U.S. Merit Systems Protection Board 
Case Report for August 23, 2013

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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.


Appellant:  Brian E. Bennett
Agency:  Department of Justice
Decision Number:  2013 MSPB 64
Docket Number:  DE-0752-11-0445-I-1
Issuance Date:  August 16, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process

    The agency petitioned for review of an initial decision that reversed the appellant's removal. The agency removed the appellant from his position as Supervisory Criminal Investigator based on 6 charges of misconduct, including a charge of providing false information to a law enforcement officer in the course of an official inquiry.  Before issuing a decision, the agency's deciding official received information from a Human Resources specialist that raised Giglio concerns, i.e., that the appellant's testimony in future criminal trials might be impeached on the basis of his past falsification.  Neither the proposal notice nor the decision letter mentioned Giglio concerns.  The administrative judge found that the agency's decision was based in part on Giglio concerns, that the agency violated the appellant's due process rights by denying him notice and an opportunity to respond to this information, and reversed the removal action on this basis. On review, the agency submitted a sworn affidavit from the deciding official in which she stated that she did not consider Giglio issues in determining to remove the appellant.  

Holdings:  The Board granted the agency's petition for review, vacated the initial decision in part, and remanded the appeal to the regional office for further adjudication:

1. A deciding official's knowledge of information only raises due process or procedural concerns where that knowledge is a basis for the deciding official's determinations on either the merits of the underlying charge or the penalty to be imposed.  

2. The present record in sufficiently developed to determine whether the deciding official's knowledge of the Giglio information served as a basis for her determinations on either the merits of the underlying charges or the penalty to be imposed.  A remand was therefore appropriate.

Appellant:  Rakhmatulla Asatov
Agency:  Agency for International Development
Decision Number:  2013 MSPB 65
Docket Number:  PH-3330-12-0425-I-1
Issuance Date:  August 16, 2013
Appeal Type:  Veterans Employment Opportunities Act (VEOA)

Veterans' Rights/VEOA
Exhaustion of DoL Remedy

    The appellant petitioned for review of an initial decision that denied his request for corrective action in this VEOA appeal.  He alleged that the agency violated his veterans' preference rights when he was not selected for the position of Foreign Service Junion Executive Officer.  

Holdings:  The Board affirmed the initial decision as modified, still denying the appellant's request for corrective action:

1. Because the position in question is not in the competitive service, the relevant statute is 22 U.S.C. 3941, which requires only that veterans' preference be "an affirmative factor" in the selection process.  The record shows that the agency satisfied that requirement.

2. Because the agency has a separate authority under Title 22 for examining and selecting Foreign Service Officers, government-wide veterans' preference rules such as 5 C.F.R. Part 302 do not apply.

3. Because the statute authorizes the agency to impose whatever requirements it deems appropriate for Foreign Service Officer positions and because Title 5-based veterans' preference rules do not apply to such positions, 5 U.S.C. 3308 also does not apply in this case.  

4. The judge correctly determined that the appellant did not exhaust his administrative remedy with the Department of Labor regarding some allegations.  

Appellant:  Robert C. Devlin
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 66
Docket Number:  SF-0843-13-0210-I-1
Issuance Date:  August 20, 2013
Appeal Type:  FERS - Death & Survivor Benefits
Action Type:  Retirement/Benefit Matter

 - Death Benefits

    The appellant petitioned for review of an initial decision that affirmed OPM's final decision denying his application for a basic employee death benefit under FERS based on the federal service of his father and filed on behalf of his mother's estate.  It was undisputed that the appellant's mother would have been entitled to such benefits, and she had started the process of applying for such benefits when she died, less than a month after her husband died.  The issue is whether the estate of a current spouse may apply for and receive this benefit under the relevant statute and regulation.  

Holdings:  The Board denied the appellant's petition for review and affirmed the initial decision.  The relevant statute and regulation allow an application by the "current or former spouse" and for benefits to be paid to a "widow or widower."  It therefore appears that the purpose of the FERS death benefit is to make provision for the employee's surviving spouse -- not to augment her estate.  


Petitioner:  Elaine D. Kaplan, Acting Director, Office of Personnel Management
Respondents:  Rhonda K. Conyers, Devon Haughton Northover, and Merit Systems Protection                       Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3207
Issuance Date:  August 20, 2013

 - Adverse Actions
 - Non-Critical Sensitive Positions

    At issue in this case was whether, in adjudicating an adverse action based on the denial or revocation of an employee’s eligibility to occupy a position designated as "non-critical sensitive" under the Department of Defense Personnel Security Program Regulation, the Board is subject to the limited scope of review set forth in Department of the Navy v. Egan, 484 U.S. 518 (1988).  The Board had answered the question in the negative, holding that Egan limits Board review of an otherwise appealale action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information.  Conyers v. Department of Defense, 115 M.S.P.R. 572 (2010); Northover v. Department of Defense, 115 M.S.P.R. 451 (2010).  

Holding: In an en banc decision, a majority of the court (7 to 3) reversed the Board, holding that the Egan limitations apply to Board review of agency determinations concerning eligibility of an employee to occupy a "sensitive" position, regardless of whether the position requires access to classified information.  Among other rationales supporting this holding, the majority stated 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."  

     In his dissenting opinion, Judge Dyk stated that the majority's decision rests on the flawed premise that the DoD, acting on its own -- without either Congressional or Presidential authority -- has "inherent authority" to discharge employees on national security grounds, a proposition for which there is no Supreme Court or other authority.  He stated that the decision would effectively deny MSPB review for hundreds of thousands of federal employees.  

Petitioner:  Joseph T. Gargiulo

Respondent:  Department of Homeland Security
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2012-3157
Issuance Date:  August 16, 2013

Constitutional Issues - Due Process
Harmful Procedural Error

    Gargiulo appealed from a Board decision affirming his indefinite suspension from his position as an Air Marshal, a position requiring a top secret security clearance.  On August 1, 2008, the agency suspended Gargiulo's security clearance with the intent to revoke his access to classified information.  The notice taking this action described the alleged improper conduct that was the basis for the suspension and proposed revocation and gave Gargiulio an opportunity to respond.  
In response to that notice, Gargiulo request materials from the agency regarding the alleged misconduct to assist him in contesting the security clearance determination.  In the meantime, the agency proposed and effected Gargiulo's indefinite suspension for failure to maintain the required security clearance.  The agency provided him the materials he had requested more than a month after the effective date of the indefinite suspension, and revoked his security clearance in November 2009.  

     On appeal to the Board, Gargiulo argued that both constitutional due process and the applicable agency regulations guaranteed him an opportunity to respond meaningfully to the decision to suspend his security clearance before the agency indefinitely suspended him from the position.  The Board held that Gargiulo "was entitled to constitutional due process, i.e., notice and a meaningful opportunity to respond, upon being indefinitely suspended based on the agency's security clearance decision."  The Board ruled that the appellant received the requisite due process, in that the documents provided with the proposed indefinite suspension gave him "a meaningful opportunity to respond to someone with authority to change the outcome of the security clearance determination in either the security clearance proceeding or in the adverse action proceeding" prior to his suspension in February 2009.  The Board therefore concluded that the agency had not violated Gargiulo's due process rights.  Gargiulo based his appeal to the court entirely on the Due Process Clause of the Fifth Amendment to the Constitution.  

Holdings: The court affirmed the Board's decision upholding Gargiulo's indefinite suspension, but found that the Board erred in holding that due process provides an employee with procedural rights in connection with a security clearance determination and justifies an inquiry whether the agency had reasonable gounds for suspending or revoking the employee's security clearance:

1. Based on the Supreme Court's decision in Egan, the Federal Circuit has consistently held that employees do "not have a liberty or property interest in access to classified information, and the termination of that access therefore [does] not implicate any due process concerns."  

2. The court rejected Gargiulo's argument that the property interest he enjoys in his employment give him a constitutional right to procedures enabling him to challenge the suspension of his security clearance that was the basis for his indefinite suspension.  The court has repeatedly held that the Board's review of an adverse action resulting from the suspension of a security clearance is limited to "whether a security clearance was denied, whether the security clearance was a requirement of the position, and whether the procedures set forth in [5 U.S.C.] section 7513 were followed."  

3. Gargiulo's complaint that he was denied a meaningful opportunity to respond to the agency's decision to suspend his security clearance misses the mark.  Because Gargiulo had no due process rights with respect to the procedures used to determine whether to suspend or revoke his security clearance, he had no constitutional right to receive the documentary evidence underlying the security clearance suspension before his indefinite suspension took effect.  

4. Although Gargiulo was entitled to the procedures set forth in 5 U.S.C. 7513(b), that right is statutory, not constitutional.  The Board erred in characterizing the right as a constitutional guarantee.  The Board exceeded its authority in ruling on whether there were reasonable grounds to support the adverse action because that necessarily entailed a review of the merits of the security clearance determination.  

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

Yeressian v. Department of the Army, No. 2013-3079 (Aug. 16, 2013) (MSPB Doc. No. SF-0752-10-0972-I-2) (affirming the Board's decision, which dismissed the appeal for lack of jurisdiction because Yeressian had resigned from his position voluntarily)

Yeressian v. Department of the Army, No. 2013-3080 (Aug. 16, 2013) (MSPB Doc. No. SF-0752-09-0049-C-2) (affirming the Board's decision, which denied Yeessian's petition for enforcement related to his removal from the Department of the Army)

Yeressian v. Department of the Army, No. 2013-3081 (Aug. 16, 2013) (MSPB Doc. No. SF-0752-09-0049-A-2) (affirming the Board's decision, which denied Yeressian's motion for attorney fees)

Yeressian v. Department of the Army, No. 2013-3082 (Aug. 16, 2013) (MSPB Doc. Nos. SF-0752-10-0972-C-1 and SF-0752-09-0049-C-3) (dismissing Yeressian's challenge to the Board's denial of his petition for enforcement because he lacks standing)

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