NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ODESSA W. PHILLIPS,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
2010-3160
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT0752100006-I-1.
___________________________
Decided: January 18, 2011
___________________________
ODESSA W. PHILLIPS, Palm Bay, Florida, pro se.
A. BONDURANT ELEY, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director.
__________________________
PHILLIPS v. AIR FORCE 2
Before GAJARSA, DYK, and PROST, Circuit Judges.
PER CURIAM.
Ms. Odessa W. Phillips appeals the final order of the
Merit Systems Protection Board (“MSPB” or “Board”) that
denied her petition for review, making the initial decision
of the Administrative Judge (“AJ”) final. In her initial
decision, the AJ found that the Department of the Air
Force (“Air Force” or “agency”) followed regulations pro-
scribed in 5 U.S.C. § 7513, properly explained to appellant
her appeal rights in writing, and that the appellant failed
to show that the agency committed error. The AJ also
determined that the appellant failed to establish any
affirmative defense, and thus affirmed the agency’s ac-
tion. Because the Board did not commit any legal error,
we affirm.
BACKGROUND
Ms. Phillips was employed by the Air Force at Patrick
Air Force Base, Florida, as a Guidance Counselor. The
Guidance Counselor position is designated as non-critical
sensitive and requires a security clearance as a condition
of employment. On May 14, 2008, the Air Force issued a
Statement of Reasons (“SOR”) to revoke Ms. Phillips’s
eligibility for access to classified information, to which
Ms. Phillips responded in writing. On August 19, 2008,
the Air Force Central Adjudication Facility (“AFCAF”)
issued a Letter of Denial (“LOD”) denying Ms. Phillips’s
security clearance eligibility for access to classified infor-
mation. The LOD stated that Ms. Phillips could appeal
the LOD “in one of two ways”:
a. By notifying the Personnel Security
Appeal Board . . . within 10 calendar
days after you receive this LOD of
your intent to appeal directly to the
3 PHILLIPS v. AIR FORCE
PSAB and by providing the PSAB
within the next 30 calendar days with
any supporting material not already
provided as to why the LOD should be
overturned; OR
b. By requesting a personal appearance
before an Administrative Judge to
present your case. If you request a
personal appearance, it must be sent
to the Air Force Central Adjudication
Facility . . . within 10 calendar days of
your receipt of the LOD. A form (at-
tachment 2) for requesting a personal
appearance is appended.
On October 6, 2008, Ms. Phillips signed a “Notice of
Intent to Appeal” form on which it indicated to “check one
of the following”: a) to appeal directly to the Personnel
Security Appeal Board (“PSAB”), or b) a personal appear-
ance before a Deference Office of Hearings and Appeals
(“DOHA”) AJ. On that form, Ms. Phillips elected the
PSAB appeal option.
On May 7, 2009, the PSAB upheld the AFCAF deci-
sion to revoke her security clearance. On June 29, 2009,
Ms. Phillips attempted to appeal the PSAB’s final decision
to a DOHA AJ.
On July 1, 2009, the Air Force issued a Notice of Pro-
posed Removal, citing “loss of condition of employment” as
the reason. Ms. Phillips submitted written replies to the
notice, but the removal became final on August 28, 2009.
Ms. Phillips appealed her removal to the MSPB. She
requested a hearing, which was conducted by telephone
on December 9, 2009.
PHILLIPS v. AIR FORCE 4
In the initial decision, the AJ found that “the agency
explained the appellant’s appeal rights to her in writing,
as it was required to do and that the appellant failed to
show that the agency committed any error in this regard.”
The AJ concluded that Ms. Phillips also failed to establish
any affirmative defense, and thus affirmed the agency’s
action.
Ms. Phillips then filed a petition for review with the
full Board. The MSPB denied the petition for review,
making the initial decision of the AJ final. The Board
also found that Ms. Phillips “failed to preserve for review
her claim that the [AJ] . . . erred in allowing a witness to
testify without producing her notes,” and so denied her
request to remand the appeal. This appeal followed. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9)
(2006).
ANALYSIS
This court may reverse a decision of the MSPB only if
it is: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); Dickey v. Office of Pers. Mgmt.,
419 F.3d 1336, 1339 (Fed. Cir. 2005).
Ms. Phillips first asserts that the “Agency did not
comply with discovery. The main security document had
over 40 page[s] missing that was used to deny the Appel-
lant her clearance.” However, the MSPB is precluded
from conducting a review of the merits of a security
clearance revocation where an employee is removed for
cause for failure to maintain a security clearance. Dep’t of
Navy v. Egan, 484 U.S. 518, 530-31 (1988). Thus, the AJ
properly excluded such evidence and testimony concern-
5 PHILLIPS v. AIR FORCE
ing the merits of Ms. Phillips’s security clearance from the
proceedings.
To the extent that Ms. Phillips is arguing that she
should have been reassigned to a position that did not
require a security clearance, the Board’s review of the
penalty imposed upon her was limited to considering
whether the Air Force has a formal policy requiring
reassignment, and if so, whether there is a position to
which she could have been reassigned. Blagaich v. Dep’t
of Transp., 63 Fed. Appx. 476, 479 (Fed. Cir. 2003). The
AJ found, and Ms. Phillips does not dispute in this appeal,
that she did not identify any formal policy requiring the
Air Force to reassign her to a position that did not require
a security clearance. Thus, the AJ correctly recognized
the MSPB’s limits on appeal and her decision is legally
correct.
Third, Ms. Phillips asserts that she “was denied the
right to call her witnesses at the hearing” and that “Ap-
pellant has [been] given the right to raise his [sic] prohib-
ited discrimination [claims].” However, Board review of
such issues is prohibited: “The Board may not rule on the
agency’s security-sensitive judgments and discrimination
and reprisal allegations that are inextricably intertwined
with the agency’s denial of a security clearance.” Hinton
v. Dep’t of Navy, 61 M.S.P.R. 692, 697 (1994). Therefore,
these issues were properly excluded from consideration by
the AJ.
Next, Ms. Phillips argues that that the Air Force
failed to follow DOD 5200.2-R, Air Force Instruction 31-
501(f), and the written instructions set out in a form letter
dated August 19, 2009 from AFCAF, because the agency
allegedly failed to “ensure” that she “understood” her
appeal rights. The AJ however, correctly concluded that
neither regulation requires the Air Force to “ensure” Ms.
PHILLIPS v. AIR FORCE 6
Phillips “underst[ood]” her appeal rights following the
issuance of a LOD.
Further, the evidence in the record shows that the Air
Force did follow the proscribed regulations. Although Ms.
Phillips denied receiving both the August 19, 2009 letter
and a form entitled “Instructions for Appealing a Letter of
Denial/Revocation,” she admitted to receiving the August
19, 2009 LOD. In that letter, the agency unequivocally
advised her in writing that she could appeal the LOD in
“one of two ways”: (1) in writing before the PSAB, or (2) by
requesting a personal appearance before a DOHA AJ.
Thus, there is substantial evidence in the record to sup-
port the AJ’s finding that the Air Force explained to Ms.
Phillips that she could elect to appeal her LOD in one of
two ways.
The AJ also considered Ms. Phillips’s testimony, in
which she indicated that she understood from her conver-
sation with Michael Breitner, an Air Force Personnel
Security Manager, that she could appeal to a DOHA AJ if
the PSAB denied her appeal. However, the AJ found that
she was unable to identify any specific statements by Mr.
Breitner that led her to that belief. In addition, she
conceded that both appeal options were discussed and
that, as the AJ found, all the documentation she acknowl-
edged she received reflected that she had a choice of only
one of two options. Ms. Phillips’s contentions were fur-
ther contradicted by the testimony of Mr. Breitner, whom
the AJ found to be a more credible witness.
Ms. Phillips also argues that Mr. Breitner was not re-
quired to produce certain documents that he consulted
during his hearing testimony and that he “had full use of
his computer while he was testifying.” However, because
these arguments could have been made at the hearing,
but were not, the arguments are waived on appeal.
7 PHILLIPS v. AIR FORCE
Lastly, Ms. Phillips argues some procedural points,
such as the agency’s lack of “evidence about the identity of
the employee who furnished . . . [her] with the LOD or
even the date that Ms. Phillips received the LOD,”
whether a live court reporter was present for the hearing,
the production of “pre-hearing tapes” on remand to the
Board, and whether Mr. Breitner was the correct individ-
ual to be processing her clearance. Her allegations are
irrelevant to the issues in the present case and do not
present a basis for reversal of the Board’s decision.
Accordingly, because Ms. Phillips has failed to estab-
lish any affirmative defense to her removal, and because
the decision of the AJ is supported by substantial evi-
dence, we affirm.
No costs.