UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KEVIN SCHMITT,

Appellant,

v.

DEPARTMENT OF ENERGY,

Agency.

DOCKET NUMBER

DC-0752-15-0797-I-1

DATE: March 18, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

Jocelyn Richards, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed the agency’s removal action. Generally, we grant petitions such as this 

one only when: the initial decision contains erroneous findings of material fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

or the erroneous application of the law to the facts of the case; the administrative 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, we conclude that the petitioner has not established any basis under 

section 1201.115 for granting the petition for review. Therefore, we DENY the 

petition for review and AFFIRM the initial decision, which is now the Board’s 

final decision. 5 C.F.R. § 1201.113(b).

¶2 Effective May 2, 2015, the agency removed the appellant from his 

GS-13 Criminal Investigator position based on his failure to maintain his 

required Q‐level security clearance. Initial Appeal File (IAF), Tab 6 at 13‐15, 

26-27. The agency’s Appeal Panel (AP) rendered its final decision to deny the 

appellant access to classified information on January 13, 2015, after the appellant 

had a hearing before the Office of Hearings and Appeals (OHA) in April 2014, 

and after he had appealed OHA’s July 2014 initial decision denying him access to 

classified information to the AP. Id. at 28-54.

¶3 The appellant filed an appeal with the Board regarding his removal. IAF, 

Tab 1. He asserted that the removal could not be upheld because the agency’s act 

of referring him for a clearance review was retaliation for his filing of two prior 

Board appeals, in violation of 5 U.S.C. §§ 2302(b)(9)(A)(ii), 2302(b)(12). IAF, 

Tab 6 at 3, Tab 12. He requested a hearing, but later withdrew that request. 2 

IAF, Tab 1 at 2, Tab 9 at 4.

¶4 The administrative judge issued an initial decision, based on the written 

record, affirming the agency’s removal action. IAF, Tab 14, Initial Decision 

 2 He indicated that he wished to have a hearing if the Board determined that it has the 

authority to consider his prohibited personnel practice claims in this appeal. IAF, Tab 9 

at 4.
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(ID). She found that: (1) the appellant’s position required that he maintain a 

Q level security clearance; (2) the appellant’s Q level security clearance was 

denied; (3) the agency provided the appellant the procedural protections 

of 5 U.S.C. § 7513; (4) neither a statute nor agency regulation gave the appellant 

a right to transfer to a nonsensitive position; (5) the appellant did not allege, and 

it did not appear, that the agency had an obligation to reassign him to a position 

that did not require a security clearance; and (6) the agency’s action promoted the 

efficiency of the service. ID at 6‐7. As to the appellant’s claims 

under 5 U.S.C. §§ 2302(b)(9)(A)(ii), 2302(b)(12), the administrative judge found 

that she could not consider them because the Board lacks authority to consider an 

appellant’s affirmative defenses in an action taken based on the denial of a 

security clearance. ID at 7‐9; IAF, Tab 9 at 3‐4.

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. He does not dispute that the agency proved its charge by 

preponderant evidence, but argues that the administrative judge erred in rejecting 

his affirmative defenses. Id. The agency filed a response in opposition to the 

petition for review, to which the appellant did not reply. PFR File, Tab 3.

¶6 The appellant argues on review that the agency’s act of referring his 

security clearance for review, which was the catalyst for the denial of his 

clearance and his subsequent removal, was done in retaliation for his filing of two 

Board appeals. PFR File, Tab 1 at 4, 10. He contends that 5 U.S.C. § 1221(g)(4)

authorizes the Board to order corrective action for retaliatory investigations and, 

as such, the administrative judge should have adjudicated his claim that the 

agency’s investigation constituted a prohibited personnel practice 

under 5 U.S.C. §§ 2302(b)(9)(A)(ii), 2302(b)(12). Id. at 4, 6‐8. For the reasons 

set forth below, we disagree.
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¶7 An investigation is not a personnel action. 3 5 U.S.C. § 2302(a)(2)(A); 

Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 7 (2007) (citing Russell v. 

Department of Justice, 76 M.S.P.R. 317, 323‐24 (1997)). The Board will 

consider evidence of the conduct of an agency investigation when it is so closely 

related to a personnel action that it could have been pretext for gathering 

evidence to use to retaliate against an employee for whistleblowing. 

Johnson, 104 M.S.P.R. 624, ¶ 7. However, contrary to the appellant’s 

assertions, 5 U.S.C. § 1221(g)(4) does not create a separate cause of action for 

retaliatory investigations. S. Rep. No. 112‐155, at 20‐22 (2012). Indeed, 

Congress considered and rejected the option of explicitly and specifically 

recognizing a retaliatory investigation as a personnel action, so as to avoid 

discouraging agencies from undertaking legitimate and necessary inquiries. Id.

at 21. Congress opted instead to authorize an award of consequential damages 

once an employee is able to prove a claim under the Whistleblower Protection 

Act, if the employee can further demonstrate that an investigation was undertaken 

in retaliation for the protected disclosure. Id. at 21‐22; see 5 C.F.R. 

§ 1201.202(b)(2). We therefore agree with the administrative judge that the only 

issue properly before her was the appellant’s removal. ID at 8.

¶8 The administrative judge also correctly found that she could not consider 

the appellant’s reprisal claims as affirmative defenses. 4

 ID at 7‐9. It is well 

 3 The Board has jurisdiction to entertain claims under 5 U.S.C. § 2302(b)(12) only in 

the context of a corrective action proceeding brought by the Special Counsel pursuant 

to 5 U.S.C. § 1214, which the instant appeal is not. 5 U.S.C. § 1214(b)(4)(A); 

Hugenberg v. Department of Commerce, 120 M.S.P.R. 381, ¶ 25 (2013).

4 The appellant also appears to contend that the agency’s delay in referring his security 

clearance for investigation constituted harmful procedural error. PFR File, Tab 1 at 4, 

8-10. We cannot consider this claim because, as previously explained, we lack 

jurisdiction over that action. See Daneshpayeh v. Department of the Air Force, 

57 M.S.P.R. 672, 682 n.9 (1993) (finding that the Board could not consider the 

appellant’s harmful error claims because it lacked jurisdiction over his appeal), aff’d, 

17 F.3d 1444 (Fed. Cir. 1994) (Table).
5

settled that the Board is precluded from reviewing allegations of prohibited 

reprisal when such an affirmative defense relates to the denial of a security 

clearance. Doe v. Department of Justice, 121 M.S.P.R. 596, ¶ 10 (2014); see 

Kaplan v. Conyers, 733 F.3d 1148, 1151, 1158-60 (Fed. Cir. 2013) (en banc),

cert. denied, Northover v. Archuleta, 134 S. Ct. 1759 (2014) (citing Department 

of the Navy v. Egan, 484 U.S. 518, 529-31 (1988) (holding that the Board has no 

authority to review the underlying merits of a security clearance/access 

determination)). 

¶9 Based on the foregoing, we find that the appellant has not established a 

basis for review. We thus affirm the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. Court 

of Appeals for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). 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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 
6

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court.

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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode/htm. Additional information about 

the U.S. Court of Appeals for the Federal Circuit is available at the court’s 

website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide 

for Pro Se Petitioners and Appellants,” which is contained within the 

court’s Rules of Practice, and Forms 5, 6, and 11. Additional information about 

other courts of appeals can be found at their respective websites, which can be 

accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for your appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The
7

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board