                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2014 MSPB 66

                             Docket No. DA-0752-13-0445-I-1

                                     Jorge R. Munoz,
                                         Appellant,
                                               v.
                          Department of Homeland Security,
                                             Agency.
                                      August 20, 2014

           Jorge R. Munoz, El Paso, Texas, pro se.

           Peter Arcuri, El Paso, Texas, for the agency.

                                             BEFORE

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



                                 OPINION AND ORDER

¶1         The appellant has petitioned for review of the initial decision that affirmed
     the agency’s indefinite suspension action. For the reasons set forth below, we
     DENY the petition for review and AFFIRM the initial decision AS MODIFIED to
     reflect that consideration of the factors set forth in Douglas v. Veterans
     Administration, 5 M.S.P.R. 280, 305-06 (1981), would be inappropriate in
     determining the penalty in this case.
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                                       BACKGROUND
¶2         The appellant is employed as a Program Manager with U.S. Customs and
     Border Protection (CBP).      Initial Appeal File (IAF), Tab 1 at 2, Tab 5 at 25
     of 139. As a condition of employment, the appellant is required to obtain and
     maintain a Top Secret security clearance. IAF, Tab 5 at 30 of 139. In October
     2011, the agency’s Personnel Security Division (PSD) suspended the appellant’s
     security clearance. Id. at 16 of 106. On September 17, 2012, PSD provided the
     appellant with a notice of determination to revoke his eligibility for access to
     classified information and a Statement of Reasons (SOR) underlying its
     determination. Id. at 19-25 of 106. The appellant submitted a response to the
     SOR. Id. at 63-67 of 106. On January 3, 2013, the Deputy Chief Security Officer
     issued a letter affirming the decision of the PSD. Id. at 71-72 of 106. Thereafter,
     the appellant filed an appeal with the Security Appeals Board. 1         Id. at 75-76
     of 106.
¶3         By letter dated January 15, 2013, the agency proposed to indefinitely
     suspend the appellant without pay based on the charge of “revocation of security
     clearance.” Id. at 78-80 at 106. The appellant responded orally and in writing to
     the deciding official.   Id. at 82-104 of 106.     On May 17, 2013, the deciding
     official issued a decision letter sustaining the proposed indefinite suspension. Id.



     1
       As further explained in this decision, Department of Homeland Security (DHS)
     procedures provide for two levels of review following a decision by the PSD to revoke
     an employee’s access to classified information. DHS Instruction Handbook 121-01-
     007, “The DHS Personnel Suitability and Security Program,” (hereinafter referred to as
     DHS Instruction Handbook), ch. 6 (2009) (located in the record at IAF, Tab 5 at 56-60
     of 106). First, the employee may appeal PSD’s decision to a second-level deciding
     authority. DHS procedures state that, for the Office of the Secretary and components
     without security offices, the second-level deciding authority is the DHS Chief Security
     Officer or his or her designee. Here, the second-level deciding official was the Deputy
     Chief Security Officer. IAF, Tab 5 at 71-72 of 106. Following a decision by the
     second-level deciding officer, a DHS employee may appeal that decision to a third-level
     deciding authority—the Security Appeals Board.
                                                                                            3

     at 21-23 of 139. The deciding official notified the appellant that the indefinite
     suspension would be effective May 21, 2013, and that the appellant would be
     indefinitely suspended until a final determination by the appropriate deciding
     official and/or the Security Appeals Board. Id. at 21.
¶4         The appellant subsequently filed an appeal contesting his indefinite
     suspension. IAF, Tab 1. Following a hearing, the administrative judge issued an
     initial decision affirming the agency’s action. IAF, Tab 13, Initial Decision (ID)
     at 1, 9. The administrative judge found that the agency proved its charge and
     afforded the appellant the protections set forth under 5 U.S.C. § 7513. ID at 6.
     The administrative judge further found that the agency established that the
     penalty was reasonable and that it bore a nexus to the efficiency of the service.
     ID at 6-9.
¶5         The appellant timely filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response to the appellant’s petition. 2 PFR
     File, Tab 3.




     2
       After the agency filed its response, the appellant filed a pleading titled “[i]nstant
     [a]ppeal to terminate indefinite suspension,” PFR File, Tab 4, and the agency filed a
     reply to the appellant’s pleading, PFR File, Tab 5. In his pleading, the appellant
     contends for the first time on review that the Security Appeals Board sustained the
     revocation of his security clearance on November 1, 2013, but that the agency has not
     acted to end his indefinite suspension or propose another adverse action. PFR File,
     Tab 4 at 4. On January 9, 2014, the appellant filed a separate appeal with the Dallas
     Regional Office in which he raised this issue; the administrative judge issued an initial
     decision in that appeal on August 5, 2014. Munoz v. Department of Homeland Security,
     MSPB Docket No. DA-0752-14-0194-I-1. In the interest of judicial efficiency, we do
     not further address this issue here because it was already considered by the regional
     office.
                                                                                       4

                                        ANALYSIS
     The agency proved its charge and provided the appellant with the procedural
     protections required by statute.
¶6         In Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), the
     Supreme Court held that in an appeal of an adverse action under chapter 75 based
     on the denial or revocation of a required security clearance, the Board may not
     review the merits of the underlying clearance determination but may review, inter
     alia, whether the employee’s position required a security clearance, whether the
     security clearance was revoked, and whether the procedures set forth in 5 U.S.C.
     § 7513(b) were followed. The administrative judge properly applied the scope of
     review set forth in Egan to this appeal. ID at 2-3.
¶7         As noted by the administrative judge, it is undisputed that the appellant’s
     position required a security clearance.    ID at 5; IAF, Tab 5 at 30 of 139. In
     addition, the appellant’s access to classified information, and thereby his security
     clearance, was revoked.     IAF, Tab 5 at 19-22 of 106; The DHS Personnel
     Security Process, OIG-09-65 (2009) (defining a security clearance as a
     determination that a person can access classified information); DHS Instruction
     Handbook, ch. 6 (2009) (using the terms “security clearance” and “access to
     classified information” interchangeably). 3   Accordingly, the agency proved its
     charge of revocation of security clearance by preponderant evidence. See Buelna
     v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 11 (2014) (sustaining
     an agency’s charge of suspension of the appellant’s Top Secret security clearance
     where the position required a security clearance and the clearance was
     suspended); Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 8 (2014)
     (sustaining a charge of denial of eligibility to occupy a sensitive position where



     3
      The relevant part of the DHS Instruction Handbook is located in the record at IAF,
     Tab 5 at 56 of 106.
                                                                                       5

      the appellant’s position was designated noncritical sensitive and where the
      agency denied him eligibility to occupy a sensitive position).
¶8          We further find that the agency provided the appellant the procedural
      protections required by statute. Specifically, the agency provided the appellant
      with 30 days’ advance written notice of the proposed indefinite suspension, the
      reasons for the proposed action, and a reasonable opportunity to reply.       IAF,
      Tab 5 at 78-80 of 106; see 5 U.S.C. § 7513(b)(1) & (2).          The agency further
      notified the appellant of his right to be represented by an attorney and with a
      written decision letter. IAF, Tab 5 at 21-23 of 139, 79 of 106; see 5 U.S.C.
      § 7513(b)(3) & (4).
      The appellant has not established harmful procedural error.
¶9          Section 7513 is not the only source of procedural protections for employees
      subject to adverse actions based on the denial, revocation, or suspension of a
      security clearance; agencies also must comply with the procedures set forth in
      their own regulations.    Romero v. Department of Defense, 527 F.3d 1324,
      1328-30 (Fed. Cir. 2008); Schnedar v. Department of the Air Force, 120 M.S.P.R.
      516, ¶ 8 (2014). Under 5 U.S.C. § 7701(c)(2)(A), the Board may not sustain an
      adverse action decision if the employee can show “harmful error in the
      application of the agency’s procedures in arriving at such decision.” Hence, as
      the Federal Circuit held in Romero, the Board may review whether the agency
      complied with its own procedures for revoking a security clearance. Romero,
      527 F.3d at 1329. The Board also may review whether the agency complied with
      its own procedures for taking an adverse action based on such revocation.
      Schnedar, 120 M.S.P.R. 516, ¶ 8.
¶10         DHS has set forth agency-wide procedures applying to determinations
      regarding access to classified information and the denial or revocation of access
                                                                                           6

      to classified information. 4   DHS Instruction Handbook, ch. 6.          Under these
      procedures, a DHS employee who has been denied access to classified
      information, or who has had his access to classified information revoked, is
      entitled to, among other things:      (1) a written notice of determination by a
      first-level deciding authority informing the individual that his access to classified
      information has been denied or revoked and providing the individual with a
      written explanation for the determination; (2) the opportunity to reply to the
      notice of determination in writing and to request review of the notice of
      determination with a second-level deciding authority; (3) a written notice of
      review by a second-level deciding authority if the individual has requested review
      of the notice of determination; (4) the opportunity to file an appeal with the
      Security Appeals Board, if the second-level deciding authority’s decision is to
      uphold the notice of determination; and (5) a written decision by the Security
      Appeals Board to either grant or deny access to classified information, if the
      individual has requested review of the second-level deciding authority’s notice of
      review. 5 Id.
¶11         The record reflects that the agency complied with its procedures in
      revoking the appellant’s security clearance.       In particular, PSD provided the
      appellant with a written notice of determination advising him of its decision to
      revoke his eligibility for access to classified information.     IAF, Tab 5 at 19-22
      of 106.    PSD further provided the appellant with a SOR underlying its
      determination. Id. at 23-25 of 106. The appellant was given the opportunity to

      4
        These procedures state that they create no procedural or substantive rights. However,
      the Board’s authority to review whether the agency complied with its own procedures
      derives from our preexisting obligation under 5 U.S.C. § 7701(c)(2)(A), and does not
      stand in need of creation or enlargement. Schnedar, 120 M.S.P.R. 516, ¶ 9. To the
      extent the procedures may purport to restrict that authority, we do not follow them, as
      the agency is without authority to relieve the Board of its statutory obligations. Id.
      5
       The relevant pages of the DHS Instruction Handbook are located in the record at IAF,
      Tab 5 at 56-60 of 106.
                                                                                        7

      appeal PSD’s notice of determination to the Deputy Chief Security Officer, who
      then issued the appellant a written notice of appeal. Id. at 71- 72 of 106. The
      appellant was also provided with the opportunity to file an appeal with the
      Security Appeals Board. Id. at 72 of 106.
¶12           We note that the agency effected the appellant’s indefinite suspension prior
      to the issuance of a final decision by the Security Appeals Board. In Schnedar,
      the Board found that the Department of the Air Force failed to comply with
      Department of Defense (DoD) regulations concerning personnel security
      determinations when it indefinitely suspended the appellant based on the
      revocation of his security clearance prior to the appellant’s receipt of a final
      decision by the Personnel Security Appeals Board. Schnedar, 120 M.S.P.R. 516,
      ¶ 12.      However, by their own terms, DoD regulations relating to personnel
      security determinations cover “an adverse action that is taken as a result of a
      personnel security determination.”     Id. at ¶¶ 9-11; DoD regulation 5200.2-R,
      C8.1. Unlike DoD regulations, DHS procedures applying to security clearance
      determinations do not reference adverse actions and therefore do not apply to the
      indefinite suspension on appeal in this case.
      The agency established nexus and the reasonableness of the penalty.
¶13           It is well settled that, where an adverse action is based on the failure to
      maintain a security clearance required by the job description, the action promotes
      the efficiency of the service because “the absence of a properly authorized
      security clearance is fatal to the job entitlement.” Robinson v. Department of
      Homeland Security, 498 F.3d 1361, 1365 (Fed. Cir. 2007).           Accordingly, we
      agree with the administrative judge’s finding that the agency established nexus.
      ID at 9.
¶14           Regarding the penalty, the appellant contends that the agency treated him
      less favorably than comparator employees. IAF, Tab 11 at 2; PFR File, Tab 1
      at 4. In particular, the appellant contends that he had overheard a conversation
      that suggested that another employee whose security clearance was revoked was
                                                                                       8

      reassigned to another position. Hearing Compact Diskette (CD) (testimony of the
      appellant). An appellant’s allegation that the agency treated him disparately as
      compared to another employee, without a claim of prohibited discrimination, is
      an allegation of disparate penalties to be proven by the appellant and considered
      by the Board in determining the reasonableness of the penalty, but it is not an
      affirmative defense. Woebcke v. Department of Homeland Security, 114 M.S.P.R.
      100, ¶ 20 (2010).    The consistency of an agency-imposed penalty with those
      imposed on other employees for the same or similar offenses is one factor the
      Board will consider under Douglas, 5 M.S.P.R. at 305-06, 6 in determining
      whether the penalty is reasonable, Woebcke, 114 M.S.P.R. 100, ¶ 20.
¶15         The traditional Douglas factors analysis, however, does not apply in this
      instance. The agency’s indefinite suspension action was not a sanction or penalty
      for misconduct; rather, it was based on the revocation of the appellant’s security
      clearance required for his position.        Cf. Brown v. Department of the
      Interior, 121 M.S.P.R. 205, ¶ 18 (2014) (finding that the analysis for mitigating
      the penalty under Douglas does not apply where the agency’s action is based on
      physical inability to perform, consistent with the Board’s practice of not applying
      them to nondisciplinary matters). Moreover, the Board has declined to consider
      the Douglas factors in cases involving adverse actions based on security
      clearance or eligibility determinations where an employee has not been provided
      a substantive right to reassignment through statute or regulation.     See Ryan v
      Department of Homeland Security, 2014 MSPB 64, ¶¶ 1, 9 (indefinite suspension
      based on suspension of a security clearance); Flores, 121 M.S.P.R. 287, ¶¶ 1-2,
      12 (removal based on ineligibility to occupy a sensitive position). The Board has
      found that consideration of the Douglas factors would be inappropriate in such
      cases because, in the absence of a statute or regulation requiring the agency to

      6
        In Douglas, the Board listed twelve nonexhaustive factors that are relevant in
      assessing the penalty to be imposed for an act of misconduct. 5 M.S.P.R. at 305-06.
                                                                                        9

      seek out alternative employment, the Board lacks the authority to review whether
      an employee’s reassignment to a position not requiring a security clearance would
      have been feasible. Ryan, 2014 MSPB 64, ¶ 9; Flores, 121 M.S.P.R. 287, ¶ 12;
      see Griffin v. Defense Mapping Agency, 864 F.2d 1579, 1580-81 (Fed. Cir. 1989)
      (finding that, in the absence of a statute, regulation, or policy mandating the
      transfer or reassignment of an employee who is denied a security clearance, “the
      Board has no role” in reviewing whether an employee should have been
      reassigned instead of receiving an adverse action).
¶16         We discern no statute or regulation requiring the agency to seek out
      alternative employment for the appellant in this case.    We therefore lack the
      authority to consider whether the agency could have reassigned the appellant to a
      position not requiring a security clearance, even if it had previously reassigned
      similarly-situated employees to such positions. Thus, to the extent the appellant
      contends that at least one other comparator employee had been reassigned
      following the revocation of that employee’s security clearance, we decline to
      consider this claim under Douglas.          See Ryan, 2014 MSPB 64, ¶ 9;
      Flores, 121 M.S.P.R. 287, ¶ 12.       Based on the foregoing, we find that the
      agency’s chosen penalty does not exceed the tolerable limits of reasonableness.

                                            ORDER
¶17         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. You must submit your request to
      the court at the following address:
                                                                                 10

                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439

         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 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 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.
         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
                                                                         11

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.
