Blagaich v. Department of Transportation

63 F. App'x 476
CourtCourt of Appeals for the Federal Circuit
DecidedMay 13, 2003
DocketNo. 02-3150
StatusPublished
Cited by2 cases

This text of 63 F. App'x 476 (Blagaich v. Department of Transportation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blagaich v. Department of Transportation, 63 F. App'x 476 (Fed. Cir. 2003).

Opinion

DECISION

PER CURIAM.

Paul R. Blagaich petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that sustained the action of the Department of Transportation (“agency”) removing him from his position as an Air Traffic Control Specialist with the Federal Aviation Administration (“FAA”) for failure to maintain a security clearance. Blagaich v. Dep’t of Transp., 90 M.S.P.R. 619 (2001) (“Blagaich”). We affirm.

DISCUSSION

I.

Prior to his removal, Mr. Blagaich was assigned to the FAA’s Chicago Air Route Traffic Control Center located in Aurora, Illinois. As an Air Traffic Control Specialist, he was required to have a security clearance.

In 1994, Mr. Blagaich was arrested and charged with several offenses. Following his arrest, the agency suspended his security clearance and assigned him to administrative duties for which a security clearance was not required. Eventually, after he was convicted on various charges, the agency removed him from his position on May 23, 1998, based upon the conduct underlying the convictions. Mr. Blagaich grieved his removal, and the matter proceeded to arbitration. In a decision dated September 21, 1998, the arbitrator found the charge in the removal action sustained but mitigated the removal to a “condition-alt ] indefinite suspension.” Under the arbitrator’s decision, the suspension was to cease upon the fulfillment of all the conditions set forth in the decision, but in no event later than six months from the date of the decision. One of the conditions set forth in the decision was that Mr. Blagaich obtain “an effective ‘security clearance’ status.”

In March of 1999, after additional direction from the arbitrator, Mr. Blagaich was returned to an Air Traffic Control Specialist position, but he was left in administrative leave status. Effective November 10,1999, he was removed again for his prior criminal conduct, but the action was cancelled by the agency on December 21,1999.

Meanwhile, on July 2, 1999, the FAA’s Office of Civil Aviation Security Operations revoked Mr. Blagaich’s security clearance, which had been suspended. It took this action based upon Mr. Blagaich’s criminal conduct and certain other considerations. Subsequently, after the agency’s Personnel Security Review Board upheld the revocation, the agency removed Mr. Blagaich from his position, effective February 8, 2000, for failure to maintain his security clearance.

Mr. Blagaich appealed his removal to the Board. In an initial decision dated December 21, 2000, the administrative judge (“AJ”) sustained the removal based upon the Board’s limited jurisdiction to review an adverse action that is based upon the denial or revocation of a security clearance. See Dep’t of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). Thereafter, on December 20, 2001, the Board denied Mr. Blagaich’s petition for review. However, the Board reopened [478]*478the appeal on its own and affirmed the AJ’s initial decision with modification. Blagaich, 90 M.S.P.R. at 620. The Board rejected Mr. Blagaich’s contention that, under the doctrine of res judicata, the agency was barred by the arbitrator’s mitigation of the 1998 removal and thus could not remove Mr. Blagaich in 2000 for failure to maintain his security clearance. The Board stated:

[The 1998] removal action was taken as a result of the misconduct that led to the appellant’s convictions.... Similarly, his short-lived second removal appears to have been based on the same cause of action. The removal now before us was the first and only removal action that had been based on his loss of the security clearance that is necessary for him to remain in his official position, which un-disputedly requires the incumbent to possess a security clearance. The appellant’s contention that this situation calls for the application of res judicata against the agency, ie., enforcement of the arbitrator’s decision mitigating the removal, fails. As he points out, application of that doctrine requires, among other things, that the cause of action in the two situations at issue be the same.... Here, the cause of action of the third removal differs from that of the first (and the cancelled second).

Id. at 623-24.

The Board also rejected two additional contentions that Mr. Blagaich made. First, it determined that Mr. Blagaich was not denied due process because the agency failed to provide him with a full, unredact-ed copy of a document entitled “Case Summary of Response,” which he alleged was considered ex parte by the agency. The Board pointed out that the document was created during the process leading to the revocation of the security clearance, not during the removal action, and that Mr. Blagaich was in possession of the unre-dacted document before he filed his appeal in May of 2000. Id. at 626. Second, the Board held that the deciding official had not failed to conduct a proper “Douglas factors” analysis when he testified that he believed he had no authority to impose any penalty other than removal. See Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 305-06 (1981). The Board observed that a removal based upon failure to maintain a required security clearance differs from the typical adverse action, in that “the usual considerations that are relevant in determining if an adverse action penalty should be mitigated are not applicable in determining whether proper cause for the removal penalty exists in such a case.” Id. at 626.

Mr. Blagaich now appeals the Board’s final decision to us. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II.

Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c); see Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998). On appeal, Mr. Blagaich raises several arguments. Having considered them, we do not believe that he has established error in the Board’s decision.

As he did before the Board, Mr. Blagaich argues that the February 2000 removal action was barred by the doctrine of res judicata based upon the 1998 arbitration decision. As noted above, the Board considered this argument and determined that it was without merit. We [479]*479reach the same conclusion. Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1362 (Fed.Cir.2000) (citations omitted). We agree with the Board that the prior arbitration proceeding, which involved Mr.

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