Kristof v. Air Force ( 2023 )

Case: 21-2033 Document: 56 Page: 1 Filed: 02/23/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DALE E. KRISTOF,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2021-2033
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-20-0057-I-2.
______________________
Decided: February 23, 2023
______________________
JEFFREY M. SILVERSTEIN, Freking Myers & Reul LLC,
Dayton, OH, for petitioner.
LIRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY.
______________________
Before LOURIE, DYK, and CUNNINGHAM, Circuit Judges.
Case: 21-2033 Document: 56 Page: 2 Filed: 02/23/2023
2 KRISTOF v. AIR FORCE
PER CURIAM.
Dale E. Kristof appeals a decision of the Merit System
Protection Board. See Kristof v. Dep’t of the Air Force,
No. CH-0752-20-0057-I-2, 2021 WL 847879 (M.S.P.B. Mar.
5, 2021). The Board affirmed the decision of the Depart-
ment of the Air Force to indefinitely suspend Mr. Kristof
without pay, pending a final decision regarding his eligibil-
ity for a security clearance. J.A. 1. We affirm.
BACKGROUND
Mr. Kristof was employed by the Air Force as a Sys-
tems Integration Engineer. This position required access
to classified information, which meant Mr. Kristof had to
obtain and retain a security clearance as a condition of his
employment.
On February 20, 2015, Mr. Kristof’s access to classified
information was suspended due to “alleged illegal distribu-
tion of International Traffic in Arms Regulation infor-
mation to a foreign national.” J.A. 150. Mr. Kristof was
informed that after an investigation into the alleged inci-
dent, the Department of Defense (“DoD”) Consolidated Ad-
judications Facility (“CAF”) would make a final
determination regarding his security clearance eligibility. 1
Mr. Kristof was placed on administrative leave with pay,
pending a final decision regarding his security clearance.
Mr. Kristof remained in this status until 2019.
1 DoD CAF has been renamed the Defense Counter-
intelligence and Security Agency Consolidated Adjudica-
tion Services. See DCSA Consolidated Adjudication
Services (CAS), Def. Counterintel. & Sec. Agency,
https://www.dcsa.mil/mc/pv/dcsa_cas/ (last visited Feb. 7,
2023).
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KRISTOF v. AIR FORCE 3
On July 22, 2019, Mr. Kristof received notice that the
Air Force was proposing to suspend him indefinitely with-
out pay, pursuant to Air Force Instruction (“AFI”) 36-704,
Discipline and Adverse Actions of Civilian Employees (July
3, 2018), because Mr. Kristof did not have access to classi-
fied information, a requirement of his position. The indef-
inite suspension would continue until Mr. Kristof was
granted eligibility to maintain a security clearance. If DoD
CAF, or another agency responsible for adjudicating secu-
rity clearances for Air Force personnel, were to issue a final
decision denying Mr. Kristof’s eligibility to maintain a se-
curity clearance, his indefinite suspension would continue
until the Air Force took further action, potentially includ-
ing his removal.
On October 24, 2019, the deciding officer issued a final
written decision upholding Mr. Kristof’s indefinite suspen-
sion. Mr. Kristof’s suspension became effective that same
day.
Mr. Kristof appealed to the Board. He subsequently
sought to dismiss his appeal without prejudice to “explore
his retirement and employment options with regard to his
security status.” J.A. 218. The Board granted this request
for a dismissal without prejudice on February 28, 2020.
Mr. Kristof has now retired.
On August 26, 2020, Mr. Kristof requested to reopen
his appeal, “to establish that the Agency denied [him] his
due process rights as set forth in [5] CFR §6329(b).” 2
J.A. 237. In his close of record submission, Mr. Kristof
2 Section 6329(b) of Title 5 of the Code of Federal
Regulations does not exist. The administrative judge in-
terpreted Mr. Kristof’s affirmative defense to be based on
5 U.S.C. § 6329b, which includes provisions related to in-
vestigative leave. See J.A. 266.
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4 KRISTOF v. AIR FORCE
challenged the delay in the conclusion of his security clear-
ance investigation, arguing that he had not been afforded
due process in challenging the revocation of his security
clearance and that his decision to retire constituted a con-
structive discharge. In this submission, Mr. Kristof relied
particularly on AFI 31-501, Personnel Security Program
Management (Jan. 27, 2005), which provided that “[t]he Air
Force goal for processing personnel security investigation
requests at base level is 14 duty days.”
On March 5, 2021, the administrative judge issued an
initial decision affirming the indefinite suspension. Mr.
Kristof did not petition for Board review, so that decision
became the final decision of the Board. This petition for
review followed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
On December 7, 2022, we ordered the government to
file a supplemental brief addressing whether the DoD had
violated DoD Manual 5200.02: Procedures for the DoD Per-
sonnel Security Program (PSP) § 9.4.i 3 and allowed
Mr. Kristof to respond. Both parties filed supplemental
briefs.
DISCUSSION
We will affirm a decision by the Board unless it is:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
3 Section 9.4.i provides: “Suspension cases must be
resolved as quickly as circumstances permit. Suspensions
exceeding 180 days must be closely monitored and man-
aged by the adjudication facility concerned so as to expedi-
tiously reach a new national security eligibility
determination.” J.A. 171.
Case: 21-2033 Document: 56 Page: 5 Filed: 02/23/2023
KRISTOF v. AIR FORCE 5
5 U.S.C. § 7703(c); Hornseth v. Dep’t of the Navy, 916 F.3d
1369, 1373 (Fed. Cir. 2019).
Certain adverse employment actions can be appealed
to the Board under 5 U.S.C. § 7513(d), which provides that
“[a]n employee against whom an action is taken under this
section is entitled to appeal to the [Board].” Section 7512
defines the actions covered by § 7513(d) to include “a sus-
pension for more than 14 days” but not the denial of a se-
curity clearance. In Department of the Navy v. Egan, the
Supreme Court held that “[a] denial of a security clearance
is not such an ‘adverse action’ [defined in § 7512 and ap-
pealable under § 7513(d)], and by its own force is not sub-
ject to Board review.” 484 U.S. 518, 530 (1988). The Court
explained “no one has a ‘right’ to a security clearance.” Id.
at 528. Following Egan, “[w]e consistently have held that
a federal employee does not have a liberty or property in-
terest in access to classified information, and therefore the
revocation of a security clearance does not implicate consti-
tutional procedural due process concerns.” Robinson v.
Dep’t of Homeland Sec., 498 F.3d 1361, 1364–65 (Fed. Cir.
2007) (per curiam); see also Gargiulo v. Dep’t of Homeland
Sec., 727 F.3d 1181, 1184–85 (Fed. Cir. 2013); Ryan v. Dep’t
of Homeland Sec., 793 F.3d 1368, 1374 (Fed. Cir. 2015).
In deciding an appeal from an adverse action related to
the denial or revocation of a security clearance, “the Board
may determine whether a security clearance was denied,
whether the security clearance was a requirement of the
appellant’s position, and whether the procedures set forth
in [5 U.S.C. § 7513(b)] were followed, but the Board may
not examine the underlying merits of the security
Case: 21-2033 Document: 56 Page: 6 Filed: 02/23/2023
6 KRISTOF v. AIR FORCE
clearance determination.” 4 Hesse v. Dep’t of State, 217 F.3d
1372, 1376 (Fed. Cir. 2000).
In addition to claiming a violation of the procedural
protections outlined in § 7513(b), which concern notice and
opportunity to be heard, an employee may also challenge
an agency decision to the Board if the employee can show
“harmful error in the application of the agency’s procedures
in arriving at such decision.” 5 U.S.C. § 7701(c)(2)(A). We
have held that, under § 7701(c)(2)(A), an employee may
challenge an agency’s failure to comply with the agency’s
own regulations with respect to a security clearance deci-
sion. Romero v. Dep’t of Defense, 527 F.3d 1324, 1329 (Fed.
Cir. 2008) (“[W]e decline to interpret Egan as having pre-
cluded such review [under § 7701(c)(2)(A)] . . . .”).
Here, the Board correctly held that the procedural re-
quirements of § 7513(b) relating to notice and opportunity
to be heard had been satisfied, a conclusion which
Mr. Kristof has not contested. Nor were the provisions of
AFI 31-501 violated. AFI 31-501 § 5.6.1 only states that
processing security clearance investigation requests within
14 days is a “goal.”
Mr. Kristof also raised an affirmative defense based on
5 U.S.C. § 6329b, relating to investigative leave. Under
§ 6329b, an agency may place an employee under investi-
gative leave, with pay, for a maximum of 130 days. 5
4 Section 7513(b) requires: “(1) at least thirty days’
advance written notice stating the reasons for the proposed
action; (2) a reasonable time to answer orally and in writ-
ing and the right to furnish affidavits and other documen-
tary evidence in support of the answer; (3) the opportunity
to be represented; and (4) a written decision and the rea-
sons therefor.” Adams v. Dep’t of Def., 688 F.3d 1330, 1334
(Fed. Cir. 2012); see 5 U.S.C. § 7513(b).
Case: 21-2033 Document: 56 Page: 7 Filed: 02/23/2023
KRISTOF v. AIR FORCE 7
U.S.C. § 6329b(b)(1)(A), (b)(3)(A), (c)(1)–(2). But the ad-
ministrative judge determined that Mr. Kristof was never
placed on investigative leave, and Mr. Kristof has not
demonstrated this was erroneous.
In the course of this review proceeding, we noted that
Mr. Kristof cited DoD Manual 5200.02. Subsection 9.4.i of
that manual requires: “Suspension cases must be resolved
as quickly as circumstances permit. Suspensions exceed-
ing 180 days must be closely monitored and managed by
the adjudication facility concerned so as to expeditiously
reach a new national security eligibility determination.”
J.A. 171. This regulation was potentially violated by the
delay in resolving Mr. Kristof’s security clearance investi-
gation, which the government admits was “substantial.”
Resp’t’s Br. 27. In the government’s supplemental brief, it
argued that Mr. Kristof had not properly raised this issue;
that subsection 9.4.i was not violated; and that this subsec-
tion does not, in any event, confer enforceable rights. In
his response to the government’s supplemental brief,
Mr. Kristof clarified that, while he had mentioned DoD
Manual 5200.02 in his brief, he “did not specifically raise
the issue of the violation of DoD Manual 5200.02.” 5 Under
these circumstances, we do not reach the question of
whether the agency’s own procedures were violated.
We have considered Mr. Kristof’s remaining argu-
ments and find them unpersuasive.
AFFIRMED
COSTS
No costs.
5 Pet’r’s Resp. Agency Suppl. Br., Kristof v. Dep’t of
the Air Force, No. 2021-2033, Docket No. 55, at 2 (Jan. 30,
2023).