Petition for Writ of Certiorari — Ivery v. Department of the Navy

Supreme Court, U.S.

\\ FILED

No. 98 895 sip 141998

OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

OctToBer TERM, 1998

Rosama C. Ivery,

Petitioner

Vv.

DEPARTMENT Or Tue Navy

Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

PETITION FOR WRIT OF CERTIORARI

Rosama C. Ivery

3235 Shepherd Dr.

Camarillo, CA 93010

(805) 484-0181

irae

QUESTIONS PRESENTED

Whether the agency, with total disregard of

its OPNAVINST.5510.1H CH1 dated 24 August, 1990,

which requires the use of a current medical

evaluation to determine the grounds for dismissal

of an employee, can use false statements of other

employees, who are protected by the Tort Claims

Act, in contradiction to evaluations of two

licensed and certified psychologists, to dismiss an

employee.

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceedings in the Court of

Appeals were as follows:

Rosama C. Ivery Department of the Navy

3235 Shepherd Dr. Ming-Yuen Meyer-Fong

Camarillo, CA 93010 Department of Justice

(805) 484-0181 Commercial Litigation

Branch

1100 "L" St. NW

Room 12000

Washington DC 20530

TABLE OF CONTENTS

QUESTIONS PRESENTED .

PARTIES TO THE PROCEEDINGS BELOW

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION AND STATUTE

INVOLVED

STATEMENT OF CASE .

REASONS FOR GRANTING THE WRIT .

CONCLUSION

33

TABLE OF AUTHORITIES

CASES

£ No previous cases apply. This case is

unigue, I have not been accused of any

wrong doing.

I am psychologically healthy, clear

thinking, and not a risk for top secret

clearance, as reported in two current

medical evaluations, by two licensed and

certified psychologists.

CONSTITUTIONAL PROVISIONS

AND STATUTES

OPNAVINST.5510.1H CH1 Pg. 22A-11 dated

24 August 1990

1

In Tue

Supreme Court of the Gnited States

OcToBer TERM, 1998

No.

Rosama C. Ivery,

Petitioner

Vv.

DEPARTMENT Or THE Navy

Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Rosama C. Ivery respectfully pray

that a writ of certiorari issue to review judgment

of the United States Court of Appeals for the

Federal Circuit, 98-3205 dated August 19, 1998.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Federal Circuit, 98-3205, dated

August 19, 1998 is designated for publication but

is not yet reported, and is reproduced in Appendix

A to this petition. The orders and opinions of the

United States Circuit of Appeals, for the 5th

2

Circuit, SF-0752-97-0429-I-1, are unreported and

are reproduced in Appendices A through E. A

rebuttal letter to Clerk of the Board Merit Systems

Protection Board is reproduced and appears in

Appendix F. OPNAVINST.5510.1H CHi reproduced and

appears in Appendix G. Two current medical reports

from two licensed and certified psychologists are

reproduced and appear in Appendix H.

JURISDICTION

The judgment of the United States Court of

Appeals for the Federal Circuit was entered on

August 19, 1998, pursuant to Rule 36.

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED

OPNAVINST.5510.1H CH1 dated 24 August 1990, Pg.

22-A-11, states the disqualifying factors, i.e.:

behavior or condition of mental disorder falls

within one or more of (5) categories (then the

instruction listed the five categories and each had

one of the following comments in them):

Ae "Diagnosis by competent medical

authority..."

y "...the opinion of competent medical

authority..."

3. "A Diagnosis by a competent medical

authority that..."

4. "Diagnosis by medical authority that..."

7 "...0r otherwise failing to follow medical

advice relating to treatment..."

2

STATEMENT OF THE CASE

While employed as Resources Assistant with the

Threat Analysis Division, Naval Air Warfare Center

Weapons Division, Point Mugu, California at grade

GS-07, step 5, I was placed on Administrative Leave

on 23 August 1995, because of "false statements"

made by my supervisor and co-workers. I was

eventually, wrongfully terminated from my

employment with the government on 7 April 1997.

The Department of the Navy Central Adjudication

Facility (DONCAF), requested a current medical

evaluation of me, to be sent to them no later than

28 February 1996, via Commander, Code 74100D,

Naval Air Warfare Center, Point Mugu, California.

They (DONCAF) refuse to receive anything from me

direct. (See Attach. 2, para. 2.)

I had two medical evaluations, by Dr. Jo Ellen

Stevens, who was recommended to me by Civilian

Employee Assistance Program (CEAP), Naval Air

Warfare Center, Point Mugu, California and Dr.

Leonard Diamond, two licensed and certified

psychologists. (See Attach. 2, pg. 12 of Reasons

For Granting the Petition and Appendix H.)

I completed my medical evaluations from Dr. Jo

Ellen Stevens and Dr. Leonard Diamond. Mr. William

Jenkins of Code 74100D was in receipt of them on 22

February 1996, in order to meet DONCAF's deadline

of 28 February 1996. (See Attach. 1 of Reasons For

Granting The Petition.) I learned from Mr. Jenkins

on 14 April 1996, a month and a half later, that my

medical evaluations had not been sent to DONCAF!

He claimed to have lost them, but conveniently

found them after the deadline set by DONCAF had

passed.

With the knowledge of my past medical history,

the Navy had no intentions of sending the current

medical evaluations as required by procedures under

OPNAVINST.5510.1H CH1 dated 24 August 1990.

So the decision to remove me from my employment

with the government was based on command security

S

records, medical files, and Defense Investigative

Service (DIS) investigation completed 21 November

1994, for the issuance of my top secret clearance.

(See Appendix C, Page 2c, Analysis and Findings.)

The decision to remove me from my employment

with the government was based on the same

information used to grant my top secret clearance.

So you see, the procedures and intentions used

to grant my top secret clearance are questionable.

My top secret clearance was granted with the

knowledge of my past medical history, the same

medical history cited by DONCAF for revoking my top

secret clearance. It is evident that if my medical

history was disqualifying for maintenance of a top

secret clearance, so it is disqualifying for

issuance of a top secret clearance. (See Appendix

C, Pg. 2c, Analysis and Findings, Appendix H, Pg.

2h para. 6 and Pgs. 3h & 4h.)

These facts should illustrate to any reasonable

person, that-the agency issued the top secret

clearance with the intent to use it to remove me

from my employment with the government.

My current medical evaluations were deliberately

withheld from DONCAF, to deny me the procedures

under OPNAVINST.5510.1H CH1 dated 24 August 1990,

in order to revoke my clearance and terminate my

employment with the government. (See Appendix E,

Pg. le #2, Appendix F, pgs. 1f & 2f para. 1,

Appendix G, Disqualifying Factors, Appendix H, Pg.

4h, para. 2.)

The agency knew that they could not terminate my

employment with the current medical evaluations,

which had been done by two licensed and certified

psychologists: Dr. Jo Ellen Stevens, who had been

recommended to me by Civilian Employment Assistance

Program (CEAP), Naval Air Warfare Center, Point

Mugu, California, and Dr. Leonard Diamond, a

clinical psychologist, who is eminently qualified

to give and evaluate MMPIs and has done so for the

past 25 years. Dr. Diamond is considered an expert

in this field and his testimony has been accepted

=

without hesitation in our local courts. A copy of

Dr. Diamond's report and MMPI profile appears in

Appendix H.

I was very proud when I received my top secret

clearance. I view myself as a patriotic person.

I love my country. I served in the military, and

while I knew generally what intelligence was about,

I never sought out that type of work.

During downsizing, I lost my previous position,

unfairly, I might add, and the position in the

intelligence office was the only job offered to me,

so I accepted it. (See Appendix D, Pgs. 1d para.

3, pg. 2d para. 1.) The job I had been doing in my

previous position required a secret clearance,

which I had already held for 12 years.

Mr. Paul Christensen, who interviewed me for the

position, said I would need a top secret clearance

if I wanted to work in "Special Projects" in the

future. My life history was investigated,

including my past medical history, and I was issued

a top secret clearance 18 May 1995. However, after

obtaining the top secret clearance, I was told that

I would never be working in "Special Projects"

after all.

On 23 August 1995, just three months after

receiving my top secret clearance, my security

clearance was suspended indefinitely. I was sent

home, not realizing that I would never be returning

to work. (See Attach. 3 of Reasons for Granting

The Petition and Appendix F, pg. 2f, Appendix E

#4.) I was later terminated using the same

information used to issue my top secret clearance.

My performance has always been Highly

Satisfactory to Outstanding. I am an excellent

worker and get along well with others. (See

Attach. 4, pgs. 19-29 to Reasons For Granting The

Petition.)

In order to bring into question anything about

my behavior, it was necessary for me to have a top

secret clearance. It is possible to bring into

question the behavior of anyone who holds a top

6

secret clearance. Once your behavior is questioned

by anyone, the agency can then request a current

medical evaluation. (See Attach. 2 of Reasons For

Granting The Petition.) By agency regulations,

security clearance is not a right of the

individual. The agency issues and revokes

clearances at their discretion.

In every decision given, the evaluators have

stated that, upon notice of intentions to revoke my

clearance, I did not reply. Not replying to their

intent was only my recognition of the fact that

they, (the agency) have the right to withdraw a

clearance at any time for any reason. I did not

believe that they intended to revoke my clearance

in order to remove me from my job! This only

became evident to me, when they claimed to have

lost my current medical evaluations and

conveniently found them, after the deadline set by

DONCAF had passed. This violates my rights to

procedures under OPNAVINST.5510.1H CH1 dated 24

August 1990. (See Appendix C, Pg. 3c, paral, and

Appendix G, Disqualifying Factors.)

“ DONCAF required a current medical evaluation of

me by a “competent medical authority.” I complied

with DONCAF's request. Nothing else was required

of me.

REASONS FOR GRANTING THE PETITION

This petition should be granted because I was

denied the rights under the procedures of

OPNAVINST.5510.1H CH1l dated 24 August 1990.

(Appendix G.)

The agency failed to submit my current medical

evaluations to Department of the Navy Adjudication

Facility (DONCAF), in order for DONCAF to make a

judgment on my top secret clearance. This violates

procedures under OPNAVINST.5510.1H CH1 dated 24

August 1990.

DONCAF requested a current medical evaluation of

me. I completed the evaluations from two licensed

5)

and certified psychologists. I submitted them to

the agency on 22 February 1996, in order to meet

DONCAF's due date of 28 February 1996. The agency

claimed to have lost my medical evaluations, but

conveniently found them, after the deadline set by

DONCAF had passed!

I was evaluated by Dr. Jo Ellen Stevens, who was

recommended to me by Civilian Employee Assistance

Program (CEAP), Naval Air Warfare Center, Point

Mugu, California, (See Attach. 1 & 2), and by Dr.

Leonard Diamond, a clinical psychologist who is

eminently qualified to give and evaluate MMPIs, and

has done so for the past 25 years. Dr. Diamond is

considered to be an expert in this field and his

testimony has been accepted without hesitation in

our local courts. A copy of Dr. Stevens and Dr.

Diamond's reports and MMPI profile appears in

Appendix H.

The medical evaluators state that I am

psychologically healthy, clear thinking and not a

risk for top secret clearance.

My performance has always been’ Highly

Satisfactory to Outstanding. I am an excellent

worker and get along well with others. (See

Attach. 4 pgs. 19-29.)

In order to bring into question anything about

my behavior, it was necessary for me to have a top

secret clearance. During downsizing, I lost my

previous position, unfairly I might add, and the

only position offered me was in the intelligence

office, so I accepted it. (See Appendix D, Pg. ld,

para. 3, Pg. 2d para. 1.)

Mr. Paul Christensen, who interviewed me for the

position, told me if I wanted to work in "Special

Projects," I would need a top secret clearance. My

life was investigated, including my past medical

history, and I was issued a tep secret clearance on

18 May 1995.

On 23 August i995, just three months after

receiving my top secret clearance, my access was

suspended indefinitely, and I was sent home, not

8

realizing that I would never be returning to work.

(See Attach. 3 & 5, and Appendix F, Pg. 2f.)

This petition should be granted because my

supervisor and co-workers made "false statements”

about me, which made it a necessary condition that

I be evaluated in order to keep my top secret

clearance and my employment with the government.

These "false statements” and the fact that the

agency failed to submit my current medical

evaluations to DONCAF, caused me to lose my job.

I was fired for not maintaining my security

clearance.

This petition should be granted because it is

important to have some type of law governing the

misuse of issuing a top secret clearance for the

purpose of revocation of security clearances.

There is no checks and balances system whereby

violators of civil laws, in executing government

policies and rules, can be held accountable.

It is outrageous and unconscionable to have a

group of employees make false statements and

accusations causing me, or anyone to be fired.

Their "false statements" prompted the Navy (Defense

Department) to revoke my clearance.

I believe that attention should be given to the

"false statements" which caused the condition of my

clearance to be revoked, and something should be

done about it. i

Once my clearance was revoked, all focus was on

the revocation of my clearance, no matter how hard

I worked to present my case in a manner that any

reasonable person could see what had happened to me

in that intelligence office. All evaluators of my

case came back with the same results: We cannot

second guess the Navy (Defense Department) on the

revocation of a clearance.

I felt that they should have focused on the

employees who made the "false statements”.

Suppose there were six other people in your

office and they made false statements about you,

causing you to lose your license to practice law.

9

Would you base your case on the false statements

made by the members in your office, or would you

base it on the people who revoked your license?

My supervisor and co-workers made "false

statements" about me, causing me to get fired.

They are the people who are responsible for my

being denied the right to work and earn a living.

These people should be held accountable for their

actions, for if they are not held accountable, I

fear that this situation will happen again to some

other unsuspecting victim, like myself.

10

ATTACHMENT 1

From: Rosama C. Ivery, SSN: 439-58-2455

To: Director, Department of the Navy Central

Adjudication Facility

Via: Commander, Code 741200E, Code (P6613),

NAWCWPNSDIV 521 9th Street, Point Mugu, CA

93042-5001

Subj: CURRENT MEDICAL EVALUATION

Ref: (a) Your ltr 5520 Ser OO8BH591 of 31 Oct

1995

Encl: (1) Psychological Evaluation of Rosama C.

Ivery

hi Enclosure (1) is forwarded to you in

accordance with reference (a)

Sincerely,

/S/ Rosama C. Ivery

Rosama C. Ivery

TRANSMISSION REPORT

THIS DOCUMENT WAS CONFIRMED

(REDUCED SAMPLE ABOVE - SEE DETAILS BELOW)

TOTAL PAGES SCANNED : 7

TOTAL PAGES CONFIRMED ; 7

No. REMOTE STATION START TIME DURATION RESULTS

1 805-989-4853 2-22-96 3°23" COMPLETED

1:20PM 9600

/S/ Rosama C. Ivery

(Attachment 1)

11

ATTACHMENT 2

Department of the Navy

Central Adjudication Facility

Washington Navy Yard

901 M Street SE

Washington DC 20300

' In reply refer to:

5520

Ser 017BH743

06 FEB 1996

From: Director, Department of the Navy Central

Adjudication Facility

To: Commander, Code 741200E (P6613),

NAWCWPNSDIV, 521 9th Street, Point Mugu, CA

93042-5001 (UIC: 63126)

Subj: MS. ROSAMA C. IVERY, SSN: 439-58-2455

Ref: (a) Our ltr 5520 Ser 008BH591 of 31 Oct 95

Encl: (1) Subject's ltr Cert # 2067196582 of

8 Jan 96

(2) Subject's ltr of 24 Jan 96

Re Reference (a) requested a current médical

evaluation on subject and provided specific

instructions in the submission of that information.

Be Enclosures (1) and (2) are being returned to

be submitted in accordance with the instruction

provided (Command Endorsement) . Subject has been

granted an extension until 28 February 1996 to meet

the terms of reference (a). Also advise subject we

acknowledge receipt of her letters, but all future

correspondence must be forwarded to us via the

security manager.

By For CO NAWCWPNSDIV, Point Mugu, CA.

Enclosures (1) and (2) are forwarded for your

endorsement. If you have any questions concerning

12

this matter contact the undersigned on DSN 288-8940

or commercial (202) 433-8940.

/S/ A. Hammock

A. HAMMOCK

By direction

I agree to the evaluation. Please notify me

of the date, time and location of the

evaluation*

/S/ Rosama C. Ivery 2/7/96

*Request CEAP Referral.

TRANSMISSION REPORT

THIS DOCUMENT WAS CONFIRMED

(REDUCED SAMPLE ABOVE - SEE DETAILS BELOW)

TOTAL PAGES SCANNED : 1

TOTAL PAGES CONFIRMED : 1

No. REMOTE STATION START TIME DURATION RESULTS

1 805-989-4853 2-8-96 ae hy COMPLETED

11:56AM 9600

/S/ Rosama C. Ivery

(Attachment 2)

13

ATTACHMENT 3

1 September 1995

From: Rosama C. Ivery, Code 4J4000E

To: Captain Roger K. Hull, Vice

Commander, NAWCWD

Via: Associate Head, Security

Division, Code 741A00E (P66101)

Subj: ADMINISTRATION SUSPENSION OF

SECURITY ACCESS; CASE OF

Ref: (a) OPNAVINST 5510.1H CH-1

(Mental or Emotional Disorders)

(b) Mr. Jenkin's ltr 5520

741A00E (P66101) of 9 Aug 95

Addressed to Ms Ivery

(Cc) Ms Ivery's ltr to Mr.

Jenkins (Code 741A00E) (P66101)

1. The basis for the action by Code

P66101, to suspend my security access, is

alleged to have been based on reference

(a). The employees Code 4J4000E made the

judgement call to make statements about

their alleged "fears and behavior"

concerning me; (reference c's response).

2. Reference (a) states the

disqualifying factors, i.e.: behavior or

condition of mental disorder falls within

one or more of the (5) categories (then

the instruction listed the five

Categories and each had one of the

following comment in them):

he Diagnosis by competent medical

authority--"

ce "=-the opinion of competent medical

authority--"

7 "A diagnosis by competent medical

authority that--"

4, "Diagnosis by competent medical

14

_ authority that--"

5. "--or otherwise failing to follow

medical advise relating to treatment-

The coworkers should have acted within the rules of

our employment; but instead of that or whatever

their reasons are; it appears that the immediate

reactions in Code 4J4000E as to what they perceived

as “fear” of the undersigned, were statements

provided, with ambiguous wording. These statements

gave Mr. Jenkins the power to issue reference (b),

without competent medical authority. The

statements and Mr. Jenkins actions circumvented

reference (a) and I believe it's a historic

mistake.

3. In their high-stakes decisions, the critical

issue is the extent to which outcomes occur as a

result of false beliefs, or whether the employees

truly believe they can control, through the

application of "fear" statements, my employment

with the federal government.

4. The overwhelming evidence, in the prcvided

information, reference (c) suggests that the code

employees exhibit a kind of "creeping determinism;

that is, they are attempting to find logical

explanations for events that are, in fact,

controlled by chance. Chance? However, to study

the "fear" phenomena of the code's employees, one

could look toward China Lake or EEO case DON-93-

631626-011 symbolisms. The problem of the

employees creeping determinism also relates to the

age-old debate about the ends versus means. The

employees assumed that their statements were

necessary, even though they may be unethical, to

achieve a certain goal which they perceive to be

moral. In other words their end justifies the

means. The assumption can be dangerously wrong

under the law of the land. Employees of the

15

federal government, who make moral compromises in

order to achieve ends find that their compromises

irrevocably alter the end achieved thus, in a world

of process, it is method rather than goal which

carries the burden of moral value.

5. The evaluators, Captain Hull and you, mr.

Jenkins, must carefully attend to the process by

which the decisions to make the Statements were

made--the means as well as the end. Only by

analyzing how the decision was made, what factors

were considered, what planning took place, what

information was available at the time, would the

evaluators assess whether’ the decision to

administratively suspend my security access was

correct. I believe it was not.

6. Permit me the time to talk about "Free Willy".

If it was not so narrow minded by the code

employees, it would be funny, but it's not because

it makes my response a necessary condition. Anyway

-- "Free Willy" is a movie about a killer whale

(endangered species) who is Captured by commercial

fisherman and brought to an amusement park, where

he is to be trained to perform for audiences at the

park. But the trainers were unable to get

cooperation from Willy and were unable to train

him. Then came Jesse, a homeless boy, who is

apprehended by the police for stealing and defacing

the observatory area of the tank, where the sea

lions perform, and is made to Clean-up the

graffiti.

7. While doing his clean-up, Jesse sees Willy and

a friendship develops. The boy is able to train

Willy, but when the time comes for Willy to perform

for the audience, Willy did not perform. Then one

of the trainers trying to soothe the disappointed

boy, tells the history of whales and how they spend

their whole lives with their family. Jesse begins

to understand why Willy had let him down.

16

8. Jesse related with the whale having been

abandoned by this mother, sets out to "Free Willy”

from his captures, who were preparing to kill Willy

because they had lost money by not being able to

train him for performances, so that they could

collect a million dollars on his insurance. Jesse

gets help from the trainers at the amusement park

and from his foster parents, who were also

sympathetic to Willy, and together they "Free

Willy”.

9. To explain why I was writing "Free Willy” is as

simple as this. I was watching T.V. the night

before and had seen the advertisement for "Free

Willy 2" and I was idly thinking about the movie

wondering what the sequel would be like. I thought

maybe like Willy, the boy would be reunited with

his mother in "Free Willy 2” and I was scribbling

as I was thinking, relaxing from the library work.

Another point of reference is that you may have

seen in the 0O.J. Simpson trial that there was a

comic strip in Judge Ito's court about "Free Willy

and "Johnny Cochran.” The judge's comments were "I

thought it funny and complimentary.”

10. The only other explanation I can give under the

circumstances surrounding the analysis of the

"fear" issue, is that "something is wrong” with

their statements. The employees should have been

cautious “witnesses", that shied away from

speculation. For them to conjure up "“fear"

scenarios to explain their behavior is what I see

as a continuation of the historical tradition

toward African-American Women, in general, and the

impact of racial and maybe class oppression, in

particular.

11. As to the code employees use of such statements

as "fear", “behavior”, items I posted” and

shredding the material” it should be noted that in

the state of California, I have been informed that

17

presumptions and/or inference Statements, like the

ones made by the code employees are presumptions;

which are assumptions of an alleged set of facts,

from another fact or group of facts found, which

otherwise were established falsely in their

actions, but no real facts have been established.

Presumptions are not evidence anyway. Right?

12. The code employees have the burden of producing

evidence as to the alleged so called mental or

emotional disorder. They do not have the training

to do so. The code employees are not competent

medical authorities. It appears that they violated

my rights as a person under the Laws of the United

States. How dare they do that!

13. Irrespective of me taking a few moments to sit

at my desk during the day, (I work in the Library)

it's important to recall that all code employees

work at separate locations and are not with other

code employees. Each location is not in the

constant view of the other code employee. So how

can someone talk about my daily behavior.

14. The rebuttable presumptions of "fear," items

posted on walls," and "shredding the material,” are

in fact, rebuttable issues by me. The

classifications of the code employees presumptions

as based on the above criteria is a play on fear

and no single theory or rationale can deal

adequately with all the statements in their

criteria, but one. Hence, I will be the first to

inform you that there are no problems of mental or

emotional disorders as a recognized distinction

within me.

15. I have worked hard, as a government employee,

with a security access. And yes, in the past two

or so months, (because of actions by the Command in

my EEO case) I have had moments of frustration

concerning the pace of the EEO case. At that time,

18

I expressed my feelings about my case by writing

Justice Delayed is Justice Denied. My

behavior/reaction, then was based on the movie and

the frustration of the pace, (short time reacting

in May 95), nothing more. But now we have

slanderous statements that benefits no one. I am

requesting that my security assess be restored.

Sincerely,

/S/ Rosama C. Ivery

Rosama C. Ivery

/S/ Rosama C. Ivery

(Attachment 3)

19

ATTACHMENT 4

SPECIAL

ACHIEVEMENT

AWARD TO

ROSAMA C. IVERY

PACIFIC MISSILE TEST CENTER

THE PACIFIC MISSILE TEST CENTER EARNESTLY

THANKS AND CONGRATULATES YOU. YOUR

CONTRIBUTION IS SINCERELY APPRECIATED.

DATE: 8 MAY 1988

/S/

D. A. LEFAVOUR, CAPT, USN

Director

Weapons Support Directorate

SPECIAL

ACHIEVEMENT

AWARD TO

ROSAMA C. IVERY

PERFORMANCE AWARD

PACIFIC MISSILE TEST CENTER

THE PACIFIC MISSILE TEST CENTER EARNESTLY

THANKS AND CONGRATULATES YOU. YOUR

CONTRIBUTION IS SINCERELY APPRECIATED.

DATE: _31 MARCH 1989

/S/

D. A. LEFAVOUR, CAPT, USN

DIRECTOR,

WEAPONS SUPPORT DIRECTORATE

SPECIAL

ACHIEVEMENT

AWARD TO

PERFORMANCE AWARD

ROSAMA C. IVERY

PACIFIC MISSILE TEST CENTER

THE PACIFIC MISSILE TEST CENTER EARNESTLY

THANKS AND CONGRATULATES YOU. YOUR

CONTRIBUTION IS SINCERELY APPRECIATED.

DATE: 9 MAY 1990

/S/

D. A. LEFAVOUR, CAPT, USN

DIRECTOR,

WEAPONS SUPPORT DIRECTORATE

22

OUTSTANDING

PERFORMANCE

CERTIFICATE OF COMMENDATION

AWARDED TO

ROSAMA C. IVERY

IN RECOGNITION OF OUTSTANDING —

PERFORMANCE OF DUTIES AND

RESPONSIBILITIES DURING THE

RATING PERIOD ENDING

31 MARCH 1991

NAWC

Weapons Division

NAVAL AIR WARFARE CENTER

LYLE K. HOCHBERGER

Head, In-Service Engineering Department

Weapons Directorate

NAVAL AIR WARFARE CENTER

WEAPONS DIVISION

POINT MUGU, CALIFORNIA

23

OUTSTANDING

PERFORMANCE

CERTIFICATE OF COMMENDATION

AWARDED TO

ROSAMA C. IVERY

IN RECOGNITION OF OUTSTANDING

PERFORMANCE OF DUTIES AND

RESPONSIBILITIES DURING THE

RATING PERIOD ENDING

31 MARCH 1992

NAWC

Weapons Division

NAVAL AIR WARFARE CENTER

/S/ Lyle K. Hochberger

LYLE K. HOCHBERGER

Head,

In-Service Engineering Department

Weapons Directorate

NAVAL AIR WARFARE CENTER ee

WEAPONS DIVISION

POINT MUGU, CALIFORNIA

24

SPECIAL

ACHIEVEMENT

PERFORMANCE

AWARD TO

ROSAMA C. IVERY

NAWC

Weapons Division

NAVAL AIR WARFARE CENTER

THE NAVAL AIR WARFARE CENTER WEAPONS

DIVISION EARNESTLY THANKS AND CONGRATULATES

YOU. YOUR CONTRIBUTION IS SINCERELY

APPRECIATED.

DATE: 30 APRIL 1993

/S/

LYLE K. HOCHBERGER

Head, In-Service Engineering Department

Weapons Directorate

25

PERFORMANCE APPRAISAL REVIEW SYSTEM

RATING SHEET

Final Rating of Record

FROM: 1 April 1990 TO 31 March 1991

Ivery, Rosama C. 439-58-2455

Resources Assistant, GS-303-07 WSD/Code 2050

CERTIFICATION OF ACCURACY AT BEGINNING OF

APPRAISAL CYCLE.

CERTIFICATION THAT THE POSITION DESCRIPTION

IS ACCURATE

DATE PERFORMANCE PLAN ESTABLISHED 4/20/90

RECORD OF REVIEWS AND FINAL RATINGS

(Signature indicates that this step of the

process is understood and has been

completed. )

Establish/ Progress Rating of

Recertify Review/Mid- Record

Performance Term Review Close-out

Plan Rating

First Level

Supervisor

/S/ 4/20/90 /S/ 8/15/91 /S/5/29/91

Second

Level

Supervisor /S/ 4/24/90 /S/ 8/15/91 /8/5/29/91

Employee /S/ 4/20/90 /S/ 8/15/91 /8/5/29/91

nS —__________—

RATING

Outstanding, Level 5: Above fully successful

on all critical elements and made significant

contributions to the organizations mission.

ELEMENTS

(1) Correspondence/mail, (2) Keeps Division

Head's calendar and schedules appointments,

(3) Receives all visitors and telephone

calls, (4) Reports/Documentation Forms -

ALL OF ABOVE FULLY SUCCESSFUL (AFS)

Outstanding rating. Narrative of significant

contributions to the organization: Ms Ivery

has and will continue to make a substantial

contribution to the continued operation and

growth of this organization. With the

impending move of the Division's

Administrative Officer, Ms. Ivery assumed

those responsibilities in addition to her

currently heavy workload. She became an

authority in personnel matters and their

associated administration. Since the

departure of the Division Admin. Officer she

has demonstrated accuracy, thoroughness and

orderliness in the performance of these

duties. She has been diligent, extremely

resourceful and enthusiastic in her work,

which is well beyond the requirements of her

present position description.

/S/

PERFORMANCE APPRAISAL REVIEW SYSTEM

RATING SHEET

Final Rating of Record

FROM: 1 April 1991 TO: 31 March 1992

Ivery, Rosama C. 439-58-2455

Resources Assistant, GS-303-07 WSD/Code 2050

CERTIFICATION OF ACCURACY AT BEGINNING OF

APPRAISAL CYCLE - CERTIFICATION THAT THE

27

POSITION DESCRIPTION IS ACCURATE - DATE

PERFORMANCE PLAN ESTABLISHED.

RECORD OF REVIEWS AND FINAL RATINGS

(Signature indicates that this step of the

process is understood and has been

completed. )

Establish/ Progress Rating of

Recertify Review/Mid- Record

Performance Term Review Close-out

Plan Rating

First Level

Supervisor /S/ 4/3/91 /8/11/2/91 /S/4/28/92

Second

Level

Supervisor /S/ 4/3/91 /8/4/29/92

Employee /S/ 4/3/91 /S/ 11/2/91

-==leEe|||E|ES||=S==EESEEESEEES ESS

RATING

Outstanding - Level “5: Above fully

successful on all critical elements and made

Significant contributions to the

organization's mission.

ELEMENTS

(1) Correspondence/mail, (2) Keeps Division

Head's calendar and schedules

appointments/meetings, (3) Receives all

visitors and telephone calls, (4)

Reports/documents/forms, (5) Other

assignments.

ALL ELEMENTS: Above fully successful (AFS).

Outstanding Rating Narrative of sicxsificant

contributions to the organization: Ms. Ivery

28

has affectively demonstrated an ability to

effectively handle many special assignments,

which are not part and parcel of her normal

duties and responsibilities. Her cooperation

in support of the Directorate Christmas Party

is one such example. She successfully copes

with the pressure extremes placed on her by

Supervisors, co-workers and peers and has

excelled in sustaining her dedication and

concentration, while avoiding confrontations.

She has performed all assignments with peak

efficiency and correctness and has made

substantial contributions to the continued

operation of this organization.

/S/ 4/29/98

NOTIFICATION OF PERSONNEL ACTION

Ivery, Rosama C. 439-58-2455 1/21/42

Performance Award $500.00—-

Effective Date: 05/02/88 Secretary (Typing)

P725411001

Weapons Support Directorate

Support Equipment Division

Support Equipment Acquisition Branch

‘PACMISTESTCEN, Point Mugu, California

/S/

NOTIFICATION OF PERSONNEL ACTION

Ivery, Rosama C. 439-58-2455 1/21/42

Performance Award $500.00 3

Effective Date: 5/89 Resources Assistant

Weapons Support Directorate

Support Equipment Division

PACMISTESTCEN, Point Mugu, California

/S/

29

NOTIFICATION OF PERSONNEL ACTION

Ivery, Rosama C. 439-58-2455 1/21/42

Performance Award $500.00

Effective Date: 05/09/90

Weapons Support Directorate

Support Equipment Division

PACMISTESTCEN, Point Mugu, California

/S/

NOTIFICATION OF PERSONNEL ACTION

Ivery, Rosama C. 439-58-2455 1/21/42

Performance Award $515.00

Effective Date: 04/30/93 Resources Assistant

Weapons Directorate

In-Service Engineering Department

Support Equipment Division

NAVAIRWAR CENWPNDIV, Point Mugu, California

/S/

NOTIFICATION OF PERSONNEL ACTION

Ivery, Rosama C. 439-58-2455 1/21/42

Performance Award $400.00

Effective Date: 05/28/95

Engineering

Head, Concepts Analysis, Eval. & Plng.

Head, Threat Analysis and Support Div.

4J8000E

NAWCWPNSDIV, Point Mugu, California 93042

/S/

/S/ Rosama C. Ivery

(Attachment 4)

ATTACHMENT 5

UNCLASSIFIED

ADMINISTRATIVE MESSAGE

ROUTINE

R 150930Z MAY 95 ZYB PSN 555248029

FM DON CAF WASHINGTON DC

TO NAVAIRWARCENWPNDIV PT MUGU CA//SECMGR//

UNCLAS FOUO //N05520//

MSGID/GENADMIN/DONCAF//

SUBJ/ADJUDICATIVE MATTER ICO IVERY ROSAMA CECILY,

439-58-2455/ CIVILIAN EMPLOYEE//

RMKS/1. SUBJ AUTH FINAL TOP SECRET CLEARANCE

EFFECTIVE 950515 BASED ON DEFENSE INVESTIGATIVE

SERVICE SINGLE SCOPE BACKGROUND

INVESTIGATION COMPLETED 941121.

i THIS MSG IS FINAL REC OF CLNC AND MUST BE

MAINTAINED IN THE SUBJ'S SERVICE RECORD OR LOCAL

SECURITY FOLDER. IF SUBJ IS A CIVILIAN, THIS MSG

MUST BE MAINTAINED ON THE PERM SIDE OF THE OPF

UNTIL SUPERSEDED.

x PLS INCLUDE SUBJ NAME AND SSN, YOUR UIC, POC, |

PHONE ON ALL COMMS |

TO DON CAF. DON CAF PHONE: DSN 288-8880; COMM

202-433-8880

BT

741100E(1)...ACT FOR NAVAIRWARCENWPNDIV- P(3)

15331/17/1401 725200E(1) CDO (1)

31

*** MDU office codes that have received this

message: ***

MDUOPR

955248/137 1 of 1 150930Z MAY 95

DON CAF WASHIN

UNCLASSIFIED

9920

741200E

18 MAY 95

FOR OFFICIAL USE ONLY

MEMORANDUM

From: Head, Personnel Security Branch, Code

741200E

To: IVERY, Rosama C., 745BO0E

Via: Christensen, Paul H., SEOOOOE

Subj: APPROVAL OF APPOINTMENT TO A CRITICAL

SENSITIVE POSITION FOR FINAL TOP __ SECRET,

SSBI/DIS/941121

REF: (A) OPNAVINST 5510.1H

ke The justification for appointment to a

Critical Sensitive position contained in reference

(a) has been carefully reviewed and is approved by

the Department of the Navy Central Adjudication

Facility (DONCAF). Therefore, you are granted a

final Top Secret clearance.

: Clearances, either final or interim, do not

solely give you the right to have access to

Classified information. In addition a clearance,

your official duties must require access to any

element or item of classified information (the-

32

need-to-know) before you are given access.

Bs Your access to classified material may be

restricted or suspended for cause, due to suspected

violations of federal or state laws, Department of

Defense, Department of the Navy, or Naval Weapons

Center regulations. The restriction or suspension

will remain in effect until your eligibility has

been resolved by the Department of the Navy Central

Adjudication Facility (DONCAF).

/S/ William Jenkins

FOR OFFICIAL USE ONLY

/S/ Rosama C. Ivery

(Attachment 5)

33

CONCLUSION

For the foregoing reasons this Court should

grant this petition for certiorari and should

either remand this case for reconsideration in

light of the fact that the petitioner was denied

due process as stated in this petition or set the

case for briefing and argument.

la

_—

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 98-3205

Rosama C. Ivery,

Petitioner

Vv.

Department of the Navy,

Respondent

DECIDED: AUGUST 19, 1998

Before RADER, Circuit Judge, FRIEDMAN, Senior

Circuit Judge, and BRYSON, Circuit Judge.

PER CURIAM.

DECISION

The decision of the Merit Systems Protection

Board (Board), affirming the Department of the Navy

(Navy's) removal of the petitioner Ivery, after her

security clearance had been revoked, from her

position that required a top secret security

clearance (Docket No. SF-0752-97-0429-1-1), is

affirmed.

2a

OPINION

I

The Navy employed Ivery in a "critical

sensitive” position that required a top secret

security clearance. The Navy gave her written

notice that it proposed to revoke her security

clearance for "emotionel, mental and personality

disorders" and afforded her the opportunity to

reply. She did not respond, and the Navy revoked

her security clearance. The Navy informed her of

her right to appeal that action and explained to

her how to do so, but she did not appeal.

The Navy then proposed to remove her based on

her failure to maintain her security clearance.

The notice explained the reason for the proposed

removal and informed her of her right to reply. In

response Ivery stated that she had been evaluated

by two psychologists, who concluded that she was

"psychologically healthy."

The Navy then removed her for "failure to

maintain your eligibility for a security clearance

which is a requirement for your position." Ivery

appealed her removal to the Board, which after a

hearing upheld the action. The Board held that

under Department of the Navy v. Egan, 484 U.S. 518

(1988), "the Board is without authority to review

the merits of the revocation [of a _ security

clearance] in connection with the appeal of a

removal action” and that the Navy had satisfied the

procedural requirements for both the revocation of

her security clearance and her removal.

II

A. In Egan the Supreme Court held that the

Board does not have “authority by statute to

3a

review the substance of an underlying decision to

deny or revoke a security clearance in the course

of reviewing an adverse action” based upon the lack

of such clearance. 484 U.S. at 520. The Court

ruled that in reviewing such a removal the Board is

limited to "review of the fact of denial, of the

position's requirement of security clearance, and

of the satisfactory provision of the requisite

procedural protections." Id. at 526. This court

repeatedly has applied those limitations. See

Griffin v. Defense Mapping Agency, 864 F.2d

1579,1581 (Fed. Cir. 1989) ("Once the Board was

satisfied that Griffin's removal was for failure to

obtain a security clearance and he had been given

the procedural protections of section 7513[b], its

inguiry was over."); Drumheller v. Department of

the Army, 49 F.3d 1566, 1569-70 (Fed. Cir. 1995)

(holding that the Board's review of the Army's

revocation of a security clearance is limited to

the question of whether appropriate procedural

protections were provided).

The Board satisfied those requirements in

upholding Ivery's removal. The Board determined

that the evidentiary record showed that Ivery's

position required a security clearance, that that

clearance was revoked, that in effecting such

revocation the Navy gave her due process, and that

in her removal "she was affoided all statutory and

regulatory adverse action rights and procedures."

Ivery does not’ challenge any of these

determinations. To the extent Ivery is challenging

the factual basis for the revocation of her

security clearance, the Board correctly refused to

consider the argument.

B. Ivery contends, however, that the position

from which she was removed did not require a top

secret clearance, and that she had held a secret

clearance for twelve years. Apparently her

argument is that her removal was therefore improper

4a

because the revocation of her top secret clearance

did not disqualify her from continuing to occupy

her position.

One of the requirements set forth in the job

description of the position from which Ivery was

removed, however, was that "Incumbent must be able

to obtain a Top Secret Clearance." In any event,

the determination of the appropriate level of

security clearance required for a particular

position is for the agency, not the court, to

determine. See Egan -484 U.S. at 529 ("{T]jhe

protection of classified information must be

committed to the broad discretion of the agency

responsible.").

/S/ Rosama C. Ivery

(Appendix A)

1b

APPENDIX B

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROSAMA C. IVERY, DOCKET NUMBER

Appellant, SF-0752-97-0429-I-1

Vv.

DEPT. OF THE NAVY, DATE: MAR 09 1998

Agency.

Sterling Ivery, Jr., Camarillo,

California for the appellant.

Donald J. Cortichiato, China Lake,

California, for the agency.

BEFORE

Ben L. Erdreich, Chairman

Beth S. Slavet, Vice Chair

Susanne T. Marshall, Member

ORDER

After full consideration, we DENY the

appellants petition for review of the initial

decision issued on July 25, 1997, because it

does not meet the criteria for review set

forth at 5 C.F.R § 1201.115. This is the

Board's final order in this appeal. The

initial decision in this appeal is now Fane.

5 C.F.R. § 1201.113(b).

FOR THE BOARD:

/S/ Robert E. Taylor

Clerk of the Board

le

APPENDIX C

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE

ROSAMA C. IVERY, DOCKET NUMBER

Appellant, SF-0752-97-0429-I-1

Vv.

DEPT. OF THE NAVY, DATE: July 25, 1997

Agency.

Steven E. Brown, Esquire, Westlake Village,

California, for the appellant.

Donald J. Cortichiato, China Lake,

California, for the agency.

BEFORE

Gretchen W. Thomas

Administrative Judge

INITIAL DECISION

INTRODUCTION

The appellant timely appealed her removal

from the position of Resources Assistant, GS-

T, Threat Analysis Division, Concept

Analysis, Evaluation and Planning Department,

Engineering Competency, Naval Air Warfare

Center , Weapons Division, Point Mugu,

California, effective April 7, 1997. The

2c

Board has jurisdiction over the appeal. 5

U.S.C. §§ 7511-7513 and 7701(a).

For the reasons set forth below, the

agency's action is AFFIRMED.

ANALYSIS AND FINDINGS

The appellant was removed on a charge of

failure to maintain eligibility for a

security clearance, a requirement of her

position. The specifications underlying the

charge allege that as a condition of

employment in the position of Resources

Assistant, the appellant is required to

maintain a Top Secret security clearance. On

August 13, 1996, the appellant was notified

that the agency intended to revoke her

security clearance based on information

obtained by the Department of Navy Central

Adjudication Facility (DONCAF) from the

agency's personnel security records, the

appellant's medical files, and a Defense

Investigative Service (DIS) investigation in

1994.* The notice informed the appellant that

the information was disqualifying under the

criteria for a security clearance and

eligibility for assignment to a sensitive

position and access to sensitive

*Based on concerns regarding her security

clearance eligibility, the appellant's access to

classified material was indefinitely suspended in

September 1995. In October 1995, the agency requested

that the appellant undergo a medical evaluation to

obtain information relative to her eligibility to hold

a security clearance. The appellant provided a

psychological evaluation from Dr. JoEllen Stevens, a

private practitioner of her choice. Effective

November 24, 1995, the appellant was indefinitely

suspended without pay, pending the outcome of a DONCAF

investigation.

3c

compartmented information. The appellant did

not respond to the agency's notice. Based on

the available information, the agency

determined to revoke the appellant's

clearance on November 5, 1996.

In Department of the Navy v. Egan, 484 U.S.

918, 530-31 (1988), the United States Supreme

Court held that the denial or revocation of a

security clearance is a matter within the

expertise of the intelligence community and

that the Board is without authority to review

the merits of the revocation in connection

with the appeal of a removal action. Thus,

the agency need only establish by a

preponderance of the evidence that the

appellant's position required a clearance,

that the clearance was revoked and that

transfer to a non-sensitive position was not

required.* The agency must also demonstrate

that it afforded the appellant minimum due

process. Those minimum due process rights

include: 1) Notice of and the reasons for

the agency's security clearance

determination, together with an opportunity

to respond, and 2) compliance with the

procedural protections of 5 U.S.C. § 7513.

Mitchell _v. Department of the Navy, 43

M.S.P.R. 691, 695 (1990) and Weissberger v.

United States Information Agency, 39 M.S.P.R.

370, 373 (1988).

Based on a careful review of the

*Following the Supreme Court's decision in Egan,

the United States Court of Appeals for the Federal

Circuit held that the Board's role in revi ewing the

feasibility of a transfer is limited to where "that

substantive right is available from some other source,

such as a statute or agency regulation." Griffin v.

Defense Mapping Agency, 864 F.2d 1579, 1580 (Fed. Cir.

1989)

4c

evidentiary record, I find that the agency

has met its burden of proof in all respects.

The record shows, and the appellant admitted

at the Board hearing, that her position

required a security clearance.* See Appeal

File, Tab 4(400 and 4qq) and Hearing Tapes

(HT), Testimony of Kenneth Stephens and

Opening Remarks, Administrative Judge

Gretchen Thomas. Also, there is no dispute

that the appellant's security clearance was

revoked and that the agency accorded her

minimum due process in revoking her

clearance. Specifically, the agency notified

the appellant of its security clearance

determination, including a summary of the

disqualifying information which it considered

and afforded the appellant the opportunity to

respond. See Appeal File, Tabs 4(4}j) and 11.

Further, the appellant acknowledged that she

was afforded all statutory and regulatory

adverse action rights and procedures under

Chapter 75 of title 5 of the United States

Code and the Code of Federal Regulations.

See Tab 1l.

The appellant declined to stipulate that

the agency has no policy requiring

reassignment of an employee whose security

clearance has been revoked. However, the

appellant presented no evidence to show that

such a policy exists. Further, the

evidentiary record shows that in July 1991,

Roberta Peters, Director of the Office of

Civilian Personnel Management, Department of

the Navy, declared that it is the official

policy of the agency that reassignment

-Although the appellant argued that her position

did not require the top security clearance indicated

in the position description, she conceded that it did

require a security clearance.

ac

following loss of clearance is neither

mandatory nor desirable and that the agency

had no plans to issue regulations requiring

its activities to consider reassignment. See

Appeal File, Tab 4(4rr). In addition, the

proposing official, Senior Intelligence

Officer Kenneth Stephens, and the deciding

official, Executive Assistant for Strategic

Planning Linda Andrews, testified that to the

best of their knowledge, there have been no

changes in the agency's policy since 1991.

There being no evidence of a policy of

reassigning employees whose security

Clearances are revoked, I find that the

agency's decision not to consider

reassignment was solely within its

discretion. As such, review by the Board is

impermissible. See Skees v. Department of

the Navy, 864 F.2d 1576, 1578 (Fed. Cir.

1989)

The appellant alleges that her security

clearance was revoked because of the agency's

erroneous perception that she suffered from a

mental disability. Recognizing that the

Board has previously held that it is

precluded from reviewing allegations of

discrimination in a security clearance-

related appeal, the appellant, nevertheless,

argues that the Board should consider her

defense.

In oral argument, counsel for the appellant

essentially argued that the Board should

consider the appellant's defense because the

military's decision constituted patent

discrimination and the Board should carve out

an exception to protect long-time employees

and prevent the military from having carte

blanche authority to subvert the

Rehabilitation Act and discriminate on the

6c

basis of unproven disabilities. However

compelling counsel's equitable argument,

there is simply no basis for considering the

appellant's allegations of discrimination.

The Board has consistently held that it may

not review or rule on allegations of any type

of discrimination that are inextricably

intertwined with the denial of a security

clearance. Here, the appellant's allegations

are directly related to the agency's reasons

for deciding to revoke her clearance. Thus,

any Board inquiry would necessarily focus on

the validity of the agency's reasons, an

activity which the Supreme Court in Egan

precisely proscribed as outside the Board's

authority. See Hinton v. Department of the

Navy, 61 M.S.P.R. 692 (1994); Mitchell v.

Department of the Navy, 43 M.S.P.R. 691

(1990); Pangarova v. Department of the Army,

42 M.S.P.R. 319 (1989).

The appellant also alleged that the

Intelligence Office made false statements

about her mental health as a “set-up” to

retaliate against her for filing an EEO

complaint of sexual harassment against her

former supervisor, Sammy Drake, in 1993.

Because the appellant's allegations go

directly to the validity of the agency's

reasons for revoking her security clearance,

for the same reasons discussed above, the

Board is precluded from considering her

reprisal claim.

In sum, I find that the agency has

established its charge by a preponderance of

the evidence. I also find that the Board is

without authority to consider the appellant's

allegations of prohibited discrimination and

reprisal.

DECISION

Accordingly, the agency's action is

AFFIRMED.

FOR THE BOARD: /S/

for Gretchen W. Thomas

Administrative Judge

/S/ Rosama C. Ivery

(Appendix C)

1d

APPENDIX D

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

ROSAMA C. IVERY_ v. DEPT. OF THE NAVY

No. 98-3205

Informal Brief of Petitioner

Read the Guide for Pro Se Petitioners and

Appellants before completing this form. Attach a

copy of the initial decision of the administrative

judge and the decision, if any, of the Merit

Systems Protection Board (MSPB), or a copy of the

Arbitrator's decision. Answer the following

questions as best you can. Your answers should

refer to the MSPB decisions or the Arbitrator's

decision where possible. Use extra sheets if

needed.

Be Has the petitioner ever had another case in

this court? Yes No In a United States

District Court? Yes No In the Equal

Employment Opportunity Commission? X Yes_ No

If so, identify each case.

Yes - I filed a sexual harassment suit with

EEOC against Sammy Drake, a male white

supervisor. Case No. EEOC 340-95-3911X, DON

NO. 93-63126-011.

You have only to look at the sequence of

events after my filing the sexual harassment

suit on 5 August 1993, to see how we got to

where we are today. In October 1993, I was

reorganized out of my position during

downsizing, when I was number one _ in

eligibility for approximately 15 other

2d

positions in my department, but the only

position I was offered was the one in the

Intelligence Office, where I was required to

obtain a top secret clearance.

Did the MSPB or the Arbitrator incorrectly

decide or fail to take into account any

facts? X Yes No If so, what facts? (Refer

to paragraph 7 of the Guide.)

It failed to take in consideration that I was

denied the procedure under OPNAVINST. 5510.1h

CH 1, PAGE 22a-1, DATED 24 August 1990. This

instruction requires a "competent medical

authority” and the agency acted to remove my

security clearance without "competent medical

authority." They ignored evidence to the

contrary. I had two current medical

evaluations from two certified and licensed

psychologists, who had been referred to me by

Civilian Employment § Assistance Program

(CEAP), THE MEDICAL REPORTS STATE THAT I AM

PSYCHOLOGICALLY HEALTHY, CLEAR THINKING, AND

NOT A RISK FOR A TOP SECRET CLEARANCE.

Did the MSPB or the Arbitrator apply the

wrong law? Yes No If so, what law should

be applied?

I don't know, but there needs to be a check

and balance system, whereby violators of

civil laws, in executing government policies

and rules can be held accountable for their

actions, so that people like me will not fall

victim to this kind of set-up.

Did the MSPB or the Arbitrator fail to

consider important grounds for relief? xX Yes

No If so, what grounds?

3d

Are there other reasons why the MSPB's or the

Arbitrator's decision was wrong? Yes No

If so, what reasons?

What action (relief) do you want the court to

take in this case?

That I be returned to full employment, I

receive all back pay, annual and sick leave,

all medical expenses, lawyer fees, and for

pain and suffering.

Do you want to argue before the court in

person? Yes X No What are the reasons

argument will aid the court? (Refer to

paragraph 15 of the Guide.)

Do you intend to represent yourself? X Yes

_No If you have not filed a notice of

appearance, indicate your full name, address,

and telephone number.

I certify that a copy of this brief and any

attachments was sent to Donald J.

Cortichiato, the attorney for respondent, at

the following address (found on the Notice of

Appearance served on you by the attorney for

the government. If you do not send a copy of

this brief to the attorney for the other

side, it cannot be accepted by the court):

15 April 1998 /S/ Rosama C. Ivery

Date

Petitioner's signature

le

APPENDIX E

U.S. MERIT SYSTEMS PROTECTION BOARD

APPELLANT'S PETITION FOR REVIEW FORM

PLEASE COPY THE FOLLOWING FROM YOUR DECISION:

CASE NAME: Rosama C. Ivery v. Dept. of the Navy

(Appellant Name) (Agency)

Docket No: SF-0752-97-0429-I-1

Initial or Addendum Decision Finality

Date: 29 August 1997

(See "Notice to Appellant" section of

decision for "finality" date)

August 1, 1997

Rosama C. Ivery

Docket No. S-0752-97-0429-I-1

Appellant's Petition for Review

ie Were you denied any procedures to which you

believe you were intitled? If so, what procedures

and why do you believe you were entitled to them?

Did you raise this matter to the judge? Please

also describe how this harmed you.

I was denied the procedures under OPNAVINST.

9510.1H CH 1, Page 22A-1 dated 24 August 1990.

(See Tab 4SS). This instruction requires

"competent medical authority," and the agency acted

to remove my security clearance without competent

medical authority. They ignored evidence to the

contrary that I am psychologically healthy and not

a risk for a top secret clearance.

: Do you have any documents or evidence that

are important to your appeal that were not filed

with the judge? If so, you should attach these

documents and evidence. Also, please explain why

you did not submit these documents or evidence to

the judge and why it is important for the Board to

consider them.

My memo of 10 August 1995, is evidence of the work

that I was doing and evidence of the fact that no

matter what I did I could not please the

Intelligence Office, because their main objective

was to have me removed from the employment of the

government.

The reason I did not submit this memo is: It was

an oversight on my part.

4, Did the initial or addendum decision

incorrectly decide any facts or fail to consider

any facts? If so, describe the facts that were not

considered and the incorrect findings.

I was placed on Administrative Leave and was told

that I would return to another position the

following week. I had no idea that I would never

be going back to work, but the Intelligence Office

did and the Agency did. I remained on Paid

Administrative Leave for three months until I was

suspended indefinitely 24 November 1995. My

eligibility to access classified material was

suspended on 23 August 1995, when I was placed on

Administrative Leave, not in September 1995, as

states in the Judge's Findings.

The reason I did not submit this memo is: I did

not have a need for this memo until I read the

Judge's Findings.

The judge also stated that Sammy Drake, the

supervisor, whom I filed the sexual harassment suit

against, was my former supervisor. He was a

supervisor, but he was not my supervisor.

ee

3e

3. Did the initial or addendum decision apply

the wrong law or apply the law incorrectly? If so,

what law should be applied and how?

6. Did the initial or addendum decision fail

to consider important reasons for relief? If SO,

what are those reasons?

It did not consider the fact that I did not need a

top secret clearance for the position I held. I

already had a Secret Clearance, which I had held

for 12 years, and I was never going to use a top

secret clearance in my position.

It did not consider that I had two current medical

evaluations from two certified and licensed

psychologists, who had been referred to me by CEAP.

The medical reports state that I am psychologically

healthy and not a risk for a top secret clearance.

v5 Are there other reasons why the initial or

addendum decision was wrong? If so, what reasons?

I don't know how this can be done, but ther needs

to be a check and balance system, whereby vi’ lators

of civil laws, in executing government policies and

rules, can be held accountable for their actions,

so that people like me will not fall victims to

this kind of set-up.

8. What action (relief or remedy) do you want

the Merit Systems Protection Board to order in this

case?

That I be returned to full employment, I receive

all back pay, annual and sick leave, all medical

expenses, lawyer fees, and pain and suffering.

4e

August 1, 1997

/S/ Rosama C. Ivery

Signature of Appellant

Rosama C. Ivery

3235 Shepherd dr.

Camarillo, CA 93010

(805) 484-0181

/S/ Rosama C. Ivery

(Appendix E)

1f

APPENDIX F

September 3, 1997

Rosama C. Ivery

Docket No. SF-0752-97-0429-I-1

The Clerk of The Board

Merit systems Protection Board

1120 Vermont Avenue N.W. Room 806

Washington, DC 20419

Enclosure (1) Request for Counseling and

Resolution dated 4 Oct 95

Enclosure (2) Request for Medical Evaluation

dated January 24, 1996

Dear Sir or Madam:

I am receipt of the Agency's Cross Petition

for Review.

The Agency is in violation of it's own

OPNAVINST.5510.1H-CH1 dated 24 August 1990,

which states the disqualifying factors, i.e.

behavior or condition of mental disorder falls

within one or more of (5) categories (then the

instruction listed the five categories and each

had one of the following comments in them) :

1. Diagnosis by competent medical

authority--"

2. "--the opinion of competent medical

authority--"

3. "A diagnosis by competent medical

authority that--"

4. "Diagnosis by competent medical

authority that--"

5. "--or otherwise failing to follow

medical advise relating to treatment--

Please see OPNAVINST.5510.1H-CH-1, Tab 48S.

=

2f

Also see my letter of 1 September 1995, to

Captain Roger K. Hull, Vice Commander, NAWCWD

under Tab 4JJ. These violations occurred on 23

August 1995, when my access to classified

information was revoked and I was placed on

paid administative leave; (See enclosure (1)),

also on 24 November 1995, when I was suspended

without pay for failure to maintain access to

classified material, (See Tab 4Z). The agency

then ignored their own OPNAVINST.5510.1H CH-1l,

when evidence was found by two certified and

licensed psychologists, who to the contrary of

the agency's purpose for removing me from my

employment with the government, reported that I

was found psychologically healthy and not a risk

for top secret clearance.

Director, Department of The Navy Central

Adjudication Facility (DONCAF) requested a

current medical evaluation of me. I provided

them with two medical reports from two certified

and licensed psychologists, (See Tab 4S).

I have been deeply concerned about the agency

presenting the facts and have been constantly

checking for accuracy of materials and meeting

deadlines, and DONCAF required me to send all my

materials via Code 74100D, NAWCWPNS, Pt. Mugu,

California, and I could not rely on them. I

sent my medical reports directly to DONCAF for

fear that it would not maintain its accuracy or

meet the deadline, and I was right, for it did

not. (See Tab 4K Para. 5). Enclosure (2) is

also another example of why I felt I could not

trust the agency to present my material

accurately and on time in order to meet my

deadlines. It was not presented in its entirety

under Tab 4W to distort the facts.

I complied with DONCAF's request for current

medical evaluation, nothing else was required.

My petition for review is indeed necessary,

if we are to get to the truth in this case. And

. ;

3f

I believe that if you were to ask the question,

WHY? to the sequence of events that I listed in

my letter to you on August 1, 1997, you will

indeed get to the truth.

Again, I thank you for your consideration in

my case, for all would be victims of this type

of violation, and for those who have already

been victims, but were not vindicated.

Sincerely yours,

/S/ Rosama C. Ivery

Rosama C. Ivery

/S/ Rosama C. Ivery

(Appendix F)

lg

APPENDIX G

OPNAVINST 5510.1H CH-1

MENTAL OR EMOTIONAL DISORDERS

Basis: Any behavior or illness, including any

mental condition, which, in the opinion of

competent medical authority, may cause a defect in

judgment or reliability with due regard to the

transient or continuing effect of the illness and

medical findings in such case.

Disqualifying Factors (behavior or condition falls

within one or more of the following categories):

1. Diagnosis by competent medical authority (board

certified psychiatrist or clinical psychologist)

that the individual has an illness or mental

condition which may result in a significant defect

in judgment or reliability.

2. Conduct or personality traits that are bizarre

or reflect abnormal behavior or instability even

though there has been no history of mental illness

or treatment, but which nevertheless, in the

opinion of competent medical authority, may cause

a defect in judgment or reliability.

3. A diagnosis by competent medical authority that

the individual suffers from mental or intellectual

incompetence or mental retardation to a degree

significant enough to establish or suggest that the

individual could not recognize, understand or

comprehend the necessity of security regulations,

or procedures, or that judgment or reliability are

significantly impaired, or that the individual

could be influenced or swayed to act contrary to

the national security.

2g

4. Diagnosis by competent medical authority that

an illness or condition that had affected judgment

or reliability may recur even though the individual

currently manifests no symptoms, or symptoms

currently are reduced or in remission.

5. Failure to take prescribed medication or

participate in treatment (including follow-up

treatment or aftercare), or otherwise failing to

follow medical advise relating to treatment of the

illness or mental condition.

Mitigating Factors (circumstances which may

mitigate disqualifying information):

1. Diagnosis by competent medical authority that

an individual's previous mental or emotional

illness or condition that did cause significant

defect in judgment or reliability is cured and has

no probability of recurrence, or such a minimal

probability of recurrence as to reasonably estimate

there will be none.

2. The contributing factors or circumstances which

caused the bizarre conduct or traits, abnormal

behavior, of defect in judgment and reliability

have been eliminated or rectified, there is a

corresponding alleviation of the individual's

condition and the contributing factors or

circumstances are not expected to recur.

3. Evidence of the individual's continued reliable

use of prescribed medication for a period of at

least two years, without recurrence and testimony

by competent medical authority that continued

maintenance of prescribed medication is medically

practical and likely to preclude recurrence of the

illness or condition affecting judgment or

reliability.

4. There has been no evidence of a psychotic

3g

condition, a serious or disabling neurotic

disorder, or a serious character or personality

disorder for the past 10 years.

/S/ Rosama C. Ivery

(Appendix G)

lh

APPENDIX H

JoEllen Stevens, Ph.D.

Psychologist

500 E. Esplanade Drive, 14th Floor

Oxnard, CA 93030

(805) 981-1208, Fax (805) 981-1210

February 22, 1996

Psychological Evaluation of

Rosama C. Ivery

This evaluation is based on the following data:

1. Clinical interview with Ms. Ivery;

Review of Mrs. Ivery's medical records

pertaining to her psychiatric history.

3. Review of proposed suspension without pay

dated 12 October, 1995.

Ms. Rosama Cecily Ivery presented as a 54 year

Old female who was appropriately dressed. Her

affect was appropriate and she was cooperative,

self disclosing and displayed trusting behavior.

Ms. Ivery was oriented in all spheres and did

not appear anxious or depressed. She was candid

about her experiences and her history.

Ms. Ivery indicated she had been placed on

suspension and that she would like an independent

evaluation to comment on her psychological well

being.

In the course of the interview, Ms. Ivery

indicated she had filed sexual harassment charges

against Mr. Drake, a coworker, as a result of

incidents which had occurred directly involving her

and involving other women in her area over a period

of time. She indicated that these behaviors of Mr.

Drake had been occurring for some time but that she

decided to come forward following a push by her

2h

employer to encourage women who were subjected to

abuse to speak up and get help.

Ms. Ivery indicated she had tried unsuccessfully

to stop the advances of Mr. Drake, which included

him pushing himself upon her in close and

uncomfortable proximity and touching by Mr. Drake.

Ms. Ivery further- indicated that she attempted to

place obstacles between herself and Mr. Drake to

protect herself but that he would become very angry

at her when she did this. She indicated other

worker's in her office had confided in her with

instances of harassment they had encountered

perpetrated by Mr. Drake.

Ms. Ivery believes that as a result of coming

forward and asking for help, she suffered harm.

She was removed from her position and reassigned to

another area. She had enjoyed her job and had

mixed feelings when she was reassigned. She was

relieved, however, to be out of the harassment

situation.

Ms. Ivery appeared tired of the process she had

been going through. She does not know what has

become of Mr. Drake but believes he may have

retired.

Ms. Ivery was reassigned to a top secret area

but was never assigned top secret work. She was

given the job of organizing the library of the area

in which she worked.

Ms. Ivery states that she was very poorly

informed about the division she was assigned to and

that everyone worked by themselves due to the

nature of their jobs. She further indicated that

she spent little to no time with the other women in

her new job because they were situated in a

different area. She stated she was friendly when

she saw these women in the morning and on breaks,

but in reality spent little time with them because

they were in the top secret area.

Ms. Ivery appeared as a rational, intact

individual. She denied having any current

psychological problems. She indicated she had had

3h

marital problems in the past and had a period of

confusion following separation from her husband ten

years ago. At that time she sought psychiatric

help, recovered and returned to her marriage. Ms.

Ivery was very candid about her feelings at the

time and the problems she experienced.

Ms. Ivery agreed to and completed testing by

Leonard Diamond, Ph.D., who administered an MMPI to

her on 2/15/96.

The results of this testing indicated that Ms.

Ivery is not depressed and is "well balanced and

tries to be comfortable with herself... She is

generally open and level headed but she has a need

to be liked and she is a conforming and moralistic

person.”

The MMPI also indicated that Ms. Ivery is not

paranoid or anxious. She is flexible, rational and

clear thinking.

Dr. Diamond concluded, "in summary, Mrs. Ivery's

MMPI is moderately defensive and somewhat

manipulative. However, she is seen as generally

healthy and competent psychologically with no

indications of long term personality deviation.”

Dr. Diamond's evaluation concurs with my

findings from clinical interview. Ms. Ivery

appears to be healthy from a psychological

perspective. She was not, however, defensive in her

interview but was self disclosing and open. She

did not have odd or strange thinking and was not

paranoid. Mrs. Ivery showed no signs of psychotic

thinking patterns or behavior.

The clinical interview in conjunction with

psychological testing, are strong indications that

Ms. Ivery is currently psychologically healthy and

not suffering from depression, severe anxiety or

psychotic behavior. She is not, in sum, suffering

from any recurrences of the psychological state she

was in-in 1986 when she sought help from Dr.

Benjamin D. Templeton.

Given her current psychological health and her

apparent health since the period of confusion in

—

4h

1986, it appears that she may have been

misdiagnosed at that time. Her period of confusion

was relatively short lived and is probably better

classified as a Brief Reactive Psychosis, which was

precipitated by her marital separation and which

resolved some months later. Actual psychotic

thinking apparently lasted less than two months,

according to Dr. Templeton's records. There was

apparently no repeat of this type of confusion or

behavior.

It is my professional opinion that Ms. Ivery is

not a risk for top secret classification, based on

her psychiatric condition, given her current

psychological health and her apparent good

adjustment prior to and subsequent to brief

reactive psychosis in 1986, and has not taken

Narvane since 1988. She indicates her job history

and reviews have been good throughout her history

of employment. She made a good adjustment since

1986, and should not be penalized for seeking help

when she needed it, recovering, and maintaining her

psychological health.

JoEllen Stevens, Ph. D. Date

/S/ JoEllen Stevens February 22, 1996

Leonard Diamond, Ph. D.

A Psychological Services Corporation

445 Rosewood Ave. Suite M

Camarillo, CA 93010

(805) 482-5166 License No. PSY3071

Fax 482-8687 February 15, 1996

MMPI REPORT - ROSAMA CECILY IVERY (54-1)

Ms. Ivery presents a valid but moderately defensive

MMPI protocol. She does not lie and she appears as

Sh

comfortable with her self image. She does not

endorse a large number of rare, unusual and

disturbed items. Ms. Ivery does not like to

acknowledge any distress. She tries to be adaptive

and self-reliant. She is offering a picture of

herself which is somewhat better than in reality.

The neurotic scales are low and in the non-

pathological range. Ms. Ivery has mild concern

about her body and physical health. She is

generally emotionally open but she has the capacity

to be a chronic complainer and she is somewhat

immature. Ms. Ivery is not depressed but instead,

she is reality oriented, well balanced and tries to

be comfortable with herself. She demonstrates some

mild hysteria. She is generally open and level-

headed but she has a great need to be liked and she

is a conforming and moralistic person.

Ms. Ivery shows poor tolerance of boredom or

tedium. She may also have problems with authority

and recurrent marital or work problems. She can be

rebellious and hostile as well as underachieving.

She tries to manipulate her environment and she has

a good measure of success. Ms. Ivery is well

identified as a female. She is adventurous,

active, spontaneous and assertive. There are no

suggestions of paranoia or excessive

suspiciousness. In fact, she appears as rational

and clear thinking as well as flexible and, at

times, gullible. Ms. Ivery does not appear to be

excessively anxious or agitated. She appears as

punctual, reliable, trusting, adaptable and

organized. Ms. Ivery is involved with others but

she does not always have a great deal of interest

in being closely connected to other people. She is

creative and imaginative, high strung and she may

have excessive religious concerns. She has an

adequate emotional energy level. She is sociable

and friendly most of the time. This is an

inconsistency with regard to the previous scale

6h

which indicated that she is not very friendly. Ms.

Ivery also endorses items indicating that she is

far more extraverted than intraverted. She tries

to be warm and sociable.

Ms. Ivery tends to utilize repression as a major

mechanism. She does not like to experience or face

problem areas and she does not have her feelings

very close to the surface. Her ego strength is

good. There are no indications in this protocol of

any tendencies toward addictive behaviors, drug or

alcohol abuse.

In summary, Ms. Ivery's MMPI is moderately

defensive and somewhat manipulative. However, she

is seen as generally healthy and competent

psychologically with no indications of long term

personality deviations.

/S/ Leonard Diamond, Ph.D.

Leonard Diamond, Ph.D.

/S/ Rosama C. Ivery

(Appendix H)

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