Mitrano v. Air Force

• Court: Court of Appeals for the Federal Circuit
• Decided: April 6, 2018
• Docket: 17-2572
• Status: Unpublished

Opinion

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

PETER PAUL MITRANO, Petitioner

v.

DEPARTMENT OF THE AIR FORCE, Respondent ______________________

2017-2572 ______________________

Petition for review of the Merit Systems Protection Board in No. DE-0752-17-0086-I-1. ______________________

Decided: April 6, 2018 ______________________

PETER PAUL MITRANO, Fairfax, VA, pro se.

NATHANAEL YALE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ELIZABETH M. HOSFORD. ______________________

Before LOURIE, DYK, and TARANTO, Circuit Judges. 2 MITRANO v. AIR FORCE

PER CURIAM. The Department of the Air Force removed Peter Mi- trano from his position as a Civil Engineer in 341st Civil Engineering Squadron at Malmstrom Air Force Base. As relevant here, there were two grounds for Mr. Mitrano’s removal: (1) inability to perform assigned duties because he was disqualified from being given access to the Base under a national-security-based policy; and (2) refusal to comply with proper instructions. The Merit Systems Protection Board, on Mr. Mitrano’s appeal of his removal, affirmed the two grounds and the penalty of removal. Mitrano v. Dep’t of the Air Force, DE-0752-17-0086-I-1 (M.S.P.B. June 16, 2017) (Decision). We affirm. I The Air Force appointed Mr. Mitrano to a position as a Civil Engineer on January 11, 2016. In order to perform the duties associated with this position, Mr. Mitrano needed to obtain a secret security clearance and have access to the Base—a facility whose “mission involv[es] nuclear weaponry.” Decision at 5 n.4; see also id. at 2. On January 15, 2016, as part of the process for obtaining the necessary security clearance, the Air Force sent an email to Mr. Mitrano (at the email address he used during the hiring process), instructing him to submit the required Standard Form 86 (SF-86). Six days later Mr. Mitrano submitted an SF-86 form, which, among other things, listed as his email address the address the Air Force had used on January 15. The Air Force reacted to the submission in two ways. First, it quickly decided to reject the SF-86 as deficient, and in a January 26 email addressed to Mr. Mitrano at the same email address, it so stated and directed him to resubmit his SF-86, this time filled out fully and accurate- ly. The day before, Mr. Mitrano was told the same thing orally by Joe Bradley, the Chief of Project Management for the 341st Civil Engineering Squadron, according to MITRANO v. AIR FORCE 3

Mr. Bradley’s testimony here (which Mr. Mitrano disput- ed but the Board credited). Second, based on the information contained in the in- complete SF-86 that Mr. Mitrano had submitted, the Air Force determined that he had been imprisoned for over twelve months. On that basis, it determined that not only would he likely be denied the required security clearance but, what is key here, that he was disqualified from being given access to the Base under the rules set out in the Integrated Defense Plan for the Base. Late in the after- noon on January 25, 2016, Mr. Mitrano was given a memorandum placing him on administrative leave indefi- nitely and providing him the opportunity to respond to the initial determination to deny him access to the Base. After Mr. Mitrano responded, the Air Force made its denial of access final on April 25, 2016. The Air Force then proposed to remove Mr. Mitrano from his position. The operative July 2016 proposal stated two grounds of relevance here: (1) inability to perform assigned duties given the denial of Base access; and (2) refusal to comply with proper orders, namely, the orders to resubmit the SF-86 in completed form. 1 Mr. Mitrano replied several times in August 2016. In late August, the Air Force’s deciding official, having received additional information, supplied the information to Mr. Mitrano and invited him to respond, which he did. On October 21, 2016, after a further communication from the deciding official and a further response from Mr. Mitrano, the deciding official sustained the grounds for removal and decided that removal was the appropriate penalty, effective a few days later.

1 The proposal stated one other ground for removal, but the Air Force dropped that ground in the proceedings before the Board. It is not further mentioned here. 4 MITRANO v. AIR FORCE

Mr. Mitrano appealed the decision to the Board. The assigned Administrative Judge rendered a decision up- holding the removal on June 16, 2017. Decision at 1. When Mr. Mitrano did not seek full Board review in the allowed time, the Decision became the Board’s decision. Accordingly, we use “Board” in describing the Decision. The Board upheld the ground of inability to perform assigned duties because Mr. Mitrano lacked access to the Base, a necessary condition of the job. It observed that it was undisputed both that Mr. Mitrano had been denied access to the Base and that his duties required him to have access to the Base. Decision at 8, 10. As to the access denial, all that the Board could review was wheth- er Mr. Mitrano “was afforded minimum due process in being barred from the base (i.e., he was told of the reason for being barred and given an opportunity to respond)” and whether there were “substantive rules” that the Air Force “did not follow in barring” him from the Base. Id. at 9. The Board concluded that Mr. Mitrano had been afforded due process and that the Air Force followed its substantive rules—specifically, the Integrated Defense Plan—in denying him access to the Base. Id. at 11. Although Mr. Mitrano contended that the Air Force erred in refusing to credit his argument about the wrongfulness of the criminal conviction and imprisonment that gave rise to the access denial, the Board concluded that it had no authority to question the conviction and sentence, which had been affirmed on appeal to the First Circuit. Id. (citing United States v. Mitrano, 658 F.3d 117 (1st Cir. 2011)). The Board also upheld the ground of Mr. Mitrano’s failure to follow instructions to resubmit the SF-86 to address various deficiencies. Mr. Mitrano presented essentially a factual dispute over whether he had been so instructed, contending that he never received any such instruction, because he did not receive the January 26, 2016 email and he never had the January 25, 2016 con- MITRANO v. AIR FORCE 5

versation with Mr. Bradley. The Board found that the Air Force had proven otherwise by a preponderance of the evidence. Id. at 12. The Board explained that the Air Force sent the January 26, 2016 email to the email ad- dress at which Mr. Mitrano received the original request to complete the SF-86 (and he then submitted his initial SF-86) and that he “consistently used before.” Id. It also found that, whereas a subsequent email was returned as not delivered, the January 26 email was not. Id. at 12– 13. And the Board credited Mr. Bradley’s testimony that he instructed Mr. Mitrano to resubmit the SF-86 on January 25, 2016. Id. at 13–14. The Board went on to reject Mr. Mitrano’s affirmative defenses as unproven. Id. at 14–16. And it concluded by finding the required connection between the sustained charges and the removal. Id. at 16 (finding “there is no doubt that [a] nexus exists between the sustained charges and imposing discipline. This is so because: 1) since the appellant cannot enter the [Base], he cannot accomplish his duties: and 2) there is an obvious government interest in disciplining an employee who fails to follow an instruc- tion.”). The Board found that the Air Force considered mitigating factors and acted “clearly within the tolerable limits of reasonableness” in removing Mr. Mitrano. Id. The Board’s Initial Decision became final on July 21, 2017. Decision at 17. Mr. Mitrano timely sought review in this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). II This court must affirm the decision of the Board un- less it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “obtained with- out procedures required by law, rule, or regulation having been followed”; or “unsupported by substantial evidence.” See 5 U.S.C. § 7703(c). When we review factual challeng- es, we do not “re-weigh conflicting evidence,” but ask only 6 MITRANO v. AIR FORCE

if the Board’s findings are supported by substantial evidence. Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). Mr. Mitrano asserts that he was entitled to a hearing under 5 U.S.C. § 7532(c)(3) and a decision by the head of the relevant agency before he was removed from his position. Pet’r Br. 5. But Section 7532, which provides for removal without Board review, is not the only provi- sion under which an employee may be removed for rea- sons relating in some way to national security. An agency may follow the normal removal path under 5 U.S.C. § 7513 instead, with its different mix of benefits and burdens, including Board review, in which case Section 7532 is inapplicable. See Biggers v. Dep’t of the Navy, 745 F.3d 1360, 1363 (Fed. Cir. 2014); see also Dep’t of the Navy v. Egan, 484 U.S. 518, 522–26, 532–34 (1988). Here, the Air Force followed the Section 7513 path. Mr. Mitrano therefore has no basis for invoking Section 7532. 2 To the extent that Mr. Mitrano challenges the denial of Base access as the premise for the Board’s finding that he was unable to perform assigned duties, there is no merit to his challenge. As a substantive matter, the Air Force decision straightforwardly followed a provision of the Integrated Defense Plan stating that access to the Base will be denied to a person who has been “incarcer- ated for 12 months or longer within the past 10 years, regardless of offense/violation, unless released on proof of innocence.” Resp. Appx 39–40. That provision fits Mr. Mitrano’s situation, and he has not identified any sub- stantive rule that the Air Force violated in denying him access. He also received notice and an opportunity to respond to the proposed denial of access. In these circum-

2 Department of Defense Personnel Security Pro- gram Regulation DoD 5200.2-R, invoked by Mr. Mitrano, is inapplicable to the removal decision here. MITRANO v. AIR FORCE 7

stances, the Board properly left undisturbed the denial of Base access on which the first ground of removal rested. Decision at 8–9; see also Egan, 484 U.S. at 527–31 (limit- ing bases for Board review of Executive Branch security- clearance decisions, even when job status hinges on such decisions); Kaplan v. Conyers, 733 F.3d 1148, 1151, 1155, 1160 (Fed. Cir. 2013) (en banc) (applying Egan to a de- termination of eligibility of employee to hold a “sensitive” position). In this court, as before the Board, Mr. Mitrano pro- vides no basis to question the premise that access to the Base was an essential requirement of his job. He does, as he did before the Board, challenge the soundness of his criminal conviction (with resulting imprisonment of more than 12 months), which was the premise for applying the Integrated Defense Plan’s provision for denying access to the Base. Pet’r Br. 16, 20 (“The issue for this Court to decide is whether or not Mitrano’s conviction is void as a matter of law.”). But a sufficient answer is that nothing in any grant of jurisdiction to this court gives us, any more than any grant to the Board gives it, authority to question the conviction and sentence entered by a United States District Court in New Hampshire and affirmed by the First Circuit. See 28 U.S.C. § 1295 (principal grants of jurisdiction to this court). 3 Mr. Mitrano’s challenge to the Board’s upholding of the other ground for his removal—failure to follow or- ders—likewise lacks merit. He asserts that the Board erred in crediting Mr. Bradley’s testimony about the

3 In a related vein, Mr. Mitrano asserts that this court should review the disbarment decision of the Dis- trict of Columbia Court of Appeals, In re Mitrano, 952 A.2d 901 (D.C. 2008). Pet’r Br. 15–16; Reply Br. 2–6. That decision has no apparent bearing on the removal at issue here. Moreover, we lack any authority to review it. 8 MITRANO v. AIR FORCE

existence and content of a conversation with Mr. Mitrano on January 25, 2016. He argues specifically that, while Mr. Bradley said in this matter (in March 2017) that the conversation occurred between 8 AM and 12 PM, Mr. Bradley said in an unemployment-compensation proceed- ing (in May 2017) that the conversation occurred around 8 AM. Pet’r Br. 4, 27–29. But this asserted disparity, which is not even a facial inconsistency, is not remotely enough to undermine the Board’s finding that Mr. Brad- ley was credible or the Board’s decision to credit his testimony, specifically as to the instructions about resub- mitting the SF-86. Decision at 13–14. Mr. Mitrano has not supplied a basis for overcoming our broad deference to credibility determinations by fact finders who have seen witnesses firsthand. See Pope v. United States Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997); see also Bieber, 287 F.3d at 1364. In any event, the Board also found that the same in- struction to resubmit the SF-86 was received by Mr. Mitrano in the email sent to him on January 26, 2016. Decision at 12–13. That finding is sufficiently supported by the evidence recited by the Board, which we noted above. The finding about the email supports this ground of removal independently of the January 25, 2016 conver- sation between Mr. Bradley and Mr. Mitrano. In his reply brief in this court, Mr. Mitrano makes several additional arguments regarding the Board deci- sion in this matter. They come too late. A reply brief may not introduce new contentions. In any event, we see no merit in these contentions as grounds for disturbing the Board’s decision here. Finally, Mr. Mitrano presents several contentions not particularly tied to the Board decision in this case. We find no merit to these contentions either. We see no due process violation in applying our own standard rules setting length limits on the briefs Mr. Mitrano could file. MITRANO v. AIR FORCE 9

See, e.g., May v. Shinseki, 544 F. App’x 1002, 1005 (Fed. Cir. 2013). There is no statutory violation in the absence of a quorum at the Board and no basis in the absence of a quorum for this court to conduct de novo review in this matter: the statutory standard of review in 5 U.S.C. § 7703(c), does not change where, as here, an Administra- tive Judge’s decision becomes the final Board’s decision under the governing regulations, 5 C.F.R. § 1201.113. And Mr. Mitrano has not identified any violation by the Board of its regulations regarding the provision of tran- scripts when requested, 5 C.F.R. § 1201.53. III For the foregoing reasons, we affirm the Board’s deci- sion. No costs. AFFIRMED