NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAMON J. BROWN,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2015-3036
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-10-0294-I-2.
______________________
Decided: May 9, 2016
______________________
ANDRES MYLES GRAJALES, Office of General Counsel,
American Federation of Government Employees, Wash-
ington, DC, argued for petitioner. Also represented by
DAVID A. BORER.
HILLARY STERN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
______________________
2 BROWN v. DEFENSE
Before PROST, Chief Judge, DYK and O’MALLEY, Circuit
Judges.
PROST, Chief Judge.
Damon J. Brown appeals the final decision of the Mer-
it Systems Protection Board (“Board”), sustaining his
removal from his position with the United States Defense
Finance and Accounting Service (“DFAS”). For the rea-
sons discussed below, we vacate the Board’s decision and
remand for further proceedings.
BACKGROUND
From 1991 until his removal, Mr. Brown was an ac-
counting technician with DFAS. Effective January 7,
2007, DFAS changed the security designation of Mr.
Brown’s position to “Non-Critical Sensitive.” As a conse-
quence of the change, Mr. Brown submitted a Standard
Form 85P Questionnaire for Public Trust Positions to the
Department of Defense, Washington Headquarters Ser-
vice (“WHS-CAF”).
On February 11, 2008, WHS-CAF sent Mr. Brown a
Statement of Reasons (“SOR”) which informed him of its
intent to deny his eligibility for a sensitive position based
on a number of outstanding debts revealed by a credit
bureau report. The SOR required Mr. Brown to
acknowledge receipt of the SOR and informed him that he
had the opportunity to respond through an “Agency
Security Director.” J.A. 121–22. The SOR also cautioned
that if his response was not received within the specified
timeframe, the denial would become final and he would
“forfeit all appeal rights” before WHS-CAF. Id. WHS-
CAF included instructions detailing how Mr. Brown
should respond to the SOR. The instructions noted that
Mr. Brown would be responsible for the substance of the
response and that he must sign it himself.
BROWN v. DEFENSE 3
Mr. Brown subsequently indicated to WHS-CAF that
he wished to submit a response. WHS-CAF gave Mr.
Brown a deadline of April 20, 2008, to submit a response
to Joe Lancaster, the designated Agency Security Direc-
tor.
On March 9, 2008, acting on Mr. Brown’s instruction,
James Brightbill, an attorney, sent a letter to Mr. Lancas-
ter with the subject line “In Re: Damon Brown Statement
of Reasons (SOR).” J.A. 141. In the letter, Mr. Brightbill
informed Mr. Lancaster that he was representing Mr.
Brown in an ongoing bankruptcy proceeding. Mr.
Brightbill also explained that Mr. Brown was seeking
bankruptcy protection and provided a list of Mr. Brown’s
outstanding creditors. The letter further stated that,
should Mr. Lancaster require additional information, he
should “feel free” to contact Mr. Brightbill. Id. The letter
was signed by Mr. Brightbill, but not by Mr. Brown. Mr.
Lancaster took no action after receiving the letter.
After the April 20 deadline had passed, Mr. Lancaster
telephoned Mr. Brown to tell him that he had not received
a timely response. Mr. Lancaster suggested that Mr.
Brown submit a late response and apologize for the delay.
Following Mr. Lancaster’s advice, Mr. Brown submitted a
response to WHS-CAF in which he apologized for the
tardy response and provided information regarding his
pending bankruptcy filing and outstanding debts.
On January 21, 2009, WHS-CAF issued a Letter of
Denial denying Mr. Brown eligibility to occupy a sensitive
position. WHS-CAF based its decision on Mr. Brown’s
failure to provide a response within the designated
timeframe. The Letter of Denial also informed Mr. Brown
that because he “failed to respond in the specified time,
this decision is final and is not subject to further appeal”
before WHS-CAF. J.A. 134. If Mr. Brightbill’s letter had
been construed as being in response to the SOR and had
4 BROWN v. DEFENSE
been forwarded to WHS-CAF, Mr. Brown would have had
the ability to appeal the denial.
Because Mr. Brown was not eligible to occupy a non-
sensitive position as a result of the WHS-CAF denial,
DFAS instituted removal proceedings ultimately resulting
in his removal effective April 24, 2009. In removing Mr.
Brown, DFAS noted that the removal was solely because
he no longer met the qualification requirements for his
position and “continued assignment to a set of temporary,
non-sensitive duties for an indefinite period of time
[would] not promote the efficiency of the service.” J.A.
139.
Mr. Brown appealed his removal to the Board. After
review, Mr. Brown’s removal was ultimately upheld by
the Board. In its decision, the Board held that it did not
have jurisdiction to review the merits of the denial of
eligibility, that Mr. Brown’s due process rights were not
violated, and that Mr. Brown had not proved that WHS-
CAF committed harmful procedural error by not consider-
ing Mr. Brightbill’s letter as a response. This appeal
followed.
We have jurisdiction over this appeal under 5 U.S.C.
§ 7703(a) and 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of the Board’s decision is limited by stat-
ute. We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). An agency’s decision is unsupported by
substantial evidence if no reasonable factfinder would
find the evidence sufficient to meet the applicable eviden-
tiary burden. Bradley v. Veterans Admin., 900 F.2d 233,
235 (Fed. Cir. 1990).
BROWN v. DEFENSE 5
In cases concerning the denial of eligibility to occupy a
sensitive position, our review is further limited to deter-
minations relating to whether an agency properly fol-
lowed its own internal procedures. See Romero v. Dep’t of
Def., 527 F.3d 1324, 1329 (Fed. Cir. 2008); King v. Alston,
75 F.3d 657, 661–62 (Fed. Cir. 1996). An agency’s ulti-
mate eligibility determination is unreviewable. Kaplan v.
Conyers, 733 F.3d 1148, 1160 (Fed. Cir. 2013) (en banc).
Under 5 C.F.R. § 1201.4(r), harmful error is error
“that is likely to have caused the agency to reach a con-
clusion different from the one it would have reached in
the absence or cure of the error.” Because it is an affirma-
tive defense, the party alleging harmful error has the
burden of proof to demonstrate that an error was harmful,
“i.e., that it caused substantial harm or prejudice to his
. . . rights.” 5 C.F.R. § 1201.4(r); see also id. at § 1201.56.
On appeal, Mr. Brown argues that WHS-CAF commit-
ted harmful procedural error when its agent, Mr. Lancas-
ter, failed to forward Mr. Brightbill’s letter to WHS-CAF
or otherwise contact Mr. Brown about the letter, which
prevented him from appealing the security denial to
WHS-CAF. According to the government, however, Mr.
Lancaster did not violate any regulations in failing to
forward the letter as he had no affirmative duty to assist
Mr. Brown with his response. The government further
argues that determining whether the alleged error was
harmful would require an impermissible review of the
WHS-CAF decision to deny Mr. Brown eligibility.
A
As the designated liaison between Mr. Brown and
WHS-CAF, Mr. Lancaster had a series of responsibilities
prescribed by regulation:
The duties of the [point of contact] will include,
but not necessarily be limited to, delivering the
SOR, having the individual acknowledge receipt of
6 BROWN v. DEFENSE
the SOR; determining whether the individual in-
tends to respond within the time specified; ensur-
ing that the individual understands the
consequences of the proposed action as well as the
[sic] to respond in a timely fashion; explaining
how to obtain time extensions, procure copies of
investigative records, and the procedures for re-
sponding to the SOR; and ensuring that the indi-
vidual understands that he or she can obtain legal
counsel or other assistance at his or her own ex-
pense.
Department of Defense Regulation 5200.2-R, Ch.
8.2.2.1.1.
The government argues that a point of contact’s re-
sponsibilities are limited to simply acting as a liaison
between WHS-CAF and an employee. Consequently, a
point of contact’s responsibilities go no further than
transmitting WHS-CAF correspondence to an employee
and forwarding an employee’s proper response to WHS-
CAF. This is incorrect. Under a fair reading of the De-
partment of Defense regulation, a point of contact is
required to facilitate an employee’s response. We con-
clude that, in the circumstances of this case, Mr. Lancas-
ter did not comply with the requisite duties, resulting in
Mr. Brown’s loss of his ability to appeal.
Here, Mr. Lancaster received a letter from Mr.
Brightbill, an attorney, purporting to relate to Mr.
Brown’s SOR. This letter provided information relevant
to the reasons WHS-CAF provided for denying Mr.
Brown’s eligibility. Mr. Lancaster, however, took no
action. Presumably, because Mr. Brightbill did not repre-
sent Mr. Brown before WHS-CAF, and Mr. Brown did not
sign the letter himself, Mr. Lancaster discarded or ig-
nored it. Under these circumstances, Mr. Lancaster, as
the sole point of contact between Mr. Brown and WHS-
CAF, had a responsibility to at least contact Mr. Brown to
BROWN v. DEFENSE 7
discuss the letter. If it had been meant as a response, Mr.
Brown would have had the opportunity to correct any
deficiencies, or to send a separate response which incorpo-
rated the letter’s contents. Instead, Mr. Lancaster waited
at least six weeks before he contacted Mr. Brown after the
deadline had passed, at which point he advised Mr.
Brown to submit a late reply with an apology.
It is quite possible that Mr. Lancaster was operating
under the mistaken assumption that WHS-CAF would
accept Mr. Brown’s late response and review the merits of
his case. We ascribe no bad faith to Mr. Lancaster in his
actions, as he may have genuinely believed that Mr.
Brown’s case would not be prejudiced by an untimely
response. However, by taking no action to advise Mr.
Brown or Mr. Brightbill of the deficiencies of the submis-
sion, which could have been cured, and only contacting
Mr. Brown after the deadline to respond had passed, Mr.
Lancaster caused Mr. Brown to submit an untimely
response, which was rejected. It was error.
B
The government is correct that WHS-CAF’s ultimate
eligibility determination is unreviewable. Kaplan, 733
F.3d at 1160. Thus, any harmful error defense requiring
a determination that Mr. Brown would have been granted
eligibility but for the error must fail. However, a harmful
error defense is not limited to final agency determina-
tions. A harmful error defense may be applied to a con-
clusion that causes “substantial harm or prejudice” to an
individual’s rights. 5 C.F.R. § 1201.56(c)(3). Therefore, a
party may raise a harmful error defense concerning an
agency’s ultimate conclusion, as well as any subsidiary
conclusion, as long as that conclusion has a substantial
impact on that party’s rights.
Here, the harm Mr. Brown alleges is not the denial of
eligibility to occupy a sensitive position. Rather, it is the
loss of his right to appeal that denial to WHS-CAF.
8 BROWN v. DEFENSE
Though Mr. Brown had no due process rights in connec-
tion with his eligibility, he did have statutory rights,
which, under WHS-CAF’s own procedures, included the
right to have an adequate opportunity to reply to WHS-
CAF and have that reply be considered. See Gargiulo v.
Dep’t of Homeland Sec., 727 F.3d 1181, 1186–87 (Fed. Cir.
2013). When WHS-CAF concluded that Mr. Brown should
be denied the opportunity to be heard, his statutory rights
were prejudiced.
It is undisputed that had Mr. Lancaster treated Mr.
Brightbill’s letter as a response and forwarded it to WHS-
CAF, then Mr. Brown would not have lost his appeal
rights before WHS-CAF. Further, if, at a minimum, Mr.
Lancaster had advised Mr. Brightbill or Mr. Brown of the
letter’s deficiencies, timely corrective action could easily
have been taken. But for Mr. Lancaster’s error in failing
to take any action regarding Mr. Brightbill’s letter, WHS-
CAF would have provided Mr. Brown with the ability to
appeal the denial of eligibility, a conclusion different from
the one it reached. Because the appeal of Mr. Brown to
appeal his denial to WHS-CAF resulted from Mr. Lancas-
ter’s action and inaction, Mr. Brown has met his burden
in demonstrating harmful procedural error.
Therefore, we conclude that no reasonable factfinder
would find that Mr. Brown has not met his burden in
showing that Mr. Lancaster’s failure to forward Mr.
Brightbill’s letter or otherwise contact Mr. Brown consti-
tuted harmful procedural error. Consequently, the
Board’s determination that there was no harmful error is
unsupported by substantial evidence.
CONCLUSION
For the foregoing reasons, we vacate the Board’s deci-
sion and remand for further proceedings.
BROWN v. DEFENSE 9
VACATED AND REMANDED
COSTS
Costs to Mr. Brown.