                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2015 MSPB 9

                             Docket No. DC-0752-14-0495-I-1

                                   Douglas W. Freeze,
                                        Appellant,
                                             v.
                                Department of the Navy,
                                         Agency.
                                     January 27, 2015

           Laura A. O’Reilly, Virginia Beach, Virginia, for the appellant.

           Greg Kreutzberg, Virginia Beach, Virginia, for the agency.

           Deborah Sciascia, Esquire, San Diego, California, for the agency.

                                         BEFORE

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



                                 OPINION AND ORDER

¶1         The appellant has petitioned for review of the initial decision that
     dismissed the appeal of his indefinite suspension for lack of jurisdiction. For the
     reasons set forth below, we GRANT the petition for review, AFFIRM the
     administrative judge’s finding that the Board lacks jurisdiction over the
     appellant’s appeal of the imposition of his indefinite suspension, but FIND that
     the Board has jurisdiction over his appeal of the improper continuation of his
     indefinite suspension, and AFFIRM that agency action through June 5, 2014.
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                                      BACKGROUND
¶2         The appellant held the position of Intelligence Specialist with the agency’s
     Naval Special Warfare Development Group. Initial Appeal File (IAF), Tab 7 at
     21-22. The position required him to obtain and maintain a Top Secret clearance
     with access to Sensitive Compartmented Information (SCI). Id. at 65, 68. By
     memorandum dated June 18, 2012, the agency suspended the appellant’s security
     clearance pending an investigation by the Department of the Navy Central
     Adjudication Facility to determine the final status of his clearance. Id. at 46.
¶3         On June 19, 2012, the agency proposed to indefinitely suspend the
     appellant without pay based on the suspension of his Top Secret security
     clearance. Id. at 43-45. The appellant responded orally and in writing, id. at
     31-41, and by letter dated August 29, 2012, which the agency amended on
     September 4, 2012, the deciding official notified the appellant that he was
     suspended without pay, effective September 5, 2012, id. at 22-30. The deciding
     official also informed the appellant that the suspension would remain in effect
     until the completion and disposition of all issues regarding his security clearance
     and through the notice period of any subsequent adverse action in the event that a
     final determination was made to revoke his security clearance. Id. at 28-29.
¶4         On October 3, 2012, the appellant filed an appeal of the indefinite
     suspension, which is separate from the present appeal, alleging that the agency’s
     actions violated his due process rights. IAF, Tab 8 at 9-13. In an initial decision
     dated November 29, 2012, the administrative judge dismissed the appeal as
     withdrawn with prejudice based upon written notice from the appellant
     withdrawing his appeal. Id. at 36, 38-39.
¶5         On April 10, 2013, the Department of Defense Consolidated Adjudications
     Facility (DODCAF) issued a Letter of Intent informing the appellant of its
     preliminary decision to revoke his eligibility for a security clearance, his
     assignment to a sensitive position, and his access to SCI. IAF, Tab 6 at 49-52.
     DODCAF provided him with a Statement of Reasons forming the basis for the
                                                                                           3

     preliminary decision and informed him that he could respond to the statement
     within 15 calendar days. Id. The appellant responded in writing, id. at 64-69,
     and on July 30, 2013, DODCAF issued a Letter of Notification with its final
     determination to revoke the appellant’s eligibility for a security clearance, his
     assignment to a sensitive position, and his access to SCI, id. at 74-76.           The
     appellant appealed DODCAF’s final revocation by requesting a personal
     appearance before the Defense Office of Hearings and Appeals, which held a
     hearing on February 20, 2014. Id. at 82, 84.
¶6         On March 3, 2014, the appellant filed the present appeal concerning his
     indefinite suspension, claiming that it was illegally imposed and that it had
     continued for an excessive length of time. IAF, Tab 1 at 1, 4, 6. Without holding
     the requested hearing, the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction. IAF, Tab 1 at 2, Tab 12, Initial
     Decision (ID) at 1.      The administrative judge found that the appellant had
     previously filed an appeal of the same indefinite suspension, which he withdrew,
     and that he discerned no basis for reopening the appeal. ID at 2-3.
¶7         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. After the appellant filed his petition for review, on June 4, 2014, the
     agency notified him that the Personnel Security Appeals Board (PSAB) upheld
     DODCAF’s revocation of his eligibility for a security clearance. PFR File, Tab 5
     at 13-16. The appellant subsequently resigned from his position on June 5, 2014.
     Id. at 12. The agency thereafter filed a response in opposition to the appellant’s
     petition for review. 1 Id. at 4-11.


     1
       The agency also filed a motion to join the current appeal with another appeal filed by
     the same appellant that was also pending before the Board, which the appellant did not
     oppose. PFR File, Tabs 3-4. We find, however, that joinder would not expedite the
     processing of the appeals. See 5 C.F.R. § 1201.36(b)(1). Accordingly, we deny the
     agency’s motion.
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                                         ANALYSIS
¶8          Our reviewing court has found that there are two types of Board appeals
      that may arise from the imposition of an indefinite suspension. See Rhodes v.
      Merit Systems Protection Board, 487 F.3d 1377, 1380 (Fed. Cir. 2007). The first
      type of appeal is an inquiry into the propriety of an agency’s imposition of an
      indefinite suspension and considers only facts relating to events prior to the
      suspension that are proffered to support such an imposition. Id. The second type
      of appeal is an inquiry into the propriety of an agency’s failure to terminate the
      suspension and considers only facts and events that occurred after the suspension
      was imposed. Id.
¶9          Here, the appellant challenges both the imposition of the indefinite
      suspension, claiming it was unlawful because the agency committed harmful
      procedural error in effecting it, and the continuation of the indefinite suspension,
      claiming it has continued beyond any reasonable length of time, which was
      approximately 18 months at the time he filed the present appeal. PFR File, Tab 1
      at 6-12.    In dismissing the appeal for lack of jurisdiction, however, the
      administrative judge only addressed the appellant’s claim regarding the
      imposition of the indefinite suspension.    ID at 2-3.   Regarding that claim, he
      found that the appellant previously had appealed the same adverse action to the
      Board, which the administrative judge properly dismissed as withdrawn, and that
      the appellant had failed to set forth a sufficient basis upon which to reopen the
      appeal. ID at 2-3. We find that the appellant has set forth no basis to disturb
      these findings on review.      The appellant, however, did not challenge the
      continuation of the indefinite suspension in the withdrawn appeal and we find
      that the Board does have jurisdiction to consider this separate claim. See Rhodes,
      487 F.3d at 1380-82.
¶10         To be valid, an indefinite suspension must have an ascertainable end, that
      is, a determinable condition subsequent that will bring the suspension to a
      conclusion. Jones v. Department of the Army, 111 M.S.P.R. 350, ¶ 11 (2009).
                                                                                             5

      The Board, however, will not impose a condition subsequent different from the
      one identified by the agency in its decision imposing the indefinite suspension.
      The Board’s role in an appeal alleging an impermissible continuation of an
      indefinite suspension is limited to reviewing whether the condition subsequent
      identified by the agency has occurred and whether the agency acted within a
      reasonable amount of time to terminate the suspension following the satisfaction
      of the condition subsequent. See Sanchez v. Department of Energy, 117 M.S.P.R.
      155, ¶ 9 n.2 (2011).
¶11         Based on the decision letter indefinitely suspending the appellant, the
      condition subsequent triggering the cessation of the appellant’s suspension is the
      completion and disposition of all issues regarding his security clearance and the
      completion of the notice period of any possible subsequent adverse action. 2 IAF,
      Tab 7 at 28. At the time the appellant filed his initial appeal, the appeal was
      premature because the issue of his security clearance had not yet been resolved.
      See Sanchez, 117 M.S.P.R. 155, ¶ 9 n.2.           While the appeal was pending on
      review, however, the agency notified the appellant that the PSAB had denied his
      appeal of the revocation of his security clearance, which completed and disposed
      of all issues regarding his security clearance.          PFR File, Tab 5 at 13-16.
      Ordinarily, at that point, the agency would propose the appellant’s removal for
      failure to meet a condition of employment and the indefinite suspension would
      continue until a final decision was made on the proposed action. IAF, Tab 7 at


      2
        We hereby overrule our decision in Ryan v. Department of Homeland Security,
      121 M.S.P.R. 460, ¶ 14 (2014), to the extent that it holds that, where an agency
      indefinitely suspends an appellant based upon the suspension of her security clearance,
      the condition subsequent triggering the cessation of the suspension is the restoration of
      her security clearance. As explained above, the Board cannot impose a condition
      subsequent of restoration of an appellant’s security clearance where the letter
      indefinitely suspending the appellant identifies the condition subsequent as the
      completion and disposition of all issues regarding the appellant’s security clearance and
      the completion of the notice period of any possible subsequent adverse action.
                                                                                           6

      29. However, because the appellant in this case resigned the day after he learned
      that the PSAB denied his appeal, there was no subsequent adverse action, and the
      condition subsequent identified by the agency has been fully met.            PFR File,
      Tab 5 at 12, 16.    Given his immediate resignation, the appellant has failed to
      show that the agency did not act within a reasonable amount of time to terminate
      the   suspension   following   the    satisfaction   of   the   condition   subsequent.
      Accordingly, we affirm the agency action though June 5, 2014, the date of his
      resignation. PFR File, Tab 5 at 12; see Sanchez, 117 M.S.P.R. 155, ¶ 9 n.2.

                                             ORDER
¶12         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                         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 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
                                                                               7

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.
