                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
