                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2014 MSPB 75

                             Docket No. CH-0752-14-0332-I-1

                                         John Doe,
                                         Appellant,
                                              v.
                                 Department of Justice,
                                          Agency.
                                    September 23, 2014

           J. Michael Hannon, Esquire, Washington, D.C., for the appellant.

           Kimya Jones and Jill A. Weissman, Esquire, Washington, D.C., for the
             agency.

                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                             Anne M. Wagner, Vice Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         This removal appeal is before us on the administrative judge’s June 5, 2014
     order certifying for interlocutory review her ruling that she would not consider
     the appellant’s claim of legal error or his affirmative defenses of reprisal and
     discrimination.   We AFFIRM this ruling, VACATE the order that stayed the
     processing of the appeal, and RETURN this case to the regional office for further
     adjudication consistent with this decision.
                                                                                       2

                                      BACKGROUND
¶2         The agency removed the appellant based on the charges of (1) failure to
     maintain a qualification for his position, and (2) posing an operational security
     risk to the office. Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 3 (2012)
     (Doe I). The appellant filed an appeal of his removal to the Board. Id., ¶ 5. The
     administrative judge found that the second charge merged into the first charge,
     which was based on the appellant’s failure to maintain his eligibility to hold a
     Special-Sensitive, Level 4 position.    Id., ¶¶ 2, 6.   After determining that the
     charge was functionally equivalent to a security clearance determination, the
     administrative judge affirmed the appellant’s removal. Id. ¶¶ 8, 13. He rejected
     as unproven the appellant’s affirmative defenses of reprisal for whistleblowing,
     reprisal for equal employment opportunity (EEO) activity, and disability
     discrimination. Id. ¶¶ 9-11.
¶3         The appellant filed a petition for review. Id., ¶ 14. We granted the petition
     and vacated the initial decision based on our finding that the agency failed to
     apply its internal procedures when it did not provide the appellant with the right
     to appeal the decision to withdraw his eligibility for access to classified
     information to the agency’s Access Review Committee (ARC). Id., ¶¶ 26, 29-31,
     42; see 28 C.F.R. § 17.15 (establishing the ARC), § 17.47(d) (setting forth the
     right to appeal to the ARC). However, we declined to consider the appellant’s
     affirmative defenses, finding that the Board does not have authority to review
     them in the context of a case involving the suspension or revocation of access to
     classified information. Doe I, 118 M.S.P.R. 434, ¶¶ 39-40. We remanded the
     appeal to the agency to provide the appellant with his right to ARC review of the
     determination that he was ineligible for access to hold a Special-Sensitive, Level
     4 position. Id., ¶¶ 33, 42.
¶4         On remand, ARC reversed the determination that the appellant was no
     longer eligible for access to classified information. Initial Appeal File (IAF), Tab
     22 at 62, 66. The appellant timely filed the instant appeal after receiving ARC’s
                                                                                             3

     decision. IAF, Tab 1; see Doe I, 118 M.S.P.R. 434, ¶ 44 (permitting the appellant
     to file a new appeal no later than 30 days after the agency advised the appellant it
     complied with the order in Doe I).
¶5         During the adjudication of the appellant’s new appeal, the administrative
     judge 1 held a status conference, after which she issued a summary of her rulings,
     including her ruling that she would limit the hearing to whether the agency
     committed harmful procedural error in removing the appellant prior to ARC’s
     review of his eligibility to hold a Special-Sensitive, Level 4 position.             IAF,
     Tab 16 at 1. In her summary, she provided a deadline by which the parties could
     raise disagreement with its content. IAF, Tab 16 at 2. Within the timeframe
     provided, the appellant filed a motion to expand the scope of the hearing, also
     noting his disagreement and objection to the administrative judge’s status
     conference rulings. IAF, Tab 18. The administrative judge confirmed her prior
     ruling.   IAF, Tab 21.      Upon the appellant’s motion, and over the agency’s
     objections, the administrative judge certified for interlocutory review her decision
     to limit the scope of the hearing to the issue of harmful error only. 2 IAF, Tabs
     22, 24, 32.

     1
       The administrative judge assigned to the present appeal is not the same administrative
     judge who adjudicated the appellant’s claims in Doe I.
     2
       Both the appellant’s motion for certification of interlocutory review and the agency’s
     objections were timely filed. See IAF, Tab 21 (denying the appellant’s motion to
     expand the hearing on May 8, 2013), Tab 22 (reflecting that the motion for certification
     of interlocutory review was filed on May 12, 2013), Tab 24 (reflecting that the agency’s
     objections were filed on May 22, 2014); see also 5 C.F.R. § 1201.93(a) (indicating that
     a party has 10 days from the date of the ruling appealed to file for interlocutory appeal,
     and the opposing party has 10 days to object).

     Without requesting leave, the appellant has submitted two supplemental pleadings to
     the Board following certification. IAF, Tabs 33, 35. The agency has moved to strike
     the first of these pleadings. IAF, Tab 34. In rendering our decision, we have not
     considered these three submissions. See 5 C.F.R. § 1201.93 (containing no provision
     for submission of briefs following certification of an appeal for interlocutory review).
                                                                                       4

                                          ANALYSIS
     Interlocutory review is not barred by the law of the case doctrine because recent
     developments raise questions about the Board’s scope of review of a security
     clearance based adverse action.
¶6         The agency objected to certification of the administrative judge’s ruling for
     interlocutory review, arguing that the Board stated in Doe I that the
     administrative judge in the instant appeal could adopt the findings set forth in the
     initial decision in Doe I. IAF, Tab 24 at 1. Thus, the agency appears to be
     arguing that expanding the scope of the hearing to consider the appellant’s claims
     of legal error, reprisal, and discrimination violates the law of the case doctrine.
     Although we recognize that we previously declined to consider the appellant’s
     affirmative defenses of reprisal and discrimination in Doe I, we find that recent
     developments in the case law regarding adverse actions based on security
     clearance determinations warrants a second look at the issues in this appeal and
     we find certification proper.
¶7         Under the law of the case doctrine, a tribunal will not reconsider issues that
     have already been decided in an appeal, unless there is new and material evidence
     adduced at a subsequent trial, controlling authority has made a contrary decision
     of law, or the prior decision was clearly erroneous and would work a manifest
     injustice. O’Connell v. Department of Navy, 73 M.S.P.R. 235, 240 (1997). The
     purpose of the doctrine is to ensure consistency, thereby avoiding the expense
     and vexation of multiple lawsuits, conserving the Board’s resources, and
     fostering reliance on the Board by avoiding inconsistent decisions. See Hoover v.
     Department of the Navy, 57 M.S.P.R. 545, 552 (1993) (setting forth this rationale
     in the context of litigation in general).
¶8         Our finding in Doe I that the Board lacked authority to hear the appellant’s
     affirmative defenses was based on our determination that the appellant’s
     eligibility to occupy a Special-Sensitive, Level 4 position was analogous to a
     security clearance determination.           Doe I, 118 M.S.P.R. 434, ¶¶ 39-40.
     Subsequently, in the unrelated case of Gargiulo v. Department of Homeland
                                                                                             5

     Security, 727 F.3d 1181, 1184-87 (Fed. Cir. 2013), our reviewing court found that
     we exceeded our authority when we found that due process requires that an
     employee be provided an opportunity to contest a security determination
     underlying an adverse action.           See Buelna v. Department of Homeland
     Security, 121 M.S.P.R. 262, ¶ 24 (2014) (discussing our prior precedent and the
     Gargiulo decision).      When the administrative judge certified her ruling for
     interlocutory review, the Board had not yet issued a decision regarding the scope
     of its review in an adverse action based on a security clearance determination
     following Gargiulo.      Thus, there was a question as to whether a controlling
     authority had made a contrary decision of law, and we hold that the law of the
     case doctrine does not prevent us from reconsidering our prior decision. 3
¶9         Further, our regulations provide that an administrative judge will certify a
     ruling for interlocutory review if the ruling involves an important question of law
     or policy about which there is substantial ground for difference of opinion; and an
     immediate ruling will materially advance the completion of the proceeding, or the
     denial of an immediate ruling will cause undue harm to the party or the
     public.   5 C.F.R. § 1201.92.     In light of the lack of guidance in the area of
     adverse actions based on security clearance determinations at the time of
     certification, we find that certification was proper. 4


     3
       In light of our disposition here, we find it unnecessary to reach the appellant’s
     argument that the law of the case doctrine does not apply because of “manifest
     injustice.” IAF, Tab 18 at 21-22, Tab 22 at 8-9.
     4
       In making our determination, we disagree with the appellant’s assertion that ARC’s
     reversal of the agency’s decision to find him ineligible to access classified information
     constitutes new and substantially different evidence under the law of the case doctrine.
     See, e.g., IAF, Tab 18 at 7, 16 (arguing that the Board could not have predicted ARC’s
     determination, and that it constituted “new and compelling evidence”), Tab 22 at 6-7
     (arguing that the Board is free to revisit its decision in light of the ARC decision). Our
     decision in Doe I contemplated the possibility of such a determination, and therefore
     this is not new evidence but rather a further development of the Board’s record. Doe I,
     118 M.S.P.R. 434, ¶¶ 33, 44. The appellant also argues that the decision by our
                                                                                              6

      The administrative judge properly declined to expand the hearing to include the
      appellant’s affirmative defenses of discrimination and reprisal.
¶10         We recently reaffirmed our pre-Gargiulo case law that the Board is not
      permitted to adjudicate whether an agency’s adverse action, which is premised on
      the suspension or revocation of a security clearance, constitutes impermissible
      discrimination     or   reprisal.       Putnam     v.    Department      of   Homeland
      Security, 2014 MSPB 70, ¶ 18 (citing, among other cases, Doe I, 118 M.S.P.R.
      434, ¶ 40). Therefore, despite recent changes in the law, our prior decision in
      Doe I was correct.       The administrative judge therefore properly declined to
      expand the scope of the hearing to include the appellant’s affirmative defenses. 5
      IAF, Tabs 21, 32; see Doe I, 118 M.S.P.R. 434, ¶¶ 39-40.


      reviewing court in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), is
      contrary to our prior holding in Doe I. IAF, Tab 18 at 17 (arguing that the Board need
      not defer to its prior holding in Doe I in light of Whitmore), Tab 22 at 7 (arguing that
      Whitmore is “new controlling case law”). However, Whitmore was issued prior to our
      decision in Doe I, and we expressly found that it did not alter our analysis of the
      appellant’s whistleblower claim. Doe I, 118 M.S.P.R. 434, ¶ 39 n.6. We see no reason
      to disturb that finding.
      5
         The original appeal was filed prior to the December 27, 2012 effective date of the
      Whistleblower Protection Enhancement Act of 2012 (WPEA). See MSPB Docket No.
      CH-0752-09-0404-I-1, IAF, Tab 1 (reflecting a submission date of February 11, 2009);
      see also WPEA, Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476 (indicating that the
      WPEA would take effect 30 days after its enactment date of November 27, 2012); King
      v. Department of the Air Force, 119 M.S.P.R. 663, ¶ 3 (2013) (noting that the WPEA
      was signed into law on November 27, 2012, with an effective date of December 27,
      2012). Therefore, the Board applied the Whistleblower Protection Act (WPA) in
      determining that the appellant could not raise an affirmative defense of reprisal for
      whistleblowing activity. Doe I, 118 M.S.P.R. 434, ¶ 39 (citing Hesse v. Department of
      State, 217 F.3d 1372, 1380 (Fed. Cir. 2000) (holding that the denial of a security
      clearance cannot serve as the basis for the Board’s jurisdiction in an individual right of
      action appeal brought under the WPA); Roach v. Department of the Army, 82 M.S.P.R.
      464, ¶¶ 48-54 (1999) (holding that 1994 amendments to the WPA did not provide the
      Board with jurisdiction over security clearance determinations)). However, we have
      examined the WPEA and find that nothing in the Act permits the Board to consider an
      affirmative defense of reprisal for whistleblowing in the context of an adverse action
      based on a security clearance determination. See Roach, 82 M.S.P.R. 464, ¶¶ 50, 53-54
      (finding that the WPA’s 1994 amendments did not authorize the Board to review
                                                                                            7

      The administrative judge properly declined to expand the hearing to include
      whether the appellant’s removal was not in accordance with law.
¶11         The appellant argued that the agency’s decision to remove him was “not in
      accordance with law” and thus cannot be sustained pursuant to 5 U.S.C.
      § 7701(c)(2)(C).    IAF, Tab 18 at 9-13.      The administrative judge declined to
      expand the scope of the hearing to include this issue. IAF, Tab 32 at 2. The
      agency’s failure to provide the appellant with his right to ARC review of the
      determination that he was not eligible to hold a Special-Sensitive, Level 4
      position is properly analyzed under a harmful procedural error standard.
      Therefore we affirm the administrative judge’s ruling that she would not hear the
      claim of legal error.
¶12         Section 7701(c)(2) provides, in pertinent part, that an adverse action may
      not be sustained if the employee “(A) shows harmful error in the application of
      the agency’s procedures in arriving at such decision; . . . or (C) shows that the
      decision was not in accordance with law.”         The “harmful error” provision of
      section 7701(c)(2) is applicable to all procedural errors, such as the one here,
      while the “not in accordance with law” provision is applicable to other unlawful
      actions. Baracco v. Department of Transportation, 15 M.S.P.R. 112, 120 (1983),
      aff’d sub nom. Adams v. Department of Transportation, 735 F.2d 488 (Fed. Cir.
      1984). To hold otherwise would render the harmful error provision meaningless
      because all violations of agency procedure would be reviewed as “not in
      accordance with law.”       Baracco, 15 M.S.P.R. 112, 120-21 (explaining the
      interplay between these two provision of section 7701(c)(2) in the context of an
      agency’s failure to provide 7-days’ notice to answer a proposed adverse action as
      required by 5 U.S.C. § 7513(b)(2)); see Schnedar v. Department of the Air

      security clearance issues in chapter 75 appeals because they lacked specific language
      providing otherwise); see generally WPEA, Pub. L. No. 112-199, 126 Stat. 1465
      (containing no provision for raising a claim that a security clearance determination was
      taken in reprisal for whistleblowing activity).
                                                                                              8

      Force, 120 M.S.P.R. 516, ¶¶ 8, 12 (2014) (evaluating under a harmful error
      standard an agency’s failure to comply with applicable regulations in instituting
      an adverse action based on the revocation of an appellant’s security clearance);
      Ulep v. Department of the Army, 120 M.S.P.R. 579, ¶¶ 4, 6 (2014) (conducting
      the same analysis where an agency issued an adverse action based on the
      suspension of the appellant’s security clearance without the procedural
      protections afforded under applicable regulations).         Because the error at issue
      here was the agency’s application of its procedures, the harmful error standard is
      applicable.

      The administrative judge may determine without holding a hearing whether there
      was harmful error.
¶13         The appellant argued that the agency’s removal should be reversed as
      harmful error without the necessity of holding a hearing. 6 IAF, Tab 18 at 13-14.
      This issue is beyond the scope of our review at this time because the
      administrative judge did not certify it for interlocutory appeal.          See 5 C.F.R.
      § 1201.91 (defining an interlocutory appeal as an appeal to the Board, certified by
      the administrative judge, of a ruling made during a proceeding); cf. Grimes v.

      6
        The Board is not permitted to grant summary judgment because an appellant has the
      right to a hearing pursuant to 5 U.S.C. § 7701(a)(1). Crispin v. Department of
      Commerce, 732 F.2d 919, 922-24 (Fed. Cir. 1984). However, as with his right to a
      hearing on the merits, an appellant may waive his right to a hearing on the issue of
      harmful error. See Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 34
      (2013) (proceeding to address a harmful error claim after the appellant waived her right
      to a hearing on the issue). The administrative judge should clarify whether the
      appellant intends to waive his right to a hearing and provide the parties with the
      opportunity to brief the relevant legal and factual issues and to respond to each other’s
      submissions. Campbell v. Department of Defense, 102 M.S.P.R. 178, ¶ 5 (2006) (an
      appellant may only waive his right to a hearing if the waiver is (1) clear, unequivocal,
      or decisive; and (2) informed); Gavette v. Department of the Treasury, 44 M.S.P.R.
      166, 174 (1990) (where the appellant waives the right to a hearing, setting the deadline
      for closing the record is within the sound discretion of the administrative judge, but the
      procedures used must comport with the basic requirements of fairness and notice,
      including an opportunity for response to the opposing party’s submissions).
                                                                                       9

      Department of the Navy, 99 M.S.P.R. 7, ¶ 9 (2005) (holding that it was beyond
      the scope of the Board’s interlocutory review to decide issues on which the
      administrative judge did not make specific rulings). However, in light of recent
      Board precedent, the administrative judge may determine that the record is
      sufficiently developed to determine, without holding a hearing, whether there was
      harmful error.
¶14         Under 5 U.S.C. § 7701(c)(2)(A), the Board may not sustain an agency’s
      decision to impose an adverse action if the employee can show “harmful error in
      the application of the agency’s procedures in arriving at such decision.”
      Ulep, 120 M.S.P.R. 579, ¶ 6 (reversing an indefinite suspension based on the
      decision to informally suspend the appellant’s security clearance because the
      agency failed to comply with any of the procedures that its regulations required
      prior to instituting an adverse action); Schnedar, 120 M.S.P.R. 516, ¶ 12
      (reversing an indefinite suspension based on the revocation of the appellant’s
      security clearance because the suspension was effected prior to the appellant’s
      receipt of a Personnel Security Appeals Board decision, in violation of agency
      regulations). Harmful error cannot be presumed; an agency error is harmful only
      where the record shows that the procedural error was 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.       Stephen v. Department of the Air Force, 47
      M.S.P.R. 672, 681, 685 (1991); 5 C.F.R. § 1201.56(c)(3). The appellant bears the
      burden of proof by preponderant evidence with regard to harmful error. 5 C.F.R.
      § 1201.56(a)(2)(iii), (b)(1), (c)(3). However, where an agency, upon following
      its regulations, affords an employee a favorable security clearance determination,
      its prior adverse action based on the revocation of the security clearance cannot
      be sustained. Blatt v. Department of the Army, 121 M.S.P.R. 473, ¶ 10 (2014).
¶15         In Doe I, we left further determination regarding harmful error in the
      instant   appeal   to   the   administrative   judge’s   sound   discretion.   Doe
      I, 118 M.S.P.R. 434, ¶ 44; see Bennett v. Department of Justice, 119 M.S.P.R.
                                                                                        10

      685, ¶ 11 (2013) (declining to make a determination of fact because the
      administrative judge, as the hearing official, is in the best position to resolve
      factual questions in the first instance). There appears to be no factual dispute that
      the ARC reversed the agency’s prior determination that the appellant was no
      longer eligible for access to classified information.      IAF, Tab 22 at 97-102
      (containing the decision by ARC); see IAF, Tab 27 at 5, 7-12 (stating, in the
      agency’s prehearing submission, that “the ARC issued a decision finding that the
      appellant is currently eligible to have access to classified information,” and
      submitting a copy of the decision).       We see no reason to interfere in the
      administrative judge’s processing of the appeal. However, on the record before
      us, it appears that a hearing may not be required to resolve the issue of harmful
      error.

                                            ORDER
¶16            Accordingly, we AFFIRM the administrative judge’s ruling that she would
      not hold a hearing on the appellant’s claim of legal error or his affirmative
      defenses of discrimination and reprisal, VACATE the stay order, and RETURN
      this matter to the Central Regional Office for further adjudication consistent with
      this interlocutory decision.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
