NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ODESSA W. PHILLIPS, 

Petitioner, 

v. 

DEPARTMENT OF THE AIR FORCE, 

Respondent. 

__________________________ 

2010-3160 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. AT0752100006-I-1. 

___________________________ 

Decided: January 18, 2011 

___________________________ 

ODESSA W. PHILLIPS, Palm Bay, Florida, pro se. 

A. BONDURANT ELEY, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

him on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and TODD M.

HUGHES, Deputy Director. 

__________________________ 
PHILLIPS v. AIR FORCE 2

Before GAJARSA, DYK, and PROST, Circuit Judges. 

PER CURIAM. 

Ms. Odessa W. Phillips appeals the final order of the 

Merit Systems Protection Board (“MSPB” or “Board”) that 

denied her petition for review, making the initial decision 

of the Administrative Judge (“AJ”) final. In her initial 

decision, the AJ found that the Department of the Air 

Force (“Air Force” or “agency”) followed regulations proscribed in 5 U.S.C. § 7513, properly explained to appellant 

her appeal rights in writing, and that the appellant failed 

to show that the agency committed error. The AJ also 

determined that the appellant failed to establish any 

affirmative defense, and thus affirmed the agency’s action. Because the Board did not commit any legal error, 

we affirm. 

BACKGROUND

Ms. Phillips was employed by the Air Force at Patrick 

Air Force Base, Florida, as a Guidance Counselor. The 

Guidance Counselor position is designated as non-critical 

sensitive and requires a security clearance as a condition 

of employment. On May 14, 2008, the Air Force issued a 

Statement of Reasons (“SOR”) to revoke Ms. Phillips’s 

eligibility for access to classified information, to which

Ms. Phillips responded in writing. On August 19, 2008, 

the Air Force Central Adjudication Facility (“AFCAF”) 

issued a Letter of Denial (“LOD”) denying Ms. Phillips’s 

security clearance eligibility for access to classified information. The LOD stated that Ms. Phillips could appeal 

the LOD “in one of two ways”: 

a. By notifying the Personnel Security 

Appeal Board . . . within 10 calendar 

days after you receive this LOD of 

your intent to appeal directly to the 
3 PHILLIPS v. AIR FORCE

PSAB and by providing the PSAB 

within the next 30 calendar days with 

any supporting material not already 

provided as to why the LOD should be 

overturned; OR 

b. By requesting a personal appearance 

before an Administrative Judge to 

present your case. If you request a 

personal appearance, it must be sent 

to the Air Force Central Adjudication 

Facility . . . within 10 calendar days of 

your receipt of the LOD. A form (attachment 2) for requesting a personal 

appearance is appended. 

On October 6, 2008, Ms. Phillips signed a “Notice of 

Intent to Appeal” form on which it indicated to “check one 

of the following”: a) to appeal directly to the Personnel 

Security Appeal Board (“PSAB”), or b) a personal appearance before a Deference Office of Hearings and Appeals 

(“DOHA”) AJ. On that form, Ms. Phillips elected the 

PSAB appeal option.

On May 7, 2009, the PSAB upheld the AFCAF decision to revoke her security clearance. On June 29, 2009, 

Ms. Phillips attempted to appeal the PSAB’s final decision 

to a DOHA AJ.

On July 1, 2009, the Air Force issued a Notice of Proposed Removal, citing “loss of condition of employment” as 

the reason. Ms. Phillips submitted written replies to the 

notice, but the removal became final on August 28, 2009. 

Ms. Phillips appealed her removal to the MSPB. She 

requested a hearing, which was conducted by telephone 

on December 9, 2009. 
PHILLIPS v. AIR FORCE 4

In the initial decision, the AJ found that “the agency 

explained the appellant’s appeal rights to her in writing, 

as it was required to do and that the appellant failed to 

show that the agency committed any error in this regard.” 

The AJ concluded that Ms. Phillips also failed to establish 

any affirmative defense, and thus affirmed the agency’s 

action. 

Ms. Phillips then filed a petition for review with the 

full Board. The MSPB denied the petition for review, 

making the initial decision of the AJ final. The Board 

also found that Ms. Phillips “failed to preserve for review 

her claim that the [AJ] . . . erred in allowing a witness to 

testify without producing her notes,” and so denied her 

request to remand the appeal. This appeal followed. We 

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) 

(2006). 

ANALYSIS

This court may reverse a decision of the MSPB only if 

it is: “(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.” 5 U.S.C. § 7703(c); Dickey v. Office of Pers. Mgmt., 

419 F.3d 1336, 1339 (Fed. Cir. 2005). 

Ms. Phillips first asserts that the “Agency did not 

comply with discovery. The main security document had 

over 40 page[s] missing that was used to deny the Appellant her clearance.” However, the MSPB is precluded 

from conducting a review of the merits of a security 

clearance revocation where an employee is removed for 

cause for failure to maintain a security clearance. Dep’t of 

Navy v. Egan, 484 U.S. 518, 530-31 (1988). Thus, the AJ 

properly excluded such evidence and testimony concern-
5 PHILLIPS v. AIR FORCE

ing the merits of Ms. Phillips’s security clearance from the 

proceedings. 

To the extent that Ms. Phillips is arguing that she 

should have been reassigned to a position that did not 

require a security clearance, the Board’s review of the 

penalty imposed upon her was limited to considering 

whether the Air Force has a formal policy requiring 

reassignment, and if so, whether there is a position to 

which she could have been reassigned. Blagaich v. Dep’t 

of Transp., 63 Fed. Appx. 476, 479 (Fed. Cir. 2003). The 

AJ found, and Ms. Phillips does not dispute in this appeal, 

that she did not identify any formal policy requiring the 

Air Force to reassign her to a position that did not require 

a security clearance. Thus, the AJ correctly recognized 

the MSPB’s limits on appeal and her decision is legally 

correct. 

 Third, Ms. Phillips asserts that she “was denied the 

right to call her witnesses at the hearing” and that “Appellant has [been] given the right to raise his [sic] prohibited discrimination [claims].” However, Board review of 

such issues is prohibited: “The Board may not rule on the 

agency’s security-sensitive judgments and discrimination 

and reprisal allegations that are inextricably intertwined 

with the agency’s denial of a security clearance.” Hinton 

v. Dep’t of Navy, 61 M.S.P.R. 692, 697 (1994). Therefore, 

these issues were properly excluded from consideration by 

the AJ. 

Next, Ms. Phillips argues that that the Air Force 

failed to follow DOD 5200.2-R, Air Force Instruction 31-

501(f), and the written instructions set out in a form letter 

dated August 19, 2009 from AFCAF, because the agency 

allegedly failed to “ensure” that she “understood” her 

appeal rights. The AJ however, correctly concluded that 

neither regulation requires the Air Force to “ensure” Ms. 
PHILLIPS v. AIR FORCE 6

Phillips “underst[ood]” her appeal rights following the 

issuance of a LOD. 

Further, the evidence in the record shows that the Air 

Force did follow the proscribed regulations. Although Ms. 

Phillips denied receiving both the August 19, 2009 letter 

and a form entitled “Instructions for Appealing a Letter of 

Denial/Revocation,” she admitted to receiving the August 

19, 2009 LOD. In that letter, the agency unequivocally 

advised her in writing that she could appeal the LOD in 

“one of two ways”: (1) in writing before the PSAB, or (2) by 

requesting a personal appearance before a DOHA AJ. 

Thus, there is substantial evidence in the record to support the AJ’s finding that the Air Force explained to Ms. 

Phillips that she could elect to appeal her LOD in one of 

two ways. 

The AJ also considered Ms. Phillips’s testimony, in 

which she indicated that she understood from her conversation with Michael Breitner, an Air Force Personnel 

Security Manager, that she could appeal to a DOHA AJ if 

the PSAB denied her appeal. However, the AJ found that 

she was unable to identify any specific statements by Mr. 

Breitner that led her to that belief. In addition, she 

conceded that both appeal options were discussed and 

that, as the AJ found, all the documentation she acknowledged she received reflected that she had a choice of only 

one of two options. Ms. Phillips’s contentions were further contradicted by the testimony of Mr. Breitner, whom 

the AJ found to be a more credible witness. 

Ms. Phillips also argues that Mr. Breitner was not required to produce certain documents that he consulted 

during his hearing testimony and that he “had full use of 

his computer while he was testifying.” However, because 

these arguments could have been made at the hearing, 

but were not, the arguments are waived on appeal. 
7 PHILLIPS v. AIR FORCE

Lastly, Ms. Phillips argues some procedural points, 

such as the agency’s lack of “evidence about the identity of 

the employee who furnished . . . [her] with the LOD or 

even the date that Ms. Phillips received the LOD,” 

whether a live court reporter was present for the hearing, 

the production of “pre-hearing tapes” on remand to the 

Board, and whether Mr. Breitner was the correct individual to be processing her clearance. Her allegations are 

irrelevant to the issues in the present case and do not 

present a basis for reversal of the Board’s decision. 

Accordingly, because Ms. Phillips has failed to establish any affirmative defense to her removal, and because 

the decision of the AJ is supported by substantial evidence, we affirm. 

No costs.