Case: 19-2031   Document: 39     Page: 1   Filed: 04/08/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

            NATHANIEL J. WILLINGHAM,
                    Petitioner

                            v.

            DEPARTMENT OF THE NAVY,
                     Respondent
               ______________________

                       2019-2031
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DC-0752-18-0850-I-1.
                 ______________________

                  Decided: April 8, 2020
                 ______________________

    NATHANIEL J. WILLINGHAM, Virginia Beach, VA, pro se.

     MEEN GEU OH, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for respondent. Also represented by JOSEPH H.
 HUNT, STEVEN JOHN GILLINGHAM, ROBERT EDWARD
 KIRSCHMAN, JR.; SANDRA PATTERSON-JACKSON, Military
 Sealift Command, United States Department of Navy, Nor-
 folk, VA.
                 ______________________
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 2                                       WILLINGHAM   v. NAVY



     Before LOURIE, MOORE, and WALLACH, Circuit Judges.
 PER CURIAM.
      Mr. Nathanael J. Willingham appeals from a decision
 of the Merit Systems Protection Board (the “Board”) affirm-
 ing his indefinite suspension by the Military Sealift Com-
 mand (“MSC”) of the United States Navy. Willingham v.
 Dep’t of the Navy, No. DC-0752-18-0850-I-1 (M.S.P.B. Mar.
 11, 2019) (“Decision”). For the reasons detailed below, we
 affirm the decision of the Board.
                        BACKGROUND
     Willingham served as an equal employment oppor-
 tunity (“EEO”) specialist in the MSC from 2016 to 2018, a
 position that entails access to classified information. Thus,
 possession and maintenance of a security clearance is a
 requisite of the job. In 2017, Willingham filed an EEO com-
 plaint asserting discrimination based on MSC’s failure to
 make reasonable accommodations for his disability. In late
 March 2018, he added a class complaint alleging that MSC
 discriminated against persons with disabilities as a class.
 See 29 C.F.R. § 1614.204 (class complaints).
      A few days later, in April 2018, Willingham received an
 order from his manager, Mr. Carneal Smith, placing him
 on paid administrative leave pending an investigation into
 “a possible misuse[] of [his] position and protected infor-
 mation accessible to [him] in [his] position” as an EEO spe-
 cialist at MSC. Appx023. In May 2018, he was informed
 that his security clearance had been suspended “based on
 [his] personal conduct,” Appx024, which was followed, sev-
 eral days later, with a notice of proposed indefinite suspen-
 sion from Smith. In the notice, Willingham’s offense was
 again described as “possible misuse of [his] position and
 protected information accessible to [him]” as an EEO spe-
 cialist. Appx025.
    Willingham eventually filed his response to the pro-
 posal of indefinite suspension. He cited an enclosed
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 WILLINGHAM   v. NAVY                                      3



 declaration from Smith denying that Willingham’s suspen-
 sion was based on his failure to redact personally identifi-
 able information in his EEO complaint but was based
 instead on “misuse of his public trust position to support
 his class complaint.” Appx054. In his response, Willing-
 ham offered Smith’s statement as proof of reprisal for his
 EEO action. Appx031–033.
     The deciding official issued a decision effectuating the
 proposed indefinite suspension, citing Willingham’s lack of
 a security clearance and the requirement of his position
 that he maintain one. Willingham was indefinitely sus-
 pended as of September 1, 2018, pending the ultimate res-
 olution of his security clearance by the Department of
 Defense Consolidated Adjudication Facility.
     Willingham appealed to the Board, and, during the ap-
 peal’s pendency, sought to add a claim alleging retaliation
 for his filing an EEO complaint. The Administrative Judge
 (“AJ”) denied this request, explaining that under Depart-
 ment of the Navy v. Egan, 484 U.S. 518, 530–31 (1988), the
 Board lacks authority to evaluate the sufficiency of the
 agency’s stated reasons for suspending a security clear-
 ance, even if the appellant alleges reprisal for EEO activ-
 ity. The AJ also denied Willingham’s motion for sanctions
 on the basis that the agency misrepresented his EEO com-
 plaint.
     After a hearing, the AJ rendered an initial decision af-
 firming Willingham’s suspension. The AJ rejected Willing-
 ham’s argument that he was deprived of the “specific
 reasons” for his suspension as required by 5 U.S.C.
 § 7513(b), noting Willingham’s citation of Smith’s declara-
 tion and his accompanying argument that his EEO counse-
 lor—not he—was responsible for failing to redact
 personally identifiable information of another person in his
 EEO complaint. Decision, slip op. at 4. For that reason,
 the AJ found that he was sufficiently made aware of the
 reason for his suspension. Id.
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 4                                       WILLINGHAM   v. NAVY



     The AJ’s initial decision became the decision of the
 Board because Willingham did not appeal to the full Board,
 which at that time lacked a quorum. 5 U.S.C. § 7701(e)(1).
 This appeal followed. We have jurisdiction under 28 U.S.C.
 § 1295(a)(9).
                         DISCUSSION
     The scope of our review of an appeal from a decision of
 the Board is limited. We must affirm the Board’s decision
 unless we find it to be “(1) arbitrary, capricious, an abuse
 of discretion, or otherwise not in accordance with law; (2)
 obtained without procedures required by law, rule, or reg-
 ulation having been followed; or (3) unsupported by sub-
 stantial evidence.” 5 U.S.C. § 7703(c). A finding is
 supported by substantial evidence if a reasonable mind
 might accept the evidence as adequate to support the find-
 ing. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
 Credibility determinations are within the discretion of the
 Board and are “virtually unreviewable” on appeal. King v.
 HHS, 133 F.3d 1450, 1453 (Fed. Cir. 1998). The burden of
 establishing reversible error in a Board decision rests upon
 the petitioner. See Harris v. Dep’t of Veterans Affairs, 142
 F.3d 1463, 1467 (Fed. Cir. 1998).
     An employee has no right to a security clearance, and
 revocation of a security clearance is not, of itself, an ad-
 verse action invoking the jurisdiction of the Board. Egan,
 484 U.S. at 528, 531. Our review of an adverse action stem-
 ming from revocation of a security clearance is limited to
 (1) whether the security clearance was revoked; (2)
 whether it was a requisite of the employee’s position; and
 (3) whether the procedures of § 7513 were followed.
 Hornseth v. Dep’t of the Navy, 916 F.3d 1369, 1373–74 (cit-
 ing Hesse v. Dep’t of State, 217 F.3d 1372, 1376 (Fed. Cir.
 2000)).
     Under 5 U.S.C. § 7513(b), an employee “against whom
 an action is proposed” is entitled to certain procedural pro-
 tections, including “at least 30 days’ advanced written
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 WILLINGHAM   v. NAVY                                        5



 notice . . . stating the specific reasons for the proposed ac-
 tion,” a reasonable time to answer the allegations and to
 provide evidence in support, a legal representative, and a
 written decision explaining the reasons for the action ulti-
 mately taken. In the context of an adverse action stem-
 ming from revocation or denial of a security clearance, an
 employee is entitled under § 7513(b)(1) “to notice of the rea-
 sons for the suspension of his access to classified infor-
 mation when that is the reason for placing the employee on
 enforced leave pending a decision on the employee’s secu-
 rity clearance.” King v. Alston, 75 F.3d 657, 661–62 (Fed.
 Cir. 1996).
      Willingham’s primary argument is that the agency
 failed to provide him “specific reasons” for its proposal to
 indefinitely suspend him in violation of § 7513(b). Willing-
 ham contends that, like the employee in Cheney v. Depart-
 ment of Justice, 479 F.3d 1343 (Fed. Cir. 2007), the agency’s
 vague articulation of his alleged offense left him to guess
 at what he had done wrong.
     The government responds that § 7513(b) does not enti-
 tle Willingham to “granular details” surrounding the secu-
 rity clearance revocation, Appellee Br. 9, and that
 Willingham’s subsequent response to the proposed action,
 as well as another communication sent to the Chief of Na-
 val Operations [Appx046–049], demonstrated his aware-
 ness of the allegation against him.
     We agree with the government. As we stated in
 Cheney, “the employee must be given enough information
 to enable him or her to make a meaningful response to the
 agency's proposed suspension of the security clearance.”
 479 F.3d at 1352. In that case, we concluded that an indef-
 inite suspension stemming from a security clearance revo-
 cation failed to comply with § 7513(b)(1) because it was
 “based on allegations of potentially derogatory personal
 conduct and possible violations of law and [agency] stand-
 ards of conduct,” later explained in the notice of proposed
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 6                                       WILLINGHAM   v. NAVY



 indefinite suspension as a “fail[ure] to comply with security
 regulations” and a “demonstrated . . . pattern of dishonesty
 and/or rule violations.” Id. at 1352–53 (adding that the
 agency later alleged he inappropriately queried agency da-
 tabases). On the facts of that case, it was unreasonable for
 the Board to have found this sufficient notice. Compare
 with Alston, 75 F.3d at 659, 662 (similar suspension on the
 ground that the employee “‘may suffer from a medical con-
 dition which requires further investigation’” was sufficient
 because the employee could focus his response on his med-
 ical status).
     Here, the reason provided in the initial notice of pro-
 posed indefinite suspension was certainly vague. Appx023
 (“possible misuse[] of [his] position and protected infor-
 mation accessible to [him] [as an EEO specialist]”). But the
 shortcomings of the initial notice did not prejudice Willing-
 ham’s ability to effectively respond because Smith’s decla-
 ration provided a more detailed rationale for the
 suspension. Appx054 (confirming that the suspension was
 based on Willingham’s “misuse of his public trust position
 to support his class complaint,” not a failure to redact in-
 formation in that complaint). Critically, that declaration
 was in Willingham’s possession before he made his re-
 sponse to the agency, and he made effective use of it.
 Appx033 (“Smith has signed a declaration indicating the
 information in my EEO complaint was the misuse of infor-
 mation.”); id. (arguing that the recipients of his EEO class
 complaint already had access to the allegedly misappropri-
 ated information).
     The record thus amply supports an inference that, at
 the time Willingham responded to his proposed suspen-
 sion, he was well-aware that his alleged offense consisted
 of misappropriating non-public information of other EEO
 complainants—whose information he had special access to,
 as an EEO specialist—and using it in his own EEO class
 complaint. This is sufficient notice under our precedent.
 See Alston, 75 F.3d at 661–62. Thus, substantial evidence
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 WILLINGHAM   v. NAVY                                      7



 supports the Board’s finding that Willingham received the
 notice he was entitled to under § 7513(b)(1).
      Willingham also contends that his constitutional right
 to due process was violated by the deciding official’s invo-
 cation of attorney-client privilege concerning communica-
 tions between him and the legal department of MSC. But
 the deciding official’s decision to suspend Willingham in-
 definitely was based entirely on the suspension of Willing-
 ham’s security clearance [Appx057–059], an unreviewable
 determination and one which was not entrusted to the de-
 ciding official in any event. Because Willingham could not
 perform his duties without a security clearance, and the
 clearance had been suspended, the identified ex parte com-
 munications do not create “a procedural defect so substan-
 tial and so likely to cause prejudice that it undermines the
 due process guarantee and entitles the claimant to an en-
 tirely new administrative proceeding,” Stone v. FDIC, 179
 F.3d 1368, 1376–77. A different deciding official, free of
 any ex parte communication, would have little choice but to
 reach the same conclusion: that Willingham’s position re-
 quired a security clearance, and he did not hold one. See
 Hornseth, 916 F.3d at 1375–76.
      Finally, Willingham argues that the Board erred by
 denying his motion to amend his appeal to include a claim
 of reprisal for EEO activity. We conclude, as the Board did,
 that this claim would have been futile because Willing-
 ham’s suspension was based entirely on his security clear-
 ance suspension, a decision that the Board is barred from
 reviewing under Egan. See Hesse, 217 F.3d at 1377 (con-
 cluding that the Board cannot review a security clearance
 determination in the guise of a Whistleblower Protection
 Act claim). The same principle is applicable to a claim for
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 8                                       WILLINGHAM   v. NAVY



 EEO reprisal. Thus, the Board did not err in denying
 Willingham’s motion. 1
                        CONCLUSION
      We have considered Willingham’s further arguments
 but find them unpersuasive. For the foregoing reasons, we
 affirm the decision of the Board.
                        AFFIRMED




     1    The Board’s decision not to impose sanctions on the
 agency for arguing that the Board lacked jurisdiction over
 Willingham’s EEO reprisal claim to the extent Willing-
 ham’s prior EEO activity comprised a formal complaint
 was not an abuse of discretion. The agency made its argu-
 ment in the alternative, asserting that “if” Willingham had
 filed a formal EEO complaint, the Board would lack juris-
 diction, SAppx81, and Willingham failed to show that this
 argument was so lacking in good faith as to merit sanc-
 tions.
