[00:00:00] Speaker 00:
for argument is 20-2122, NAP versus MSPB.

[00:00:05] Speaker 00:
Mr. Solomon, please proceed.

[00:00:10] Speaker 02:
Good morning, and may it please the court.

[00:00:13] Speaker 02:
So this case involves a security clearance determination, but where we kind of differentiate from the opinion of the lower board is that we are advocating for consideration of determinations that are

[00:00:28] Speaker 02:
tangential and not directly related to the security clearance determination.

[00:00:33] Speaker 02:
And we don't believe that the initial decision of the board made that distinction and said, looked at this entire challenges and attack to a security clearance determination based on that precluded jurisdiction in this action.

[00:00:51] Speaker 00:
So, Mr. Solomon, you begin with your line.

[00:00:54] Speaker 00:
Can I just ask you a quick clarification?

[00:00:57] Speaker 00:
Because a lot of, yes, like a great deal of your, or some of your argument at least deals with the proposed suspension.

[00:01:03] Speaker 00:
And I just wondered why this appeal brought when it was before.

[00:01:09] Speaker 00:
This appeal, as I understand it, was brought before there was actually any suspension or final written decision on the suspension.

[00:01:18] Speaker 00:
So while you talk about the suspension in your brief, the appeal, as I understand it, only deals with a proposed suspension.

[00:01:26] Speaker 00:
Is that correct?

[00:01:28] Speaker 02:
That is correct.

[00:01:29] Speaker 02:
So this is actually a suspension that was proposed in February 26th of 2019.

[00:01:36] Speaker 02:
And then Ms.

[00:01:39] Speaker 02:
Knapp wasn't actually removed from the federal service until 2020.

[00:01:45] Speaker 02:
The proposed indefinite suspension was...

[00:01:50] Speaker 00:
Excuse me, this is Judge Proce.

[00:01:51] Speaker 00:
The operative facts that we can consider on the record in this case are only the proposed suspension and not what happened after that, correct?

[00:02:00] Speaker 02:
Yes.

[00:02:02] Speaker 02:
What the focus is on is in the interim, the proposed indefinite suspension actually does two things.

[00:02:08] Speaker 02:
Not only does it propose the suspendness map, but it also places her following receipt of the proposed indefinite suspension.

[00:02:18] Speaker 02:
placed on administrative leave and not performing any work, which was a significant change in her job functions, which is a personnel action under the whistleblower protection act.

[00:02:31] Speaker 02:
So that's part of the clarification here.

[00:02:33] Speaker 03:
The other thing is... And this is Judge Cleverger.

[00:02:37] Speaker 03:
You say that's a proposed adverse action.

[00:02:40] Speaker 03:
Is it the actual putting in no pay statute or the proposal?

[00:02:46] Speaker 03:
My question is, is a proposal to suspend from duty and pay an adverse action for board jurisdiction purposes?

[00:02:56] Speaker 02:
It is the threat of a personnel action, which is something that the board has jurisdiction over.

[00:03:03] Speaker 02:
In addition to that, as part of the indefinite suspension, they changed her

[00:03:10] Speaker 02:
They significantly changed her job duties by completely taking them away.

[00:03:14] Speaker 02:
And she remained without, you know, duties from that period all the way until she was ultimately proposal was revoked, proposed removal is issued, she was removed.

[00:03:24] Speaker 02:
So that during that entire time, she was not performing any job duties and she was not staying current on her position, which, you know, obviously further damage to her resume and things along those lines.

[00:03:35] Speaker 02:
Basically what we're looking at here is the decision to actually issue the proposed indefinite suspension wasn't directly actually related to the initial security clearance determination and that's you can actually piece together from the initial memorandum which she didn't have at the time but was later declassified as well as later determinations on the initial inquiry.

[00:04:01] Speaker 02:
that it wasn't something that was directly related to the actual security clearance determination, but instead this was proposed after special considerations of aggravating facts that we believe were actually determined in a retaliatory fashion.

[00:04:18] Speaker 02:
So going back to essentially the facts of this case, which is necessary to recap even though we can't

[00:04:27] Speaker 02:
attack the actual security plan's determination.

[00:04:29] Speaker 00:
I'm sorry.

[00:04:30] Speaker 00:
Mr. Solomon, I'm a little confused.

[00:04:32] Speaker 00:
Maybe I'm misunderstanding what you're saying, but am I right?

[00:04:37] Speaker 00:
We're looking at Appendix 127-128, which is the proposed suspension letter.

[00:04:45] Speaker 00:
And I thought it says this proposal is based on your inability to maintain access to classified information requiring a security clearance due to local suspension of your access, which is the condition of employment for your position.

[00:05:01] Speaker 00:
That's correct, right?

[00:05:03] Speaker 00:
That is correct, but the data.

[00:05:06] Speaker 00:
So the response related resulting from the inability to access the classified information, right?

[00:05:15] Speaker 02:
That is correct.

[00:05:19] Speaker 02:
However, what we're looking at, too, is reassignment as a possibility and how that was avoided.

[00:05:25] Speaker 02:
But backing up for a second and just briefly going into the facts, basically an issue here was Ms.

[00:05:32] Speaker 02:
Knapp is a victim advocate for victims of rape and sexual assault in the Army.

[00:05:37] Speaker 02:
There was an arrest in 2016 of Mr. Christopher LeBlanc.

[00:05:43] Speaker 00:
Mr. Solomon, I guess the time is short, so can I just follow up on the argument you were making before, which is on the 7513 and I'm just still trying to understand it.

[00:05:54] Speaker 00:
you said the board should have considered whether you've got the procedural protections of 7513 in connection with the suspension, the proposed suspension.

[00:06:05] Speaker 00:
We're not looking at the suspension.

[00:06:08] Speaker 00:
And I'm not seeing in these two pages, the second page, 128, outlines all of the rights she has to respond and notice and so forth.

[00:06:19] Speaker 00:
So what was missing

[00:06:21] Speaker 00:
in the proposal that she didn't, what notice, what more should she have gotten in the proposed suspension that doesn't appear on page 128?

[00:06:33] Speaker 02:
Well, there's a couple things and it's things that are directly in the proposal and things that were outside of the process that are directly related that aren't forwarded, but basically they refuse to actually make any sort of determination on the response.

[00:06:47] Speaker 02:
And then also without making any sort of determination they actually at one point withheld pay beginning in March without any actual decision on the suspension and they later ended up paying that back after it was determined they didn't have the authority to do that but she was still without pay for that period.

[00:07:06] Speaker 02:
But also the actual underlying security clearance determination was based on information that was very clearly publicly available

[00:07:17] Speaker 02:
So Ms.

[00:07:17] Speaker 02:
Knapp, based on procedural rights, challenged that information is overclassified and then the agency purposely failed to act on that challenge knowing that it was correct so that there was no actual determination that the information she shared was not actually classified.

[00:07:35] Speaker 02:
And in so doing, they prevented her from kind of validly challenging the proposed suspension action by just purposely failing to act on the challenge.

[00:07:48] Speaker 00:
And is that included in your case that you made before the board?

[00:07:54] Speaker 00:
Yeah.

[00:07:56] Speaker 00:
I thought you were just, I thought the focus was on the proposed suspension.

[00:08:01] Speaker 00:
Not follow that.

[00:08:05] Speaker 02:
It is, but these are all things that kind of, it's several things that are overlaid and interact with one another.

[00:08:11] Speaker 02:
And that's kind of what I was getting to is trying to go back to the facts, but I guess skipping over that,

[00:08:17] Speaker 02:
Basically, the issue here is that this is all stuff that was the Army actually disclosed a lot of this information in FOIA.

[00:08:24] Speaker 02:
And the entirety of the information was actually, you know, directly testified by a general of the United States Army to Congress in publicly available testimony.

[00:08:39] Speaker 02:
So that none of the information that was disclosed is anything that's actually classified basically without

[00:08:46] Speaker 00:
getting into it.

[00:08:49] Speaker 00:
Where do you think our ability to review begins and ends on that matter?

[00:08:55] Speaker 00:
Did the board have the authority to review what appears you're talking about now is whether or not they were right in removing or suspending her security classification?

[00:09:10] Speaker 00:
And do you think we have the right or that stuff is reviewable by us or by the MSPB?

[00:09:17] Speaker 02:
So the board doesn't have the ability to review the revocation of the security classification.

[00:09:23] Speaker 02:
What the board does have the ability to review is whether or not the actions taken were actually necessary in light of EGIN when it's discussing other appropriate actions.

[00:09:39] Speaker 02:
So other employees who are in this same position, who are also in sensitive units,

[00:09:45] Speaker 02:
had a similar inquiry and were actually just simply transferred to a unit that doesn't have security clearance requirements and allowed to continue to do victim advocacy work.

[00:09:57] Speaker 02:
So with Ms.

[00:09:58] Speaker 02:
Mapp, initially, following the initial memorandum, she was put not in another unit as she should have been, as was done in the past.

[00:10:08] Speaker 02:
However, she was still given other duties

[00:10:11] Speaker 02:
without being put on administrative leave and asked to continue performing work.

[00:10:15] Speaker 02:
And it wasn't until later that after the proposal and the indefinite suspension, they took it so far as that she could not continue performing those duties, which had nothing to do with classified information.

[00:10:29] Speaker 02:
But it was quite simply reprisal for the fact that she then raised these same issues with the EEO.

[00:10:36] Speaker 02:
And that's when, you know, the agency made the determination that they were going to take

[00:10:40] Speaker 02:
this from an action that, you know, she was classified into Nonsense of Duty to an action where they weren't allowing her to perform any duties and also proposing an indefinite suspension as opposed to allowing her to continue.

[00:10:55] Speaker 02:
The initial memorandum actually about the security clearance makes a recommendation only that she be retrained with no recommendation about, you know, taking her away from her initial duties.

[00:11:07] Speaker 02:
And it wasn't until separate memorandums on initial inquiry later

[00:11:11] Speaker 02:
that didn't have anything to, didn't actually make a determination about a security clearance but laid out a bunch of facts incorrectly assuming or reading the initial security clearance memo and stating that, you know, display reaction was warranted and should be looked into.

[00:11:30] Speaker 02:
And it was only after that that the agency went forward on the proposed suspension.

[00:11:38] Speaker 02:
And thank you.

[00:11:39] Speaker 02:
I'd like to reserve the rest of my time for rebuttal.

[00:11:41] Speaker 00:
Okay, thank you.

[00:11:43] Speaker 00:
Let's hear from the government.

[00:11:47] Speaker 01:
May I please the court?

[00:11:49] Speaker 01:
In Egan, the Supreme Court stated that the protection of classified information is to be left to the broad discretion of the executive branch.

[00:11:58] Speaker 01:
This court has repeatedly re-emphasized that notion since Egan and as recently as Conyers stated that absent congressional action, judicial review of all national security matters is generally prohibited.

[00:12:09] Speaker 00:
Well, counsel, this is Judge Prost.

[00:12:12] Speaker 00:
I understand your position.

[00:12:14] Speaker 00:
Should we or someone be troubled?

[00:12:17] Speaker 00:
I mean, maybe it's outside of our lane because it's policy or legislation.

[00:12:21] Speaker 00:
But should we not be troubled by the fact that a person such as the appellant here seems to have virtually no recourse?

[00:12:32] Speaker 00:
even if assuming our duendo that the taking away of her security clearance was retaliatory?

[00:12:42] Speaker 01:
So this was actually raised by this court in Hess approximately 27 years ago.

[00:12:47] Speaker 01:
And this court looked at the legislative history of the 1994 whistleblower amendments in which at that time Congress was considering whether employees should be given more rights to protect against the kind of concern you just raised.

[00:13:02] Speaker 01:
But ultimately, with this court's determination, based on the legislative history and the dropping of certain provisions from the 1994 Act, that national security concerns trump employee rights concerns.

[00:13:16] Speaker 01:
And so while there might be certain employees who are deprived of certain rights they otherwise would have, this was the priority of Congress at that time, and it continues to be so.

[00:13:26] Speaker 00:
I think that's a good question.

[00:13:28] Speaker 00:
Do you know if there's been, there's no reason you need or you should know this, but do you happen to know whether there's been any legislative effort to narrow that gap?

[00:13:38] Speaker 01:
I happen to do know.

[00:13:41] Speaker 01:
Repeatedly, there are bills introduced in Congress to overturn Egan, and I think Congress Northover as well, but none of those bills have clearly ever passed Congress,

[00:13:54] Speaker 01:
to protect national security over providing additional employee rights.

[00:13:58] Speaker 00:
Okay.

[00:13:58] Speaker 00:
I don't want to take too much of your time.

[00:14:00] Speaker 00:
Thank you for your response.

[00:14:02] Speaker 01:
So the actions the petitioner alleged directly stem here either from the agency determination that she committed security violations regarding the protection of classified information or its decision to suspend her clearance because of the violations.

[00:14:17] Speaker 01:
And when an action arises in that manner, the board can't look at whether that action might be whistleblower reprisal.

[00:14:24] Speaker 01:
because the review of those actions would require the boards ultimately review the agency's decisions regarding the protection of classified information.

[00:14:33] Speaker 01:
I understand petitioners stated that some of these actions were just tangential, but in reality, they all arose out of the same factual basis that led to the clearance suspension itself, such that reviewing any of those actions would, in essence, be reviewing the clearance suspension itself.

[00:14:50] Speaker 01:
And since we can't review the previous suspension, we really can't review any of those other actions as well.

[00:14:58] Speaker 03:
Just to clarify, your brief makes clear that the word all is not correct.

[00:15:04] Speaker 03:
The one action, the change in rater you concede in your brief was not related to the security clearance.

[00:15:12] Speaker 01:
Yes, that is correct, Your Honor.

[00:15:14] Speaker 01:
There is one action that doesn't appear to be from the petitioner's documents related to the security clearance.

[00:15:21] Speaker 01:
But a change in rater has been held by the board to not by itself be a personnel action under the WPA.

[00:15:28] Speaker 01:
And so that action also falls outside of MCB jurisdiction.

[00:15:34] Speaker 03:
Do you agree that threatened suspension is a covered act?

[00:15:39] Speaker 01:
A proposed suspension under the WPA typically is a covered action, yes.

[00:15:44] Speaker 01:
It's just not a personal action that could be covered if it arises out of a security clearance suspension.

[00:15:53] Speaker 00:
But is a proposed suspension in the category of what Egan said, there are at least procedural protections you look to whether or not were provided to the employee?

[00:16:05] Speaker 01:
Well, yes, and that's where this gets a little bit muddled because Egan arose out of Chapter 75 action.

[00:16:11] Speaker 01:
And so what Egan says is that actions proposed or adverse actions coming out of Chapter 75 are still guaranteed the remainder of their rights for Chapter 75 appeals, such as the due process guarantees in 7513.

[00:16:26] Speaker 01:
But this is an IRA, which doesn't, or an individual right of action appeal,

[00:16:31] Speaker 01:
And our inquiry in an IRA is narrow and limited to solely whether or not a whistleblower reprisal occurred, which is essentially just a merit determination on the action itself.

[00:16:41] Speaker 01:
And in IRAs, the board does not have authority to look at whether those procedural protections occurred.

[00:16:47] Speaker 00:
Wait a minute, wait a minute.

[00:16:49] Speaker 00:
Really, is that your position that

[00:16:51] Speaker 00:
Even if in connection with the whistleblower, obviously, the span of personnel actions covered by the whistleblower statute go far beyond the 7513 stuff.

[00:17:03] Speaker 00:
But if there's a suspension or removal and the allegation is whistleblowing, you don't think that Egan's statement that the procedural protections are something that is reviewable applies.

[00:17:20] Speaker 01:
Well, this is actually nothing to do with EGIN on this specific point.

[00:17:25] Speaker 01:
It's just what the board's inquiry is in an IRA appeal is limited to whether or not reprisal for whistleblowing occurred.

[00:17:33] Speaker 01:
So in any IRA, regardless of whether or not EGIN or any national security matters apply, the board's inquiry is only going to be limited to whether or not reprisal for whistleblowing occurred.

[00:17:44] Speaker 01:
It doesn't look at whether or not Chapter 75 procedural protections were provided.

[00:17:53] Speaker 03:
But to the other part in which... But in a given case, when the government gives 7513 rights, they can't take them back.

[00:18:02] Speaker 01:
Yes.

[00:18:03] Speaker 01:
And if an actual suspension was appealed under Chapter 75, and both, I believe, Judge Prost and Judge Clevinger alluded to this in their questioning of Petitioners' Council,

[00:18:14] Speaker 01:
If it was appealed under Chapter 75 and it was an actual effectuated suspension, it would be entitled to due process rights, such as notice and opportunity to respond, which is what the proposed suspension actually is.

[00:18:28] Speaker 01:
The proposed suspension is part of that due process guarantee under Chapter 75.

[00:18:32] Speaker 00:
Oh, OK.

[00:18:35] Speaker 00:
Just one I wanted you to clarify.

[00:18:36] Speaker 00:
But your view is that she got all of the procedural protections in that proposed suspension letter, which gave her the right to, you know, file a response, et cetera, et cetera, right?

[00:18:47] Speaker 01:
If she were actually suspended, and frankly, the first I've heard of her actually being suspended is this argument in which petitioners counsel noted that pay was withheld because that's not anywhere in the record.

[00:18:58] Speaker 01:
If she were actually suspended, then yes, she would be entitled to due process.

[00:19:02] Speaker 01:
And the proposed suspension that she alleged to the board would have been part of that due process.

[00:19:09] Speaker 03:
So what are we to make of paragraph four of the letter?

[00:19:13] Speaker 03:
Of the letter?

[00:19:15] Speaker 03:
Was that an illusory promise?

[00:19:18] Speaker 03:
They gave her 30 days to respond.

[00:19:23] Speaker 03:
That tracks 7513.

[00:19:27] Speaker 01:
Yes.

[00:19:28] Speaker 01:
Because that promise is part of the 7513 guarantee that actions falling within 7512 are given certain procedural protections.

[00:19:37] Speaker 01:
So she was given 30 days to respond.

[00:19:39] Speaker 01:
And then apparently at some point after she responded, which I believe based on the record is long after 30 days, they may have withheld her pay.

[00:19:49] Speaker 01:
Again, I'm not clear on that.

[00:19:50] Speaker 01:
This is the first I've heard of this.

[00:19:52] Speaker 01:
but then restored her pay afterward.

[00:19:54] Speaker 01:
Either way, though, she was given an opportunity to respond.

[00:19:57] Speaker 01:
She was given 30 days.

[00:19:59] Speaker 01:
She was given notice of a proposed action that fell within 75-12, and then she was given 30 days to respond, all of which accords with 75-13.

[00:20:07] Speaker 01:
So had this fallen or had this been brought through a Chapter 75 appeal, it seems like due process would have been satisfied.

[00:20:18] Speaker 01:
Petitioners' Council did also argue that

[00:20:21] Speaker 01:
What they contend is that she should have just been transferred like other people who faced similar issues.

[00:20:30] Speaker 01:
But this court held in Griffin v. Department of State that a transfer is also something the board cannot look at unless that right to transfer is guaranteed by statute.

[00:20:42] Speaker 01:
And the petitioner is not alleged that there was any statutory or regulatory or other rights

[00:20:47] Speaker 01:
that would afford her the ability to be transferred.

[00:20:50] Speaker 01:
And so without that, the board did not have jurisdiction to look at whether a transfer to some sort of non-sensitive position was appropriate.

[00:20:58] Speaker 00:
Remind me, counsel, what Egan said.

[00:21:00] Speaker 00:
Didn't Egan make reference to the reviewability of transfers?

[00:21:06] Speaker 01:
I can't recall if Egan makes specific reference.

[00:21:12] Speaker 01:
Oh, yeah, I take that back.

[00:21:13] Speaker 01:
I'm sorry.

[00:21:14] Speaker 01:
Egan does say,

[00:21:16] Speaker 01:
that you can look at whether or not a transfer is feasible.

[00:21:19] Speaker 01:
But Griffin was issued by this court after Egan and said that Egan, that statement was not interpreted to mean that the right to transfer is automatic and that it still needs to be guaranteed by some sort of law or rule of regulation.

[00:21:43] Speaker 01:
If this court has no further questions, then we ask that you affirm the decision of the board dismissing for lack of jurisdiction.

[00:21:50] Speaker 00:
Thank you.

[00:21:51] Speaker 00:
Thank you.

[00:21:54] Speaker 00:
Mr. Solomon, you've got how much time do we have on rebuttal, Elise?

[00:21:59] Speaker 00:
There are three minutes and 37 seconds.

[00:22:01] Speaker 00:
OK.

[00:22:01] Speaker 00:
You've got time for rebuttal.

[00:22:04] Speaker 00:
Mr. Solomon, please proceed.

[00:22:07] Speaker 02:
I would start out just by differentiating kind of what we have here from what's going on in GLSEN and that.

[00:22:13] Speaker 02:
This map was already placed into non-sensitive duties, then following an additional memorandum that, once again, did not make any sort of determination on security clearance, it was recommended that disciplinary action be looked into based on the conduct.

[00:22:30] Speaker 02:
So this was something that was saying that, yes, it could acknowledge that our security clearance is already in a state of suspension, recommended that continue.

[00:22:39] Speaker 02:
but that this interaction be looked into based on the specific conduct of, you know, involving things that weren't actually directly related to her security clearance, including that, you know, she initially was reluctant to go to the training.

[00:22:52] Speaker 00:
Well, Mr. Solomon, can I just make a clarification?

[00:22:55] Speaker 00:
I know your client listed a series of personnel actions that she was subjected to, and is the failure to transfer among those?

[00:23:09] Speaker 02:
It's wrapped up with the indefinite suspension where we're, you know, it's the fact that she was placed in, you know, with indefinite suspension she was placed in non-duty status without having an opportunity to actually get a decision on the indefinite suspension to determine if that was appropriate.

[00:23:30] Speaker 02:
So the, one of the big due process issues here is the agency

[00:23:34] Speaker 02:
transferred her at the beginning of the indefinite suspension, or not transferred her, but stopped her or reassigned her to administrative leave at the beginning of the indefinite suspension when she had been performing non-classified, nonsensitive work and normally should be entitled to, and the procedures require, you know, the agency decide on a proposed disciplinary action, but by just never deciding on it,

[00:24:03] Speaker 02:
She never actually got a response and was forced to stay in that non-duty status for the entire time until the proposed suspension was withdrawn and replaced with the proposed removal, which then continued the administrative leave as part of that.

[00:24:22] Speaker 02:
But she actually did get a response onto that, so there wasn't the same due process consideration.

[00:24:26] Speaker 02:
But by simply refusing to actually issue a decision,

[00:24:30] Speaker 02:
on the proposed indefinite suspension, they were able to keep her in that non-duty status without actually giving an official decision on the suspension, which is part of the reason we're saying her due process rights were violated.

[00:24:47] Speaker 02:
But just regarding her position as far as the work she was performing, yes, there was no statutory entitlement

[00:24:57] Speaker 02:
to another position, but even within her unit, much of her work was actually already with victims and other non-sensitive units, and her duties could have easily been performed even without moving her.

[00:25:12] Speaker 02:
just by assigning her specific individuals that had that were from non-classified units and that was something that could have easily been accommodated by the command but was ignored specifically because she was a whistleblower and because she continued to make disclosures to Congress and to EEO and had she not done that she would have been allowed to remain in her

[00:25:36] Speaker 02:
in her non-classified duty status.

[00:25:39] Speaker 02:
And yes, the official reason placed on the adverse, the proposed adverse action did state that it was based on a revocation or suspension of a security clearance.

[00:25:55] Speaker 02:
However, we're arguing that that wasn't actually the case at all.

[00:25:58] Speaker 02:
So we're not challenging the underlying determination, but the actual justification for the proposed adverse action.

[00:26:04] Speaker 02:
Thank you.

[00:26:05] Speaker 00:
Thank you.

[00:26:06] Speaker 00:
We thank both sides.

[00:26:08] Speaker 00:
The case is submitted and that concludes our proceeding for this morning.

[00:26:11] Speaker 00:
Thank you, Elise.

[00:26:12] Speaker 00:
Thank you.

[00:26:14] Speaker 00:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.