ 24, 1035,
3231, 3486

28 U.S.C. § 1253

ee ...——.6&06O c___ ___m®™

iV
Table of Contents

Location Date Document Description

Appendix V Undated 28 U.S.C. § 1346(a) -(g)

App.-102-104

Appendix V Undated 28 U.S.C. § 2101(e)

App. - 105

Appendix V Undated 28 U.S.C. § 2674

App.-106

Appendix V Undated 28 U.S.C. § 2679

App.-107-110

Appendix V Undated 28 U.S.C. § 3904

App.-111

Appendix V Undated 28 U.S.C. § 3905

App.-112

Appendix V Undated 38 U.S.C. Chapter 43

App.113-153

Appendix V Undated H.R. 169 Notification &

App.154-165 Federal Employee
Antidiscrimination and
Retaliation Act of 2002

Appendix V Undated Health Insurance Portability

App.166-234 and Accountability Act of
1996

Location

Appendix V
App.235-242

Appendix V
App.243-270

Appendix V
App.271-276

Appendix V
App.277

Appendix VI
App.278-279

Appendix VI
App.-280

Undated

Apr 4, 1996,
as changed
Apr 16, 1997

January 1987

Dec 7, 1995

Mar 21, 2003

Apr 20, 2003

Table of Contents

Document Description

Taft-Hartley Act (Section
305)

DODI 1205.12 Civilian
Employment and
Reemployment

Rights of Applicants for,
and Service Members and
Former Service Members of
the Uniformed Services

DODD 5200.2-R, Chapters
1, 3, 7, and 10

Excerpt from Petitioner’s
Position Description

Fed. Cir. 15(c) Statement
Concerning Discrimination
filed with petitioner’s Fed.
Cir. Court Appeal of MSPB
decision.

Petitioner’s
includes

Response -—-
notification to

Federal Circuit that a civil
action lawsuit was filed in
District Court, Number CA-
03-431-A

Location

Appendix VI
App.-281
Appendix VI
App.-282

Appendix VI
App.-283

Date

Nov14, 2003

Jan 6, 2004

Jan 6, 2004

Table of Contents

Document Description

White House Memorandum
supporting USERRA

Employment ad published in
The Washington Post help
wanted ad section.

Employment ad published in
The Washington Post help
wanted ad section.

Apo. I- l
Fed. Cir. DECISION 03-3152, Jul 14, 2003

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record that will appear in
Tables published periodically.

United States Court of Appeals for the
Federal Circuit

03-3152

GLENDA G. CROOK (now known as Glenda Gail Parker),

Petitioner,
(Rec’d by Petitioner July 21, 2003)
v.
DEPARTMENT OF DEFENSE,
Respondent.

DECIDED: July 14, 2003

Before NEWMAN, MICHEL and RADER, Circuit Judges.

PER CURIAM.

Glenda Gail Parker (formerly Glenda Gail Crook)
petitions for judicial review of the final decision of the Merit
Systems Protection Board (“Board”) dated December 19,
2002, Docket No. DC-0752-02-0053-I-1, declining review of
the initial decision of the administrative judge (“AJ”)
sustaining Parker’s removal for loss of her security clearance.
Because we conclude that substantial evidence supports the
Board’s decision sustaining Parker’s removal and because the

App. I- 2
Fed. Cir. DECISION 03-3152, Jul 14, 2003

Board properly declined to decide the other issues presented,
we affirm.

BACKGROUND

Ms. Parker was employed as a Security Assistance
Analyst, GM-1101-15, in the Defense Security Cooperation
Agency (“Agency”). The Agency designated this position
“special sensitive” and it therefore required a top secret
security clearance. On October 4, 2000, the Agency informed
Parker that it had made a tentative determination to revoke
her eligibility for access to classified information and/or
occupancy of a sensitive position. On December 20, 2000,
the Agency revoked Parker’s security access and on March
28, 2001 the Agency suspended parker indefinitely. The
Agency denied parker’s appeal of its revocation of her
security clearance on August 2, 2001. On September 5, 2001,
the Agency issued a decision to remove Parker because she
lacked the security clearance necessary for her position.
Parker resigned on September 14, 2001.

DISCUSSION

We will affirm a decision of the Board unless it is
arbitrary and capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures
required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c)
(2000).

I.

Before the Board, agencies must prove charges
supporting a removal by a preponderance of the evidence. 5
U.S.C. § 7701(c)(1)(B) (2000). Parker argues that the Board
failed to do so, because it erred in determining her position
required a security clearance. The record belies her
argument, however, as there was testimony that “within the

App. I- 3
Fed. Cir. DECISION 03-3152, Jul 14, 2003

agency all positions are required to have a secret clearance or
higher” and documentary evidence in the form of a standard
Agency form identifying her position as “special sensitive.”
This constitutes substantial evidence supporting the Board’s
decision.

Parker also argues that the Board erred by declining to
consider whether her security clearance was_ properly
revoked. The Board was correct, however, in its
determination that it lacked jurisdiction to consider the
propriety of the Agency’s revocation of Parker’s security
clearance. “[{I]t would be improper, without a clear directive
from Congress, to allow a non-expert body, such as the Merit
Syste3ms Protection Board, to review the merits of [security
clearance] determinations.” Hesse v. Dep’t of State, 217 F 3d
1372 (Fed. Cir. 2000).

Parker next apparently argues that the Agency’s
procedures denied her due process. This argument also fails.
First of all, “this court has held, the Due Process Clause of
the Fifth Amendment has no application to a proceeding to
review an employee’s security clearance.” Id. At 1381 (citing
Jones v. Dep’t of the Navy, 978 F.2d 1223, 1225-26 (Fed.
Cir. 1992)). To the extent Parker argues she was given
insufficient notice or explanation of the Agency’s reasons for
revoking her clearance, we note that the Agency provided
Parker with its reasons for revoking her clearance and gave
her an opportunity to respond to that reason. As in Hesse,

“{d]Jue process did not require a fuller explanation.” Id. At
1382.

Il.

Parker also asserts various other defenses to her
removal, including, discrimination under the Civil Rights Act
of 1964, the Whistsleblower Protection Act, the Uniformed
Services Employment and Reemployment Act of 1994, and
violations of various portions of the Constitution. We must
also reject these arguments. First, this court lacks jurisdiction
to reach the merits of a discrimination claim. Spears v. Merit

App. I- 4
Fed. Cir. DECISION 03-3152, Jul 14, 2003

Systems Protection Board, 766 F.2d 520, 522 (Fed. Cir.
1985). Board decisions reaching the merits of discrimination
claims must be appealed in the district courts, and not to this
court. 5 U.S.C. § 7703(b)(1); Spears, 766 F.2d at 522.
Second, no statute (citing by Parker, or otherwise) authorizes
the Board to review security clearance determinations. See
Hesse, 217 F.3d at 1377-80. Third, parker has not identified
any constitutional reason why the Agency should not remove
her from her position given her loss of security clearance.

CONCLUSION
For all the reasons stated above, we affirm the
Board’s determination that the Agency’s removal should be
sustained.

— ir

App.I- 5
Fed. Cir. DECISION 03-3152, Jul 14, 2003

United States Court of Appeals for the Federal Circuit
Information Sheet
Filing a Petition for Writ of Certiorari

There is no automatic right of appeal to the Supreme Court of
the Unites States from judgments of the Federal Circuit. You
must file a petition for writ of certiorari which the Supreme
Court will grant only when there are compelling reasons.
(See Rule 10 of the Rules of the Supreme Court of the United
States, hereinafter called Rules.)

Time. The petition must be filed in the Supreme Court of the
United States within 90 days of the entry of judgment in this
Court or within 90 days of the denial of a timely petition for
rehearing. The judgment is entered on the day the Federal
Circuit issues a final decision in your case. [The time does
not run from the issuance of the mandate, which has no effect
on the right to petition.] (See Rule 13 of the Rules.)

Fees. Either the $300 docketing fee or a motion for leave to
proceed in forma pauperis with an affidavit in support thereof
must accompany the petition. (See Rules 38 and 39)

Authorized Filer. The petition must be filed by a member of
the bar of the Supreme Court of the United States or by the
petitioner representing himself or herself.

Format of a Petition. The Rules are very specific about the
order of the required information and should be consulted
before you start drafting your petition. (See Rule 14.) Rules
33 and 34 should be consulted regarding type size and font,
paper size, paper weight, margins, page limits, cover, etc.

App. I- 6
Fed. Cir. DECISION 03-3152, Jul 14, 2003

Number of Copies. Forty copies of a petition must be filed
unless the petitioner is proceeding in forma pauperis, in
which case an original and ten copies of the petition for wnit
of certiorari and of the motion for leave to proceed in forma
pauperis. (See Rule 12.)

Where te File. You must file your docunients at the
Supreme Court.

Clerk
Supreme Court of the United States
1 First Street, NE
Washington, DC 20543
(202) 479-3000

No documents are filed at the Federal Circuit and the Federal
Circuit provides no information to the Supreme Court unless
the Supreme Court asks for the information.

Access to the Rules. The current rules can be found in Title
28 of the United States Code Annotated and other legal
publications available in many public libraries.

App. I- 7
Fed. Cir. DECISION 03-3152, Jul 14, 2003

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

Questions and Answers

Petitions for Panel Rehearing (Fed. Cir. R. 40)
And

Petitions for Hearing or Rehearing En Banc (Fed. Cir. R
35)

Q. When is a petition for panel hearing appropriate?

A. Petitions for panel rehearing are rarely considered
meritorious. Consequently, it is easiest to first answer when a
petition for panel rehearing is not appropriate. A petition for
panel rehearing should not be used to reargue issues already
briefed and orally argued. If a party failed to persuade the
court on an issue in the first instance, they do not get a second
chance. This is especially so when the court has entered a
judgment of affirmance without opinion under Fed. Cir. R.
36, as a disposition of this nature is used only when the
appellant/petitioner has utterly failed to raise any issues in the
appeal that require an opinion to be written in support of the
court’s judgment of affirmance.

Thus, as a usual prerequisite, the court must have filed an
opinion in support of its judgment for a petition for panel
rehearing to be appropriate. Counsel seeking panel rehearing
must be able to identify in the court’s opinion a material error
of fact or law, the correction of which would require a
different judgment on appeal.

Q. When is a petition for rehearing en banc appropriate?

App. I- 8
Fed. Cir. DECISION 03-3152, Jul 14, 2003

A. En bance decisions are extraordinary occurrences. To
properly answer the question, one must first understand the
responsibility of a three-judge merits panel of the court. The
panel is charged with deciding individual appeals according
to the law of the circuit as established in the court’s
precedential opinions. While each merits panel is
empowered to enter precedential opinions, the ultimate duty
of the court en banc is to set forth the law of the Federal
Circuit, which merits panels are obliged to follow.

Thus, as a usual prerequisite, a merits panel of the court must
have entered a precedential opinion in support of its judgment
for a petition for rehearing en banc to be appropriate. In
addition, the party seeking rehearing en banc must show that
either the merits panel has failed to follow decisions of the
Supreme Court of the United States or Federal Circuit
precedential opinions, or that the merits panel has followed
circuit precedent, which the party seeks to have overruled by
the count en banc.

Q. How frequently are petitions for panel rehearing granted
by merits panels or petitions for rehearing en banc granted
by the court?

A. The data regarding petitions for panel rehearing since
1982 shows that merits panels granted some relief in only
three percent of the petitions filed. The relief granted usually
involved only minor corrections of factual misstatements,
rarely resulting in a change of outcome in the decision.

En banc petitions have been granted less _ frequently.
Historically, the court has initiated en banc review in a few of
the appeals decided en banc since 1982.

~

bene:

App. I- 9
Fed. Cir. DECISION 03-3152, Jul 14, 2003

Q. Is it necessary to have filed either of these petitions before

filing a petition for certiorari in the U.S. Supreme Court?

A. No. All that is needed is a final judgment of the Court of
Appeals.

App. I- 10
Transcript MSPB Hearing, Dec 19, 2002

Excerpt (pages 4 & 5)
Transcript of December 19, 2002 MSPB Hearing”
PROCEEDINGS

JUDGE BOGLE: The Washington Regional Office
of the Merit Systems Protection Board has an appeal filed by
Glenda G. Crook from action taken by the Department of
Defense.

Ms. Crook represents herself and the Agency is
represented by Gilah G. Goldsmith. My name is Elizabeth
Bogle and I am the assigned administrative judge.

We had some discussion this morning about — again,
about the very limited nature of the Board’s jurisdiction in
this case. The Agency has made a settlement offer, but Ms.
Crook has not accepted the offer and after some discussion, I
guess we have determined that we will go ahead with the
hearing.

Ms. Crook did file this morning a Motion to Compel
Discovery.

Ms. Goldsmith, do you have copy?

MS. GOLDSMITH: Yes. Is this different from the
ones that she filed previously?

JUDGE BOGGLE: Not much, but a little bit. She
did file one on December 17", the day that I issued the
prehearing conference summary. The Agency filed a written
objection to that, that none of the information - basically
stating that the information she sought was not reasonably
calculated to lead to discovery of relevant information, and |
agree with that given, as I’ve said repeatedly, the very limited
nature of the Board’s jurisdiction in this proceeding.

So the motion filed on December iv, as well as the
motion filed this morning are denied for that reason that the

' ABLE REPORTING (301) 627-8210

App. I-11
Transcript MSPB Hearing, Dec 19, 2002

Excerpt (pages 4 & 5) Cont’d
Transcript December 19, 2002 MSPB Hearing
PROCEEDINGS

information sought simply isn’t relevant or reasonably
calculated to lead to something that would be relevant.

MS. CROOK: I object, your Honor. This issue 1s
whether or not the position required a clearance and whether
or not it was revoked. The information requested is directly
related to those two issues.

JUDGE BOGLE: And let me just add here that a
moment ago I explained to the parties that notwithstanding
my December 17th conference summary, because I have
explained the limited jurisdiction the Board has, and I do not
understand what Ms. Crook feels is before the Board — within
the Board’s jurisdiction in this case. I want her to testify first.
And I would......

' ABLE REPORTING (301) 627-8210

ee ae

App. |- = 12
MSPB Final ORDER Dec 19, 2002

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

GLENDA G. CROOK, DOCKET NUMBER
Appellant, DC-0752-02-0053-I-1
v. (Rec'd by appellant Dec 21, 2002)

DEPARTMENT OF DEFENSE, DATE: Dec 19 2002
Agency.

Glenda G. Crook, Alexandria, Virginia, pro se.

Gilah G. Goldsmith, Esquire, Washington, D.C., for
the agency

BEFORE

Susanne T. Marshall, Chairman
Beth S. Slavet, Member

FINAL ORDER

The appellant has filed a petition for review in this
case asking us to reconsider the initial decision issued by the
administrative judge. We grant petitions such as this one
only when significant new evidence is presented to us that
was not available for consideration earlier or when the
administrative judge made an error interpreting a law or
regulation. The regulation that establishes this standard of
review is found in Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115).

App. I- 13
MSPB Final ORDER Dec 19, 2002

After fully considering the filings in this appeal, we
conclude that there is no new, previously unavailable,
evidence and that the administrative judge made no error in
law or regulation that affects the outcome. 5 C.F.R. §
1201.115(d). Therefore, we DENY the petition for review.
The initial decision of the administrative judge is final. This
‘s ihe Board’s final decision in this matter. 5 C.F.R. §
1201.113.

NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court
of Appeals for the Federal Circuit to review this final
decision. You must submit your request to the court at the
following address:

United States Court of Appeals
For the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439

The court must receive your request for review no later than
60 calendar days after your receipt of this order. If you have
a representative in this case, and your representative receives
this order before you do, then you must fie with the court no
later than 60 calendar days after receipt by your
representative. If you choose to file, be very careful to file on
time. The court has held that normally it does not have the
authority to waive this statutory deadline and that filings that
do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544
(Fed. Cir. 1991).

If you need further information about your right to
appeal this decision to court, you should refer to the federal
law that gives you this right. It is found in Title 5 of the
United States Code, section 7703 (5 U.S.C. § 7703). You
may read this law as well as review the Board’s regulations

App. I- 14
MSPB Final ORDER Dec 19, 200.

and other’ related material at our. web © site
http://www.mspb. gov.

FOR THE BOARD: s/Bentley M. Roberts, Jr.
Clerk of the Board
Washington, D.C.

App. I- 15
MSPB Final ORDER Dec 19, 2002

CERTIFICATE OF SERVICE
I certify that this ORDER was sent today:
By certified mail to:

Washington College of Law

Civil Practice Clinic

4801 Massachusetts Avenue, NW
Washington, DC 20016

Glenda G. Crook
621 N. Saint Asaph St. # 209
Alexandria, VA 22314

By regular mail to:
Gilah G. Goldsmith
Department of Defense
Washington Headquarters Services OGC
1155 Defense Pentagon, Room 1D197
Washington, DC 20301-1155

Kenneth L. Bates

U.S. Office of Personnel Management
Employee Relations Division
1900 “E” Street, N.W., Room 7412
Washington, DC 20415

Merit Systems Protection Board
Washington Regional Office
1800 Diagonal Road, Suite 205
Alexandria, VA 22314

App. I- 16
MSPB Final ORDER Dec 19, 2002

CERTIFICATE OF SERVICE Con’td
By hand to:

Office of the Special Counsel
1730 M Street, N.W.

Suite 201

Washington, DC 20036-4505

December 19, 2002 s/Marie A. Warcholak
(Date) Marie A. Warcholak
Legal Assistant

Washington, DC

nobtaniy Seat sks eas eae sia cies Res Soya DE Rata tetany Cl ae dO AN

App. I-17
MSPB Final ORDER, Jan 17, 2002

UNITED STATE OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE

GLENDA G. CROOK, DOCKET NUMBER
Appellant, DC-0752-02-0053-I-1
V. (Rec’d by Appellant Jan 18, 2002)

DEPARTMENT OF DEFENSE, DATE: Jan 17, 2002
Agency.

American University Clinical Law Program,
Washington College of Law, Washington, D.C.

Gilah G. Goldsmith, Esquire, Washington, D.C., for
the agency.

BEFORE
Elizabeth B. Bogle
Administrative Judge

INITIAL DECISION

On October 29, 2001, the appellant filed an appeal
from an agency decision to remove her from the position of
Security Assistance Analyst, GM-1101-15, in the Defense
Security Cooperation Agency. The Board has jurisdiction
over the appeal. See 5 U.S.C. §§ 7511(a)(1)(A), 75120),
7513(d). For the following reasons, the agency action is
AFFIRMED. !

' The appellant has designated the American University Clinical Law
Program to represent her and moved to reopen the record. The record in
this case closed at the conclusion of the hearing on December 19, 2001. 5
C.F.R. § 1201.58. Once the record closes, no additional evidence or

App. I- 18
MSPB Final ORDER, Jan 17, 2002

Background

The appellant’s Security Assistance Analyst position
was designated Special Sensitive. Appeal File (AF) tab 4,
subtab 4). By notice dated October 4, 2000, the appellant was
informed that -a tentative determination had been made to
revoke her eligibility for access to classified information
and/or occupancy of a sensitive position. AF tab 4, subtab
4h. A “statement of reasons” was attached to the notice, and
the appellant was afforded an opportunity to reply. On
December 20, 2000, the agency revoked the appellant’s
security access. AF tab 4, subtab 4g. Beginning on March
28, 2001, the appellant was indefinitely suspended. AF tab 4,
subtab 4f. The appellant’s appeal of the revocation action
was denied on August 2, 2001. AF tab 4, subtab 4e.

By notice dated August 28, 2001, Beth M. Baker,
Policy and Plans Division, proposed the appellant’s removal
because her position required a top secret security clearance,
and her security clearance had been revoked. AF tab 4,
subtab 4c. The appellant was afforded an opportunity to
reply, but she did not submit a reply. By memorandum dated
September 5, 2001, Keith Webster Director, Policy, Plans and
Programs Directorate, issued a decision to remove the
appellant. AF tab 4, subtab 4b. The appellant resigned in
lieu of removal on September 14, 2001, and was granted
discontinued service retirement.

Legal standard

In Jones v. Department of the Navy, 48 M.S.P.R. 680,
689 (1991), aff'd, 978 F.2d 1223 (Fed. Cir. 1992), the Board
held that an agency may indefinitely suspend an employee

argument will be accepted unless it was not readily available before the
record closed. /d. Because the appellant’s designation of a representative
is not a basis for reopening the record and because the appellant has not
otherwise established a basis for reopening the record, her motion is
DENIED.

es

A PRES AP ed Ie RE EN OE BRT POS Soh Pe eee ee ea ? Li 4
Bee Sen ES ER RR ORGAO SAA NE a Na MB ae AS ER Rd Se ISIAH SR Ricci

App.I- 19
MSPB Final ORDER, Jan 17. 2002

based on the suspension of her security access, or pending its
investigation of her security clearance, where the agency
believes that her retention in a duty status would be
detrimental to government interests. The Board further found
that it lacks the authority to review the merits of an agency’s
suspension of an employee’s security access. Id. at 690,
citing, Department of the Navy v Egan, 484 U.S. 518, 527-32,
108 S.Ct. 818, 824-26, 98 L.Ed.2d 918 (1988).

In Kriner v. Department of the Navy, 61 M.S.P.R. 526
(1994), the Board reaffirmed that an agency ay indefinitely
suspend an employee based on its prior action with respect to
her security access and that the Board may not inquire into
the merits of the agency’s reasons for the security access
decision; the Board nonetheless held that it must assure that
minimum due process requirements were accorded in the
indefinite suspension action. Thus, where an indefinite
suspension is based on the relocation of access to security
areas or information, the agency must provide the appellant
with a meaningful opportunity to respond to the reasons for
the indefinite suspension by ensuring that either in the
advance notice of that action, or in the earlier access
determination, she has been notified of the cause that led to
the access determination. Because an employee against
whom an adverse action such as an indefinite suspension is
taken is entitled to notice of the specific reasons for that
action and to an opportunity to address those reasons in her
response to the agency’s proposal, only in this manner does
the agency assure that the appellant is afforded meaningful
due process with respect to her constitutionally protected
property interest in her employment. See, e.g., Holley v.
Department of the Navy, 62 M.S.P.R. 300, 303-04 (1994),
citing, Cleveland Board of Education v. Loudermill, 470 US.
532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985);
Stephen v. Department of the Air Force, 47 M.S.P.R. 672,
681 (1991). The same analysis applies to a removal appeal.
Mantos v. Department of the Navy. 62 M.S.P.R. 117, 119

App. I- =. 20
MSPB Final ORDER, Jan 17, 2002

(1994); Germino v. Department of Defense, 61 M.S.P.R. 686-
87 (1994).

The appellant’s position required a security clearance

The Board lacks authority to review the agency’s
reasons for imposing a security clearance requirement as a
condition of employment for a position. See West v.
Department of the Navy, 63 M.S.P.R. 86, 88-89 (1994). In
reviewing an adverse action based on the revocation of a
security clearance, however, the Board may inquire whether
the agency has established that a security clearance was
required for the position in question. /d.

The appellant’s position description provided four
possible levels of sensitivity: _Non-sensitive, Noncritical-
Sensitive, Critical-Sensitive, and Special-Sensitive. The
appellant’s position was designated Special-Sensitive. Mr.
Webster testified that without exception all employees of the
Defense Security Cooperation Agency (DSCA) are required
to have a security clearance. Tr. At 16, 28. His testimony
was consistent with that of Arthur R. Kel[t]z, Deputy
Director, and Jacqueline Manuel, Personnel Officer, at the
hearing in the appellant’s indefinite suspension appeals.”
Citing DOD 5200.2-R, paragraph C3.1.2 (criteria for security
designation of positions), the appellant argued that her
position did not require a security clearance. Appellant’s
exhibit A, Tr. At 23. Pursuant to that paragraph, civilian
positions of the Department of Defense are designated Non-
sensitive, Noncritical-Sensitive, or Critical-Sensitive. The
paragraph does not address the designation of Special-
Sensitive. While it is unclear from the record when the
Special-Sensitive designation applies, this does not provide a
basis for concluding that a position designated Special-
Sensitive does not require a security clearance. Because the

> The appellant furnished a copy of the transcript of that hearing as
evidence in this appeal. AF tab 1, exhibit 13.

App. I-21
MSPB Final ORDER, Jan 17, 2002

appellant’s position was designated sensitive and based on
Mr. Webster’s testimony that all DSCA employees are
required to have a security clearance, | conclude that the
appellant’s position required her to have a security clearance.

The appellant was afforded meaningful due process

The agency afforded the appellant her adverse action
procedural rights under 5 U.S.C. chapter 75 by providing her
prior written notice of the reason for the action, an
opportunity to reply orally and in writing, a written decision,
and notice of appeal rights. The appellant, I conclude, was
afforded meaningful due process in the removal action.

The appellant alleged that the agency could have
reassigned her to a nonsensitive position following the
revocation of her security clearance. To be entitled to a
reassignment, the appellant would be required to show that
the agency had a policy, manifested by regulations, requiring
such reassignment. See Hesse v. Department of State, 82
M.S.P.R. 489, 492 (1999); Vanduzer v. Department of the
Navy, 41 M.S.P.R. 357, 361-62 (1989). None of the agency
regulations cited by the appellant would require her
reassignment in these circumstances.

Finally, the appellant alleged that the agency
committed prohibited personnel _ practices including
discrimination and reprisal. It is well settled that the Board
lacks jurisdiction over these affirmative defenses when raised
in connection with a removal based on the revocation of a
security clearance. See Hesse v. Department of State, 82
M.S.P.R. at 493, citing Hinton v. Department of the Navy, 61
M.S.P.R. 692, 697 (1994).

DECISION
The agency’s action is AFFIRMED.
FOR THE BOARD: s/Elizabeth B. Bogle

Elizabeth B. Bogle
Administrative Judge

App. I- 22
MSPB Final ORDER, Jan 17. 2002

NOTICE TO THE PARTIES CONCERNING
SETTLEMENT

The date that this initial decision becomes final,
which ts set forth below, is the last day that the administrative
judge may vacate the initial decision in order to accept a
settlement agreement into the record. See 5 C.F.R. §
1201.112(a)(5). ~

NOTICE TO APPELLANT

This initial decision will become ffinal on
, unless a petition for review is filed by that date
or the Board reopens the case on its own motion. This is an
important date because it is usually the last day on which you
can file a petition for review with the Board. However, if this
initial decision is received by you more than 5 days after the
date of issuance, you may file a petition for review within 30
days after the date you actually received the initial decision.
The date on which the initial decision becomes final also
controls when you can file a petition for review with the
Court of Appeals for the Federal Circuit. The paragraphs that
follow tell you how and when to file with the board or the
federal court. These instructions are important because if you
wish to file a petition, you must file it within the proper time
period.

BOARD REVIEW

You may request Board review of this initial decision
by filing a petition for review. Your petition, with supporting
evidence and argument, must be filed with:

The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.,
Washington, DC 20419

App. I- = 23
MSPB Final ORDER, Jan 17; 2002

C51 og Na

If you file a petition for review, the Board will obtain the
record in your case from the administrative judge and you
should not submit anything to the Board that is already part of
the record. Your petition must be postmarked, faxed, or
hand-delivered no later than the date this initial decision
becomes final, or if this initial decision is received by you
more than 5 days after the date of issuance, 30 days after the
date you actually receive the initial decision. If you fail to
provide a statement with your petition that you have either
mailed, faxed, or hand-delivered a copy of your petition to
the agency, your petition will be rejected and returned to you.

JUDICIAL REVIEW
If you are dissatisfied with the Board’s final decision
you may file a petition with: |
The United States Court of Appeals
For the Federal Circuit
717 Madison Place, NW.
Washington, DC 20439
You may not file your petition with the court before this
decision becomes final. To be timely, your petition must be

) received by the court no later than 60 calendar days after the
: date this initial decision becomes final.

-_

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for
review of this initial decision in accordance with the Board’s
regulations.

App. I- 24
MSPB Final ORDER, Jan 17, 2002

CERTIFICATE OF SERVICE
I certify that the attached Document(s) was (were)
sent by regular mail this day to each of the following:
Appellant
Glenda G. Crook
621 N. Saint Asaph St. # 209
Alexandria, VA 22314

Appellant’s Representative

American University
Washington College of Law
Civil Practice Clinic

4801 Massachusetts Ave., NW.
Washington, DC 20016

Agency’s Representative
Gilah G. Goldsmith
Department of Defense

Washington Headquarters Services/OGC
1155 Defense Pentagon, Room 1D197
Washington, DC 20301-1155

Other

Kenneth L. Bates

U.S. Office of Personnel Management
Employee Relations Division

1900 E Street, NW, Room 7412
Washington, DC 20415

January 17, 2002 s/Eric W. Hawthorne

(Date) Eric W. Hawthorne
Paralegal Specialist

BS Sa ye A ER CAAT I kT ORE ANE EI EIS TROT Co Mer

App. II- 25
District Court OPINION CA-03-431-A. Oct 27, 2003

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

GLENDA GAIL PARKER FILED OCT 27 2003
Plaintiff, Clerk, US District Court
v. Alexandria, Virginia
DEPARTMENT OF DEFENSE
Defendant. (Rec’d by plaintiff Oct 31, 2003)

AMENDED MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant’s
Motion to Dismiss Plaintiffs Complaint for lack of
jurisdiction pursuant to Rule 12(b) (6) of the Federal Rules of
Civil Procedure. This case concerns Plaintiff's appeal to this
Court for review of unfavorable rulings by the Merit Systems
Protection Board (“MSPB”) and the United States Court of
Appeals for the Federal Circuit (“Federal Circuit”).' The
issue raised in this Motion to Dismiss is whether this Court
has jurisdiction to consider Plaintiff's appeal when Plaintiff
waived her opportunity to present her discrimination and
nondiscrimination claims before the District Court, and
instead sought review by the Federal Circuit, which docketed
and decided her nondiscrimination claims only.

Upon review of Defendant’s Motion to Dismiss and
Plaintiff's Motions in Opposition to Defendant’s Motion to
Dismiss, the Court grants the motion because Plaintiff waived
her right to pursue her Title VII discrimination claims in this
district court when she signed a waiver of these claims and
submitted her appeal to the Federal Circuit.

! Defendant revoked Plaintiff's security clearance, and her employment
was later terminated — described in detail infra.

App. Il- 26
District Court OPINION CA-03-431-A, Oct 27, 2003

BACKGROUND

Glenda Gail Parker (“Parker”), Plaintiff, worked as a
security assistance analyst for Defendant’ from December
1995 until she was indefinitely suspended from pay and duty
on March 23, 2001. As a security assistance analyst, Parker
required a top secret security clearance. Because of instances
of irrational behavior and as a result of concerns about
Parker’s performance and conduct, the DSCA was reluctant
to entrust sensitive duties to her. Therefore, on April 10,
1998, she was administratively reassigned to other duties.
While administratively reassigned, Parker continued to
exhibit irrational behavior.

On March 23, 2001, following a psychiatric evaluation
and administrative process, Keltz imposed a suspension from
pay and duty pursuant to a decision that no meaningful work
could be assigned to Parker because of the revoked security
clearance. On April 25, 2001, Parker appealed her indefinite
suspension to the Merit Systems Protection Board (“MSPB”).
In Parker’s appeal, she alleged that she was suspended in
reprisal for whistleblowing and for her seeking military
service. On August 23, 2001, the MSPB sustained Parker’s
indefinite suspension. Parker appealed the MSPB
determination. On August 2, 2001, in a separate review and
determination, the Clearance Review Board)”CAB”) decided
not to reinstate Parker’s security clearance pending the
outcome of the MSPB appeal.

On October 29, 2001, Parker simultaneously filed a
petition for Review of the MSPB’s sustainment of her
security clearance revocation and a new MSPB appeal of her
removal from employment. On appeal, an MSPB
Administrative Law Judge (“A.L.J.”) sustained Parker’s
removal on January 17, 2002 and noted that the A.L.J. lacked

*Parker was a GS-15 Security Assistance Analyst with the Defense
Security Cooperation Agency (“DSCA”), an agency of Defendant the
Department of Defense (:DOD”’).

App. l- 27
District Court OPINION CA-03-431-A, Oct 27, 2003

jurisdiction to further review Parker’s appeal. On February
16, 2002, Parker petitioned the MSPB to review the A.L.J.’s
decision, but the petition was denied. On February 19, 2003,
Parker filed a pro se petition with the Federal Circuit for
review of the final decision made by the MSPB on the
revocation of her security clearance and removal from
employment.

In accordance with an appeal to the Federal Circuit,
Parker filed a Federal Circuit Rule 15(c) waiver ‘of
discrimination claims (“Rule 15(c)”) with the clerk of the
Federal Circuit on April 1, 2003. By order dated May 23,
2003, the Federal Circuit informed the parties that the appeal
will be submitted to a three judge panel on July 11, 2003. In
the Government’s Second Report to the Court Regarding the
Federal Circuit’s Decision in this Case, filed on July 24,
2003, the Government avers that Parker’s appeal was heard
by the Federal Circuit, and that the court affirmed the
MSPB’s decision.* (Def.’s 2d Report at 1.)

a. ANALYSIS
A. Standard of Review

In considering a motion to dismiss under Rule
12(b)(6), the Court should accept as true all well-plead
allegations of the complaint and view the complaint in the
light most favorable to the plaintiff. Mylan Lab., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4" Cir. 1993); Fed. R. Civ. P.
12(b)(6). The Court should grant a motion to dismiss for
failure to state a claim only if it appears to a certainty that the
plaintiff cannot prove any set of facts in support of its claim
that would entitle the plaintiff to relief. Conley v. Gibson,
355 U.S. 41, 45-46 (1957).

The Court’s analysis will determine if this Court has
jurisdiction to decide Parker’s appeal. To that end, the Court

3 Crook v. Dep’t of Defense, 71 Fed. Appx. 54, 2003 WL 21675126, at *1

(Fed. Cir. July 14, 2003) (Crook now known as Glenda Gail Parker) (not
cited for authority).

App. II- 28
District Court OPINION CA-03-431-A, Oct 27, 2003

must first decide if it has jurisdiction over a claim after it has
already been docketed and decided by the Federal Circuit.
Second, if the Court does have jurisdiction to hear the appeal,
the Court will decide if it has jurisdiction to hear appeals of
government employees who were terminated following
revocation of their security clearance.

B. Analysis

The Court holds that Plaintiff fails to state a claim
upon which relief may be granted because she fails to
demonstrate that this Court has jurisdiction to hear her
appeal. This ruling is founded on settled principles that a
litigant may not have “two bites of the apple.” Plaintiff
waived her opportunity to remove her appeal to the district
court, where both her discrimination and non-discrimination
claims could be heard, when she appealed to the Federal
Circuit. In addition, the Federal Circuit has already ruled on
the merits of the nondiscrimination claims raised in that
forum. Therefore, because Parker waived her discrimination
claims and the nondiscrimination claims have been decided
by the Federal Circuit, this Court has no jurisdiction.
Accordingly, Defendant’s Motion to Dismiss is granted.

1. Parker Waived her discrimination claims to
gain forum in the Federal Circuit

Plaintiff waived her opportunity to appeal to
the district court for review of her discrimination and
nondiscrimination claims. The Guide for Pro Se
Petitioners and Appellants (“Guide”) issued by the
Federal Circuit provides that:

This court does not have jurisdiction to
review cases involving bona _ fide
claims of discrimination...that were
raised before the Merit Systems
Protection Board. If your case
involves such claims and you are
unwilling to abandon the forever, you

App. Il- 29
District Court OPINION CA-03-431-A, Oct 27, 2003

Re tn. A

must proceed in a district court.... You
may waive your discrimination claims
on the Federal Circuit Rule 15(c) form
sent to you by the court...A
discrimination issue raised for the first
time in this court does not affect the
jurisdiction of the court to decide the
issues raised before the Board, and
such a discrimination claim will be
disregarded.

Fed. Cir. R. apps. At 133 (Guide for Pro Se Petitioners and
Appellants) (emphasis added). Rule 15(c) provides in
“ pertinent part that:

Within 14 days after a petition for review of a
decision of the Merit Systems Protection
Board ... is docketed, the petitioner must
serve on the respondent and file with the clerk:

(A) one of the following statements:

(i) no claim of discrimination by reason of
race, sex, age, national origin, or
handicapped condition has been or will be
made in the case;

(ii) any claim of discrimination ... raised
before the Board has been abandoned and
will not be raised or continued in this or
any other court:

(iii) the petition seeks review only of the ~
Board’s dismissal of the case for lack of
jurisdiction or for untimeliness; ...

(B) a statement whether petitioner has
filed a discrimination case;

(i) in a United States district court; or :

PUMA seer eRate ene ESS ashley ati B RRA eis

App. IIl- 30
District Court OPINION CA-03-431-A, Oct 27, 2003

(11) in the Equal Employment Opportunity

Commission.
Thus, an appellant must either file a written waiver of her
discrimination claims or she must remove her case to the
appropriate district court for review. Davidson v. United
States Postal Service, 24 F.3d 223, 223-224 (Fed. Cir. 1994)
(ordering that petitioner must file “either (1) a request for the
[Federal Circuit] to proceed which must be accompanied by
the appropriate waiver, or (2) a request for transfer to a
particular United States district court.”); Williams v. Dep’t of
the Army, 715 F.2d 1485 (Fed. Cir. 1983) (holding that the
Federal Circuit has no jurisdiction over the merits of a mixed
case 1.e., one involving an adverse action and a claim of
discrimination); Daniels v. United States Postal Service, 726
F.2d 723, 724 (Fed. Cir. 1984) (ruling that a waiver of a
claim of discrimination must be by an express written
statement).

Furthermore, an appellant is precluded from
relitigating discrimination claims before the district court
when he splits his discrimination and nondiscrimination
claims between the Federal Circuit and the district court.
Smith v. Horner, 846 F.2d 1521, 1524 (D.C. Cir. 1988) (The
appellant “could also be held precluded from litigating his
Title VII claim because he “split” his two claims. [The
appellant] chose to litigate his disability claim in a court (the
Federal Circuit) that could hear less than his entire claim
instead of going to the district court ....”’).

In Smith, the appellant chose to dispose of his
nondiscrimination claims before the Federal Circuit. Id. at
1523. The Clerk advised the appellant that the Federal
Circuit will not hear discrimination claims, but rather, he may
remove his claim to the district court, which can hear both his
discrimination and nondiscrimination claims. Id. at 1522-23.
The Court of Appeals ruled that the appellant waived her
Title VII claim by signing the written waiver of her
discrimination claims she filed in the Federal Circuit.

ee Oe ee ee, eS wat PR ay eae er eee, ee eee ee eee Pa
Sp Se ms

App. Il- 31
District Court OPINION CA-03-431-A, Oct 27, 2003

Furthermore, to permit an appellant to pursue [her]
discrimination claim in the District Court notwithstanding
[her] waiver in the Federal Circuit would undermine that
court’s “efforts to prevent sequential forum shopping.” Id. at
1524.

In the instant case, Defendant avers, and Parker does
not refute, that she submitted a Rule 15(c) waiver of her
discrimination claims to the Federal Circuit on April 1, 2003
(Def.’s Mot. Dismiss at 9), and Parker filed the instant appeal
with this Court on April 4, 2003. (PI.’s Notice Appeal at 1).
Parker’s appeal was set for review by a three judge panel on
July 11, 2003, and the Federal Circuit affirmed the MSPB’s
determination on July 14, 2003. Hence, because Parker
waived her Title VII claims and submitted her appeal to the
Federal Circuit, which cannot hear discrimination claims, she
effectively waived her discrimination claims forever.
Therefore, she fails to state a claim upon which relief may be
granted.

2. Parker’s_nondiscrimination claims were
docketed and decided by the Federal Circuit

Parker also fails to state a claim for which relief may
be granted because her appeal was docketed and decided by
the Federal Circuit. The Guide alerts the pro se petitioner
that the Federal Circuit will not hear discrimination claims,
but rather, such claims must either be abandoned forever or
removed to district court. Fed. Cir. R. apps. At 132 (Guide
for Pro Se Petitioners and Appellants). Parker had the
opportunity to litigate both claims before a court of
competent jurisdiction, but instead chose to split them. The
Federal Circuit docketed Parker’s appeal on May 23, 2003 for
hearing on July 11, 2003, affirming the determination of the
MSPB.* Thus Parker may not waive her discrimination
claims to secure a forum in the Federal Circuit, quickly assert
her discrimination claims in this Court, and then hope to gain

ss Supra note 3.

App. Il- 32
District Court OPINION CA-03-431-A, Oct 27, 2003

a second review by reasserting her discrimination claims.
Litigants are precluded from “two bites at the apple.”
Therefore, Parker fails to state a claim upon which relief may
be granted because she waived her opportunity to appeal to
this forum and her appeal was decided by the Federal Circuit.
Accordingly, Plaintiffs claim is dismissed for lack of
jurisdiction, and Defendant’s Motion to Dismiss is granted.

Il. CONCLUSION

Defendant’s Motion to Dismiss is granted because
Plaintiff waived her opportunity to have both her
discrimination and nondiscrimination claims decided by this
Court when she submitted her case to the Federal Circuit. By
agreeing to waive her discrimination claims, she abandoned
her discrimination claims forever. Accordingly, it is hereby
ORDERED that Defendant the Department of Defense’s
motion to Dismiss is GRANTED.

The Clerk is directed to enter judgment in favor of the
Department of Defense and against Glenda Gail Parker
pursuant to Federal Rule of Civil Procedure 58. Fed. R. Civ.
P. 58.

The Clerk is directed to forward 2 copy of this Order to
counsel of record.

ENTERED this 27" day of OCTOBER, 2003.°

s/Gerald Bruce Lee

Gerald Bruce Lee

United States District Judge
Alexandria, Virginia
10/27/2003

> Smith, 846 F.2d at 1524.
°Appealed to the Fourth Circuit Nov 25, 2093, Docket No. 03-2483,
decision pending.

eo

App. Ill- 33
Fed. Cir. Rehearing ORDER 03-3152, Sep 10, 2003

United States Court of Appeals for the Federal Circuit

ORDER'
Before NEWMAN, Circuit Judge, MICHEL, Circuit Judge,
and RADER, Circuit Judge.
A petition for rehearing having been filed by the
PETITIONER,
UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the
same hereby is, DENIED.

The mandate of the court will issue on September 17, 2003.

FOR THE COURT,
s/Jan Horbaly
Clerk

Dated: September 10, 2003

Cc: | Glenda Gail Parker
Kyle Chadwick
FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
SEP 10 2003
JAN HORBALY
CLERK
CROOK V DEFENSE, 033152
(MSPB — DC0752020053-I-1)

' Note: Pursuant to Fed. Cir. R. 47.6, this order is not citable as
precedent. It is a public record.

App. IV- 34
Fed. Cir. Judgment 03-3152, Jul 14, 2003

UNITED ST ATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT

NOTICE OF ENTRY OF
JUDGMENT ACCOMPANIED BY OPINION

OPINION FILED AND JUGEMENT ENTERED:
07/14/03

The attached opinion announcing the judgment of the
court in your case was filed and judgment was entered on the
date indicated above. The mandate will be issued in due
course.

Information is also provided about petitions for
rehearing and petitions for rehearing en banc. The questions
and answers are those frequently asked and answered by the
Clerk’s Office.

Costs are taxed against the Petitioner(s) under Rule
39. The party entitled to costs is provided a bill of costs form
and an instruction sheet with this notice.

The parties are encouraged to stipulate to the costs. A
bill of costs will be presumed correct in the absence of a
timely filed objection.

Costs are payable to the party awarded costs. If costs
are awarded to the government, they should be paid to the
Treasurer of the United States. Where costs are awarded
against the government, payment should e made to the
person(s) designated under the governing statutes, the court’s
orders, and the parties’ written settlement agreements. In
cases between private parties, payment should be made to
counsel for the party awarded costs or, if the party is not
represented by counsel, to the party pro se. Payment of costs
should not be sent to the court. Costs should be paid
promptly.

App. IV- 35
j Fed. Cir. Judgment 03-3152, Jul 14, 2003

If the court also imposed monetary sanctions, they are -
payable to the opposing party unless the court’s opinion
provides otherwise. Sanctions should be paid in the same
way as costs.

Regarding exhibits and visual aids: Your attention is
directed to FRAP 34(g) which states that the clerk may
destroy or dispose of the exhibits if counsel does not reclaim
them within a reasonable time after the clerk gives notice to
remove them. (The clerk deems a reasonable time to be 15
days from the date the final mandate is issued.)

s/JAN HORBALY
Clerk
Ce: GLENDA GAIL PARKER
KYLE CHADWICK

4 CROOK V DEFENSE, 03-3152
4 MSPB-DC0752020053-I-1

4
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App. IV- 36
District Court Judgment CA 04-431-A, Oct 27, 2003

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
FILED
OCT 27 2003
Clerk, U.S. District Court
Alexandria, Virginia
Glenda Gail Parker
v. (Rec’d Oct 31, 2003)
Civil Action 03-0431-A
Department of Defense |

JUDGMENT
Pursuant to the order of this Court entered on October
27, 2003 and in accordance with Federal Rules of Civil
Procedure 58, JUDGMENT is hereby entered in favor of the
Defendant, Department of Defense, against the Plaintiff,
Glenda Gail Parker.

ELIZABETH H. PARET, CLERK

s/By: Jenny Cupp
Deputy Clerk

Alexandria, Virginia
October 27, 2003

App. IV- 37
District Court Judgment CA 04-431-A, Oct 27, 2003

IN THE UNITED STATES DISTRICT COURT FOR
_ THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION
FILED
OCT 27 2003
Clerk, U.S. District Court
Alexandria, Virginia
GLENDA GAIL PARKER
Plaintiff,
V. Civil Action No. 03-431-A
(Rec’d by plaintiff Oct 31, 2003)
DEPARATMENT OF DEFENSE,
Defendant.

AMENDED JUDGMENT

Pursuant to the Court’s Opinion of October 27, 2003,
wherein the Court granted the Defendant’s Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), the
Court hereby

ORDERS the Clerk to enter JUDGMENT in favor of
the Defendant, Department of Defense, and against the
Plaintiff, Glenda Gail Parker, pursuant to Rule 58 of the
Federal Rules of Civil Procedure, and the case is hereby
DISMISSED.

The Clerk is directed to forward a copy of the Order
to counsel.
Entered this 27" day of October, 2003.
sGerald Bruce Lee
Gerald Bruce Lee
United States District Judge

Alexandria, Virginia
10/27/03

App. V- 38
U.S. Constitution, Article II

U.S. Constitution

é

Article II
Section 1...

...Before he enter on the execution of his office, he shall take
the following oath or affirmation:--"I do solemnly swear (or
affirm) that I will faithfully execute the office of President of
the United States, and will to the best of my ability, preserve,
protect and defend the Constitution of the United States."

Section 2. The President shall be commander in chief of the
Army and Navy of the United States, and of the militia of the
several states, when called into the actual service of the
United States; he may require the opinion, in writing, of the
principal officer in each of the executive departments, upon
any subject relating to the duties of their respective offices,
and he shall have power to grant reprieves and pardons for
offenses against the United States, except in cases of
impeachment.

He shall have power, by and with the advice and consent of
the Senate, to make treaties, provided two thirds of the
Senators present concur;...

Section 3. He shall from time to time give to the Congress
information of the state of the union, and recommend to their
consideration such measures as he shall judge necessary and
expedient; he may, on extraordinary occasions, convene both
Houses, or either of them, and in case of disagreement
between them, with respect to the time of adjournment, he
may adjourn them to such time as he shall think proper; he
shall receive ambassadors and other public ministers; he
shall take care that the laws be faithfully executed, and

shall commission all the officers of the United States.

Pe a ee eS I II ST we

SR

PS TA RE PAA FREAD MSH

App. V- 39

U.S. Constitution, Section 8

U.S. Constitution

Section 8. The Congress shall have power to lay and collect
taxes, duties, imposts and excises, to pay the debts and
provide for the common defense and general welfare of
the United States; but all duties, imposts and excises shall be
uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the
several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform
laws on the subject of bankruptcies throughout the United
States;

To coin money, regulate the value thereof, and of foreign
coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities
and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by
securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and
make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money
to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the
land and naval forces;

To provide for calling forth the militia to execute the laws
of the union, suppress insurrections and repel invasions;

App. V- 40

U.S. Constitution, Section 8

To provide for organizing, arming, and disciplining, the
militia, and for governing such part of them as may be
employed in the service of the United States, reserving to
the states respectively, the appointment of the officers, and
the authority of training the militia according to the discipline
prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over
such District (not exceeding ten miles square) as may, by
cession of particular states, and the acceptance of Congress,
become the seat of the government of the United States, and
to exercise like authority over all places purchased by the
consent of the legislature of the state in which the same shail
be, for the erection of forts, magazines, arsenals, dockyards,
and other needful buildings;--And

To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all
other powers vested by this Constitution in the
government of the United States, or in any department or
officer thereof.

BE ENTE IAG Nl EE RTE IAI EE ORE CUFT I

App. V- 41
U.S. Constitution, Bill of Rights

U.S. Constitution

Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the
government for a redress of grievances.

Amendment IV

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces,
or in the militia, when in actual service in time of war or
public danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be
taken for public use, without just compensation.

App. V- 42
3 U.S.C. § 401

TITLE 3 CHAPTER5 SUBCHAPTER I Sec. 401.

Sec. 401. - Definitions

(a) In General. - Except as otherwise specifically provided in
this chapter, as used in this chapter:

(1) Board. - The term "Board" means the Merit Systems
Protection Board under chapter 12 of title 5.

(2) Covered employee. - The term "covered employee"
means any employee of an employing office.

(3) Employee. - The term "employee" includes an
applicant for employment and a former employee.
(4) Employing office. - The term "employing office"
means -
(A) each office, agency, or other component of
the Executive Office of the President;

(B) the Executive Residence at the White
House; and

(C) the official residence (temporary or
otherwise) of the Vice President.

(b) Definitions Relating to Certain Matters. - For purposes of
applying this chapter with respect to any practice or other
matter -

(1) to which section 411 relates, the terms "employing
office" and "covered employee" shall each be
considered to have the meaning given to the term by
such section;

(2) to which section 412 relates, the term "covered
employee" means a covered employee described in
section 412(a)(2)(B);

(3) to which section 413 relates, the term "covered
employee” excludes interns and _ volunteers, as
described in section 413(a)(2); and

(4) to which section 416 relates, the term "covered

employee" means a covered employee described in
section 416(a)(2)

App. V- 43
3 U.S.C. §. 402

TITLE 3 CHAPTER 5 SUBCHAPTER I Sec. 402.
Sec. 402. - Application of laws

The following laws shall apply, as prescribed by
this chapter, to all employing offices (including
employing offices within the meaning of section 411,
to the extent prescribed therein):

(1) The Fair Labor Standards Act of 1938.
(2) Title VII of the Civil Rights Act of 1964.
(3) The Americans with Disabilities Act of 1990.

(4) The Age Discrimination in Employment Act of
1967.

(5) The Family and Medical Leave Act of 1993.
(6) The Occupational Safety and Health Act of 1970.
(7) Chapter 71 (relating to Federal service labor-

management relations) of title 5.
(8) The Employee Polygraph Protection Act of 1988.

(9) Fhe Worker Adjustment and Retraining
Notification Act.

(10) The Rehabilitation Act of 1973.

(11) Chapter 43 (relating to veterans’ employment
and reemployment) of title 38

+e ie aaa

App. V- 44
3 U.S.C. § 451

TITLE 3 CHAPTER 5 SUBCHAPTER III Sec. 451.
Sec. 451. - Procedure for consideration of alleged
violations

The procedure for consideration of alleged
violations of part A of subchapter II consists of -

(1) counseling and mediation as provided in section
452; and
(2) election, as provided in section 453, of either -

(A) an administrative proceeding as provided in
section 453(1) and judicial review as provided

in section 1296 of title 28; or

(B) acivil action in a district court of the United
States as provided in section 1346(g) of title 28

App. V- 45
3 U.S.C. § 453

TITLE 3 CHAPTER 5 SUBCHAPTER III Sec. 453.
Sec. 453. - Election of proceeding

Not later than 90 days after a covered employee receives
notice of the end of the period of mediation, but no sooner
than 30 days after receipt of such notification, such covered
employee may either -

(1) file a complaint with the appropriate agency, as
determined under section 454; or

(2) file a civil action under section 1346(g) of title 28

App. V- 46
5 U.S.C. § 552a

TITLE 5 PARTI CHAPT 5 SUBCHAPT II Sec. 552a.
Sec. 552a. - Records maintained on individuals

(a) Definitions. - For purposes of this section -
(1) the term "agency" means agency as defined in
section 552(e) LU of this title:
(2) the term "individual'' means a citizen of the
United States or an alien lawfully admitted for
permanent residence;

(3) the term "maintain" includes maintain, collect,
use, or disseminate;

(4) the term "'record'' means any item, collection,
or grouping of information about an individual that
is_ maintained by an_agency, including, but not
limited to, his education, financial transactions,
medical history, and criminal or employment
history and that contains his name, _ or_the
identifying number, symbol, or other identifying
particular assigned to the individual, such as a
finger or voice print or a photograph;

(5) the term "system of records" means a group of any
records under the control of any agency from which
information is retrieved by the name of the individual
or by some identifying number, symbol, or other
identifying particular assigned to the individual;

(6) the term "statistical record" means a record in a
system of records maintained for statistical research or
reporting purposes only and not used in whole or in
part _in making any _ determination about an
identifiable individual, except as provided by section
8 of title 13;

(7) the term "routine use" means, with respect to the
disclosure of a record, the use of such record for a
purpose which is compatible with the purpose for
which it was collected;

(8) the term "matching program" -

: App. V- 47
‘ 5 U.S.C. § 552a

(A) means any computerized comparison of -

(i) two or more automated systems of

records or a system of records with non-

Federal records for the purpose of -
(I) establishing or verifying the
eligibility of, or continuing
compliance with statutory and
regulatory requirements by,
applicants for, recipients or
beneficiaries of, participants in, or
providers of services with respect
to, cash or in-kind assistance or
payments under Federal benefit
programs, or
(iD) recouping payments or
delinquent debts under such Federal
benefit programs, or

(ii) two or more automated Federal
personnel or payroll systems of records or
a system of Federal personnel or payroll
records with non-Fedceral records,

(B) but does not include -

(i) matches performed to produce
aggregate statistical data without any
: personal identifiers;

(ii) matches performed to support any
research or statistical project, the specific
data of which may not be used to make
decisions concerning the rights, benefits,
or privileges of specific individuals;

(iii) matches performed, by an agency (or
component thereof) which performs as its
principal function any activity pertaining
to the enforcement of criminal laws,
subsequent to the initiation of a specific

App. V- 48
5 U.S.C. § 552a

criminal or civil law enforcement
investigation of a named person or persons
for the purpose of gathering evidence
against such person or persons;
(iv) matches of tax information

(I) pursuant to section 6103(d) of
the Internal Revenue Code of 1986,

(II) fer purposes of tax
administration as defined in section
6103(b)(4) of such Code,

(III) for the purpose of intercepting
a tax refund due an individual under
authority granted by section 404(e),
464, or 1137 of the Social Security
Act; or

(IV) for the purpose of intercepting
a tax refund due an individual under
any other tax refund intercept
program authorized by _ statute
which has been determined by the
Director of the Office of
Management and Budget to contain
verification, notice, and hearing
requirements that are substantially
similar to the procedures in section
1137 of the Social Security Act;

(v) matches -

(I) using records predominantly
relating to Federal personnel, that
are performed ffor routine
administrative purposes (subject to
guidance provided by the Director
of the Office of Management and
Budget pursuant to subsection (v));
or

App. V- 49
5 U.S.C. § 552a

(II) conducted by an agency using
only records from systems of
records maintained by that agency;
if the purpose of the match is not to
take any adverse financial,
personnel, disciplinary, or other
adverse action against Federal
personnel;

(vi) matches performed for foreign
counterintelligence purposes or to produce
background checks for security clearances
of Federal personnel or Federal contractor
personnel;

(vii) matches performed incident to a levy
described in section 6103(k)(8) of the
Internal Revenue Code of 1986; or

(viii) matches performed pursuant to
section 202(x)(3) or 1611(e)(1) of the
Social Security Act (42 U.S.C. 402(x)(3),
1382(e)(1));
(9) the term "recipient agency" meats any agency, or
contractor thereof, receiving records contained in a
system of records from a source agency for use in a
matching program;

(10) the term "non-Federal agency" means any State or
local government, or agency thereof, which receives
records contained in a system of records from a source
agency for use in a matching program;

(11) the term "source agency" means any agency which
discloses records contained in a system of records to be
used in a matching program, or any State or local
government, or agency thereof, which discloses records
to be used in a matching program;

(12) the term "Federal benefit program" means any
program administered or funded by the Federal

App. V- 50
5 U.S.C. § 552a

Government, or by any agent or State on behalf of the
Federal Government, providing cash or in-kind
assistance in the form of payments, grants, loans, or
loan guarantees to individuals; and

(13) the term "Federal personnel" means officers and
employees of the Government of the United States,
members of the uniformed services (including
members of the Reserve Components), individuals
entitled to receive immediate or deferred retirement
benefits under any retirement program of the
Government of the United States (including survivor
benefits).

(b) Conditions of Disclosure. -

No agency shall disclose any record which is
contained in a system of records by any means of
communication to any person, or to another agency,
except pursuant to a written request by, or with the
prior written consent of, the individual to whom the
record pertains, unless disclosure of the record
would be -

(1) to those officers and employees of the agency
which maintains the record who have a need for the
record in the performance of their duties;

(2) required under section 552 of this title;

(3) for a routine use as defined in subsection (a)(7) of
this section and described under subsection (e)(4)(D)
of this section;

(4) to the Bureau of the Census for purposes of
planning or carrying out a census or survey or related
activity pursuant to the provisions of title 13;

(5) to a recipient who has provided the agency with
advance adequate written assurance that the record will
be used solely as a statistical research or reporting
record, and the record is to be transferred in a form that
is not individually identifiable;

App. V- 51

5 U.S.C. § 552a

ODL DTA.

; (6) to the National Archives and Records
Administration as a record which has sufficient
historical or other value to warrant its continued
preservation by the United States Government, or for
evaluation by the Archivist of the United States or the
designee of the Archivist to determine whether the
record has such value;

(7) to another agency or to an instrumentality of any
| governmental jurisdiction within or under the control
: of the United States for a civil or criminal law
F enforcement activity if the activity is authorized by
law, and if the head of the agency or instrumentality
: has made a written request to the agency which
: maintains the record specifying the particular portion
: desired and the law enforcement activity for which the
record is sought;

(8) to a person pursuant to a showing of compelling
circumstances affecting the health or safety of an
individual if upon such disclosure notification is
transmitted to the last known address of such
; individual;

(9) to either House of Congress, or, to the extent of
matter within its jurisdiction, any committee or
subcommittee thereof, any joint committee of Congress
4 or subcommittee of any such joint committee;

: (10) to the Comptroller General, or any of his
authorized representatives, in the course of the
performance of the duties of the General Accounting
Office;

(11) pursuant to the order of a court of competent
jurisdiction; or

(12) to a consumer reporting agency in accordance
with section 371 1(e) of title 31.

(c) Accounting of Certain Disclosures. -

te tate PAU pel ea

App. V- 52
5 U.S.C. § 552a

Each agency, with respect to each system of
records under its control, shall -

(1) except for disclosures made under subsections
(b)(1) or (b)(2) of this section, keep an accurate
accounting of -
(A) the date, nature, and purpose of each
disclosure of a record to any person or to another
agency made under subsection (b) of this
section; and
(B) the name and address of the person or
agency to whom the disclosure is made;
(2) retain the accounting made under paragraph (1) of
this subsection for at least five years or the life of the
record, whichever is longer, after the disclosure for
which the accounting is made;

(3) except for disclosures made under subsection
(b)(7) of this section, make the accounting made under
paragraph (1) of this subsection available to the
individual named in the record at his request; and

(4) inform any person or other agency about any
correction or notation of dispute made by the agency in
accordance with subsection (d) of this section of any
record that has been disclosed to the person or agency
if an accounting of the disclosure was made.

(d) Access to Records. -

Each agency that maintains a system of records
shall -

(1) upon request by any individual to gain access to his
record or to any information pertaining to him which is
contained in the system, permit him and upon his
request, a person of his own choosing to accompany
him, to review the record and have a copy made of all
or any portion thereof in a form comprehensible to
him, except that the agency may require the individual
to furnish a written statement authorizing discussion of

Se ee ae eee

App. V- 53

5 U.S.C. § 552a

that individual's record in the accompanying person's
presence;

(2) permit the individual to request amendment of a
record pertaining to him and -

(A) not later than 10 days (excluding Saturdays,
Sundays, and legal public holidays) after the date
of receipt of such request, acknowledge in
writing such receipt; and
(B) promptly, either -
(i) make any correction of any portion
thereof which the individual believes is

not accurate, relevant, timely, or complete;
or

(ii) inform the individual of its refusal to
amend the record in accordance with his
request, the reason for the refusal, the
procedures established by the agency for
the individual to request a review of that
refusal by the head of the agency or an
officer designated by the head of the
agency, and the name and _ business
address of that official;

(3) permit the individual who disagrees with the
refusal of the agency to amend his record to request
a review of such refusal, and not later than 30 days

(excluding Saturdays, Sundays, and legal public
holidays) from the date on which the individual
requests such review, complete such review and
make a final determination unless, for good cause

shown, the head of the agency extends such 30-day
period; and if, after his review, the reviewing

official also refuses to amend the record in

accordance with the request, permit the individual

to file with the agency a concise statement setting
forth the reasons for his disagreement with the

App. V- 54
5 U.S.C. § 552a

refusal of the agency, and notify the individual of
the provisions for judicial review of the reviewing
official's determination under subsection (g)(1)(A)
of this section;

‘ ps Oh ee

App. V- 77

[2] So in original. Probably should be

App. V- 78

5 U.S.C. § 1221

TITLE 5 PART Il CHAPTER 12 SUBCHAPTER Ill
Sec. 1221.

Sec. 1221. - Individual right of action in certain reprisal
cases

(a) Subject to the provisions of subsection (b) of this section
and subsection 1214(a)(3), an employee, former employee, or
applicant for employment may, with respect to any personnel
action taken, or proposed to be taken, against such employee,
former employee, or applicant for employment, as a result of
a prohibited personnel practice described in_ section
2302(b)(8), seek corrective action from the Merit Systems
Protection Board.

(b) This section may not be construed to prohibit any
employee, former employee, or applicant for employment
from seeking corrective action from the Merit Systems
Protection Board before seeking corrective action from the
Special Counsel, if such employee, former employee, or
applicant for employment has the right to appeal directly to
the Board under any law, rule, or regulation.

(c)
(1) Any employee, former employee, or applicant for
employment seeking corrective action under subsection
(a) may request that the Board order a stay of the
personnel action involved.

(2) Any stay requested under paragraph (1) shall be
granted within 10 calendar days (excluding Saturdays,
Sundays, and legal holidays) after the date the request
is made, if the Board determines that such a stay would
be appropriate.

(3)
(A) The Board shali allow any agency which
would be subject to a stay under this subsection
to comment to the Board on such stay request.
(B) Except as provided in subparagraph (C), a
stay granted under this subsection shall remain

(d)

(e)

S$ U.S.C. § 1221

in effect for such period as the Board determines
to be appropriate.

(C) The Board may modify or dissolve a stay
under this subsection at any time, if the Board
determines that such a _ modification or
dissolution is appropriate.

(1) At _the request _of an employee, former

employee, or applicant for employment seeking
corrective action under subsection (a), the Board

shall_issue_a subpoena for the attendance and
testimony of any person or the production of.

documentary or other evidence from any person if
the Board finds that the testimony or production

requested is not unduly burdensome and appears
reasonably calculated to lead to the discovery of
admissible evidence.

(2) A subpoena under this subsection may be issued,
and shall be enforced, in the same manner as applies in
the case of subpoenas under section 1204.

(1) Subject to the provisions of paragraph (2), in any
case involving an alleged prohibited personnel practice
as described under section 2302(b)(8), the Board shall
order such corrective action as the Board considers
appropriate if the employee, former employee, or
applicant for employment has demonstrated that a
disclosure described under section 2302(b)(8) was a
contributing factor in the personnel action which was
taken or is to be taken against such employee, former
employee, or applicant. The employee may
demonstrate that the disclosure was a contributing
factor in the personnel action through circumstantial
evidence, such as evidence that -

(f)

(g)

App. V- 80
5 U.S.C. § 1221

(A) the official taking the personnel action
knew of the disclosure; and

(B) the personnel action occurred within a
period of time such that a reasonable person
could conclude that the disclosure was a
contributing factor in the personnel action.
(2) Corrective action under paragraph (1) may not be
ordered if the agency demonstrates by clear and
convincing evidence that it would have taken the same
personnel action in the absence of such disclosure.

(1) A final order or decision shall be rendered by the
Board as soon as practicable after the commencement
of any proceeding under this section.

(2) A decision to terminate an investigation under
subchapter II may not be considered in any action or
other proceeding under this section.

(3) If, based on evidence presented to it under this
section, the Merit Systems Protection Board
determines that there is reason to believe that a current
employee may have committed a prohibited personnel
practice, the Board shall refer the matter to the Special
Counsel to investigate and take appropriate action
under section 1215.

(1)

(A) If the Board orders corrective action under

this section, such corrective action may

include -
(i) that the individual be placed, as
nearly as possible, in the position the
individual would have been in had the
prohibited personnel practice not
occurred; and

App. V- 81

$ U.S.C. § 1221

(ii) back pay and related benefits,
medical costs incurred, travel expenses,
and _any other reasonable __ and
foreseeable consequential changes.

(B) Corrective action shall include attorney's
fees _and_ costs _as_ provided for under

paragraphs (2) and (3).

(2) If an employee, former employee, or applicant for
employment is the prevailing party before the Merit
Systems Protection Board, and the decision is based on
a finding of a prohibited personnel practice, the agency
involved. shall be liable to the employee, former
employee, or applicant for reasonable attorney's fees
and any other reasonable costs incurred.

(3) If an employee, former employee, (or applicant
for employment is the prevailing party in an appeal
from the Merit Systems Protection Board, the agency
involved shall be liable to the employee, former
employee, or applicant for reasonable attorney's fees
and any other reasonable costs incurred, regardless of
the basis of the decision.

(h)
(1) An employee, former employee, or applicant for
employment adversely affected or aggrieved by a
final order or decision of the Board under this
section may obtain judicial review of the order or
decision.

(2) A petition for review under this subsection shall
be filed with such court, and within such time, as

provided for under section 7703(b).
(i) Subsections (a) through (h) shall apply in any
proceeding brought under section 7513(d) if, or to the
extent that, a prohibited personnel practice as defined in
section 2302(b)(8) is alleged.

App. V- 82

5 U.S.C. § 1221

(j) In determining the appealability of any case involving
an allegation made by an individual under the provisions
of this chapter, neither the status of an individual under
any retirement system established under a Federal statute
nor any election made by such individual under any such
system may be taken into account

[1] So in original. Probably should be "employee,"

App. V- 83

5 U.S.C. § 2302

TITLE 5 PART III Subpart A CHAPTER 23 Sec. 2302.
Sec. 2302. - Prohibited personnel practices

(a)

(1) For the purpose of this title, "prohibited
personnel practice'' means any action described in
subsection (b).

(2) For the purpose of this section -
(A) "personnel action" means -
(i) an appointment;
(ii) a promotion;

(iii) an_action under chapter 75 of this
title or other disciplinary or corrective

action;
(iv) a detail, transfer, or reassignment;

(v) a reinstatement;

(vi) a restoration;

(vii) a reemployment;

(viii) a performance evaluation under
chapter 43 of this title;

(ix) a decision concerning pay, benefits,
or awards, concerning -education or
training if the education or training may
reasonably be expected to lead to an
appointment, promotion, ~ performance
evaluation, or other action described in
this subparagraph;

(x) a decision to order_psychiatric
testing or examination; and

(xi) any other significant change in

duties, responsibilities, or working
conditions;

with respect to an employee in, or applicant

for, a covered position in an agency, and in the

case of an alleged prohibited personnel practice

App. V- 84

5 U.S.C. § 2302

described in subsection (b)(8), an employee or
applicant for employment in a Government
corporation as defined in section 9101 of title
31;

(B) "covered position" means, with respect to
any personnel action, any position in the
competitive service, a career appointee position
in the Senior Executive Service, or a position in
the excepted service, but does not include any
position which is, prior to the personnel action -

(i) excepted from the competitive service
because of its confidential, policy-
determining, policy-making, or policy-
advocating character; or

(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of
good administration; and

(C) "agency" means an Executive agency and
the Government Printing Office, but does not
include -
(i) a Government corporation, except in
the case of an alleged prohibited personnel
practice described under subsection (b)(8);

(ii) the Federal Bureau of Investigation,
the Central Intelligence Agency, the
Defense Intelligence Agency, the National
Imagery and Mapping Agency, the
National Security Agency, and, as
determined by the President, any
Executive agency or unit thereof the
principal function of which is the conduct
of foreign intelligence or
counterintelligence activities; or

App. V- 85

5 U.S.C. § 2302

(iii) the General Accounting Office.

(b) Any employee who has authority to take, direct others

to take, recommend, or approve any personnel action,

shall not, with respect to such authority -

(1) discriminate for or against any employee or
applicant for employment -

(A) on the basis of race, color, religion, sex, or
national origin, as prohibited under section 717
of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16);

(B) on the basis of age, as prohibited under
sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a);

(C) on the basis of sex, as prohibited under
section 6(d) of the Fair Labor Standards Act of
1938 (29 U.S.C. 206(d));

(D) on the basis of handicapping condition, as
prohibited uncer section 501 of _ the
Rehabilitation Act of 1973 (29 U.S.C. 791); or

(E) on the basis of marital status or political

affiliation, as prohibited under any law, rule, or

regulation;
(2) solicit or consider any recommendation or
statement, oral or written, with respect to ariy
individual who requests or is under consideration for
any personnel action unless such recommendation or
statement is based on the personal knowledge or
records of the person furriishing it and consists of -

(A) an evaluation of the work performance,
ability, aptitude, or general qualifications of such
individual; or
(B) an evaluation of the character, loyalty, or
suitability of such individual;
(3) coerce the political activity of any person
(including the providing of any political contribution or

App. V- 86

5 U.S.C. § 2302

service), or take any action against any employee or
applicant for employment as a reprisal for the refusal of
any person to engage in such political activity;

(4) deceive or willfully obstruct any person with

respect _to such person's right to compete _for
employment:

(5) influence any person to withdraw from competition
for any position for the purpose of improving or
injuring the prospects of any other person for
employment;

(6) grant any preference or advantage not authorized
by law, rule, or regulation to any employee or applicant
for employment (including defining the scope or
manner of competition or the requirements for any-
position) for the purpose of improving or injuring the
prospects of any particular person for employment;

(7) appoint, employ, promote, advance, or advocate
for appointment, employment, promotion, or
advancement, in or to a civilian position any individual
who is a relative (as defined in section 3110(a)(3) of
this title) of such employee if such position is in the
agency in which such employee is serving as a public
official (as defined in section 3110(a)(2) of this title) or
over which such employee exercises jurisdiction or
control as such an official;

(8) take or fail to take, or threaten to take or fail to
take, a personnel action with respect to any
employee or applicant for employment because of -

(A) any disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences -

(i) a violation of any law. rule, or
regulation, or

(ii) gross mismanagement, a_ gross
waste of funds, an abuse of authority,

App. V- 87

5 U.S.C. § 2302

or _a substantial and specific danger to
public health or safety,

if such disclosure is not specifically
prohibited by law and if such information
is not specifically required by Executive
order to be kept secret in the interest of
national defense or the conduct of foreign
affairs; or

(B) any disclosure to the Special Counsel, or
to the Inspector General of an agency or
another employee designated by the head of
the agency to receive such disclosures, of
information which the employee or applicant
reasonably believes evidences -

(i) a violation of any law, rule, or
regulation, or

(ii) gross mismanagement, a_ gross
waste of funds, an abuse of authority,

or _a substantial and specific danger to
public health or safety;

(9) take or fail to take, or threaten to take or fail to

take, any personnel action against any employee or

applicant for employment because of -
(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or

regulation;

(B) testifying for or otherwise lawfully assisting
any individual in the exercise of any right
referred to in subparagraph (A);

(C) cooperating with or disclosing
information to the Inspector General of an
agency, or the Special Counsel, in accordance
with applicable provisions of law; or

(D) for refusing to obey an order that would
require the individual to violate a law;

App. V- 88
5 U.S.C. § 2302

(10) discriminate for or against any employee or
applicant for employment on the basis of conduct
which does not adversely affect the performance of
the employee or applicant or the performance of
others; except that nothing in this paragraph shall
prohibit an agency from taking into account in
determining suitability or fitness any conviction of the
employee or applicant for any crime under the laws of
any State, of the District of Columbia, or of the United
States;

(11)
(A) knowingly take, recommend, or approve
any personnel action if the taking of such
action would violate _a veterans' preference
requirement; or

(B) knowingly fail to take, recommend, or
approve any personnel action if the failure to
take such action would violate a veterans’
preference requirement; or

(12) take or fail to take any other personnel action
if the taking of or failure to take such action
violates any law, rule, or regulation implementing,
or directly concerning, the merit system principles
contained in section 2301 of this title.

This subsection shall not be construed _to
authorize the withholding of information from the
Congress or the taking of any personnel action
against an_ employee who discloses information to
the Congress.

(c) The head of each agency shall be responsible for the
prevention of prohibited personnel practices, for the
compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel
management, and for ensuring (in consultation with the
Office of Special Counsel) that agency employees are

App. V- 89

5 U.S.C. § 2302

informed of the rights and remedies available to them under
this chapter and chapter 12 of this title. Any individual to
whom the head of an agency delegates authority for personnel
management, or for any aspect thereof, shall be similarly
responsible within the limits of the delegation.

(d) This section shall not be construed to extinguish or
lessen any effort to achieve equal employment opportunity
through affirmative action or any right or remedy available to
any employee or applicant for employment in the civil service
under -

(e)

(1) section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16), prohibiting discrimination on the
basis of race, color, religion, sex, or national origin;

(2) sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a),
prohibiting discrimination on the basis of age;

(3) under section 6(d) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206(d)), prohibiting discrimination
on the basis of sex;

(4) section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), prohibiting discrimination on the basis of
handicapping condition; or

(5) the provisions of any law, rule, or regulation
prohibiting discrimination on the basis of marital status
or political affiliation.

(1) For the purpose of this section, the term
"veterans' preference requirement"' means any of
the following provisions of law:

(A) Sections 2108, 3305(b), 3309, 3310, 3311,
3312, 3313, 3314, 3315, 3316, 3317(b), 3318,
3320, 3351, 3352, 3363, 3501, 3502(b), 3504,
and 4303(e) and (with respect to a preference

eligible referred to in section 7511(a)(1)(B))
subchapter II of chapter 75 and section 7701.

App. V- 90
5 U.S.C. § 2302

(B) Sections 943(c)(2) and 1784(c) of title 10.
(C) Section 1308(b) of the Alaska National
Interest Lands Conservation Act.

(D) Section 301(c) of the Foreign Service Act of
1980.

(E) Sections 106(f), 7281(e), and 7802(5) of
title 38.

(F) Section 1005(a) of title 39.

(G) Any other provision of law that the Director
of the Office of Personnel Management
designates in regulations as being a veterans'
preference requirement for the purposes of this
subsection.

(H) Any regulation prescribed under subsection
(b) or (c) of section 1302 and any _other
regulation that implements a provision of law
referred to in any of the preceding
subparagraphs.
(2) Notwithstanding any other provision of this title,
no authority to order corrective action shall be
available in connection with a prohibited personnel
practice described in subsection (b)(11). Nothing in
this paragraph shall be considered to affect any
authority under section 1215 (relating to disciplinary
action)

App. V- 91

5 U.S.C. § 7703

TITLE 5 PART Il Subpart F CHAPTER 77 Sec.:7703.

Sec. 7703. - Judicial review of decisions of the Merit
Systems Protection Board

(a)

(1) Any employee or applicant for employment
adversely affected or aggrieved by a final order or
decision of the Merit Systems Protection Board may
obtain judicial review of the order or decision.

(2) The Board shall be named respondent in any
proceeding brought pursuant to this subsection, unless
the employee or applicant for employment seeks
review of a final order or decision on the merits on the
underlying personnel action or on _a_request for
attorney fees, in which case the agency responsible
for taking the personnel action shall be the
respondent.

(b)

(1) Except as provided in paragraph (2) of this
subsection, a petition to review a final order or final
decision of the Board shall be filed in the United
States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any
petition for review must be filed within 60 days after
the date the petitioner received notice of the final order
or decision of the Board. %

(2) Cases of discrimination subject to the
provisions of section 7702 of this title shall be filed
under section 717(c) of the Civil Rights Act of 1964
(42 U.S.C. 2000e-16(c)), section 15(c) of the Age
Discrimination in Employment Act of 1967 (29
U.S.C. 633a(c)), and section 16(b) of the Fair Labor
Standards Act of 1938, as amended (29 U.S.C.
216(b)), as applicable. Notwithstanding any other

provision of law, any such case filed under any such
section must be filed within 30 days after the date

App. V- 92

5 U.S.C. § 7703

the individual filing the case received notice of the
judicially reviewable action under _such_ section
7702.

(c) In any case filed in the United States Court of Appeals
for the Federal Circuit, the court shall review the record
and hold unlawful and set aside any agency action,
findings, or conclusions found to be -

(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law:

(2) obtained without procedures required by law,
rule, or regulation having been followed; or

(3) unsupported by substantial evidence; except
that in the case of discrimination brought under
any section referred to in subsection (b)(2) of this
section, the employee or applicant shall have the
right to have the facts subject to trial de novo by the
reviewing court.

(d) The Director of the Office of Personnel Management
may obtain review of any final order or decision of the Board
by filing, within 60 days after the date the Director received
notice of the final order or decision of the Board, a petition
for judicial review in the United States Court of Appeals for
the Federal Circuit if the Director determines, in his
discretion, that the Board erred in interpreting a civil service
law, rule, or regulation affecting personnel management and
that the Board's decision will have a substantial impact on a
civil service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the Board
for a reconsideration of its decision, and such petition is
denied. In addition to the named respondent, the Board and
all other parties to the proceedings before the Board shall
have the right to appear in the proceeding before the Court of
Appeals. The granting of the petition for judicial review shall
be at the discretion of the Court of Appeals

App. V- 93

18 U.S.C. § 24

TITLE 18 PART I CHAPTER 1 Sec. 24.

Sec. 24. - Definitions relating to Federal health care
offense

(a) As used in this title, the term "Federal health care
offense" means a violation of, or a criminal conspiracy to
violate -

(1) section 669, 1035, 1347, or 1518 of this title;

(2) section 287, 371, 664, 666, 1001, 1027, 1341,

1343, or 1954 of this title, if the violation or conspiracy

relates to a health care benefit program.
(b) As used in this title, the term "health care benefit
program" means any public or private plan or contract,
affecting commerce, under which any medical benefit,
item, or service is provided to any individual, and
includes any individual or entity who is providing a
medical benefit, item, or service for which payment may
be made under the plan or contract

—

App. V- 94
18 U.S.C. § 1035

TITLE 18 PART I CHAPTER 47 Sec. 1035.

Sec. 1035. - False statements relating to health care
matters

(a) Whoever, in any matter involving a health care benefit
program, knowingly and willfully -_

(1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact; or

(2) makes any _ materially false, fictitious, or
fraudulent statements or representations, or makes
or_uses any materially false writing or document
knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry,

in connection with the delivery of or payment
for health care benefits, items, or services, shall be
fined under this title or imprisoned not more than 5
years, or both.

(b) As used in this section, the term "health care benefit
program" has the meaning given such term in section 24(b) of
this title

App. V- 95

18 U.S.C. § 3231

TITLE 18 PART Il CHAPTER 211 Sec. 3231.
Sec. 3231. - District courts

The district courts of the United States shall have
original jurisdiction, exclusive of the courts of the States, of
all offenses against the laws of the United States.

Nothing in this title shall be held to take away or impair the
jurisdiction of the courts of the several States under the laws
thereof

App. V- 96

18 U.S.C. § 3486

TITLE 18 PART Il CHAPTER 223 Sec. 3486.
Sec. 3486. - Administrative subpoenas

(a) Authorization. -

(1)

(A) In any investigation of -

(i)

(1) a Federal health care offense; or

(II) a Federal offense involving the
sexual exploitation or abuse of
children, the Attorney General; or

(ii) an offense under section 871 or 879,
or a threat against a person protected by
the United States Secret Service under
paragraph (5) or (6) of section 3056, Ul if
the Director of the Secret Service
determines that the threat constituting the
offense or the threat against the person
protected is imminent, the Secretary of the
Treasury, "3056(a),". may issue in writing
and cause to be served a_ subpoena
requiring the production and testimony
described in subparagraph (B).

(B) Except as provided in subparagraph (C), a

subpoena issued under subparagraph (A) may

require -
(i) the production of any records or other
things relevant to the investigation; and

(ii) testimony by the custodian of the
things required to be produced concerning
the production and authenticity of those
things.
(C) A subpoena issued under subparagraph (A)
with respect to a provider of electronic
communication service or remote computing

App. V- 97
18 U.S.C. § 3486

service, in an investigation of a Federal offense

involving the sexual exploitation or abuse of

children shall not extend beyond -
(i) requiring that provider to disclose the
name, address, local and long distance
telephone toll billing records, telephone
number or other subscriber number or
identity, and length of service of a
subscriber to or customer of such service
and the types of services the subscriber or
customer utilized, which may be relevant
to an authorized law enforcement inquiry;
or

(ii) requiring a custodian of the records of
that provider to give testimony concerning
the production and authentication of such
records or information.

(D) As used in this paragraph, the term "Federal
offense involving the sexual exploitation or
abuse of children" means an offense under
section 1201, 2241(c), 2242, 2243, 2251, 2251A,
2252, 2252A, 2260, 2421, 2422, or 2423, in
which the victim is an individual who has not
attained the age of 18 years.

(2) A subpoena under this subsection shall describe
the objects required to be produced and prescribe a
return date within a reasonable period of time within
which the objects can be assembled and made
available.

(3) The production of records relating to a Federal
health care offense shall not be required under this
section at any place more than 500 miles distant from
the place where the subpoena for the production of
such records is served. The production of things in any
other case may be required from any place within the

App. V- 98

18 U.S.C. § 3486

United States or subject to the laws or jurisdiction of
the United States.

(4) Witnesses subpoenaed under this section shall be
paid the same fees and mileage that are paid witnesses
in the courts of the United States.

(5) At any time before the return date specified in the
summons, the person or entity summoned may, in the
United States district court for the district in which that
person or entity does business or resides, petition for an
order modifying or setting aside the summons, or a
prohibition of disclosure ordered by a court under
paragraph (6).

(6)

(A) A United State @ district court for the
district in which the summons is or will be
served, upon application of the United States,
may issue an ex parte order that no person or
entity disclose to any other person or entity
(other than to an attorney in order to obtain legal
advice) the existence of such summons for a
period of up to 90 days.

(B) Such order may be issued on a showing that
the things being sought may be relevant to the
investigation and there is reason to believe that
such disclosure may result in -
(i) endangerment to the life or physical
safety of any person;

(ii) flight to avoid prosecution;

(iii) destruction of or tampering with
evidence; or

(iv) intimidation of potential witnesses.

(C) An order under this paragraph may be
renewed for additional periods of up to 90 days
upon a showing that the circumstances described
in subparagraph (B) continue to exist.

App. V- 99

18 U.S.C. § 3486

(7) A summons issued under this section shall not
require the production of anything that would be
protected from production under the standards
applicable to a subpoena duces tecum issued by a court
of the United States.

(8) If no case or proceeding arises from the production
of records or other things pursuant to this section
within a reasonable time after those records or things
are produced, the agency to which those records or
things were delivered shall, upon written demand made
by the person producing those records or things, return
them to that person, except where the production
required was only of copies rather than originals.

(9) A subpoena issued under paragraph (1)(A)(i)(II) or
(1)(A)(ii) may require production as soon as possible,
but in no event less than 24 hours after service of the
subpoena.

(10) As soon as practicable following the issuance of a
subpoena under paragraph (1)(A)(ii), the Secretary of
the Treasury shall notify the Attorney General of its
issuance.

(b) Service. - A subpoena issu

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1036%3A1. Public record. Not legal advice.