U.S. Merit Systems Protection Board 
Case Report for April 27, 2012

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Corry B. McGriff
Agency:  Department of the Navy
Decision Number:  2012 MSPB 62
Docket Number:  DC-0752-09-0816-I-1
Issuance Date:  April 26, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Constitutional Issues - Due Process
Harmful Procedural Error
Indefinite Suspensions
Security Clearance Determinations

    At issue in this case was the propriety of the agency's action indefinitely suspending the appellant on the basis that his access to classified information was suspended pending final adjudication by the agency.  The appellant's access to classified material was suspended based on "recent and continual conduct that involve[d] questionable judgment, untrustworthiness, unreliability, and unwillingness to comply with rules and regulations."  A report of investigation described these reasons in more detail:  a letter of reprimand for the appellant's inability to comply with directions; a finding that the appellant overstated his employee status; that his involvement with a company owned and operated by his wife created a conflict of interest with his official duties; and that his failure to follow instructions prohibiting him from using government resources to further his wife's business.  In sustaining the indefinite suspension, the administrative judge found that:  (1) The appellant's position required access to classified information; (2) the agency suspended that access pending investigation, and it indefinitely suspended him pending a final decision on that matter; and (3) the agency afforded him the required procedural rights in indefinitely suspending him by providing him with advance written notice of the allegations against him, a reasonable time to respond, an opportunity to be represented, and a written decision explaining the basis for its action.  The judge concluded that the agency's suspension promoted the efficiency of the service and there were no positions to which the appellant could be reassigned.  

     On petition for review, the Board determined that this and three other appeals raised similar issues, which it asked the parties to brief and issued a notice of the opportunity to file amicus briefs.  The issues were as follows:  (1) Should the Board apply the balancing test set forth in Gilbert v. Homar, 520 U.S. 924 (1997), in determining whether an agency violates an employee's constitutional right to due process in indefinitely suspending him or her pending a security clearance determination; (2) if so, does that right include the right to have a deciding official who has the authority to change the outcome of the proposed indefinite suspension; and (3) if the Board finds that an agency did not violate an employee's constitutional right to due process in this regard, how should the Board analyze whether the agency committed harmful procedural error in light of the restrictions set forth in Department of the Navy v. Egan, 484 U.S. 518 (1988), on the Board's authority to analyze the merits of an agency's security clearance determination.

Holdings:  In vacating the initial decision and remanding the appeal to the regional office for further adjudication, the Board answered all three questions in the affirmative:

1.  The appellant was entitled to constitutional due process when the agency indefinitely suspended him from federal employment based on a suspension of access to classified information.

a.  Under certain circumstances, an agency may indefinitely suspend an employee upon the suspension of access to classified information, or pending its investigation regarding that access, where the access is a condition of employment.  On appeal of such an action, the Board lacks the authority to review the merits of the agency's decision to suspend an employee's access to classified material.  The Board may review, however, whether the agency provided the employee with the procedural protections set forth in 5 U.S.C. 7513, whether the agency committed harmful error in failing to follow applicable regulations, and whether the agency afforded the employee due process with respect to his constitutionally-protected property interest in his employment.  

b.  When a suspension is based on restriction of the employee's security access, the agency is required to provide the employee a meaningful opportunity to respond to the reasons for the suspension by ensuring that, either in the advance notice of that action or in the earlier access determination, the employee has been notified of the cause that led to the access determination.  An indefinite suspension based upon a negative security clearance determination illustrates the tension between ensuring that an agency does not violate an employee's constitutional due process rights and following the Egan prescript against reviewing the substance of the underlying security clearance determination.

2.  The Board adopted the balancing test of Gilbert v. Homar in determining whether an agency has provided an employee with due process in effecting a suspension.

a.  In Homar, the Supreme Court addressed the issue of whether a tenured public employee who was suspended from employment was entitled to constitutional due process.  While acknowledging that a suspension implicates the constitutional due process right to notice and opportunity to respond, the Court further explained that due process in this context may not necessarily encompass a right to have such notice and opportunity prior to the deprivation; because due process relates to time, place and circumstances, its parameters in any given case will be a function of the demands of the particular situation.

b.  In order to determine what process is due, the Court balanced three factors:  (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest.  

c.  The Board determined that the first and third factors militated in favor of finding that the agency provided due process.  The appellant was afforded notice and an opportunity to respond to the reasons for the revocation of his security clearance prior to the imposition of the suspension based on that revocation and, despite the prolonged nature (10 months) of the suspension at issue, the Board could not conclude that the "timing" of the notice and opportunity to respond rendered the process constitutionally defective.  Regarding the third factor, the agency undoubtedly has a compelling interest in withholding national security information from unauthorized persons.

3.  The second Homar factor requires that the deciding official have the authority to change the outcome of a proposed indefinite suspension.

a.  In discussing the second factor in Homar, i.e., the risk of erroneous deprivation of the property interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, the Court focused on the need to ensure that the procedures used provide adequate assurance that the agency had reasonable grounds to support the adverse action.

b. The Board concluded that the agency did have reasonable grounds to support the appellant's suspension, and rejected his assertion that the agency failed to provide him with the specific reasons for the action before he responded to the proposal notice, thereby denying him a meaningful opportunity to respond.  

c.  Nonetheless, a significant question exists as to whether the appellant had a meaningful opportunity to respond to the proposed indefinite suspension such that the procedures that were used posed a risk of erroneous deprivation of the appellant's property interest in his employment.  Providing an appellant with a reasonable opportunity to reply requires more than mere notice; the reply opportunity may not be an empty formality, and the reply or deciding official should have authority to take or recommend agency action based upon the reply.  It is especially important in circumstances such as are present here that the deciding official have authority to change the outcome of a proposed indefinite suspension where the employee did not have a meaningful opportunity to respond to the reasons for the suspension of the security clearance in the earlier access determination.

d.  Although the record suggests that the deciding official lacked authority to change the initial determination to suspend the appellant's security clearance or to reassign him, the record was insufficient to allow the Board to make definitive findings in this regard.  A remand is therefore necessary.

4.  Should the judge find that the agency did not deprive the appellant of minimum due process of law, the judge must still determine whether the agency complied with its own regulations and procedures.  



Appellant:  Alexander Buelna
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 63
Docket Number:  DA-0752-09-0404-I-1
Issuance Date:  April 26, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Constitutional Issues - Due Process
Harmful Procedural Error
Indefinite Suspensions
Security Clearance Determinations


    The facts in this case were very similar to those in the McGriff appeal.  The agency suspended the appellant's security clearance, which was a requirement for his position as a Federal Air Marshal, and subsequently effected an indefinite suspension.  One difference between this appeal and the McGriff appeal was that, because the appellant was an employee of the Transportatation Security Administration (TSA), his suspension was not governed by 5 U.S.C. chapter 75, but by the agency's Management Directive.

Holdings:  The Board vacated the initial decision, which had sustained the appellant's indefinite suspension, and remanded the case to the regional office for further adjudication:

1.  The same general principles that apply in analyzing whether employees covered under 5 U.S.C. chapter 75 have been denied statutory, regulatory, or constitutional due process rights also apply in analyzing whether TSA employees have been denied those rights.

2.  As in McGriff, the Board applied the balancing test of Gilbert v. Homar in determining whether the appellant was denied his right to constitutional due process of law.  Also as in McGriff, the present record was insufficient to allow the Board to make a determinative finding on the second Homar factor, i.e., whether the agency's deciding official had the authority to consider the merits of the appellant's security clearance suspension when determining the propriety of the indefinite suspension, and whether he had the authority to take other remedial action, such as temporarily reassinging the appellant to a position that did not require a security clearance.  A remand was therefore necessary.  



Appellant:  Joseph Vick
Agency:  Department of Transportation
Decision Number:  2012 MSPB 58
Docket Number:  DA-1221-10-0725-W-1
Issuance Date:  April 20, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
Mootness

     The appellant petitioned for review of an initial decision that dismissed his IRA appeal as moot.  The appellant alleged that the agency had suspended him in retaliation for protected whistleblowing disclosures.  During the processing of the appeal, the agency submitted documentation that it had cancelled the suspension and taken other remedial action, and argued that the appeal was therefore moot.  Finding that the only remaining issue was the appellant's outstanding attorney fees, the administrative judge dismissed the appeal as moot.
   
Holding:  The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication.   A request for attorney fees in an IRA appeal is a claim for corrective action.  Accordingly, the appeal is not moot.  



Petitioner:  National Treasury Employees Union
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 59
Docket Number:  CB-1205-10-0024-U-1
Issuance Date:  April 25, 2012
Appeal Type:  Request for Regulation Review
Action Type:  All Original Jurisdiction Cases

Regulation Review

    Petitioner National Treasury Employees Union (NTEU) requested the Board's review of an OPM qualification standard and its application by the Internal Revenue Service (IRS).  Prior to 1994, the qualification standard for the IRS Revenue Agent series included a requirement for 24 semester hours of accounting education.  In 1994, OPM modified the qualification standard to require 30 semester hours of accounting education or 24 hours in accounting and 6 hours in related subjects.  A 1995 letter of understanding between the the IRS and the NTEU stated "[e]mployees currently serving or having previously served in a GS-512 series position will not have to meet the increased education requirement."  In its request for regulation review under 5 U.S.C. 1204(f), the NTEU alleges that the application of the increased educational requirement violates 5 U.S.C. 3308, and that this violation causes the implementation of a prohibited personnel practice in violation of 5 U.S.C. 2302(b)(12).  

Holdings:  The Board denied NTEU's request for regulation review:

1.  Without determining the merits of NTEU's contentions, the Board found that NTEU made nonfrivolous allegations sufficient to establish a claim with the Board's jurisdiction under 5 U.S.C. 1204(f).

2.  In determining whether to exercise its regulation review authority, the Board considers, among other things:  (1) the likelihood tht the issue will be timely reached through ordinary channels of appeal; (2) the availability of other equivalent remedies; (3) the extent of the regulation's application; and (4) the strength of the arguments against the validity of its implementation.  

3.  The third factor -- the extent of the regulation's application -- weighs in favor of review, as the educational requirement applies to all applicants for the Revenue Agent position at IRS offices nationwide.  

4.  The first and second factors weigh against regulation review.  The validity of the qualification could be raised in an employment practices appeal.  Even though NTEU itself could not bring such an appeal, it represents Revenue Agents and other IRS employees who may wish to apply for a Revenue Agent position.  Equivalent remedies are available in an apeal brought under the employment practices regulations.

5. The Board found that the NTEU did not have a strong argument against the validity of the implementation of the qualification standard.  While 5 U.S.C. 3308 generally prohibits the prescription of minimum educational requirements, it plainly authorizes OPM to make an exception for"scientific, technical, or professional position[s]" whose duties "cannot be performed by an individual who does not have a prescribed minimum education."  OPM considers the Revenue Agent series a professional position, and the Board found no evidence upon which it could conclude that OPM's reasons for increasing the educational requirement for entry into that position were either patently unfounded or arbitrary.  NTEU's argument that the decision to "grandfather" incumbents constitutes irrefutable evidence of its acknowledgment that Revenue Agent duties can be performed by employees who have not completed 30 hours of accounting credits is unpersuasive, as the 1995 letter of understanding properly reflected that incumbents have on-the-job experience as well as having satisfied minimum educational requirements.  



Appellant:  Donald W. Cassidy
Agency:  Department of Justice
Decision Number:  2012 MSPB 60
Docket Number:  DA-1221-11-0365-W-1
Issuance Date:  April 25, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Exhaustion
 - Protected Disclosure
 - Contributing Factor

    The appellant, a GS-15 Deputy Chief Counsel with the Immigration and Customs Enforcement, petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction.  He alleged that his nonselection for two Immigration Judge positions with the Department of Justice were in retaliation for complaints he made to the Assistant Chief Immigration Judge concerning the conduct of another immigration judge under his supervision.  On appeal to the Board, the administrative judge found that the appellant had exhausted his remedy with the Office of Special Counsel (OSC) with respect to five alleged disclsoures and the two nonselections, but dismissed the appeal for lack of jurisdiction on the ground that the appellant failed to make a nonfrivolous allegation that he made a protected disclosure.  

Holdings:  The Board reversed the initial decision, finding that the appellant established jurisdiction, and remanded the appeal to the regional office for adjudication on the merits:

1.  The Board agreed with the administrative judge's determination that the appellant exhausted his remedy with OSC with respect to five alleged disclosures and the two nonselections.

2.  The Board agreed with the judge's determination that the appellant failed to make a nonfrivolous allegation that four of his alleged disclosures -- that an immigration judge was late, ineffective and inefficient on the bench, caused a loss of government time, and caused a loss of government money -- were protected.  

3.  The Board found that the appellant made a nonfrivolous allegation that his fifth disclosure -- that the immigration judge's conduct and unnecessary delays violated the due process rights of detained aliens -- was protected, in that he reasonably believed that he was disclosing a violation of law, rule, or regulation.

a.  Although the administrative judge faulted the appellant for not providing a bright line rule concerning the due process rights of detained aliens, this issue is unclear and has been the subject of extensive federal court litigation.

b.  The appellant's allegations that the delays not only deprived detained aliens of due process rights, but also violated a class action settlement agreement that required an alien's initial appearance before an immigration judge within 48 hours, is a nonfrivolous allegation of a violation of law, rule, or regulation.  

4.  The appellant made a nonfrivolous allegation that his disclosures were a contributing factor in his nonselection for the two positions.  Although the Assistant
Chief Immigration Judge to whom the appellant made the disclosures did not make the ultimate decision regarding the appellant's nonselection, the appellant made a nonfrivolous allegation that the Assistant Chief Judge influenced the selection panelists.  



Appellant:  Sherman Howard
Agency:  Department of the Air Force
Decision Number:  2012 MSPB 61
Docket Number:  DA-0752-09-0172-M-1
Issuance Date:  April 26, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process

    This case was before the Board on remand from the Court of Appeals for the Federal Circuit, which granted the agency's motion to remand the Board's 2010 decision for further proceedings in light of Ward v U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011).  In the Board's earlier decision, it found that the deciding official had erroneously considered the appellant's allegedly poor performance as an aggravating factor weighing in favor or removal, even though the proposal notice did not mention the appellant's poor performance as an aggravating factor.  The Board "remedied" the error by conducting its own penalty analysis and finding that the removal penalty was within the bounds of reasonableness.

Holdings:  The Board vacated its prior decisions in this matter and ordered the agency to cancel the appellant's removal and restore him to his position:

1.  The ex parte information at issue was not cumulative because it concerned specific information of alleged performance deficiencies of which the appellant was not given notice and an opportunity to respond in the removal action.

2.  In a situation like this, where the deciding official has admitted that the ex parte information influenced his penalty determination, the information in quesiton is clearly material.

3.  The Board found that the deciding official's consideration of these aggravating factors was "so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances."  Accordingly, the agency violated the appellant's due process rights and the removal must be cancelled.

 


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DECISION

Complainant:  Mia Macy
Agency:  Department of Justice
Appeal Number:  0120120821
Issuance Date:  April 20, 2012

Discrimination - Sex

 Holding:  The EEOC held that "discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII . . . ."


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