                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PETER J. HEBERT,                                DOCKET NUMBER
                   Appellant,                        SF-0752-13-0405-I-2

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: October 9, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Clayton C. Ikei, Esquire, Honolulu, Hawaii, for the appellant.

           Steven K. Forjohn, Esquire, MCBH Kaneohe Bay, Hawaii, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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 based upon his failure to maintain a security
     clearance. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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. Except as expressly MODIFIED by
     the analysis of the appellant’s retaliation claim, in which we vacate the portion of
     the initial decision that made findings regarding the claim, we AFFIRM the initial
     decision.

                                      BACKGROUND
¶2        The appellant held the position of Supervisory Information Technology
     Specialist at the agency’s Marine Corps Base Hawaii.           MSPB Docket No.
     SF-0752-13-0405-I-1 (I-1), Initial Appeal File (IAF), Tab 5, Subtabs 4a-4b. The
     position required him to obtain and maintain a Top Secret security clearance. Id.,
     Subtab 4n.    On November 23, 2011, the Department of the Navy Central
     Adjudication Facility (DONCAF) issued the appellant a Letter of Intent,
     informing him of its preliminary decision to revoke his eligibility for a security
     clearance and assignment to a sensitive position.      Id., Subtab 4l.   DONCAF
     provided the appellant a Statement of Reasons forming the basis for the
     preliminary decision and informed him that he could respond to the statement
     within 15 calendar days. Id. The appellant responded and, on April 16, 2012,
     DONCAF issued a Letter of Notification with its final determination to revoke his
     eligibility for a security clearance and assignment to a sensitive position. Initial
                                                                                       3

     Appeal File, MSPB Docket No. SF-0752-13-0405-I-2 (I-2), IAF, Tab 3, Exhibit 5;
     I-1, IAF, Tab 5, Subtab 4k.
¶3        The appellant appealed DONCAF’s final revocation by requesting a
     personal appearance before an administrative judge of the Defense Office of
     Hearings and Appeals. I-1, IAF, Tab 5, Subtab 4j. On November 19, 2012, the
     Personnel Security Appeals Board (PSAB) issued a final decision upholding
     DONCAF’s determination to revoke the appellant’s security clearance.            Id.,
     Subtab 4h. As a result, on January 29, 2013, the agency proposed to remove the
     appellant based on the sole charge of failure to maintain a security clearance. Id.,
     Subtab 4f. After consideration of the appellant’s oral and written replies, the
     agency removed the appellant, effective March 31, 2013. Id., Subtabs 4a-4d.
¶4        The appellant timely appealed his removal to the Board, challenging the
     merits of the underlying security clearance determination. I-1, IAF, Tab 1; I-2,
     IAF, Tab 22. He also claimed that the agency violated his due process rights,
     committed harmful procedural error, and retaliated against him for his prior equal
     employment opportunity (EEO) activity. I-1, IAF, Tab 1 at 3, 5; I-2, IAF, Tab
     22. After holding the requested hearing, I-1, IAF, Tab 1 at 2, the administrative
     judge issued an initial decision affirming the removal action, I-2, IAF, Tab 23,
     Initial Decision (ID).     The administrative judge found that the Board lacked
     jurisdiction to consider the merits of the underlying security clearance
     determination and instead was limited to a review of whether the appellant’s
     position required a security clearance, whether the agency revoked the security
     clearance, and whether the appellant received the procedural protections specified
     in 5 U.S.C. § 7513.      ID at 6-7.   In applying the limited scope of review, the
     administrative judge affirmed the removal action. ID at 6-12. He found that the
     appellant received due process, in part because the deciding official had the
     discretion to impose a penalty other than the one proposed. ID at 8-9. He also
     found no harmful error in the timeliness or conduct of the investigation or adverse
     action process. ID at 9-11. He further found that the appellant failed to prove
                                                                                           4

     that the agency retaliated against him based on his prior EEO activity, noting that
     the Board could not consider his allegations of retaliation as they related to the
     merits of the underlying security clearance determination. ID at 13-14.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. On review, the appellant asserts that the administrative judge erred
     in failing to find that the agency violated his due process rights and committed
     harmful procedural error when it removed him. Id. at 12-27. He also argues that
     the administrative judge improperly excluded certain witness testimony and
     denied his request for a continuance. Id. at 2-4, 15. Finally, he claims that the
     agency discriminated against him based upon his “association with a minority.”
     Id. at 27. The agency has filed a response in opposition. PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         As properly noted by the administrative judge, in an appeal of a removal
     action under chapter 75 based on the revocation of a security clearance, the Board
     may not review the merits of the underlying clearance determination. ID at 6; see
     Department of the Navy v. Egan, 484 U.S. 518, 526-30 (1988); Flores v.
     Department of Defense, 121 M.S.P.R. 287, ¶¶ 7-8 (2014). Rather, the Board only
     has the authority to review whether: (1) the appellant’s position required a
     security clearance; (2) the clearance was denied, revoked, or suspended; and
     (3) the appellant was provided with the procedural protections specified
     in 5 U.S.C. § 7513. 2 Ulep v. Department of the Army, 120 M.S.P.R. 579, ¶ 4
     (2014). Here, the administrative judge found, and the appellant does not dispute,
     that the Supervisory Information Technology Specialist position held by the
     appellant required a security clearance, his security clearance was revoked, and
     2
       The Board may also consider whether the appellant’s transfer to a nonsensitive
     position was feasible but only where a statute or regulation provides the appellant with
     a substantive right to such a reassignment. See Ryan v. Department of Homeland
     Security, 121 M.S.P.R. 460, ¶ 7 (2014). The administrative judge found, however, and
     the appellant does not contest, that the agency did not have a regulation requiring his
     reassignment. ID at 15.
                                                                                            5

     the agency provided him with the procedural protections specified in 5 U.S.C.
     § 7513. ID at 7-8, 12.
¶7         Section 7513 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.            Schnedar v. Department of the             Air
     Force, 120 M.S.P.R. 516, ¶ 8 (2014). Here, the appellant claims that the agency
     committed harmful procedural error when it failed to properly initiate and
     conduct its investigations regarding the security violations that led to the
     revocation of his clearance in violation of Department of Navy Personnel Security
     Program (SECNAV) M-5510.30, chapter 6, and M-5510.36, chapter 12. 3 PFR
     File, Tab 1 at 2, 12-17, 21.       For the reasons discussed below, we find the
     appellant’s harmful procedural error arguments unpersuasive.
¶8         Chapter 6 of SECNAV M-5510.30 sets forth the agency’s policies and
     procedures regarding Personnel Security Investigations (PSIs), which are
     investigations conducted by the Office of Personnel Management (OPM) to gather
     information relevant to personnel security determinations.           I-2, IAF, Tab 9,
     Subtab IIIII.   The appellant contends that the agency violated this regulation


     3
       For the first time on review, the appellant claims that the agency violated Department
     of Defense (DoD) regulations when it failed to afford him the procedural protections of
     DoD 5200.2–R. PFR File, Tab 1 at 18, 21. The Board has not considered this argument
     because the appellant has not shown that it is based on new and material evidence not
     previously available despite his due diligence. See Banks v. Department of the Air
     Force, 4 M.S.P.R. 268, 271 (1980). To the extent that the appellant argues that the
     agency violated DoD 5200.2-R, C8.2.2 when it removed him given the Board’s finding
     in a separate appeal that the agency committed harmful procedural error by violating
     DoD 5200.2-R, C8.2.2 when it indefinitely suspended him, see Hebert v. Department of
     the Navy, MSPB Docket No. SF-0752-12-0718-I-2, Final Order (July 16, 2014), we find
     his argument without merit, see Schnedar, 120 M.S.P.R. 516, ¶ 10. Specifically, the
     record shows that the appellant received all of the procedural protections of DoD
     5200.2-R, C8.2.2 prior to his removal; that is, provision of a statement of the reasons
     for the unfavorable administrative action, I-1, IAF, Tab 5, Subtab 4l, the opportunity to
     respond, I-2, IAF, Tab 3, Exhibit 5, a written decision from DONCAF, I-1, IAF, Tab 5,
     Subtab 4k, the opportunity to appeal to the relevant PSAB, id., Subtab 4j, and a written
     decision from the PSAB prior to taking the removal action, id., Subtabs 4f, 4h.
                                                                                          6

     when it failed to request that OPM conduct a new PSI on him prior to revoking
     his security clearance. PFR File, Tab 1 at 19, 26-27. However, we agree with the
     administrative judge’s conclusions that the agency’s actions were not conducted
     in the context of an initial appointment or reinvestigation such as to trigger the
     regulations set forth in chapter 6. ID at 10-11; I-2, IAF, Tab 9, Subtab IIIII.
     Rather, the agency’s actions involved the regulations set forth in chapter 8 of
     SECNAV M-5510.30 concerning unfavorable eligibility determinations and
     restrictions.     I-1, IAF, Tab 5, Subtab 4o.       As properly explained by the
     administrative judge, the appellant has not shown error concerning the agency’s
     compliance with SECNAV M-5510.30, chapter 8. ID at 10-11; I-1, IAF, Tab 5,
     Subtab 4o.
¶9         Chapter 12 of SECNAV M-5510.36 sets forth the agency’s Information
     Security Program’s policies and procedures in the event of a loss or compromise
     of   classified    information. 4    SECNAV       M-5510.36,      paragraph    12-1.1,
     http://doni.daps.dla.mil/SECNAV%20Manuals1/5510.36.pdf (last visited Sept.
     23, 2014). The appellant contends that the agency violated this regulation when it
     failed to timely initiate and conduct specific types of investigations upon learning
     of the security violations that led to the revocation of his clearance. PFR File,
     Tab 1 at 14-15, 21.        The initial investigation that uncovered the security
     violations, however, concerned, inter alia, a possible hostile work environment
     and was not initiated in the context of a security matter. I-1, IAF, Tab 5, Subtab
     4l. Although the agency subsequently investigated the security violations, the
     investigators were unable to determine whether classified information was lost or
     compromised as a result.       Id.; I-2, IAF, Volume 7, Hearing Compact Disc at
     2:08:35-2:10:00 (testimony of the Assistant Security Manager). We find that the

     4
       The administrative judge rejected the appellant’s submission containing a copy of
     SECNAV M-5510.36 as untimely filed without good cause shown for the delay. ID at
     5-6. For purposes of our analysis of the claim, we have reviewed the regulation online.
     SECNAV M-5510.36, http://doni.daps.dla.mil/SECNAV%20Manuals1/5510.36.pdf (last
     visited Sept. 23, 2014).
                                                                                         7

      appellant has failed to provide any basis to disturb the administrative judge’s
      finding that the agency did not err when it did not perform its investigation
      pursuant to SECNAV M-5510.36, chapter 12, given the absence of a loss of
      classified information.   ID at 10-11.     Moreover, assuming arguendo that the
      agency did commit procedural error in this regard, the appellant has not shown
      that the agency was likely to have reached a different decision had the error not
      occurred considering the investigations that were conducted did not reveal a loss
      or compromise of classified information. See Schnedar v. Department of the Air
      Force, 119 M.S.P.R. 246, ¶ 12 (2013).
¶10         On review, the appellant repeatedly claims that the agency denied him due
      process by violating its own regulations when it removed him. PFR File, Tab 1 at
      17-21, 27.    These arguments are properly analyzed as claims of harmful
      procedural error, as addressed above.      See Schnedar, 120 M.S.P.R. 516, ¶ 8.
      Nevertheless, an employee has a right to minimum due process of law in
      connection with an adverse action based on a security eligibility determination.
      See Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 13 (2014).
      Specifically, an employee has a right to notice of the grounds in support of the
      adverse action and a meaningful opportunity to respond to the notice and to
      invoke the discretion of a deciding official with the authority to select an
      alternative penalty, to the extent an alternative penalty is feasible. Id., ¶¶ 25-28.
      Here, the administrative judge found, and the appellant does not dispute, that the
      agency provided him with notice and a meaningful opportunity to respond to a
      deciding official with the discretion to impose a penalty other than removal. ID
      at 8, 12; I-1, IAF, Tab 5, Subtabs 4b-4d, 4f. Therefore, the appellant has not
      established a violation of his due process rights.
¶11         The appellant additionally alleges on review that the administrative judge
      abused his discretion by denying his motion for a continuance to present certain
      deposition testimony and by excluding the testimony of several witnesses at the
      hearing. PFR File, Tab 1 at 2-4. The Board will not reverse an administrative
                                                                                       8

      judge’s rulings on discovery matters and the exclusion of witnesses absent an
      abuse of discretion. See Ryan v. Department of the Air Force, 117 M.S.P.R. 362,
      ¶ 5 (2012). Here, the proffered deposition testimony concerned chapter 12 of
      SECNAV M-5510.36, and the proffered witness testimony concerned the
      agency’s investigations regarding the security violations at issue and the
      appellant’s allegations that the agency violated chapter 6 of SECNAV M-5510.30
      and chapter 12 of SECNAV M-5510.36.           PFR File, Tab 1 at 2-4, 6-12, 15.
      Because the Board lacks jurisdiction to review the merits of the underlying
      clearance determination and because, as we found above, SECNAV M-5510.30,
      chapter 6, and M-5510.36, chapter 12, are inapplicable to the present appeal, we
      find no abuse of discretion. See Fox v. Department of the Army, 120 M.S.P.R.
      529, ¶ 42 (2014) (an administrative judge has wide discretion under 5 C.F.R.
      § 1201.41(b)(8), (10) to exclude witnesses where it has not been shown that their
      testimony would be relevant, material, and nonrepetitious).
¶12        Finally, as the administrative judge properly noted, the Board cannot
      adjudicate whether an agency’s adverse action, which is premised on the
      suspension or revocation of a security clearance, constitutes impermissible
      discrimination or retaliation.     ID at 14 (citing Doe v. Department of
      Justice, 118 M.S.P.R. 434 (2012)); see Putnam v. Department of Homeland
      Security, 121 M.S.P.R. 532, ¶ 18 (2014). Accordingly, we decline to adjudicate
      the appellant’s retaliation claim. To the extent that the administrative judge made
      findings concerning the retaliation claim in the initial decision, we vacate those
      findings.   ID at 12-14.    In addition, we similarly decline to adjudicate the
      appellant’s claim on review that he was discriminated against because of his
      “association with a minority.” PFR File, Tab 1 at 27.
                                                                                9

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
                                                                                   10

the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.           See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.
     If you are interested in securing pro bono representation for your court
appeal, 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 court. The 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.
