                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHEILA MARIE CLARK,                             DOCKET NUMBER
                   Appellant,                        DC-0752-14-0741-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: December 16, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Sheila Marie Clark, Indian Head, Maryland, pro se.

           Brian Wilberg, 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 appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or

     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.       Except as
     expressly modified by this Final Order, we AFFIRM the initial decision.
¶2        The appellant filed an appeal challenging the agency’s decision to revoke
     her security clearance on June 25, 2013. Initial Appeal File (IAF), Tab 1. The
     record reflects that the appellant was employed in the Senior Executive Service
     with a Top Secret security clearance, but she was removed from federal service
     on May 6, 2013, prior to receiving a written decision regarding the proposed
     revocation of her security clearance. 2    The appellant alleged that, when the
     agency revoked her security clearance on June 25, 2013, the procedures used by
     the agency violated her right to due process. Id.
¶3        The administrative judge noted that the appeal was untimely filed and that,
     while the appellant had been provided the specific opportunity to submit evidence
     and argument showing that the Board has jurisdiction over this appeal, the
     appellant did not respond. Initial Decision (ID) at 2. The administrative judge
     then found that the appellant has no appeal right to the Board to challenge the
     revocation of her security clearance, whether as to the merits or the procedures
     used to effect that revocation. ID at 2-3. Because the appellant was challenging


     2
      The appellant filed a separate appeal of her removal, MSPB Docket No. DC-0752-13-
     0661-I-1, which is pending at the Board’s Washington Regional Office.
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     only the alleged impropriety of the agency’s revocation of her security clearance,
     the administrative judge dismissed the appeal for lack of jurisdiction. ID at 3.
¶4        The appellant has filed a petition for review in which she asserts that the
     administrative judge erred in stating that her appeal was untimely filed. Petition
     for Review (PFR) File, Tab 1 at 4. She asserts that her appeal was timely because
     she filed her appeal within 30 days from the May 9, 2014 date of the agency’s
     final decision on the revocation of her security clearance. Id. However, while
     the administrative judge stated that the appeal was untimely filed, the
     administrative judge did not dismiss the appeal on this basis.           Rather, the
     administrative judge dismissed the appeal for lack of Board jurisdiction. Thus,
     the timeliness issue was not determinative in the outcome of this appeal. Further,
     even if the administrative judge erred in finding her appeal untimely filed,
     because the administrative judge correctly dismissed this appeal for lack of
     jurisdiction, the appellant has not shown that her substantive rights were harmed.
     An adjudicatory error that is not prejudicial to a party’s substantive rights
     provides no basis for reversal of an initial decision. Panter v. Department of the
     Air Force, 22 M.S.P.R. 281, 282 (1984).
¶5        The appellant also contends that the administrative judge erred by finding
     that she did not respond to either the agency’s motion to dismiss for lack of
     jurisdiction or to the administrative judge’s show cause order. PFR File, Tab 1
     at 4. The appellant asserts that her response was due on June 18, 2014, and that
     she e-filed her response on June 17, 2014. Id. at 4-5. Thus, she asserts that the
     administrative judge erred by failing to consider her response prior to issuing the
     initial decision. Id. We agree. While the appellant’s response was timely filed
     on June 17, 2014, and the initial decision was issued on July 11, 2014, the
     administrative judge stated that the appellant did not respond, and thus she
     apparently did not consider the appellant’s submission.       ID at 2.     We have
     therefore considered the arguments in the appellant’s response and, for the
     reasons set forth below, find that the appellant has failed to make the requisite
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     nonfrivolous allegations to merit a jurisdictional hearing.          See Garza v.
     Department of the Navy, 119 M.S.P.R. 91, ¶ 6 (2012).
¶6         On review, the appellant reiterates the argument she raised below that the
     Board has jurisdiction over her appeal because the agency violated its procedures
     by revoking her security clearance after she was no longer an agency employee.
     PFR File, Tab 1; IAF, Tab 8. The appellant contends that, because she was no
     longer an agency employee, the agency had no authority to adjudicate her security
     clearance or to revoke it under agency regulations.              However, as the
     administrative judge correctly found, the appellant has the right to appeal to the
     Board an adverse action such as a suspension or removal taken as a result of a
     revocation of a security clearance, and she has pursued that right in a separate
     appeal. Here, the appellant is challenging only the alleged impropriety of the
     agency’s process in revoking her security clearance. See IAF, Tabs 1, 3-7; see
     also PFR File, Tab 1. However, under Department of the Navy v. Egan, 484 U.S.
     518, 530-31 (1988), the Board does not have authority to review the substance of
     the underlying security clearance determination.       Further, as in Gargiulo v.
     Department of Homeland Security, 727 F.3d 1181, 1187 (Fed. Cir. 2013), the
     appellant has no due process rights regarding the procedures used to determine
     whether to suspend or revoke her security clearance. While the appellant has due
     process rights concerning her removal, her removal is not at issue in this case,
     and the appellant does not have the right to contest the merits of the decision to
     revoke her security clearance. See Gargiulo, 727 F.3d at 1187; see also Cheney
     v. Department of Justice, 479 F.3d 1343, 1352 (Fed. Cir. 2007).        Accordingly,
     the administrative judge correctly dismissed this appeal for lack of jurisdiction.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
     Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
     request the United States Court of Appeals for the Federal Circuit to review this
                                                                                  5

final decision.    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 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
                                                                           6

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.
