U.S. Merit Systems Protection Board 
Case Report for August 10, 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:  John Doe
Agency:  Department of Justice
Decision Number:  2012 MSPB 95
Docket Number:  CH-0752-09-0404-I-1
Issuance Date:  August 9, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Security Clearance Determinations
Harmful Procedural Error

    The appellant petitioned for review of an initial decision that sustained his removal.  The appellant was an Assistant United States Attorney (AUSA).  All AUSAs occupy Special-Sensitive, Level 4 positions as a condition of their employment.  Persons with this designation have ready access to security clearances should the need to secure one on short notice become necessary.  In August 2008, the United States Attorney told the appellant he was being reassigned from the Economic Crimes Unit to the Community Crimes Unit, also known as the Gun Unit.  The appellant submitted a reasonable accommodation request asking not to be reassigned, asserting that it would exacerbate his anxiety disorder.  In response to the agency's request for medical documentation to support the request, the appellant submitted a letter from his psychologist, which stated that the appellant "is currently having obsessive thoughts that he will have suicidal or homicidal ideation if he is moved to the 'guns unit.'  I view this as evidence of his potential to decompensate into a depression with paranoid features."  Based on the psychologist's letter, the Chief of the Personnel Security Section determined that the appellant was no longer eligible to hold a Special-Sensitive Level 4 position and that his assignment as an AUSA posed an unnecessary and unacceptable operational security risk.  The United States Attorney proposed to remove the appellant based on charges of (1) "failure to maintain a qualification for your position," and (2) "posing an operational security risk to the office."  The agency's deciding official sustained both charges and effected the appellant's removal.  

     In sustaining the agency's removal action, the administrative judge found, among other things, that:  (1) The two charges merged into one charge because both were based on determinations by the Chief of the Personnel Security Section and involved the same conduct; (2) the requirement that the appellant maintain eligibility to hold a Special-Sensitive Level 4 position was functionally equivalent to a security clearance determination and that the restrictions on Board review of security clearance determinations imposed by the Supreme Court's Egan decision therefore applied; (3) the appellant was not entitled to the procedures set forth at 28 C.F.R. 17.47, which provide for Access Review Committee (ARC) review of any decision denying access to classified information, because the appellant did not hold a security clearance; and (4) the removal action must be sustained under the limited scope of Board review under Egan.  

Holdings:  The Board vacated the initial decision and remanded the appeal to the agency to apply its internal procedures for reviewing a decision to withdraw an employee's eligibility for access to classified information:

1.  The Board need not determine whether the judge erred in merging the charges, because proof of the first charge -- failure to maintain a qualification for the position -- is sufficient to warrant removal.  


2.  The administrative judge correctly ruled that the limited scope of Board review under Egan applies to this appeal.

a.  In Department of the Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court limited the scope of Board review in an appeal of an adverse action based on the revocation or denial of a security clearance.  The Court held that the Board lacks authority to review the substance of the security clearance determination or to require the agency to support the revocation or denial of the security clearance by preponderant evidence, as it would be required to do in other adverse action appeals.  Rather, the Court found that the Board has authority to review only whether the employee’s position required a security clearance, whether the clearance was denied or revoked, whether the employee was provided with the procedural protections specified in 5 U.S.C. 7513, and whether transfer to a nonsensitive position was feasible.  

b.  The Board rejected the appellant's argument that limited review under Egan is limited to situations in which a security clearance was a condition of employment.  In Conyers v. Department of Defense, 115 M.S.P.R. 572 (2010), for example, the Board held that Egan limits the Board's review of an otherwise appealable adverse action "if that action is based upon a denial, revocation or suspension of a 'security clearance,' i.e., involves a denial of access to classified information or eligibility for such access."  

c.  Those who hold Special-Sensitive Level 4 positions must "have ready access to security clearances should the need to secure one on short notice become necessary."  Because the appellant's position required eligibility for access to classified information, the limited scope of review set forth in Egan applies.  

2.  The record shows that the agency's removal action complied with Egan requirements.  The appellant was required to maintain eligibility to occupy a Special-Sensitive Level 4 position; his eligibility was withdrawn; transfer to a position that did not require this eligibility was not feasible; and he was provided with the procedural protections of section 7513.  

3.  The appellant was entitled to ARC review of the decision to withdraw his eligibility for access to classified information.

a.  In Romero v. Department of Defense, 527 F.3d 1324 (Fed. Cir. 2008), the court held that Egan did not preclude the Board from reviewing whether the agency complied with its own regulations and procedures in revoking a security clearance.  The statutory basis for such review is 5 U.S.C. 7701(c)(2)(A), which provides that the Board may not sustain an action on appeal if the appellant "shows harmful error in the application of the agency's procedures in arriving at [its] decision."  

b.  On the basis of its analysis of the provisions of 50 U.S.C. 435(a)(5), Executive Order 12,968 (1995), and 17 C.F.R. part 17, the Board found that where, as here, a component of the Department of Justice terminates an employee's eligibility for access to classified information, the Department's own rules provide for a right of review before the ARC.  

4.  A remand to to the agency is required before the Board can determine whether the denial of ARC review constituted harmful error.

a.  An agency's procedural error does not warrant reversal of an employee's removal unless the employee has shown that the error was harmful, i.e., that the error was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence of the error.  The Board may not assume such error; the appellant bears the burden of proving harm.  

b.  In Romero, the court directed that the Board review whether the agency's failure to comply with its own regulations and procedures in revoking a security clearance constituted harmful error.  Where, as here, the agency failed to afford the appellant any access to its internal process, the Board does not have any record upon which to conduct the required review.  In other circumstances, when the Board must defer to a decision that is within the sole discretion of the agency, the Federal Circuit has indicated that the Board may opt to remand the matter back to the agency to make a redetermination on the matter.  

c.  The Board remanded the case to the agency to apply is internal procedures for reviewing a decision to withdraw an employee's eligibility for access to classified information.  Once the agency has done so, the appellant may file a new appeal with the Board, which would be limited to the issue of whether the agency committed harmful procedural error.

5.  The Board rejected the appellant's other claims of error:  that the Attorney General was required to decide his appeal under 5 U.S.C. 7532; that the agency and the administrative judge did not properly handle or evaluate the medical evidence; that he was subjected to retaliation for protected whistleblowing; that the agency committed disability discrimination; and that the judge erred in not mitigating the removal penalty. 





COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the followings cases:

Archer v. Merit Systems Protection Board, No. 2012-3032 (Aug. 3, 2012) (MSPB Docket No. DC-0752-11-0337-I-1) (affirming the Board's decision, which dismissed the appeal of a termination of employment for lack of jurisdiction)

London v. Merit Systems Protection Board, No. 2012-3076 (Aug. 8, 2012) (MSPB Docket No. DC-315H-11-0951-I-1) (affirming the Board's decision, which dismissed an appeal as untimely filed)

Washington v. Merit Systems Protection Board, No. 2012-3079 (Aug. 9, 2012) (MSPB Docket No. DC-0752-11-0411-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction Washington's claim that his retirement was involuntary)

Machulas v. Merit Systems Protection Board, No. 2012-3081 (Aug. 9, 2012) (MSPB Docket No. PH-3443-11-0342-I-1) (affirming two Board decisions, one dismissing for lack of jurisdiction an appeal regarding mishandling of unemployment compensation documents, and the second dismissing an appeal regarding withheld severance pay as barred by collateral estoppel)


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