Diane L. McFarland v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANE L. MCFARLAND, DOCKET NUMBER
Appellant, AT-0752-11-0431-I-3
v.
DEPARTMENT OF THE NAVY, DATE: March 18, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Kevin Smith, Jacksonville, Florida, for the appellant.
Eva M. Bridges, Pensacola, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal based on her failure to maintain eligibility for a security
clearance. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
required 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 significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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of the law to the facts of the case; the judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 Effective January 21, 2011, the agency removed the appellant from her
position based on her failure to maintain eligibility for a security clearance.
MSPB Docket No. AT-0752-11-0431-I-1, Initial Appeal File (I-1 IAF), Tab 5
at 29-33, 40-42. The appellant filed an appeal and the administrative judge
convened a hearing limited to oral argument because there were no material facts
in dispute. McFarland v. Department of the Navy, MSPB Docket No. AT-0752-
11-0431-I-3, Initial Decision (ID) at 1-2; MSPB Docket No. AT-0752-11-0431-
I-3, Initial Appeal File, Tab 5. Based on the Federal Circuit’s decision in Kaplan
v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013), cert. denied sub nom. Northover v.
Archuleta, 134 S. Ct. 1759 (2014), the administrative judge found that he lacked
the authority to review the reasons behind the agency’s revocation of the
appellant’s eligibility and he sustained the charge and affirmed the removal. ID
at 2-4. He further found that he lacked the authority to consider the appellant’s
affirmative defenses of race, age, religion, and sex discrimination. ID at 4-5.
¶3 In an appeal of an adverse action under 5 U.S.C. § 7513 based on the denial,
revocation, or suspension of a security clearance, the Board does not have the
authority to review the substance of the underlying security determination. Ryan
v. Department of Homeland Security, 121 M.S.P.R. 460, ¶ 5 (2014), overruled on
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other grounds, Freeze v. Department of Navy, 122 M.S.P.R. 179 (2015). Rather,
the Board only has the authority to review whether: (1) the appellant’s position
required a clearance; (2) the clearance was denied, revoked, or suspended; and
(3) the employee was provided with the procedural protections required by
5 U.S.C. § 7513. Id.
¶4 According to the record, the appellant occupied the position of Medical
Records Technician (OA) in classification series 0675. I-1 IAF, Tab 5 at 29.
While her position may not have always required eligibility for a security
clearance, as of the date the agency issued the notice of proposed removal, her
position required her to “be able to obtain and maintain eligibility for a Security
Clearance.” See id. at 82-84; see also I-1 IAF, Tab 5 at 44, 46, 48-49. The
agency notified the appellant of its intent to revoke her eligibility on
September 25, 2009. I-1 IAF, Tab 5 at 67-70. The agency issued its notice of a
final revocation on February 28, 2010, id. at 60-61, and the agency issued an
adverse decision on her appeal of the revocation on August 30, 2010, id. at 55-56.
The notice of proposed removal gave her 30 days’ advance written notice of the
reasons for the proposed action and provided her with notice of her right to
representation, her right to review the material relied upon, and her right to
submit evidence and reply to the proposal. See 5 U.S.C. § 7513(b)(1)-(b)(3); see
also I-1 IAF, Tab 5 at 40-41. The agency also provided the appellant with a
written notice of removal containing the reasons for the removal. See 5 U.S.C.
§ 7513(b)(4); see also I-1 IAF, Tab 5 at 31-33. We agree with the administrative
judge that the agency proved its charge and met the requirements of 5 U.S.C.
§ 7513.
¶5 The appellant also has a right to the procedures that follow from
constitutional due process, namely notice of the grounds in support of the
agency’s action and a meaningful opportunity to invoke the discretion of a
deciding official with the authority to select an alternative outcome, to the extent
that such alternatives are permitted, feasible, and within management’s purview.
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See Grimes v. Department of Justice, 122 M.S.P.R. 36, ¶ 7 (2014); see also Ryan,
121 M.S.P.R. 460, ¶ 6. However, in the absence of a statute or regulation
requiring the agency to consider reassigning the employee to a nonsensitive
position, the Board lacks the authority to review whether such a reassignment
would have been feasible. Ryan, 121 M.S.P.R. 460, ¶ 9. As the administrative
judge correctly found, there is no evidence that the agency is bound by a statute,
regulation, binding agency policy, or contractual provision to consider
reassigning to a nonsensitive position an employee who has lost eligibility for a
security clearance. ID at 4; see I-1 IAF, Tab 5 at 53.
¶6 On review, the appellant argues that the agency detailed her to a
nonsensitive position while her removal was pending and it could have continued
to employ her in a nonsensitive position instead of removing her. Petition for
Review File, Tab 1 at 1. She further asserts that her position description did not
always contain a requirement that the incumbent hold a security clearance. Id.
As noted above, however, the appellant has no right to be considered for
reassignment to a nonsensitive position because she has not established the
existence of a statute, regulation, or binding agency policy that affords her that
right. Therefore, the Board may not review the agency’s decision not to continue
to employ the appellant in her detailed position. Moreover, although the record
reveals that the agency made some changes in personnel security to better
safeguard confidential patient information, which included requiring more
employees to maintain eligibility for a security clearance, the record is clear that
the appellant’s position required her to maintain such access when the agency
proposed her removal. Further, given the number of positions affected by the
agency’s decision to expand the number of employees required to maintain
access, see I-1 IAF, Tab 5 at 44-51, there is nothing to suggest that the appellant
was singled out or that the decision to include her position was made for reasons
personal to her.
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¶7 With her petition for review, the appellant submits a number of documents
that she asserts support her two arguments. Even if the documents were not
available prior to the close of the record below, they are not material to the
outcome of this appeal and we have not relied upon them. Cf. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will not grant a petition
for review based on new evidence absent a showing that it is of sufficient weight
to warrant an outcome different from that of the initial decision).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
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later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.