                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 87

                            Docket No. AT-0752-09-0698-I-5

                                  Tamarah T. Grimes,
                                       Appellant,
                                            v.
                                Department of Justice,
                                         Agency.
                                    December 8, 2014

           Stephanie L. Ayers, Esquire, and Thad M. Guyer, Esquire, Medford,
             Oregon, for the appellant.

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

                                        BEFORE

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



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained her removal from employment.         For the reasons that follow, the
     appellant’s petition for review is DENIED and the administrative judge’s initial
     decision is VACATED IN PART AND AFFIRMED IN PART.

                                     BACKGROUND
¶2         At the time of her removal, the appellant served as a Paralegal Specialist
     with the U.S. Attorney’s Office for the Middle District of Alabama.        MSPB
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     Docket No. AT-0752-09-0698-I-1, Initial Appeal File (IAF), Tab 12 at 38 of 83.
     Pursuant to the agency’s employment security regulations, the appellant’s
     position was designated as a critical-sensitive (Level 3) position, which included
     positions within the agency that could require, among other things: (1) access to,
     or afford a ready opportunity to gain access to, secret and/or confidential national
     security information (NSI) and material; or (2) access to grand jury information.
     Id. at 61, 68 of 91. 1 Based upon a report prepared by the agency’s Office of
     Inspector General, the agency’s Chief of Personnel Security determined that the
     appellant should not be afforded the opportunity to gain access to secret and/or
     confidential NSI material or grand jury information, and she further found that
     the appellant’s “continued assignment as a Paralegal Specialist poses an
     unnecessary and unacceptable operational security risk to the [Department of
     Justice].”   Id. at 61 of 91.      Citing this finding, the agency proposed the
     appellant’s removal on two charges: failure to maintain a qualification of her
     position and misrepresentation under oath. Id. at 36-45 of 78.
¶3         In its notice of proposed removal, the agency afforded the appellant the
     opportunity to submit a written response simultaneously addressing both her
     proposed removal and the agency’s determination that she was ineligible to have
     access to secret and/or confidential NSI and that she posed an unnecessary and
     unacceptable operational security risk. See id. at 40-43 of 78. The appellant
     submitted a written response addressing both issues, id. at 62-66 of 83, and, after
     reviewing the appellant’s response, the Chief of Personnel Security determined
     that her “initial decisions to revoke [the appellant’s] eligibility to obtain access to
     secret and/or confidential NSI material, and that her continued assignment as a
     Paralegal Specialist posed an unnecessary and unacceptable operational security
     risk to the Department, were correct,” id. at 49 of 83.               In her written

     1
      NSI is synonymous with classified information. See Executive Order 13,526, § 6.1(i);
     see also Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 20 (2012).
                                                                                           3

     reconsideration decision, the Chief of Personnel Security also stated that she had
     never met the appellant and had “no further information regarding her [equal
     employment opportunity (EEO)] activity, and her EEO activity played no role in
     [her] initial or current determination.” Id. at 50 of 83.
¶4         After considering the appellant’s response, including her response to the
     Personnel Security Chief’s reconsideration decision, the deciding official
     sustained the charges and imposed the appellant’s removal. Id. at 40-47 of 83. In
     reaching his decision, the deciding official explained that the “Chief of the
     Personnel Security Section has made a final determination to revoke [the
     appellant’s] eligibility for access to Secret and/or Confidential NSI material and
     that [the appellant] pose[s] an operational security risk to the Department,” and
     that “[t]hese are required qualifications for [her] position.” Id. at 46 of 83. In
     rendering his decision, the deciding official also considered and rejected the
     appellant’s allegation that the decisions to revoke her eligibility to hold a
     critical-sensitive position and to propose her removal were in reprisal for her
     prior EEO activity. Id. at 45-46 of 83.
¶5         The appellant filed an initial appeal of her removal and raised a
     whistleblower reprisal affirmative defense. 2 IAF, Tab 1. After several dismissals
     without prejudice, the administrative judge held a hearing and issued an initial
     decision sustaining the appellant’s removal.       MSPB Docket No. AT-0752-09-
     0698-I-5, Initial Appeal File (IAF-5), Tab 35, Initial Decision (ID). In his initial
     decision, the administrative judge applied the Supreme Court’s decision in
     Department of the Navy v. Egan, 484 U.S. 518 (1988), and sustained the agency’s
     charge that the appellant failed to maintain a qualification of her position under
     the limited scope of review employed in such cases. ID at 10-15. Additionally,


     2
       Although the appellant alleged reprisal for prior EEO activity in response to the
     proposal to remove her, she did not raise EEO reprisal as an affirmative defense in this
     appeal. See IAF, Tab 1.
                                                                                           4

     the administrative judge concluded that the deciding official did not consider ex
     parte information under Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir.
     2011), when he reviewed the Chief of Personnel Security’s decision to reaffirm
     her prior decision because the reconsideration decision, and the information
     contained therein, was cumulative of the prior decision. ID at 13-15. Lastly, the
     administrative judge found that the appellant could not maintain her affirmative
     defense of whistleblower reprisal because she was removed based upon a security
     clearance determination, ID at 15, and he also rejected her claim that the agency’s
     Chief of Personnel Security incorrectly applied the agency’s adjudicative
     guidelines when deciding whether to deny her access to sensitive and/or
     confidential NSI, ID at 16-21. Because the administrative judge sustained the
     appellant’s removal under the agency’s first charge of failure to maintain a
     qualification of her position, the administrative judge did not adjudicate the
     agency’s second charge of misrepresentation. ID at 21.
¶6            The appellant has filed a petition for review focusing primarily on the
     administrative judge’s decision to admit certain testimony at the hearing, and the
     agency has filed a response.        Petition for Review (PFR) File, Tabs 2, 4.
     Following the issuance of the U.S. Court of Appeals for the Federal Circuit’s
     (Federal Circuit) decision in Gargiulo v. Department of Homeland Security,
     727 F.3d 1181 (Fed. Cir. 2013), 3 the Board issued an order inviting the parties to
     submit additional argument as to the applicability of that decision. PFR File,
     Tab 6.     The agency has filed a response asserting that Gargiulo supports the
     manner in which the administrative judge reviewed the agency’s charge, and the




     3
       In Gargiulo, 727 F.3d at 1186-87, the Federal Circuit subsequently held that the Board
     cannot consider the reasonableness of an agency’s security clearance determination in
     adjudicating an adverse action based on the suspension or revocation of a security
     clearance.
                                                                                       5

     appellant has filed a response arguing that Gargiulo is inapposite because the
     appellant never held a security clearance. PFR File, Tabs 7, 9.

                                         ANALYSIS
     The charge of failure to maintain a qualification of the position is sustained.
¶7         In an appeal of an adverse action under 5 U.S.C. § 7513 based on the
     denial, revocation, or suspension of a security clearance, the Board does not have
     the authority to review the substance of the underlying security clearance
     determination. Ryan v. Department of Homeland Security, 121 M.S.P.R. 460, ¶ 5
     (2014).   Rather, the Board only has the authority to review whether: (1) the
     appellant’s position required a clearance; (2) the clearance was denied, revoked,
     or suspended; and (3) the employee was provided with the procedural protections
     specified in 5 U.S.C. § 7513.      Ryan, 121 M.S.P.R. 460, ¶ 5.       Section 7513,
     however, is not the only source of procedural protections for employees subject
     to adverse actions; agencies must also comply with the procedures set forth in
     their own regulations. Id. An employee also has a due process right to notice of
     the grounds in support of the adverse action and a meaningful opportunity to
     invoke the discretion of a deciding official with the authority to select an
     alternative outcome, to the extent an alternative penalty may have been feasible.
     Id.; see Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 10 (2014).
¶8         We agree with the administrative judge that the agency has met these
     standards and has established by preponderant evidence that the appellant failed
     to meet a qualification of her position when she was denied eligibility to hold a
     critical-sensitive position.   The record reflects that the appellant’s Paralegal
     Specialist position was designated as a Level 3 critical-sensitive position, which
     required her to maintain eligibility to access classified information, and that the
     agency’s Chief of Personnel Security revoked the appellant’s eligibility to hold a
                                                                                             6

     critical-sensitive position and to obtain access to secret and/or confidential NSI. 4
     IAF, Tab 12 at 49 of 83 and 68 of 91. The record further reflects that the agency
     complied with 5 U.S.C. § 7513(b) by providing the appellant 30-days’ advance
     notice of the proposed adverse action, a period of more than 7 days to reply, the
     right to be represented, and a written decision on the proposed adverse action. Id.
     at 36-45 of 78 and 40-47 of 83.          The agency’s adverse action based on the
     appellant’s loss of eligibility to hold a critical-sensitive position and to obtain
     access to classified information is SUSTAINED. 5
     The agency did not violate the appellant’s right to due process.
¶9         During the prehearing conference, the administrative judge identified a
     potential due process violation based upon the deciding official’s consideration of
     the Chief of Personnel Security’s reconsideration decision without giving the
     appellant an opportunity to respond to that decision. IAF-5, Tab 28. In his initial
     decision, however, the administrative judge found that the Chief of Personnel
     Security’s reconsideration decision was not new and material information because
     the information within the reconsideration decision was cumulative of the
     original decision to deny the appellant eligibility to hold a critical-sensitive


     4
      The Board has found that an agency’s decision to revoke an employee’s eligibility to
     obtain access to classified information is subject to the Board’s limited scope of review
     under Egan. See Doe, 118 M.S.P.R. 434, ¶ 19 (citing Conyers v. Department of
     Defense, 115 M.S.P.R. 572, ¶ 17 (2010), rev’d on other grounds sub nom. Kaplan v
     Conyers, 733 F.3d 1148, 1160 (Fed. Cir. 2013), cert denied sub nom. Northover v.
     Archuleta, 134 S. Ct. 1759 (2014)).
     5
       Pursuant to the limited scope of review under Egan, the Board does not have the
     authority to review the merits of the agency’s reasons for revoking the appellant’s
     eligibility to obtain access to classified information. See Brown v. Department of
     Defense, 121 M.S.P.R. 584, ¶¶ 8-9 (2014). We thus do not reach the appellant’s
     arguments on review that the administrative judge erred in admitting certain testimony
     below, see PFR File, Tab 2 at 3-5; insofar as the administrative judge reviewed and
     adjudicated the grounds for the agency’s decision to revoke the appellant’s eligibility to
     hold a critical-sensitive position and to obtain access to classified information, those
     portions of the initial decision are VACATED.
                                                                                         7

      position; and he concluded that the deciding official therefore did not consider
      any new information in rendering his decision to which the appellant did not have
      an opportunity to respond. ID at 14-15.
¶10         The Federal Circuit has held that, when a deciding official receives new
      and material information by means of an ex parte communication, “a due process
      violation has occurred and the former employee is entitled to a new and
      constitutionally correct removal procedure.” Stone v. Federal Deposit Insurance
      Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999). Both the Federal Circuit and
      the Board have found, however, that not all ex parte communications rise to the
      level of due process violations; rather, only ex parte communications which
      introduce   new   and   material   information   to   the   deciding   official   are
      constitutionally infirm. Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 8
      (2013). In Stone, the Federal Circuit identified the following factors to be used to
      determine whether ex parte information is new and material: (1) whether the
      ex parte information introduces cumulative, as opposed to new, information;
      (2) whether the employee knew of the information and had an opportunity to
      respond; and (3) whether the communication was of the type likely to result in
      undue pressure on the deciding official to rule in a particular manner. Stone,
      179 F.3d at 1377. In the context of security clearance determinations, moreover,
      the Board has found that an appellant is entitled to notice of the information the
      deciding official relied upon in making his penalty determination, including the
      factual basis for the underlying security clearance determination, even if the
      appellant does not have a due process right to notice of the factual basis
      supporting the charge alone. See Buelna v. Department of Homeland Security,
      121 M.S.P.R. 262, ¶ 31 (2014).
¶11         We agree with the administrative judge that the deciding official did not
      commit a due process violation when he considered and relied upon the Chief of
      Personnel Security’s reconsideration decision revoking the appellant’s eligibility
      to hold a critical-sensitive position.    The record reflects that the Chief of
                                                                                        8

      Personnel Security’s reconsideration decision merely reaffirmed the prior
      decision to revoke the appellant’s eligibility to obtain access to NSI and that it
      did not rely upon any new bases or grounds for revoking the appellant’s
      eligibility to which she did not have an opportunity to respond. See IAF, Tab 12
      at 49-50. A deciding official does not commit a due process violation when he
      considers ex parte information that merely “confirms or clarifies information
      already contained in the record.” Blank v. Department of the Army, 247 F.3d
      1225, 1229 (Fed. Cir. 2001). Here, we find that the Chief of Personnel Security’s
      reconsideration decision confirmed her prior decision and therefore did not
      introduce new and material information to the deciding official. We further find
      that this case is dissimilar from instances where, for example, deciding officials
      have drawn negative credibility findings against appellants based on ex parte
      communications or have considered aggravating factors which were not contained
      within the agencies’ proposal notices without giving the appellants an opportunity
      to respond. See, e.g., Young v. Department of Housing & Urban Development,
      706 F.3d 1372, 1377 (Fed. Cir. 2013) (finding that the deciding official believed
      the appellant was lying based on an ex parte interview); Solis v. Department of
      Justice, 117 M.S.P.R. 458, ¶¶ 9-10 (2012) (ex parte information consisted of
      deciding official’s consideration of appellant being Giglio-impaired).
¶12         We also find that the deciding official did not commit a due process
      violation when he considered, and rejected, the arguments the appellant raised in
      response to her notice of proposed removal. In her written reply submitted to
      both the deciding official and the Chief of Personnel Security, the appellant
      argued, among other things, that she was wrongly denied eligibility to obtain
      access to classified information, that she did not engage in the underlying
      misconduct, and that her proposed removal was in retaliation for her filing prior
      EEO complaints. IAF, Tab 12 at 62-66 of 83. After considering the appellant’s
      allegations, however, the deciding official concluded that the Chief of Personnel
      Security properly revoked the appellant’s eligibility to obtain access to classified
                                                                                             9

      information, and he rejected the appellant’s allegation that her removal was
      motivated by retaliatory animus. Id. at 40-45 of 83.
¶13         We find no due process error with the deciding official’s actions. Rather,
      these facts are similar to Wilson v. Department of Homeland Security,
      120 M.S.P.R. 686, ¶ 11 (2014), in which the appellant raised certain allegations
      in her response to the proposed removal and the deciding official rejected those
      allegations in the course of rendering his decision. Under such circumstances,
      the Board explained that a deciding official does not violate an employee’s right
      to due process when he considers issues raised by the appellant in her response to
      the proposed adverse action and then rejects those arguments in reaching a
      decision. Id., ¶¶ 11-12; see Blank, 247 F.3d at 1229; 5 C.F.R. § 752.404(g)(1) (in
      rendering a decision on a proposed adverse action, the agency will consider the
      reasons specified in the notice and any answer of the employee or her
      representative, or both, made to a designated official).              In reaching this
      conclusion, the Board explained that an employee is not entitled to know the
      particular weight the deciding official will attach to her arguments raised in
      response to the proposed adverse action in advance of the final decision. See
      Wilson, 120 M.S.P.R. 686, ¶ 12; cf. Harding v. U.S. Naval Academy, 567 F.
      App’x 920, 925-26 (Fed. Cir. 2014) (the appellant was “not deprived of due
      process by not being advised in advance that the deciding official might draw
      [an] inference from the nature of the charged conduct”). Thus, consistent with
      Wilson, we find that the deciding official did not commit a due process violation
      when he considered and rejected the arguments the appellant raised in her reply
      to the notice of proposed removal. 6


      6
        The Chief of Personnel Security also stated in her reconsideration decision that the
      appellant’s EEO activity played no role in her decision to revoke the appellant’s
      eligibility to access NSI. IAF, Tab 12 at 50 of 83. We similarly find that this statement
      was in response to the appellant’s allegation of EEO reprisal and does not constitute
      new and material information under Ward/Stone. See id. at 62 of 83; see also Wilson,
                                                                                            10

      The agency established nexus and the reasonableness of the penalty.
¶14          It is well settled that, where an adverse action is based on the failure to
      maintain a security clearance—or in this case, the failure to maintain eligibility to
      hold a critical-sensitive position and to obtain access to classified information—
      the adverse action promotes the efficiency of the service because the absence of a
      properly authorized security clearance is fatal to the job entitlement. See Munoz
      v. Department of Homeland Security, 121 M.S.P.R. 483, ¶ 13 (2014) (quoting
      Robinson v. Department of Homeland Security, 498 F.3d 1361, 1365 (Fed. Cir.
      2007)).   We therefore find that the agency established a nexus between its
      adverse action and the efficiency of its operational mission. Id.; see ID at 21.
      We similarly agree with the administrative judge’s decision to sustain the penalty
      of removal. ID at 21. There is no evidence in the record that the agency has a
      mandatory policy of considering employees for reassignment prior to removing
      them for the loss of eligibility to hold a critical-sensitive position and to obtain
      access to NSI, see Ryan, 121 M.S.P.R. 460, ¶¶ 7, 10-11, and the appellant has
      presented no other basis on review to disturb the agency’s imposed penalty.
      The administrative judge correctly declined to adjudicate the appellant’s
      whistleblower reprisal affirmative defense.
¶15          Finally, we agree with the administrative judge’s decision not to adjudicate
      the appellant’s affirmative defense of whistleblower reprisal because such a claim
      would go to the merits of the agency’s underlying basis for determining that the
      appellant is not eligible to hold a critical-sensitive position and obtain access to
      NSI.   See Doe v. Department of Justice, 121 M.S.P.R. 596, ¶ 10 n.5 (2014)


      120 M.S.P.R. 686, ¶ 11. We note, moreover, that the appellant appears to have argued
      only to the deciding official that the proposed removal was retaliatory, not that her
      eligibility to obtain access to classified information was revoked in retaliation for her
      prior EEO activity. IAF, Tab 12 at 50 of 83. Regardless of the nature of the appellant’s
      allegation, the Board is without the authority to consider whether EEO retaliation
      played a role in the agency’s security clearance determination. See Putnam v.
      Department of Homeland Security, 121 M.S.P.R. 532, ¶ 18 (2014).
                                                                                        11

      (finding that an appellant cannot maintain a whistleblower reprisal claim
      challenging a security clearance determination under the Whistleblower
      Protection Enhancement Act of 2012); see also Hesse v. Department of State,
      82 M.S.P.R. 489, ¶ 9 (1999), aff’d, 217 F.3d 1372 (Fed. Cir. 2000). Thus, to the
      extent that the administrative judge declined to adjudicate this issue, we AFFIRM
      the initial decision. ID at 15-16.

                                             ORDER
¶16         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        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.
            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 United States 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
                                                                                 12

you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States 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 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 about the United States 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
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         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 a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
                                                                         13

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.
