                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TOM P. SAWYER,                                  DOCKET NUMBER
                  Appellant,                         AT-0752-12-0249-I-2

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: September 8, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.

           Gregory Lloyd, Robins Air Force Base, Georgia, 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
     sustained 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 judge’s rulings

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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         The agency removed the appellant from his GS-1102-07 Contract Specialist
     position, effective January 14, 2012, based on the final revocation of his security
     clearance and eligibility for assignment to a sensitive position.       Sawyer v.
     Department of the Air Force, MSPB Docket No. AT-0752-12-0249-I-1, Initial
     Appeal File (I-1 IAF), Tab 5, Subtabs 4a-4b.
¶3         The appellant filed an appeal with the Board regarding his removal. I-1
     IAF, Tab 1. He asserted that: (1) his position did not require a security clearance
     or eligibility for assignment to sensitive duties; (2) the agency was required to
     reassign him to a nonsensitive position, rather than remove him; and (3) the
     agency failed to afford him an opportunity to reply to its proposal notice, which
     constituted harmful error and a due process violation. I-1 IAF, Tabs 1, 15. He
     requested a hearing. I-1 IAF, Tab 1 at 2.
¶4         After holding the requested hearing, the administrative judge issued an
     initial decision affirming the agency’s removal action. Sawyer v. Department of
     the Air Force, MSPB Docket No. AT-0752-12-0249-I-2, Initial Appeal File,
     Tab 8, Initial Decision (ID). He found that: (1) the agency failed to prove that
     the appellant’s position required a security clearance, but established that it had
     designated his position as noncritical sensitive; (2) there was no formal agency
                                                                                              3

     policy requiring that the appellant be reassigned; and (3) there was no evidence of
     harmful error or a due process violation because the agency afforded the appellant
     an opportunity to reply to the proposed removal action. ID.
¶5         The appellant has filed a petition for review, to which the agency
     responded.     Sawyer v. Department of the Air Force, MSPB Docket No.
     AT-0752-12-0249-I-2, Petition for Review (PFR) File, Tabs 3, 5.                 He again
     asserts that: (1) his position did not require eligibility for assignment to sensitive
     duties; 2 (2) the agency was required to transfer him to a nonsensitive position;
     and (3) the agency violated his due process rights and committed a harmful error
     by depriving him of an opportunity to respond to the proposal notice. PFR File,
     Tab 3. For the reasons set forth below, we affirm the initial decision.
     The agency designated the appellant’s position as sensitive.
¶6         The appellant asserts that his position did not require eligibility for
     assignment to sensitive duties because neither the vacancy announcement, nor a
     condition of employment form he signed, nor the position description in effect at
     the time of his appointment documented such a requirement. 3 Id. at 12-13. These
     facts do not appear to be in dispute; however, there also is no dispute that the

     2
       He also argues that his position did not require a security clearance. PFR File, Tab 3
     at 12-13. However, the administrative judge already found that the agency failed to
     prove that his position required a security clearance. ID at 6-7. Moreover, the agency’s
     removal decision was based on the final revocation of his eligibility for access to
     classified information or assignment to sensitive duties, so whether his position
     required a security clearance is not dispositive. I-1 IAF, Tab 5, Subtab 4b.
     3
      The appellant further notes that: (1) his position did not require access to secret or top
     secret information; and (2) he could not have accessed such information because his
     work area was not secure, as evidenced by the fact that doors were left unlocked and
     “contracts and information” were stored on desks and in unlocked cabinets. PFR File,
     Tab 3 at 13. We cannot consider these arguments, however, because we do not have
     authority to examine the validity of an agency’s decision to designate a position as
     sensitive. See Kaplan v. Conyers, 733 F.3d 1148, 1160 (Fed. Cir. 2013), cert. denied
     sub nom. Northover v. Archuleta, 134 S. Ct. 1759 (2014); see also West v. Department
     of the Navy, 63 M.S.P.R. 86, 88-89 (1994) (holding that the Board can determine
     whether an agency established a security clearance requirement for a position, but lacks
     authority to review an agency’s reasons for imposing a security clearance requirement).
                                                                                           4

     agency changed the sensitivity designation of the appellant’s position before
     proposing his removal.      The agency submitted a form generated through the
     website of the Office of Personnel Management (OPM) and signed by the Chief
     of the agency’s Resource Management Division, indicating that the position was
     designated as noncritical sensitive at least as of July 14, 2011. 4 I-1 IAF, Tab 10,
     Exhibit (Ex.) 10. The agency also submitted a Core Personnel Document (CPD)
     indicating that the position was designated as noncritical sensitive.         I-1 IAF,
     Tab 9, Ex. 5. 5    Moreover, although the appellant disputes exactly when the
     agency designated his position as sensitive, he concedes that the agency did so
     before proposing his removal.        PFR File, Tab 3 at 12 n.6.         Based on the
     foregoing, we discern no basis to disturb the administrative judge’s finding that
     the agency proved by preponderant evidence that it designated the appellant’s
     position as noncritical sensitive. See ID at 7-9.
     The agency was not required to reassign the appellant to a nonsensitive position.
¶7         If a statute, agency policy, or regulation exists that creates a substantive
     right for an employee to be reassigned to a nonsensitive position following a
     determination that he is ineligible to occupy a sensitive position, then the Board
     may review the feasibility of such a transfer.          Griffin v. Defense Mapping

     4
      An agency management analyst testified that in the spring or summer of 2011, OPM
     began requiring this form to accompany each Core Personnel Document (CPD).
     Hearing Compact Disc (HCD), Track 1.
     5
       The record contains conflicting copies of the CPD for the appellant’s position; one
     copy reflects that the position was designated as nonsensitive, whereas the other
     indicates that the position was designated as noncritical sensitive. I-1 IAF, Tab 9,
     Exs. 5-6. An agency management analyst testified that in the summer or fall of 2010,
     agency management determined that all positions in the 1102 series would be
     designated as noncritical sensitive. HCD, Track 1. He further explained that the CPD
     was not changed until sometime in 2011 because the agency was awaiting the results of
     union bargaining with management regarding the implementation of a drug-testing
     requirement. Id. This testimony is consistent with the copy of the CPD that indicates
     that the position was designated as noncritical sensitive and also that the position was
     subject to a drug testing requirement as of September 2011. I-1 IAF, Tab 9, Ex. 5. We
     thus find it proper to rely on the copy of the CPD in the record indicating that the
     position was designated as noncritical sensitive.
                                                                                      5

     Agency, 864 F.2d 1579, 1580-81 (Fed. Cir. 1989). The appellant was appointed
     to the position he occupied at the time of his removal under the Federal Career
     Intern Program (FCIP) in the excepted service.       I-1 IAF, Tab 9, Ex. 3.     He
     contends that, pursuant to the regulations governing the FCIP, the agency was
     required to return him to his previous position if he did not meet the requirements
     of the position to which he was appointed under the FCIP. PFR File, Tab 3 at 15-
     16. Specifically, the provision he cites indicates that an employee who held a
     career or career-conditional appointment in an Executive agency before entering
     the FCIP in the same agency, and who fails to complete the FCIP for reasons
     unrelated to misconduct or suitability, shall be placed in a career or career-
     conditional position in the current agency at no lower grade or pay than the one
     he left to accept the position in the FCIP. 5 C.F.R. § 213.3202(o)(6)(ii) (2011).
     He notes that the agency also advised him of this information in the Standard
     Form 50 documenting his appointment, as well as in an agency document he
     signed before his appointment, which informed him of the conditions of his
     employment under the FCIP. PFR File, Tab 3 at 15-16; see I-1 IAF, Tab 9, Exs.
     2-3.
¶8          We disagree with the appellant.     As he acknowledges, the FCIP was
     abolished effective March 1, 2011.     Recruiting and Hiring Recent Graduates,
     Exec. Order No. 13,162, 75 Fed. Reg. 82,585, 82,588 (Dec. 30, 2010); see PFR
     File, Tab 3 at 16. Thus, at the time of the appellant’s January 2012 removal, the
     regulations upon which he now relies did not exist and did not govern the
     agency’s actions. Indeed, the appellant did not hold an FCIP appointment at the
     time of his removal because the agency had converted him to the competitive
     service, effective March 1, 2011. I-1 IAF, Tab 11 at 16.
¶9          Notwithstanding, the appellant asserts that the agency was bound to apply
     this regulation because he relied upon it in deciding to accept an appointment
     under the FCIP.     PFR File, Tab 3 at 15.     We again disagree.     The Federal
     Government may not be estopped on the same terms as any other litigant; rather,
                                                                                          6

      our reviewing court has held that, to the extent that equitable estoppel is available
      against the Federal Government, some form of affirmative misconduct must be
      shown in addition to the traditional requirements of estoppel. Perez Peraza v.
      Office of Personnel Management, 114 M.S.P.R. 457, ¶ 9 (2010) (citing Zacharin
      v. United States, 213 F.3d 1366, 1371 (Fed. Cir. 2000)). There is no evidence of
      affirmative misconduct by the agency here. The agency in this appeal was not
      responsible for promulgating the FCIP regulations; rather, they were promulgated
      by OPM, which is not a party to this appeal, at the order of the President. See
      Federal Career Intern Program, Exec. Order. No. 13,162, 65 Fed. Reg. 43,211,
      43,212 (July 6, 2000). That the agency provided the appellant with information
      consistent with those regulations as they existed at the time, although no longer
      true when he was removed because the regulations had been revoked by then,
      does not constitute affirmative misconduct. 6 Cf. Nunes v. Office of Personnel
      Management, 111 M.S.P.R. 221, ¶ 19 (2009) (determining that the unintentional,
      negligent   provision   of   misinformation     does   not   constitute   affirmative
      misconduct).
      The agency did not violate the appellant’s due process rights or commit a harmful
      procedural error. 7
¶10         The agency proposed the appellant’s removal on December 9, 2011. 8 I-1
      IAF, Tab 5, Subtab 4d. The removal notice afforded the appellant 20 days from

      6
        Leaving aside the appellant’s argument concerning the FCIP, the administrative judge
      found in the initial decision that there was no evidence of any other formal policy
      requiring the agency to reassign the appellant. ID at 9-10. The appellant does not
      challenge this finding on review and we discern no basis to disturb it.
      7
        The agency does not dispute, and we discern no basis to disturb, the administrative
      judge’s finding that the appellant met the definition of an employee under
      5 U.S.C. § 7511(a)(1)(A) at the time of his removal. See ID at 1; see also I-1 IAF,
      Tab 11 at 16. Thus, the appellant had a property interest in his continued employment
      and was entitled to due process before the agency effected his removal. See Brown v.
      Department of Defense, 121 M.S.P.R. 584, ¶ 12 (2014).
      8
        The agency initially proposed the appellant’s removal on November 9, 2011, but
      subsequently issued an amended proposal notice. I-1 IAF, Tab 5, Subtabs 4d, 4f.
                                                                                              7

      his receipt of the notice to reply orally and/or in writing. Id. Presuming 5 days
      for receipt by mail, the agency calculated the appellant’s reply deadline to be
      January 3, 2012. 9 Hearing Compact Disc (HCD), Track 4 (the deciding official’s
      testimony).
¶11            On December 27, 2011, the appellant’s representative advised the deciding
      official that the appellant wished to provide a reply. I-1 IAF, Tab 9 at 27. The
      deciding official suggested that the appellant reply on December 28, 2011. Id.
      at 26.     The appellant’s representative did not confirm if December 28, 2011,
      would be an acceptable possible alternate deadline, and so the deciding official
      emailed him on that date suggesting December 30, 2011, instead.                 Id.   The
      appellant’s representative responded on December 30, 2011, asking if the reply
      could be scheduled for the week of January 9, 2012. Id. at 25. The deciding
      official answered, also on December 30, 2011, that he would “not agree to
      extending     [the   appellant’s]   reply   time,”   and   instructed   the   appellant’s
      representative to advise him if he “still wish[ed] to meet the week of 9 Jan.” Id.;
      see I-1 IAF, Tab 5, Subtab 4c at 1. The appellant’s representative responded on
      January 4, 2012, stating that he understood the deciding official’s answer to mean
      that he would not extend the deadline to make a final decision, but he still would
      allow a reply. I-1 IAF, Tab 9 at 25. The appellant’s representative confirmed
      that he would like the reply to be scheduled for the week of January 9, 2012. Id.

      9
        It is unclear exactly when the appellant received the amended proposal notice.
      However, there is evidence that the agency delivered the notice to the base post office
      for mailing on December 9, 2011. I-1 IAF, Tab 5, Subtab 4d at 1. The appellant has
      not disputed the administrative judge’s finding in the initial decision that he neither
      identified the exact date he received the agency’s proposal notice nor proved that he did
      not receive the notice within 5 days of December 9, 2011. See ID at 16; Rios v.
      Nicolson, 490 F.3d 928, 930-31 (Fed. Cir. 2007) (applying the common law mailbox
      rule, an agency creates an “inference of fact” when it shows that it delivered a properly
      directed letter to the post office, thereby presumptively proving that the appellant
      received the letter; an appellant fails to rebut that presumption if he does not offer any
      opposing evidence or explicitly claim that he did not receive the letter or that the
      address on the letter was incorrect (quoting Rosenthal v. Walker, 111 U.S. 185, 193-94
      (1884)).
                                                                                       8

      Later that same day, however, the deciding official responded that he had
      “reconsidered [his] invitation to meet during the week of 9 Jan” and no longer
      believed such a meeting would be beneficial; the appellant’s time period to reply
      already expired on January 3, 2012; and he anticipated issuing a final decision on
      the proposed removal by January 13, 2012.          Id. at 24; see I-1 IAF, Tab 5,
      Subtab 4c at 1.
¶12         The appellant contends that the agency violated his due process rights and
      committed a harmful procedural error because the deciding official granted him
      an extension to reply until the week of January 9, 2012, but subsequently
      withdrew that approval without sufficient notice. PFR File, Tab 3 at 9-12. We
      disagree.   The proposal notice indicated that the deciding official would
      “consider” extending the reply deadline, if an extension request was submitted
      with supporting reasons, suggesting that the grant of an extension was not
      automatic, but was instead committed to the deciding official’s discretion. I-1
      IAF, Tab 5, Subtab 4d at 2. When the appellant’s representative requested an
      extension until the week of January 9, 2012, the deciding official unequivocally
      rejected that request when he responded that he would “not agree to extending
      [the appellant’s] reply time.”     I-1 IAF, Tab 9 at 25.       Notwithstanding this
      rejection, neither the appellant nor his representative took any action to make a
      reply before the deadline expired.      We find it insignificant that the deciding
      official also advised the appellant’s representative, in the December 30, 2011
      email communication, to let him know if the appellant still wished to schedule a
      meeting for the week of January 9, 2012.         To the extent that the appellant’s
      representative was confused about the meaning of the deciding official’s
      statement, he was clearly dilatory in pursuing the appellant’s interests because he
      waited until January 4, 2012, after the expiration of the reply deadline, to seek
      clarification and verify that his interpretation was correct. See id.
¶13         The deciding official, moreover, did not err in denying the appellant’s
      extension request. The appellant was first notified in mid-November 2011, of the
                                                                                         9

      agency’s proposal to remove him and afforded 20 days to respond.            I-1 IAF,
      Tab 5, Subtab 4f. The agency subsequently issued an amended proposal notice in
      December 2011, affording the appellant an additional 20 days to respond. I-1
      IAF, Tab 5, Subtab 4d. The appellant’s only proffered reason for the extension
      request was based on scheduling difficulties due to the holiday season. See I-1
      IAF, Tab 9 at 24; see also PFR File, Tab 3 at 12. We therefore discern no error in
      the deciding official’s decision to deny the request; the appellant did not present a
      compelling need for an extension, particularly in light of the fact that he had been
      on notice of the basis for the proposed action since November 2011, before the
      holiday season began, and he was given a more than reasonable amount of time to
      prepare a reply, see 5 U.S.C. § 7513(b)(2).
¶14         Finally, as to the appellant’s harmful error claim, we find that he has failed
      to satisfy his burden to establish that the agency committed an error that is likely
      to have caused the agency to reach a conclusion different from the one it would
      have reached in the absence or cure of the error. See 5 C.F.R. § 1201.4(r). He
      has not identified any information he would have presented in a reply that might
      have caused the deciding official to reach a different decision, see Kinsey v.
      Department of the Navy, 59 M.S.P.R. 226, 230 (1993), and it is unlikely that he
      could have presented such information because the deciding official only would
      have limited discretion concerning the revocation of his eligibility to occupy a
      sensitive position, see Robinson v. Department of Homeland Security, 498 F.3d
      1361, 1365 (Fed. Cir. 2007).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                                                                 10

                           United States Court of Appeals
                               for the Federal Circuit
                             717 Madison Place, N.W.
                              Washington, DC 20439

     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 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 United States 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 United
States     Code,    at   our     website,   http://www.mspb.gov/appeals/uscode/htm.
Additional         information         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.
         If you are interested in securing pro bono representation for an appeal to
the United States 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 Merit Systems Protection Board neither endorses the services
                                                                               11

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.
