                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOAN RYAN,                                      DOCKET NUMBER
                         Appellant,                  PH-0752-13-0343-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: August 18, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Peter Broida, Esquire, Arlington, Virginia, for the appellant.

           David Myers, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her initial appeal challenging the continuation of her indefinite
     suspension for lack of jurisdiction. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the

     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     initial decision is based on an erroneous interpretation of statute or regulation or
     the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).
¶2         Familiarity with the underlying facts of this appeal is presumed. See Ryan
     v. Department of Homeland Security, 2014 MSPB 64, ¶¶ 2-3 (Ryan I). In the
     instant appeal, the appellant reasserts her challenge to her continued placement on
     indefinite suspension based upon the suspension of her security clearance. See
     Initial Appeal File (IAF), Tab 19, Initial Decision (ID) at 1; IAF, Tab 1. As a
     part of her prior appeal of her indefinite suspension, the appellant argued that she
     should be returned to duty following her acquittal on the criminal charges which
     served as the basis for the suspension of her clearance. See Ryan I, 2014 MSPB
     64, ¶ 13.    We rejected the appellant’s argument, noting that the condition
     subsequent identified by the agency in its notice of indefinite suspension was a
     final determination on her access to classified information, and that, in the
     absence of the restoration of her security clearance, the Board is without the
     authority to order that the appellant be returned to duty. Id., ¶ 14.
¶3         We find no reason to deviate from our prior decision. See id., ¶¶ 14-15.
     The appellant’s argument on review that the agency’s delay amounts to a denial
     of due process does not change our analysis, see Petition for Review File, Tab 1
                                                                                      3

     at 5, and the appellant has cited no support for her contention that the Board has
     the authority to order her restored based solely upon the amount of time that has
     elapsed since her acquittal, notwithstanding the fact that the agency has yet to
     decide whether to reinstate her access to classified information, see Gargiulo v.
     Department of Homeland Security, 727 F.3d 1181, 1186 (Fed. Cir. 2013)
     (“[E]mployees do not have constitutional due process rights in connection with
     security clearance determinations.”). As we explained in Ryan I, moreover, the
     Board cannot order an employee restored to a position requiring a security
     clearance when she does not possess such a clearance, and, absent some agency
     policy, statute, or regulation requiring the agency to consider reassigning the
     employee prior to indefinitely suspending her, “the Board has no role” in
     reviewing whether an employee should have been reassigned instead of receiving
     an adverse action.    Ryan I, 2014 MSPB 64, ¶ 9 (quoting Griffin v. Defense
     Mapping Agency, 864 F.2d 1579, 1581 (Fed. Cir. 1989)).
¶4        We agree with the administrative judge that the Board is without
     jurisdiction over the appellant’s instant appeal and that the appellant’s appeal is
     premature. ID at 3-4. The administrative judge’s initial decision is AFFIRMED.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
          You have the right to request review of this final decision by the
     United States Court of Appeals for the Federal Circuit. 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 20439

           The court must receive your request for review no later than 60 calendar
     days after the date of this order.    See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
     Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
                                                                                  4

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) (as rev. eff.
Dec. 27, 2012).    You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the 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.
      If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
