UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WALTER DELEONECHEVERRIA, DOCKET NUMBER
Appellant, DA-1221-15-0208-W-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: October 5, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Barry D. Elliott, Esquire, San Antonio, Texas, for the appellant.
Bernard J. Glavy, Esquire, Joint Base San Antonio, Randolph, Texas, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under 5 U.S.C. § 1221. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative 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. 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, 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 this Final Order, to VACATE the administrative judge’s
alternative finding, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant was formerly employed by the agency as a Police Officer at
Fort Sam Houston, Joint Base San Antonio, Texas. Initial Appeal File (IAF),
Tab 1. At some point in 2014, he filed a complaint with the Office of Special
Counsel (OSC), alleging that the agency had retaliated against him for
whistleblowing activity. Id. On November 25, 2014, OSC informed the appellant
that it had terminated its investigation into his allegations, and it notified him of
his right to file an individual right of action (IRA) appeal with the Board. Id. In
the notice letter, OSC identified the following protected disclosures: (1) a
disclosure to management officials and the media that the Fort Sam Houston
Police Department was operating at inadequate staffing levels; and (2) a
complaint filed with the agency’s Inspector General (IG) in April 2014. Id. The
letter also identified the following alleged retaliatory personnel actions: (1) a
letter of reprimand received by the appellant on September 11, 2013; (2) the
appellant’s placement on administrative leave on September 17, 2013; and (3) the
suspension of the appellant’s security clearance on an unidentified date. Id.
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¶3 On January 25, 2015, the appellant filed an IRA appeal, to which he
attached a copy of OSC’s November 25, 2014 notice of appeal rights. Id. 2 He
initially requested a hearing, but later withdrew his request. IAF, Tabs 1, 25.
Based on the parties’ written submissions, the administrative judge found that the
IRA appeal was within the Board’s jurisdiction. IAF, Tab 30, Initial Decision
(ID) at 6. She further found that the appellant failed to establish that he made
protected disclosures in June 2013 but that his September and November 2013
disclosures to the media concerning staffing issues at Fort Sam Houston, as well
as his April 2014 IG complaint concerning safety issues, were protected. ID
at 8-11. As to the alleged retaliatory actions, the administrative judge found that
the suspension of the appellant’s security clearance was not reviewable and that
the appellant failed to show his disclosures were a contributing factor in the
agency’s decisions to reprimand him and place him on administrative leave. ID
at 12-13. The administrative judge further found that, in any event, the agency
established by clear and convincing evidence that it would have taken the same
actions absent the appellant’s whistleblowing activity. ID at 13-19. Accordingly,
the administrative judge denied the appellant’s request for corrective action under
5 U.S.C. § 1221. ID at 1, 19. The appellant filed a timely petition for review, to
which the agency has responded. Petition for Review (PFR) File, Tabs 1, 3.
¶4 On review, the appellant contends that the administrative judge erred in
ruling that the Board could not consider whether the agency suspended his
security clearance in reprisal for his protected disclosures. PFR File, Tab 1. 3
However, it is well established that the withholding of a security clearance
does not constitute a “personnel action” under 5 U.S.C. § 2302(a)(2)(A), and
2
The appellant declined the opportunity to provide a copy of his original complaint or
any additional correspondence with OSC. IAF, Tabs 3, 8, 11, 13-14.
3
The appellant does not contest the administrative judge’s findings that his June 2013
disclosures were not protected and that his protected disclosures were not a contributing
factor in the agency’s decisions to reprimand him and place him on administrative
leave. We discern no error in those findings.
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therefore cannot be reviewed in an IRA appeal. Hesse v. Department of State,
217 F.3d 1372, 1375-80 (Fed. Cir. 2000); Roach v. Department of the Army,
82 M.S.P.R. 464, ¶¶ 48-54 (1999); see Doe v. Department of Justice,
121 M.S.P.R. 596, ¶ 10 n.5 (2014) (finding that Hesse and Roach were not
superseded by the subsequent passage of the Whistleblower Protection
Enhancement Act of 2012 (WPEA)). Accordingly, we deny the appellant’s
petition for review.
¶5 We find, however, that the administrative judge erred in making an
alternative finding that the agency proved by clear and convincing evidence that
it would have reprimanded the appellant and placed him on administrative leave
absent his protected disclosures. Under the WPEA, the Board may not order
corrective action if “after a finding that a protected disclosure was a contributing
factor” in a personnel action, the agency demonstrates by clear and convincing
evidence that it would have taken the same personnel action in the absence of
such disclosure. 5 U.S.C. § 1221(e)(2). Thus, the Board may not proceed to the
clear and convincing test unless it has first made a finding that the appellant
established his prima facie case, i.e., that he made a protected disclosure that was
a contributing factor in a personnel action. Clarke v. Department of Veterans
Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir.
2015). Because the appellant did not establish his prima facie case, we vacate the
administrative judge’s alternative finding.
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 review of this final decision by the U.S. Court of Appeals for the
Federal Circuit.
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.
5
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
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 about the U.S. Court of Appeals for the Federal Circuit 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. Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.