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Odessa W. Phillips v. Department of the Air Force

January 18, 2011

ODESSA W. PHILLIPS, PETITIONER,
v.
DEPARTMENT OF THE AIR FORCE, RESPONDENT.



Petition for review of the Merit Systems Protection Board in case no. AT0752100006-I-1.

Per curiam.

NOTE: This disposition is nonprecedential.

Before GAJARSA, DYK, and PROST, Circuit Judges.

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 proscribed 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 action. 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 whichMs. 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 information. 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 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 (attachment 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 appearance 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 decision 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 Proposed 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.

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 ...


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