MSPB Orders Cancellation of Indefinite Suspension after Air Force Violated Procedural Protections

An Air Force Information Technology Specialist, as a condition of his employment, was required to maintain a security clearance. When he received a notice of intent to revoke his clearance, and a subsequent final decision by the Air Force Central Adjudication Facility (“AFCAF”) revoking his security clearance on June 21, 2010, he was informed of his right to appeal the revocation to the Personnel Security Appeals Board (“PSAB”). But on October 20, 2010, while the employee was in the process of appealing the revocation, the agency proposed to remove the employee based on the revocation. The decision to remove the employee was mitigated to an indefinite suspension pending the appeal decision by the PSAB. The employee appealed his indefinite suspension, but on May 9, 2011, after receiving a decision upholding the revocation by the PSAB, the agency again proposed his removal and the employee voluntarily resigned. When the employee received the MSPB administrative judge’s initial decision affirming the indefinite suspension, he petitioned the full Merit Systems Protection Board (“the Board”) for review to determine whether the agency had violated its own regulations. On January 16, 2014, after a remand and another petition for review to the Board, the Board reversed the decision of the administrative judge and canceled the employee’s indefinite suspension.

In his first petition for review to the Board, the employee claimed that the Air Force had violated Department of Defense (“DoD”) regulation 5200.2-R by taking an administrative action (the indefinite suspension) against him prior to the receipt of a final PSAB revocation decision. Because it found the employee’s interpretation plausible, the Board remanded the case to the administrative judge for a determination of whether the agency violated 5200.2-R, and if it did, whether the procedural error in so doing was harmful to the employee.

The administrative judge, on remand, found that the relevant portion of DoD regulation 5200.2-R (which sets forth procedures relating to an “unfavorable administrative action,” including an adverse action taken as a result of a personnel security determination) was inapplicable, and that even if it was applicable, the employee hadn’t been harmed by the error stemming from the agency’s failure to apply the regulation when it suspended the employee prior to his receipt of the PSAB decision. After that determination was made, the full Board was petitioned once more to review the MSPB administrative judge’s decision.

The Board observed that traditionally, the only determinations the Board would be allowed to review in a security clearance case would be whether the employee’s position required a security clearance, whether the clearance was denied or revoked, and whether the employee was provided with the procedural protections specified in 5 USC § 7513. Those determinations were easily made by the Board, as they were undisputed: the employee’s position as an Information Technology Specialist required a security clearance; his clearance was revoked, and the agency did provide the procedural protections required by statute.

But, as the Board noted, there are agency regulations which also provide procedural protections for employees subject to adverse actions by the agency. Agencies must comply with their own regulations just as they kowtow to statute. The Board cited Romero v. Department of Defense, 527 F.3d 1324, 1328 (Fed. Cir. 2008) to show that the Board may review, alongside the factors listed above, whether the agency complied with its own procedures for revoking a security clearance, and whether the agency complied with its own procedures for taking an adverse action based on the revocation of a security clearance.

While the DoD regulation states clearly that it “is intended only to provide guidance for the internal operation of the Department of Defense and is not intended to, does not, and may not be relied upon, to create or enlarge the jurisdiction or review authority of any court or administrative tribunal, including the Merit Systems Protection Board,” the Board pointed out that its authority to review whether an agency complies with its own regulations stems from a “preexisting obligation” under federal statute at 5 USC § 154.55(a) and does not need to be “enlarged” by the DoD regulations to grant the Board jurisdiction over such matters.

Finding that the agency could not relieve the Board of its jurisdiction, the Board considered whether the agency was in compliance with chapter 8 of DoD regulation 5200.2-R when it reached its decision to indefinitely suspend the appellant.

Section C8.2.2 of DoD regulation 5200.2-R states that “no unfavorable administrative action shall be taken under the authority of this regulation” unless the employee concerned has been afforded certain procedures set forth in the regulation. Those procedural protections include the necessity of a statement of the reasons for the unfavorable administrative action, the opportunity to respond to the AFCAF, a written decision from the AFCAF, the opportunity to respond to the PSAB, and a written decision from the PSAB.

The Board determined, after review of the record, that the agency did not comply with the requirements of DoD 5200.2-R, chapter 8. Because the employee had not yet received the PSAB’s final decision when the indefinite suspension was effected (even though the PSAB had reached a decision, neither the agency nor the employee had received it by that time), he had not been “provided a written decision by the PSAB,” as required.

While the administrative judge found the agency’s argument that the provisions of the DoD regulation were not intended to restrict indefinite suspensions due to security determinations, the Board found that argument to be inconsistent with precedent, and with the language of the DoD regulation, which cover “any adverse action” taken following a personnel security determination. The Board found that indefinite suspensions fell under the definition of “any adverse action,” and that because the indefinite suspension was effected before the employee had received the process he was due, the agency had committed procedural error.

The Board cited Stephen v. Department of the Air Force, 47 MSPR 672, 681, 685 (1991) to define an agency error as “harmful” where the record shows that the procedural error was likely to have caused the agency to reach a different conclusion. Finding that the aforementioned procedural error was “plainly harmful,” the Board wrote that “if the agency had complied with its regulations it would not have placed the appellant in a non-pay status on March 27, 2011, but would have awaited his receipt of the final decision from PSAB before taking any adverse action.”

For the above stated reasons, the Board found harmful procedural error and ordered the agency to cancel the indefinite suspension and to award the appropriate amount of back pay, interest, and benefits due.

This case law update was written by Conor D. Dirks, associate attorney,Shaw Bransford & Roth, PC.

Posted in Case Law Update

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