Craig A. Adams, Appellant, v. Department of the Army, Agency.

Transcription

1 UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2007 MSPB 57 Docket No. CH I-1 Craig A. Adams, Appellant, v. Department of the Army, Agency. February 23, 2007 J. P. Karpinsky, Esquire, Clawson, Michigan, for the appellant. Therese M. Novell, Esquire, Warren, Michigan, for the agency. BEFORE Neil A. G. McPhie, Chairman Mary M. Rose, Vice Chairman Barbara J. Sapin, Member Member Sapin issues a separate dissenting opinion. OPINION AND ORDER 1 The agency has petitioned for review of an initial decision in which an administrative judge of the Board s Central Regional Office found that the appellant s removal could not be sustained. For the reasons stated below, we GRANT the petition and REVERSE the initial decision. The appellant s removal is SUSTAINED.

2 2 BACKGROUND 2 The material facts in this case are largely undisputed. The appellant served in the military until 1997, and was stationed in Germany prior to his discharge. See Appeal File, Tab 8, Subtab 4n at 2. Following his discharge, he remained in Germany, working as a contractor and later as a civilian employee of the agency. See id. In early 2005, while he was employed as a human resources assistant, GS , he applied and was selected for a human resources assistant position at the same grade level in Michigan. See id., Subtabs 4v, 4aa. 3 The vacancy announcement for the Michigan position included a statement that a personnel security investigation would be required of selectees, and, after selecting the appellant, the agency arranged to have the appellant s background investigated by the Office of Personnel Management (OPM). See id., Subtabs 4t, 4c; id., Subtab 4aa (vacancy announcement) at 2. While information the appellant initially provided did not disclose anything the agency considered derogatory, the investigative report OPM provided in late July 2005, nearly 3 months after the appellant had been reassigned, disclosed information that raised questions about whether the appellant should continue to have access to the computer he and others in his organization used in their work. See id., Subtab 4r at 1; id., Subtabs 4t, 4z. On reviewing the report, John Simonini, the deputy chief of staff for intelligence and security, expressed particular concern about evidence that the appellant had failed to pay debts he owed on multiple accounts; he forwarded to other agency officials information indicating that the appellant had more than $63,000 in Financial Charge Offs/Delinquencies ; and he asked that the officials meet with the appellant to discuss the situation and to ascertain the accuracy of the financial information and current status. Id., Subtab 4r at 1-4; see Hearing Transcript (HT) at 5. 4 Agency officials, including Gayle Bedwell, a security specialist, met with the appellant on August 17, 2005, and the appellant subsequently provided information about his debts and about the other negative information in OPM s

3 3 report. See, e.g., id., Subtabs 4n, 4p, 4q; HT at 106, (the appellant s testimony). On September 20, the appellant advised Ms. Bedwell by of his plan to pay his creditors one creditor at a time, and he requested confirmation that this would satisfy the agency s concerns and enable him to retain his computer access and his position. Id., Subtab 4o at 1-2. The following day, Ms. Bedwell advised the appellant that his plan was unacceptable, that he was required to gather all of [his] overdue accounts and start making payments, and that [o]ne at a time isn t going to do it. Id. Subtab 4o at 1. She stated further that Mr. Simonini would recommend that the appellant consolidate his overdue accounts through a consolidation agency, and that, under such an arrangement, all of those overdue accounts are then current as long as payments are made on time. Id. On October 24, Ms. Bedwell sent another message to the appellant, requesting that the appellant provide documentary proof that [he had] gotten with a consolidation agency and [had] some sort of written agreement drawn up.... Id., Subtab 4h at 4. She also advised him in this message that, according to Mr. Simonini, the agency would be forced to suspend the appellant s computer access if it had not received this proof by October Nothing in the record indicates that the appellant ever took any steps to consolidate his debts, or that he otherwise made payments to all his creditors. Instead, he responded to Ms. Bedwell s October 24 message by arguing that his previous credit history should not apply to [his] current position, by indicating that he did not understand why he was regarded as a security risk, and by stating that he did not recall anyone stating [during the September meeting] that [he] had to contact and get a written agreement with a consolidation agency. Id., Subtab 4h at 3-4. In a lengthy message she sent to the appellant on the morning of October 28, Ms. Bedwell stated that he had been advised, both at the August 17 meeting and at another meeting on September 22, that he would receive a favorable decision regarding his computer access only if he consolidated his debts into one account, if he provided the agency with a copy of

4 4 the agreement under which he was to make payments on the consolidated account, if he provided receipts of payments as they were made, and if no new potentially derogatory issues arose. Id., Subtab 4h at 1-2. She also stated that the appellant had been advised, at the September 22 meeting, that Mr. Simonini would not accept [the appellant s] making payments on his [own] - one overdue debt at a time as that would still make all [his] other overdue debts still overdue. Id. at 2. 6 On November 1, the appellant advised Ms. Bedwell by that he had considered [the] suggestions to contact a consolidated company, but that, after much thought and consideration, he did not feel it [was] feasible or in [his] best interest to make a consolidated agreement with [his] creditors at this time. Id., Subtab 4g at 1. Instead, he indicated that he would pay one of his creditors until the agreement he had negotiated was satisfied, and that he would then negotiate a payment agreement with the next creditor with the least amount of balance.... Id. Mr. Simonini subsequently recommended to another agency official that the appellant s computer access be suspended; the latter official concurred in the recommendation; the appellant s access to the computer was suspended on November 9, 2005; and, on the same day, the agency proposed the appellant s removal for failure to maintain access to the Command computer system. See id., Subtabs 4e, 4f. After receiving the appellant s oral and written responses to the proposal, the agency removed the appellant based on the charge described above, effective January 6, Id., Subtabs 4b, 4d. 7 The appellant appealed his removal to the Board s Central Regional Office. Appeal File, Tab 1. After holding a hearing, the administrative judge to whom the case was assigned issued an initial decision in which she found that she was required, in adjudicating the case, to review the merits of the decision to deny the appellant computer access. Initial Decision at 8, Appeal File, Tab 18. She also found that the appellant s debt did not raise a disqualifying security concern ; that, even if it had done so, the concern should have been allayed by mitigating

5 5 factors; and that the agency failed to establish the required nexus between the appellant s conduct and his job-related responsibilities. Id. at For these reasons, she found that the removal could not be sustained. Id. at The agency has filed a timely petition for review, and the appellant has filed a timely response. Petition for Review (PFR), PFR File, Tab 1; PFR File, Tab 3. 1 ANALYSIS Authority to Review Withdrawal of Computer Access 9 In its petition for review, the agency argues that the administrative judge exceeded her authority by reviewing the merits of the decision to suspend the appellant s computer access. PFR at 3-5. Specifically, it argues that the suspension is not an adverse action appealable to the Board; that the federal government has not waived its sovereign immunity from challenges to such actions; and that the Board s authority to review those actions is barred under Department of the Navy v. Egan, 484 U.S. 518 (1988). 10 We see no merit in these arguments. The agency does not deny that, in 5 U.S.C. 7513, Congress has authorized the Board to adjudicate removals such as the appellant s. Adjudication of a removal appeal requires the Board to determine whether the agency has proven the charge or charges on which the removal is based; and, when the charge consists of the employing agency s withdrawal or revocation of its certification or other approval of the employee s fitness or other qualifications to hold his position, the Board s authority generally 1 The appellant has included with his response a motion to dismiss the agency s petition as untimely, as well as a request for an award of attorney fees. PFR, Tab 3 at 1, The agency s petition was filed 35 days after the initial decision was issued, however, and it therefore is timely. See 5 C.F.R (d); PFR, Tab 1; Initial Decision at 1. Moreover, the request for an attorney fee award is premature, as such a request may be made only after the Board has issued its final decision in the case. See 5 C.F.R (d).

6 6 extends to a review of the merits of that withdrawal or revocation. See, e.g., Laycock v. Department of the Army, 97 M.S.P.R. 597, (2004) (withdrawal of agency approval of employee s qualifications as an attorney), aff d, 139 F. App x 270 (Fed. Cir. 2005); Jacobs v. Department of the Army, 62 M.S.P.R. 688, (1994) (security guard s disqualification from Chemical Personnel Reliability Program); Boulineau v. Department of the Army, 57 M.S.P.R. 244, 245, & n.6 (1993) (helicopter flight instructor s disqualification under medical fitness standards); Graham v. Department of the Air Force, 46 M.S.P.R. 227, 229, (1990) (medical officer s failure to maintain agency medical credentials); Dodson v. Department of the Army, 35 M.S.P.R. 562, 564, (1987) (disqualification of quality assurance specialist (ammunition) under agency s Personnel Reliability Program); Cosby v. Federal Aviation Administration, 30 M.S.P.R. 16, (1986) (air traffic control specialist s decertification under agency medical standards). 11 As the agency has indicated, there are narrow exceptions to the Board s authority to review the merits of agency determinations underlying adverse actions. One such exception is addressed in Egan, 484 U.S. at , which involved the removal of an employee based on the agency s denial of the security clearance required in order to perform the duties of the employee s position. The Supreme Court noted in that case that the government had a compelling interest in withholding national security information from unauthorized persons, and that it was necessary to commit the protection of classified information... to the broad discretion of the agency responsible.... Egan, 484 U.S. at In light of these considerations, it held that the Board had no authority, in adjudicating adverse actions based on the withholding of security clearances, to review the merits of the underlying security clearance determinations. Id. at The present appeal does not involve the national security considerations presented in Egan. While the agency s computer system provides employees with

7 7 access to sensitive information, the agency has acknowledged that the information is not classified and has indicated that it does not consider access to that information to be equivalent to possession of a security clearance. PFR at The decision to suspend the appellant s computer access is similar instead to determinations the Board has found it has the authority to review. See, e.g., Jacobs, 62 M.S.P.R. at , (disqualification was based on the employee s verbal assault on a security officer, an incident allegedly demonstrating poor judgment, contempt for authority, and an unprofessional attitude); Dodson, 35 M.S.P.R. at 564, (disqualification was based in part on the employee s allegedly negligent conduct). In the present case, as in Jacobs and Dodson, the Board has the authority to review the merits of the agency determination that led to the removal. Merits of Computer Access Withdrawal 13 In finding that the agency had not shown a proper basis for suspending the appellant s computer access, the administrative judge referred to agency guidelines indicating that an individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Initial Decision at 10 (quoting Appeal File, Tab 8, Subtab 4dd). She then found that the appellant was at extremely low risk of engaging in illegal acts to generate funds. Id. In support of this finding, she referred to the following circumstances: (1) The appellant s debt had been incurred nearly 7 years before his removal was proposed; (2) the appellant established shortly after his removal that his debt had been entirely discharged based on the age of the loans; (3) there was no evidence in the record that anyone outside the agency was pressuring the appellant to pay his debts; and (4) even agency pressure had not been sufficient to motivate the appellant to reduce his voluntary retirement contributions to the Thrift Savings Plan (TSP). Id. at She also found unpersuasive Mr. Simonini s position that the appellant s paying his debts would have shown that he was a person of high integrity. Id. at 13. The issue before her, she found, was not whether the

8 8 appellant is an individual of high integrity..., but merely whether his failure to reconcile outstanding financial delinquencies poses a genuine risk to Command computer systems. Id. In addition, the administrative judge noted that agency guidelines indicated that mitigating factors in cases involving indebtedness included good faith effort to repay overdue creditors or otherwise resolve debts, and she found that the appellant s waiting for the statute of limitations to toll on his debts was a successful plan to otherwise resolve debts. Id. at The record includes a copy of agency guidelines concerning the effect of financial problems on security-related determinations such as that made here. See Guideline F, Appeal File, Tab 8, Subtab 4dd. Those guidelines indicate that one concern raised by such problems is that an employee under financial pressure may be subject to temptations to obtain money illegally. See id. at 1. The record also includes testimony in which Mr. Simonini indicated that he relied on this concern in recommending that the appellant s computer access be suspended. HT at We agree with the administrative judge that the agency has not shown that the appellant s indebtedness was likely to have the effect mentioned above. As the administrative judge noted, the agency presented no evidence that any of the appellant s creditors was applying any pressure at the time the agency was considering this matter. In fact, most if not all of the appellant s debts appear to have become uncollectible at or shortly after the time the agency received OPM s investigative report, as a result of their being more than 6 years old. See, e.g., id. at , 155; Appeal File, Tab 8, Subtab 4r. 16 The agency did not, however, rely solely on its concern that the appellant might be tempted to obtain money illegally. Mr. Simonini testified that he and other agency officials who were trying to persuade the appellant to pay his creditors were concerned about whether the appellant was acting responsibly, and whether he was setting up a repayment schedule that show[ed]... that [the appellant had] high integrity, [he was] a responsible individual and [he would]

9 9 follow through on [his] actions. HT at 41-42; see also id. at (Simonini s testimony that he was also concerned about temptations resulting from creditors pressure to repay the debts). 17 These concerns are legitimate. The agency has presented ample evidence that its computer system contains sensitive information, and that access to this information therefore must be limited to those who have demonstrated integrity and responsibility. See, e.g., Army Regulation 25-2, chapter 1, 1-1 ( Purpose ), Appeal File, Tab 8, Subtab 4gg; id., chapter 4, V ( Personnel Security ); HT at 93, 97 (testimony of the appellant s second-level supervisor). It also has presented persuasive evidence that a background investigation with favorable results is required of employees who, like the appellant, are required to use the computer system in their jobs. See, e.g., Appeal File, Tab 8, Subtab 4gg, chapter 4, section V, paragraph 4-14; HT at 6-9 (testimony of Simonini); id. at (testimony of the appellant s immediate supervisor). Furthermore, the agency guidelines mentioned above are not inconsistent with the view that delinquent debts may reflect unfavorably on an individual s integrity, and that they accordingly may serve as a basis for disqualification. That is, the guidelines indicate that [c]onditions that could raise a security concern and may be disqualifying include not only an inability to satisfy debts a circumstance that could lead to the temptations mentioned above but also an unwillingness to do so and other intentional financial breaches of trust. See Guideline F at We recognize that the appellant was in a difficult financial position at the time of his reassignment to his Michigan position. He was faced with a large amount of debt, which he estimated totaled about $40,000, 2 and he had child support and other expenses that left him with limited money for paying his debts. 2 This figure apparently reflects the total of the amounts for which the appellant s creditors indicated they were willing to settle. See Appeal File, Tab 8, Subtab 4p. Absent any settlement, the debts totaled more than $50,000. See id.

10 10 HT at 105, 124, 132. The agency did not require him to pay off his entire debt, however. It indicated instead that it expected him to contact each of his creditors, to agree[] to some kind of repayment plan, and to take some kind of action to make some level of restitution to his creditors. HT at 33. Instead of doing so, the appellant made only a single, $200, payment to a single creditor, evidently anticipating that his debts to other creditors or at least most of them would be deleted from his credit report as a result of the passage of time. See id. at 135, 137, 142. Moreover, as the administrative judge noted, he continued to have 15% of his salary deposited into his TSP account during his employment in Michigan, despite an agency employee assistance program counselor s suggestion that he reduce those deposits and use the money to reduce his debt. See HT at 84-85, We agree with the agency that these actions reflect adversely on the appellant s integrity and responsibility. See Dorrough v. Department of Commerce, 41 M.S.P.R. 87, 91 (1989) (employee s failure to pay her just debts in a proper and timely manner was serious misconduct in light of her fiduciary responsibilities). 19 Under the circumstances described above, we find that the agency acted reasonably in denying the appellant access to its computer system. Furthermore, because the appellant needed access to that system in order to perform the duties of his position, see HT at 70, we find that the agency has established both the reasonableness of its decision to remove the appellant and the requisite nexus between the appellant s loss of access and the efficiency of the service. See Benally v. Department of the Interior, 71 M.S.P.R. 537, , 542 (1996) (removal sustained based on the employee s loss of his driver s license). The appellant s removal is SUSTAINED.

11 11 ORDER 20 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section (c) (5 C.F.R (c)). NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, DC The court must receive your request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. 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). You may read this law, as well as review the Board s regulations and other related material, at our website, Additional information is available at the court's website, Of particular relevance is the

12 12 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. FOR THE BOARD: Bentley M. Roberts, Jr. Clerk of the Board Washington, D.C.

13 DISSENTING OPINION OF BARBARA J. SAPIN in Craig A. Adams v. Department of the Army MSPB Docket No. CH I-1 1 The agency denied the appellant computer access because of security concerns raised by his indebtedness. The appellant had debts amounting to about $40,000, many of which were reaching a stage when they would be tolled by the statute of limitations. The appellant proposed a plan to the agency that he pay off one debt at a time until the debts were resolved, preferably with help from the statute of limitations. The agency, however, demanded that the appellant consolidate his overdue debts and begin paying off all of them. When the appellant began following his own proposed plan, the agency suspended the appellant s computer access and subsequently removed him because he was unable to maintain computer access. My colleagues sustain the agency s action, finding that the appellant s manner of treating his indebtedness reflected adversely on the appellant s integrity and responsibility. I disagree. 2 I find that even had the appellant s debt raised a disqualifying security concern, the agency failed to consider such mitigating factors, enumerated in its guidelines, as the facts that the appellant s debts were incurred during a discrete time when he was unemployed, underemployed, and/or incarcerated and that he has shown no propensity for future failure to meet his financial obligations. While the appellant s debt plan was not based on an effort to repay each overdue creditor, it was based on a lawful use of the statute of limitations to resolve debts. I do not believe that the agency has shown that this legitimate effort to resolve debts reflects adversely on the appellant s integrity or responsibility. 3 Accordingly, I agree with the well-reasoned decision of Administrative Judge Nina Puglia reversing the agency action. Portions of her decision, which I adopt as my own opinion, are set forth below. In reversing the agency s action,

14 2 the AJ made the following findings concerning the agency s decision to deny the appellant computer access on the basis of security concerns: Although debt is not per se disqualifying, it could raise a security concern and may be disqualifying. Agency File, Tab 4(dd) ( Guideline F ) (emphasis added). The agency s stated concern in investigating employee debt is that [a]n individual who is overextended is at risk of having to engage in illegal acts to generate funds. Agency File, Tab 4(dd). The agency has not explained what risk it believes the appellant posed to its computers. The appellant was at extremely low risk of engaging in illegal acts to generate funds. His debt was nearly seven years old at the time the agency proposed his removal. Less than two months after his removal, he established that it had been discharged in its entirety. The agency implies that the pressure of the appellant s debt could cause him to compromise its computer network. There is no evidence the appellant was under pressure to pay his debts from anyone other than the agency. Moreover, this pressure did not motivate him to reduce his 15% contributions to the Thrift Savings Plan. I find that under of this case, the appellant s debt did not raise a disqualifying security concern. Even had the appellant s debt raised a disqualifying security concern under the agency s guidelines, the agency failed to consider mitigating factors that would have allayed that concern. The agency s guidelines enumerate suggested factors that could mitigate the impact of debt on security, including loss of employment, clear indications the problem is under control, and good faith effort to repay overdue creditors or otherwise resolve debts. Agency File, Tab 4(dd) (emphasis added). The individual components of the appellant s debt date from a discrete time period, during which he was unemployed, underemployed, and/or incarcerated. He has shown no propensity for future failure to meet his financial obligations. According to Mr. Skeel, the appellant made progress on his current revolving credit cards; his credit report in the record is unblemished. The appellant s financial problems were clearly under control. The appellant s plan to resolve his debt by making payments on one account while waiting for the statute of limitations to toll on the others, was not a good faith effort to repay overdue creditors, but it was a successful plan to otherwise resolve debts. ID pages With respect to the agency s argument that the appellant s debt plan adversely affected his integrity and responsibility, the AJ found:

15 3 Mr. Simonini testified that although letting the debt fall off the books was a valid option to resolve the problem, paying the debt would have shown the appellant was an individual of high integrity who follows through on his actions. The question at issue is not whether the appellant is an individual of high integrity who follows through on his actions, but merely whether his failure to reconcile outstanding financial delinquencies poses a genuine risk to Command computer systems. I find it does not. Compare Dorrough v. Department of Commerce, 41 M.S.P.R. 87, 91 (1989) (removal proper where fiduciary engaged in misconduct including failure to pay debts incurred on Government s behalf); Casteel v. Department of Treasury, 97 M.S.P.R. 521 (2004) (removal proper where Tax Examining Assistant s misconduct included failure to make timely payment on a Government-issued credit card); Vilt v. United States Marshals Service, Department of Justice, 16 M.S.P.R. 192 (1983) (30-day suspension proper where law enforcement officer kited checks and his failure to pay just debts to agency and hotel used by employees disrupted office operations). ID, page 13 5 For these reasons, I would deny the agency s petition for review. Barbara J. Sapin Member