Case Report for March 1, 2013
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.
Appellant: James Schnedar
Agency: Department of the Air Force
Decision Number: 2013 MSPB 16
Docket Number: DE-0752-11-0343-I-1
Issuance Date: February 22, 2013
Appeal Type: Adverse Action by Agency
Action Type: Suspension - Indefinite
Security Clearance Determinations
Harmful Procedural Error
The appellant petitioned for review of an initial decision that affirmed the appellant's indefinite suspension based on the revocation of his security clearance. The agency proposed to remove the appellant from his position based on a notification from the agency's Central Adjudication Facility (CAF) that his security clearance had been revoked. The deciding official mitigated the removal to an indefinite suspension that would end when the Personnel Security Appeals Board (PSAB) made a final determination regarding the appellant's security clearance. In his petition for review, the appellant made an argument he had not made below -- that the agency violated its internal regulations by taking administrative action against him prior to the PSAB's decision on his appeal from the CAF revocation decision. He cites Department of Defense Regulation 5200.2-R, which provides that: Except as provided for below, no unfavorable administrative action shall be taken under the authority of this Regulation unless the individual concerned has been: . . . Provided a final written decision by the PSAB . . . ." The appellant contends that the agency violated Regulation 5200.2-R by imposing an indefinite suspension prior to a final PSAB decision.
Holdings: The Board granted the appellant's petition for review, vacated the initial decision, and remanded the case to the regional office for further adjudication:
1. Although the Board will not generally consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party's due diligence, it found it appropriate to do so here, and ordered the agency to file evidence and argument regarding the applicability of Regulation 5200.2-R and whether it prohibits an unfavorable administrative action (including an indefinite suspension) while a PSAB appeal is pending.
2. In considering Regulation 5200.2-R in its decision in Rahgozar v. Department of the Air Force, 118 M.S.P.R. 37 (2012), the Board did not need to decide whether the agency may take an unfavorable administrative action prior to the issuance of the decision on a PSAB appeal, but the Board's summary of the regulation in that case suggests that the appellant's interpretation of it may be correct.
3. In Romero v. Department of Defense, 527 F.3d 1324 (Fed. Cir. 2008), the Federal Circuit held that the Supreme Court's decision in Egan and other decisions do not preclude the Board from reviewing whether an 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."
4. The agency's argument that it was not required to follow the procedures in Regulation 5200.4-R because its action was taken under the authority of 5 U.S.C. § 7513 rather than the Regulation was rejected by the court in Romero: "Section 7513 is not the only source of procedural protections for employees subject to adverse actions based on security clearance determinations; agencies must also follow the procedures established by their own regulations."
5. An agency's interpretation of its own regulation is ordinarily entitled to deference. The Board remanded the case to afford the agency an opportunity to interpret Regulation 5200.2-R in light of the appellant's assertions.
Appellant: Curtis McCurn
Agency: Department of Defense
Decision Number: 2013 MSPB 17
Docket Number: CB-7121-12-0006-V-1
Issuance Date: February 22, 2013
Appeal Type: Arbitration Appeals/Grievances
Timeliness - Notice of Appeal Rights
The appellant requested review of an arbitration decision that denied his grievance of the agency's removal action.
Holdings: The Board found that the appellant's arguments in his arbitration review request failed to present a basis to set aside or modify the arbitrator's award:
1. The Board has jurisdiction over the request to review the arbitration decision, as the subject matter of the grievance (a removal) is within the Board's jurisdiction, the appellant alleges race discrimination in connection with his removal, and the arbitrator issue a final decision.
2. Good cause exists for the untimely filing of the arbitration review request.
a. The Board's regulations require that a request for review of an arbitrator's decision be filed within 35 days of the issuance of the arbitrator's decision. Here, the request for review was filed over 17 months late.
b. The arbitration decision did not notify the appellant that he could seek Board review or of the deadline for doing so. Nor did the union representative who had represented the appellant during the arbitration proceeding.
c. An Agency's failure to provide adequate notice of appeal rights constitutes good cause for an untimely filing. An appellant who is not provided the required notice of Board appeal rights by the agency is not required to show that he exercised due diligence in attempting to discover his appeal rights; he must instead show that he was diligent in filing a Board appeal once he learned that he could do so.
d. The agency's removal decision informed the appellant of his right to request Board review or seek review by an arbitrator but did not, as required by the Board's regulations, inform the appellant of his right to request Board review of an arbitration decision.
e. The Board rejected the agency's contention that providing the appellant with notice of his right to directly appeal an adverse action to the Board and a copy of the Board's regulations constituted sufficient notice of an appellant's right to request Board review of an arbitration decision. It recognized the apparent contrary holding of Board decisions issued in 1988 and 1992, but stated that those decisions had been superseded by an amendment to the Board's regulations in 2000 that required agencies to inform employees in adverse action decisions of their right to request Board review of an arbitration decision.
f. The union representative's failure to inform the appellant of his right to seek Board review does not require a different conclusion. The critical and controlling fact is not the failure of the appellant's union attorney to inform the appellant of his Board appeal rights, but the agency's failure to give the appellant proper notice of his right to challenge the arbitration decision before the Board.
3. The appellant failed to establish his claim of race discrimination. Neither the appellant's contention that similarly situated employee were treated more leniently nor that the reasons given by the agency for the removal action were pretextual were persuasive.
4. The appellant failed to show legal error in the arbitrator's penalty analysis.