UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ANGELO T. MARSHALL, Appellant,

v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER CH

- 0752

- 10

- 0903

- I

- 2

DATE: September 16, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

J. Ward Morrow , Esquire, Washington, D.C., for the appellant. Neil Bloede , Indianapolis, Indiana, for the agency.

BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s removal. For the reasons discuss ed below, we GRANT

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

the petition for review , REVERSE the initial decision , and SUSTAIN the appellant ’s removal. 2 ¶2 The agency r emoved the appellant from his Management Assistant position with the Defense Finance and Accounting Service (DFAS) based on a decision of the Washington Headquarters Service (WHS) Clearance Appeal Board (CAB) to uphold the decision of the WHS Consolidated Adjudications Facility (CAF) denying the appellant eligibility to occupy a non critical sensitive (NCS) position. MSPB Docket No. CH

- 0752

- 1 0

- 0 903

- I

- 1 (I

- 1) , Initial Appeal File ( I AF), Tab 6 , Subtabs 4a , 4b , 4d

. ¶3 After a hearing on appeal, the administrative judge reversed the removal action. MSPB Docket No. CH

- 0752

- 1 0

- 0 903

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- 2 (I

- 2) , IAF , Tab 23 , Initial Decision (ID) at 2 , 14 . Applying the Board’s decision s in Conyers v. Department of Defense , 115 M.S.P.R. 572 (2010), and Northover v. Department of Defense , 115 M.S.P.R. 451 (2010) , the administrative judge found that the Board may review the merits of the agency’s decision to deny the appellant eligibility to occupy an NCS position, and that the agency must prove that the removal action is supported by preponderant evidence, promotes the efficiency of the service, and is a reasonable penalty. ID at 3

- 5 . The administrative judge held that the agency failed to prove its charge that the appellant is ineligible to occupy an NCS position, failed to show that discipline for the appellant’ s conduct promoted the efficiency of the service, and failed to prove that the penalty of removal was reasonable even assuming that the agency had properly sustained its charge. ID
at 5

- 13 . Regarding the penalty, the administrative judge found that the d eciding official did not truly determine the penalty because he had no choice but to remove the appellant, and that the real decision

- makers were the CAB, through its

2 Except as otherwise noted in this decision, we have applied the Board’s regulations that became effective November 13, 2012. We note, however, tha t the petition for review in this case was filed before that date. Even if we considered the petition under the previous version of the regulations, the outcome would be the same.3
decision upholding a letter of decision issued by the WHS CAF, and the agency’s human res ources department, through its instruction to remove the appellant from service. ID at 1 2. The administrative judge noted that the deciding official testified that he did not know of any positions not requiring a n NCS clearance, and that the record did n ot demonstrate that the deciding official viewed the appellant’s conduct as warranting removal or that he had an opportunity to mitigate the penalty. ID at 12

- 13 . Finally, the administrative judge found that the appellant did not prove his affirmative de fenses of harmful error and a violation of due process . ID at 13

- 14

. ¶4 The agency asserts on review that the administrative judge erred in applying Conyers and Northover because th ose decision s w ere not yet final, and should have applied an abuse of discret ion standard in reviewing the agency’s decision to deny the appellant eligibility to occupy an NCS position. I

- 2, Petition for Review (PFR) File, Tab 1 at 7

- 12. The agency also challenges th e administrative judge’s findings on the merits of the appeal. Id . at 12

- 23 . The appellant has filed an opposition to the agency’s petition for review. PFR File, Tab 3. ¶5 The Clerk of the Board thereafter issued an Order informing the parties that the U.S. Court of Appeals for the Federal Circuit ’s decision in Gargiul o v. Department of Homeland Security , 727 F.3d 1181 (Fed. Cir. 2013), may affect the outcome of the case, and inviting the parties to file brief s addressing the possible application of Gargiulo to the appellant’s constitutional due process claims. PFR File, Tab 6 . The parties have filed responses to the Order issued by the Clerk of the Board. Id ., Tab s 7, 8

. ¶6 In Conyers , 115 M.S.P.R. 572 , ¶ 13, and Northover , 115 M.S.P.R. 451 , ¶ 13, the Board held that the U.S. Supreme Court’s decisi on in Department of the Navy v. Egan , 484 U.S. 518 (1988), limited Board review of an otherwise appealable action only if that action was based u pon a denial, revocation, or suspension of a “security clearance,” i.e., a denial of access to classified information or eligibility for such access. Accordingly, the Board found in4
Conyers and Northover that an adverse action based on the agency’s decision that an employee was not eligible to occupy an NCS position was subject to the same review as other actions under 5 U.S.C. chapter 75, including review of the merits of the agency’s decision on eligibil ity. See Conyers , 115 M.S.P.R. 572 , ¶¶ 13, 32

- 34; Northover , 115 M.S.P.R. 451 , ¶¶ 13, 30

- 33. ¶7 A divided Federal Circuit panel reversed the Board’s decisions in Conyers and Northover , holding that the Board cannot review the merits of an agency’s national security determinations regarding an employee’s eligibility to occupy a sensitive position that implicates national security. Berry v. Conyers , 692 F.3d 1223 , 1225, 1237 (Fed. Cir. 2012). The court later vacated the above panel decis ion and granted rehearing en banc. Berry v. Conyers , 497 F. App’x 64 (Fed. Cir. 2013). The court then issued an en banc decision in which a majority of the court reversed and remanded the Board’s decision in Northover and dismissed the appeal in Conyers for lack of jurisdiction. Kaplan v. Conyers , 733 F.3d 1148 , 1150

- 52, 1166

- 67 (Fed. Cir. 2013), cert

. denied , Northover v. Archuleta , 134 S. Ct. 1759 (2014). In its en banc decision in Conyers , 733 F.3d at 1158

- 60, the Federal Circuit held that Egan prohibits Board review of Department of Defense (DoD) national security determinations concerning the eligibility of an individual to occupy a “sensitive” position, regardless of whether the position requires access to classified information. In support of this holding, the court found that “there is no meaningful difference in substance between a designation that a position is ‘sensitive’ and a designation that a position requires ‘access to classified information.’ Rather, what matters is that both designations concern national security.” Id . at 1160. Accordingly, under the Federal Circuit’s decision in Conyers , the limited scope of review set forth in Egan applies to appeals such as this one, where an adverse action is based on the decision that an employee is not eligible to occupy an NCS position. See id . at 1158

- 60; Ingram v. Department of Defense , 120 M.S.P.R. 420 , ¶ 9 (2013).5
¶8 In Egan , the Supreme Court held that the Board does not have authority to review the substance of a security clearance determination, contrary to what is required generally in other adverse action appeals. Egan , 484 U.S. at 530

- 31. The Court held that, in an ap peal under 5 U.S.C. § 7513 based on the denial of a security clearance, the Board has authority to review only w hether : (1) an

e xecutive b ranch employer determined the employee’s position requi red a security clearance; (2) the clearance was denied or revoked; (3) the employee was provided with the procedural protections specified in 5 U.S.C. § 7513 ; and (4) whether transfer to a nonse nsitive position was feasible when another source, such as a statute or regulation, provides the employee a substantive right to such reassignment. See Conyers , 733 F.3d at 1151 (citing Egan , 484 U.S. at 530); Griffin v. Defense Mapping Agency , 864 F.2d 1579 , 1580 (Fed. Cir. 1989); Buelna v. Department of Homeland Security , 121 M.S.P.R. 262 , ¶ 14 n.5 (2014). The Court ruled that “[n]othing in the [statute enacting 5 U.S.C. § 7513 ] . . . direct[ed] or empower[ed] the Board to go further.” Egan , 484 U.S. at 530. Our review is therefore limited to the issues set forth in Egan

. ¶9 In applying the limited scope of review under Egan , we must affirm the agency’s removal action. See Ingram , 120 M.S.P.R. 420 , ¶¶ 12

- 13. The appellant’s position of Management Assistant required that he maintain eligibility to occupy a n NCS position. I

- 1, IAF , Tab 6 , Subtab 4 j , Tab 7 at 15 ; Hearing C ompact D isc (H CD ) , MP3

- 1 (testimony of the proposing and deciding officials)

. Furthermore, the WHS CAF issued a letter denying the appellant eligibility for access to classified information and/or occupancy of a sensitive position. I

- 1 , IAF , Tab 6, Subtab s 4h, 4i ; I

- 2, IAF , Tab 17 at 24 . The CAB affirmed that decision. I

- 1, IAF , Tab 6 , Subtab 4 e ; I

- 2, IAF , Tab 18 at 160

. In addition, the agency complied with the procedural protections specified in 5 U.S.C. § 7513 in removing the appellant from his position. The agency provided the appellant with 30 days ’ advance written notice of the proposed removal, reasons for the proposed action, and a reasonable opportunity to reply. I

- 1, IAF , Tab 6 , Subtab6

4d ; see 5 U.S.C. § 7513 (b)(1)

- (2). The agency notified the appellant of his right to be represented by an attorney and provided him w ith a written decision letter. I

- 1, IAF , Tab 6 , Subtabs 4b, 4d ; see 5 U.S.C. § 7513 (b)(3)

- (4). Therefore, the agency complied with the requirements of 5 U.S.C. § 7 513 in removing the appellant. There is no indication that the agency was required to consider transferring the appellant to a nonsensitive position. See I

- 1, IAF , Tab 6 , Subtab 1 at 12

. ¶10 Regarding the due process issue i n this case, employees do not have a property interest in access to classified information, and the termination of that access does not implicate any due process concerns. Flores v. Department of Defense , 121 M.S.P.R. 287 , ¶ 9 (2014). Like a security clearance, the granting of eligibility to occupy a sensitive position is a matter within the e xecutive’s broad discretion to mak e determinations concerning national security. Id . Therefore, just as it is obvious that no one has a right to a security clearance, it is likewise clear that an employee has no property interest in eligibility to occupy a sensitive position, and the den ial of the appellant’s eligibility to occupy a sensitive position is not itself subject to due process requirements. Id. ¶11 Nevertheless, by virtue of being an employee under 5 U.S.C. § 7511 , and thus removable only for cause, the appellant did have a property interest in his continued employment. Id ., ¶ 10. Therefore, he was entitled to due process, including notice and a meaningful opportunity to respond, prior to being removed. Id .; see Gargi ulo , 727 F.3d at 1185 (although Mr. Gargiulo had no due process rights relating to the procedures used to determine whether to suspend or revoke his security clearance, he did have due process rights concerning his indefinite suspension). It is the appell ant’s removal, not his loss of eligibility to occupy a sensitive position, that triggered due process protections. Flores , 121 M.S.P.R. 287 , ¶ 10. The Board may review the due process protections afforded in the removal proceedings without second guessing the underlying eligibility determination. Id .; see Buelna , 121 M.S.P.R. 262 , ¶ 15 (the Court did7

not have occasion in Egan to decide if the Board was authorized to consider a claim that an agency denied due process in taking an adverse action based on a security clearance determination). ¶12 In Buelna , 121 M.S.P.R. 262 , ¶¶ 3

- 4, 26

- 28, which involved an indefinite suspension based in part on the suspension of a security clearance, the Board held that, if there are “viable alternatives” to the indefinite suspension, due process requires that the employee be afforded an opportunity to invoke the discretion of a deciding official with authority to select such alternatives. The Board found that the right to invoke the deciding official’s discretion exists only in such c ases where there is doubt as to the appropriateness or necessity of the penalty, and that due process does not demand that the deciding official consider alternatives that are prohibited, impracticable, or outside management’s purview. Id ., ¶ 27. ¶13 In respo nse to the appellant ’s argument that the agency could retain him as a DFAS employee because he performed union rep resentational duties instead of the duties of his assigned position , t he deciding official indicated in h is decision letter that , “ to stay on DFAS rolls, an employee must be assigned to an official, funded DFAS position for which he is qualified.” I

- 1, IAF , Tab 6, Su b tab 4b at 1. Thus, the deciding official rejected the appellant’s request that he be allowed to remain in the positio n for which he no longer qualified and simply perform

non sensitive duties. Id

. The deciding official also noted in the decision letter that the re were no vacant non sensitive positions to which the appellant could be reassigned. Id . at 2; see H CD , MP3

- 1 (testimony of the deciding official that all of the positions at DFAS were categorized as NCS, and that he had to remove the appellant and could not reassign him because t he appellant was not eligible to occupy a NCS position). Th us, th e deciding official testified that he did not consider any penalty other than removal because the appellant did not have the credentials required for his position. HCD, MP3

- 1. ¶14 The appellant has not identified any viable alternatives to his removal in this case, and we fin d no such alternatives. Given the record evidence8
establishing that all positions within DFAS were classified as NCS , any alternative to removal that would have retained the appellant in his Management Assistant position, reassigned him to another positio n within DFAS, or i ndefinitely assigned him to non sensitive duties without his being assigned to a position in the civil service was either prohibited, impracticable, or outside the purview of DFAS management. See 5 U.S.C. § 2105 (a)(1) (defining “employee” as an individual appointed in the civil service); 5 U.S.C. § 2101 (1) (the “civil service” consists of all appointive positions in the executive, judicial , and legislative branches); Bracey v. Office of Personnel Management , 236 F.3d 1356 , 1359 (Fed. Cir. 2001) (“We are aware of no setting in the federal employment system in which an employee is considered to hold a ‘position’ consisting of a set of ungraded, unclassified duties that have been assigned to that employee on an ad hoc basis.” ); cf. McFadden v. Department of Defense , 85 M.S.P.R. 18 , ¶ 20 (1999) (an agency is not obligated to accommodate a disabled employee by permanently assigning her to light

- duty tasks when those tasks do not comprise a complete and separate position). ¶15 When an agency has effected an indefinite suspension without pay pending the completion of an investigation and/or resolution of an appellant’s security clearance status, the Boar d has suggested that placement on administrative leave “may” be a viable alternative to suspension without pay. See Buelna , 121 M.S.P.R. 262 , ¶¶ 4, 28. Here, however, ther e was no pending adjudication of the appellant’s eligibility to occupy a NCS position. Rather, such eligibility had been denied and the appellant’s removal had been proposed. Even assuming that there was a “practicable” alternative in the sense that some one in DFAS management may have had the authority to crea te a non sensitive position for the appellant to occupy, see Haeuser v. Department of Law, Government of Guam , 97 F.3d 1152 , 1159 n.4 (9 th Cir. 1996) (contrasting the terms “practicable” and “practical,” with “practicable” referring to something that can be put into effect, and “practical” referring to something that is also sensible and worth while), the9
Board does not have the authority to determine whether such an alternative would be practicable, see Skees v. Department of the Navy , 864 F.2d 1576 , 1578 (Fed. Cir. 1989) (“If the Board cannot review the employee’s loss of security clearance, it is even further beyond question that it cannot review the Navy’s judgment that the position itself requires the clearance.”); see also Conyers , 733 F.3d at 1155 (“ Egan , at its core, explained that it is essent ial for the President and the DO D to have broad discretion in making determinations concerning national security.”). The Board is not permitted to second

- guess the agency’s determination t o classify positions as NCS

. W e find that the appellant has not established a due process violation in the absence of a showing that there were viable alternatives to his removal. Brown v. Department of Defense , 2014 MSPB 74 , ¶ 16; see Buelna , 121 M.S.P.R. 262 , ¶¶ 26

- 28. ¶16 A ccordingly, the agency’s petition for review is GRANTED, the initial decision is REVERSED, and the appellant’s removal is SUSTAINED.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS Th is Fi nal Order constitutes the Board’ s final decision in thi s matter. 5 C.F.R. § 1201.113 . You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your request for review no later than 60 calen dar 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 statutory10
deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Off ice of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm

. Additional inform ation is available at the court’ s website, www.cafc.uscourts.gov . Of pa rticular relevance is the court’ s “ Guide for Pro Se Petitioners and Appellants, ” whic h is contained within the court’ s Rules of Practice , and Forms 5, 6, and 11. If you are interested in securing pro bono representation for your court appeal, you may visi t our website at http://www.mspb.gov/probono for a list of attorneys who have expressed interest in providing pro bono representation for Merit Systems Protection Board appellants before the court. The Merit Sys tems 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