Kevin Schmitt v. Department of Energy ( 2016 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    KEVIN SCHMITT,                                  DOCKET NUMBER
    Appellant,                         DC-0752-15-0797-I-1
    v.
    DEPARTMENT OF ENERGY,                           DATE: March 18, 2016
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.
    Jocelyn Richards, Esquire, Washington, D.C., 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 the agency’s removal action. 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 of the law to the facts of the case; the administrative
    1
    A nonprecedential order is one that the Board has determined does not add
    significantly 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 Parties may cite nonprecedential orders,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).
    2
    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, 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 May 2, 2015, the agency removed the appellant from his
    GS-13 Criminal Investigator position based on his failure to maintain his
    required Q‑level security clearance. Initial Appeal File (IAF), Tab 6 at 13‑15,
    26-27. The agency’s Appeal Panel (AP) rendered its final decision to deny the
    appellant access to classified information on January 13, 2015, after the appellant
    had a hearing before the Office of Hearings and Appeals (OHA) in April 2014,
    and after he had appealed OHA’s July 2014 initial decision denying him access to
    classified information to the AP. 
    Id. at 28-54
    .
    ¶3         The appellant filed an appeal with the Board regarding his removal. IAF,
    Tab 1. He asserted that the removal could not be upheld because the agency’s act
    of referring him for a clearance review was retaliation for his filing of two prior
    Board appeals, in violation of 
    5 U.S.C. §§ 2302
    (b)(9)(A)(ii), 2302(b)(12). IAF,
    Tab 6 at 3, Tab 12.     He requested a hearing, but later withdrew that request. 2
    IAF, Tab 1 at 2, Tab 9 at 4.
    ¶4         The administrative judge issued an initial decision, based on the written
    record, affirming the agency’s removal action.         IAF, Tab 14, Initial Decision
    2
    He indicated that he wished to have a hearing if the Board determined that it has the
    authority to consider his prohibited personnel practice claims in this appeal. IAF, Tab 9
    at 4.
    3
    (ID).    She found that: (1) the appellant’s position required that he maintain a
    Q level security clearance; (2) the appellant’s Q level security clearance was
    denied; (3) the agency provided the appellant the procedural protections
    of 
    5 U.S.C. § 7513
    ; (4) neither a statute nor agency regulation gave the appellant
    a right to transfer to a nonsensitive position; (5) the appellant did not allege, and
    it did not appear, that the agency had an obligation to reassign him to a position
    that did not require a security clearance; and (6) the agency’s action promoted the
    efficiency of the service.        ID at 6‑7.      As to the appellant’s claims
    under 
    5 U.S.C. §§ 2302
    (b)(9)(A)(ii), 2302(b)(12), the administrative judge found
    that she could not consider them because the Board lacks authority to consider an
    appellant’s affirmative defenses in an action taken based on the denial of a
    security clearance. ID at 7‑9; IAF, Tab 9 at 3‑4.
    ¶5           The appellant has filed a petition for review. Petition for Review (PFR)
    File, Tab 1.     He does not dispute that the agency proved its charge by
    preponderant evidence, but argues that the administrative judge erred in rejecting
    his affirmative defenses. 
    Id.
     The agency filed a response in opposition to the
    petition for review, to which the appellant did not reply. PFR File, Tab 3.
    ¶6           The appellant argues on review that the agency’s act of referring his
    security clearance for review, which was the catalyst for the denial of his
    clearance and his subsequent removal, was done in retaliation for his filing of two
    Board appeals. PFR File, Tab 1 at 4, 10. He contends that 
    5 U.S.C. § 1221
    (g)(4)
    authorizes the Board to order corrective action for retaliatory investigations and,
    as such, the administrative judge should have adjudicated his claim that the
    agency’s      investigation   constituted   a    prohibited    personnel      practice
    under 
    5 U.S.C. §§ 2302
    (b)(9)(A)(ii), 2302(b)(12). 
    Id. at 4
    , 6‑8. For the reasons
    set forth below, we disagree.
    4
    ¶7         An investigation is not a personnel action. 3         
    5 U.S.C. § 2302
    (a)(2)(A);
    Johnson v. Department of Justice, 
    104 M.S.P.R. 624
    , ¶ 7 (2007) (citing Russell v.
    Department of Justice, 
    76 M.S.P.R. 317
    , 323‑24 (1997)).                  The Board will
    consider evidence of the conduct of an agency investigation when it is so closely
    related to a personnel action that it could have been pretext for gathering
    evidence   to   use   to   retaliate     against   an   employee   for   whistleblowing.
    Johnson, 
    104 M.S.P.R. 624
    ,        ¶ 7.       However, contrary to        the appellant’s
    assertions, 
    5 U.S.C. § 1221
    (g)(4) does not create a separate cause of action for
    retaliatory investigations.    S. Rep. No. 112‑155, at 20‑22 (2012).             Indeed,
    Congress considered and rejected the option of explicitly and specifically
    recognizing a retaliatory investigation as a personnel action, so as to avoid
    discouraging agencies from undertaking legitimate and necessary inquiries. 
    Id. at 21
    . Congress opted instead to authorize an award of consequential damages
    once an employee is able to prove a claim under the Whistleblower Protection
    Act, if the employee can further demonstrate that an investigation was undertaken
    in retaliation for the protected disclosure.             
    Id.
     at 21‑22; see 
    5 C.F.R. § 1201.202
    (b)(2). We therefore agree with the administrative judge that the only
    issue properly before her was the appellant’s removal. ID at 8.
    ¶8         The administrative judge also correctly found that she could not consider
    the appellant’s reprisal claims as affirmative defenses. 4 ID at 7‑9. It is well
    3
    The Board has jurisdiction to entertain claims under 
    5 U.S.C. § 2302
    (b)(12) only in
    the context of a corrective action proceeding brought by the Special Counsel pursuant
    to 
    5 U.S.C. § 1214
    , which the instant appeal is not. 
    5 U.S.C. § 1214
    (b)(4)(A);
    Hugenberg v. Department of Commerce, 
    120 M.S.P.R. 381
    , ¶ 25 (2013).
    4
    The appellant also appears to contend that the agency’s delay in referring his security
    clearance for investigation constituted harmful procedural error. PFR File, Tab 1 at 4,
    8-10. We cannot consider this claim because, as previously explained, we lack
    jurisdiction over that action. See Daneshpayeh v. Department of the Air Force,
    
    57 M.S.P.R. 672
    , 682 n.9 (1993) (finding that the Board could not consider the
    appellant’s harmful error claims because it lacked jurisdiction over his appeal), aff’d,
    
    17 F.3d 1444
     (Fed. Cir. 1994) (Table).
    5
    settled that the Board is precluded from reviewing allegations of prohibited
    reprisal when such an affirmative defense relates to the denial of a security
    clearance.      Doe v. Department of Justice, 
    121 M.S.P.R. 596
    , ¶ 10 (2014); see
    Kaplan v. Conyers, 
    733 F.3d 1148
    , 1151, 1158-60 (Fed. Cir. 2013) (en banc),
    cert. denied, Northover v. Archuleta, 
    134 S. Ct. 1759
     (2014) (citing Department
    of the Navy v. Egan, 
    484 U.S. 518
    , 529-31 (1988) (holding that the Board has no
    authority to review the underlying merits of a security clearance/access
    determination)).
    ¶9        Based on the foregoing, we find that the appellant has not established a
    basis for review. We thus affirm the initial decision.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request review of this final decision by the U.S. Court
    of Appeals for the Federal Circuit.
    The court must receive your request for review no later than 60 calendar
    days after the date of this order. See 
    5 U.S.C. § 7703
    (b)(1)(A) (as rev. eff. Dec.
    27, 2012). If you choose to file, be very careful to file on time. The court has
    held that normally it does not have the authority to waive this statutory deadline
    and that filings that do not comply with the deadline must be dismissed. See
    Pinat v. Office of Personnel Management, 
    931 F.2d 1544
     (Fed. Cir. 1991).
    If you want to request review of the Board’s decision concerning your
    claims     of   prohibited   personnel   practices   under   
    5 U.S.C. § 2302
    (b)(8),
    (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
    the Board’s disposition of any other claims of prohibited personnel practices, you
    may request review of this final decision by the U.S. Court of Appeals for the
    Federal Circuit or any court of appeals of competent jurisdiction. The court of
    appeals must receive your petition for review within 60 days after the date of this
    order. See 
    5 U.S.C. § 7703
    (b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
    to file, be very careful to file on time. You may choose to request review of the
    6
    Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
    court of appeals of competent jurisdiction, but not both. Once you choose to seek
    review in one court of appeals, you may be precluded from seeking review in any
    other court.
    If you need further information about your right to appeal this decision to
    court, you should refer to the Federal law that gives you this right. It is found in
    title 5 of the U.S. Code, section 7703 (
    5 U.S.C. § 7703
    ) (as rev. eff. Dec. 27,
    2012). You may read this law as well as other sections of the U.S. Code, at our
    website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
    the U.S. Court of Appeals for the Federal Circuit is available at the court’s
    website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
    for Pro Se Petitioners and Appellants,” which is contained within the
    court’s Rules of Practice, and Forms 5, 6, and 11. Additional information about
    other courts of appeals can be found at their respective websites, which can be
    accessed through the link below:
    http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
    If you are interested in securing pro bono representation for your appeal to
    the U.S. Court of Appeals for the Federal Circuit, you may visit our website
    at   http://www.mspb.gov/probono       for   information   regarding    pro    bono
    representation for Merit Systems Protection Board appellants before the Federal
    Circuit.                                                                        The
    7
    Merit Systems Protection Board neither endorses the services provided by any
    attorney nor warrants that any attorney will accept representation in a given case.
    FOR THE BOARD:                            ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 3/18/2016

Precedential Status: Non-Precedential

Modified Date: 4/17/2021