                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOAN RYAN,                                      DOCKET NUMBER
                         Appellant,                  PH-0752-15-0165-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: April 12, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

           Ryan Chapline, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained her removal. 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 regulation or the


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the administrative
     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, 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        The appellant served as a division director with the Federal Emergency
     Management Agency (agency), and was required to maintain a top secret security
     clearance.   Initial Appeal File (IAF), Tab 5 at 44.      The agency indefinitely
     suspended the appellant after it suspended her access to classified information.
     Id. at 106-08. The appellant filed an appeal of her indefinite suspension, which
     the Board affirmed. See Ryan v. Department of Homeland Security, 121 M.S.P.R.
     460 (2014), aff’d, 793 F.3d 1368 (Fed. Cir. 2015), and overruled on other
     grounds by Freeze v. Department of Navy, 122 M.S.P.R. 179 (2015). The agency
     subsequently revoked the appellant’s access to classified information, and the
     agency’s chief security officer issued a second-level decision upholding the
     clearance revocation. IAF, Tab 5 at 49-52. The agency thereafter proposed to
     remove the appellant from her position based on the revocation of her security
     clearance.   Id. at 44-46.    The appellant, through counsel, provided an oral
     response to the deciding official, who issued a decision letter imposing the
     appellant’s removal. Id. at 20-22.
¶3        The appellant filed a timely initial appeal of her removal and alleged that
     the agency removed her without considering whether she could be reassigned to a
     position that either did not involve access to classified information or did not
                                                                                     3

     require her to maintain a security clearance. IAF, Tab 1. Following a hearing,
     the administrative judge issued an initial decision sustaining the appellant’s
     removal.   IAF, Tab 16, Initial Decision (ID).       In his initial decision, the
     administrative judge found that the agency established its charge concerning the
     appellant’s revocation of her security clearance, and he rejected the appellant’s
     argument that the agency committed a due process violation in effecting her
     removal.   ID at 6-8.   The administrative judge also found no support for her
     argument that she had a regulatory right to be returned to a pay status during the
     notice period preceding a decision on her proposed removal. ID at 8.
¶4        The appellant has filed a petition for review arguing that the administrative
     judge erred in upholding her removal and that he should have assessed whether
     some lesser penalty, such as a reassignment, was appropriate under Douglas v.
     Veterans Administration, 5 M.S.P.R. 280 (1981). Petition for Review (PFR) File,
     Tab 1 at 4. In support of her argument on review, the appellant asserts that the
     agency committed a due process violation by not considering whether she could
     be reassigned to a different position and that the administrative judge improperly
     concluded that the Board has “‘no role’ in the due process determination
     concerning an alternative penalty.” Id. at 5-6. The agency has filed a response in
     opposition to the petition for review, and the appellant has filed a reply. PFR
     File, Tabs 9-10. After the appellant filed her reply, the Board granted her motion
     to amend her petition for review. PFR File, Tab 11. In accordance with the
     Board’s order, the appellant filed her amended petition for review, PFR File,
     Tab 12, and the agency filed a response, PFR File, Tab 13.
¶5        In an appeal of an adverse action under 5 U.S.C. § 7513 based on the denial,
     revocation, or suspension of a security clearance, the Board does not have the
     authority to review the substance of the underlying security determination.
     Department of the Navy v. Egan, 484 U.S. 518, 520 (1988); Kaplan v. Conyers,
     733 F. 3d 1148, 1150-51 (Fed. Cir. 2013); Grimes v. Department of Justice,
     122 M.S.P.R. 36, ¶ 7 (2014). Rather, the Board only has the authority to review
                                                                                      4

     whether: (1) the appellant’s position required a clearance; (2) the clearance was
     denied, revoked, or suspended; and (3) the employee was provided with the
     procedural protections specified in 5 U.S.C. § 7513. Section 7513, however, is
     not the only source of procedural protections for employees subject to adverse
     actions; agencies also must comply with the procedures set forth in their own
     regulations. An employee also has a due process right to notice of the grounds in
     support of the adverse action and a meaningful opportunity to invoke the
     discretion of a deciding official with the authority to select an alternative
     outcome, to the extent an alternative penalty may have been feasible. See Flores
     v. Department of Defense, 121 M.S.P.R. 287, ¶ 10 (2014).
¶6        The Board further has found that an agency’s adverse action based on the
     loss of a security clearance promotes the efficiency of the service because such a
     loss of access is “fatal to the job entitlement” and that the traditional Douglas
     factors penalty analysis generally does not apply.      Munoz v. Department of
     Homeland Security, 121 M.S.P.R. 483, ¶¶ 13, 15 (2014).         The U.S. Court of
     Appeals for the Federal Circuit, moreover, has reaffirmed that the Board may
     consider whether the employee could be reassigned to another position only when
     a “substantive right [to be transferred] is available from some other source, such
     as a statute or regulation.” Ryan v. Department of Homeland Security, 793 F.3d
     1368, 1373 (Fed. Cir. 2015) (quoting Griffin v. Defense Mapping Agency,
     864 F.2d 1579, 1580 (Fed. Cir. 1989)). In recently reaffirming this principle, the
     court expressly rejected the assertion that the Board has the authority to mitigate
     a penalty imposed pursuant to the suspension or revocation of a security clearance
     under Douglas. Id. at 1372-73.
¶7        We agree with the administrative judge that the agency proved its removal
     charge based on the revocation of the appellant’s security clearance, and the
     appellant has not challenged the factual basis for her removal on review. ID at 6;
     PFR File, Tab 1 at 4.     We thus find there is preponderant evidence that the
     appellant’s position required a clearance, that her clearance was revoked, and that
                                                                                      5

     she was provided the procedural protections set forth in section 7513(b). The
     appellant, moreover, has not argued that the agency failed to comply with any of
     its agency-specific procedures in effecting her removal. Thus, consistent with our
     decisions in similar cases, we find that the appellant’s removal promotes the
     efficiency of the service and that the agency established nexus.       See Munoz,
     121 M.S.P.R. 483, ¶ 13.
¶8        We have considered the appellant’s primary argument on review that the
     Board should exercise its mitigation authority under Douglas to impose some
     lesser, alternative penalty, and we find this argument is foreclosed by both our
     decisions and those of the Federal Circuit. The Federal Circuit consistently has
     held that the Board “does not have the authority to review the feasibility of [a]
     reassignment in the absence of an additional agency regulation or policy
     statement providing for such transfer” in adverse action appeals based on the
     suspension or revocation of a security clearance. Biggers v. Department of the
     Navy, 745 F.3d 1360, 1362 n.1 (Fed. Cir. 2014). In response to similar arguments
     the appellant previously asserted in connection with her indefinite suspension, the
     Federal Circuit affirmed the Board’s finding that it should not apply a traditional
     Douglas factors penalty analysis to an adverse action involving either the
     suspension or revocation of a security clearance. See Ryan, 793 F.3d at 1372-73;
     Ryan, 121 M.S.P.R. 460, ¶¶ 8-10. It would be wholly inconsistent for the Board
     to depart from these precedential decisions in this case and examine the
     reasonableness of the agency’s removal penalty under Douglas.           See Ryan,
     793 F.3d at 1372 (explaining why the Douglas factors do not apply to the Board’s
     review of a nondisciplinary adverse action involving a security clearance
     determination); see also Munoz, 121 M.S.P.R. 483, ¶ 15; Ryan, 121 M.S.P.R. 460,
     ¶¶ 8-10.
¶9        We also reject the appellant’s claim that she has a due process right to be
     considered for a lesser penalty, such as a reassignment. PFR File, Tab 1 at 4.
     Specifically, we disagree with the appellant’s suggestion that the Board has held
                                                                                       6

      that “there is a constitutional due process requirement for the agency to consider
      the several alternatives to a clearance-based removal.” PFR File, Tab 10 at 4.
      Instead, the Board has found that an appellant has a limited due process right to
      invoking the discretion of a deciding official who has the authority to select from
      alternative penalties, to the extent such alternatives are permitted, feasible, and
      within management’s purview. See Putnam v. Department of Homeland Security,
      121 M.S.P.R. 532, ¶ 8 (2014); see also Massey v. Department of the Army,
      120 M.S.P.R. 226, ¶ 4 (2013) (noting that the “root requirement” of due process
      is the opportunity to be heard (quoting Cleveland Board of Education v.
      Loudermill, 470 U.S. 532, 534 (1985)).      The Board has never found that an
      appellant enjoys a substantive due process right to receive an alternative, lesser
      penalty.   The nature of the Board’s review of the reasonableness of an
      agency‑imposed penalty derives from the Civil Service Reform Act of 1978, and
      is not a matter of constitutional right. Cf. Ryan, 793 F.3d at 1372 (“Douglas,
      however, addressed the question of whether the [Board’s] statutory authority
      ‘includes authority to modify or reduce a penalty imposed on an employee by an
      agency’s adverse action’” (quoting Douglas, 5 M.S.P.R. at 313)).
¶10         The record shows that the appellant, through counsel, presented a detailed
      oral reply to the deciding official in which she advocated for a reassignment in
      lieu of removal. IAF, Tab 5 at 37-42. The deciding official, moreover, testified
      at the hearing that she possessed the authority to reassign the appellant and that
      she considered the appellant’s request but that she declined to exercise her
      authority under the facts of this case. ID at 7 (citing hearing compact disc). We
      fully concur with the administrative judge’s finding that the appellant’s due
      process right to a meaningful opportunity to be heard was honored. See Putnam,
      121 M.S.P.R. 532, ¶ 12 (explaining that due process does not require a deciding
      official to have unfettered discretion to take any action she believes is
      appropriate); ID at 8.
                                                                                            7

¶11         Finally, we find no merit to the appellant’s argument that she was entitled
      to be returned to a paid status pending the issuance of a decision letter on her
      proposed removal. PFR File, Tab 12 at 4-5. Although an agency generally must
      keep an employee in a paid status during the advance notice period preceding an
      adverse action, see 5 C.F.R. § 752.404(b)(3), here, the agency previously had
      indefinitely suspended the appellant and specified that the condition subsequent
      terminating that action was the “final adjudication of [her] future eligibility for
      access to classified information,” IAF, Tab 5 at 107.             The agency further
      specified that the indefinite suspension would “continue through the notice period
      of any proposed adverse action.” Id. Because the appellant was in a nonduty,
      nonpaid status pursuant to the agency’s indefinite suspension action, and because
      the agency specified that it would keep the appellant in such a status through the
      notice period of any subsequent adverse action, we find no merit to her claim that
      she should have been returned to a paid status prior to the imposition of her
      removal.   See Drain v. Department of Justice, 108 M.S.P.R. 562, ¶ 8 (2008);
      5 C.F.R. § 752.402 (finding that an indefinite suspension “continues for an
      indeterminate period of time and ends with the occurrence of the pending
      conditions set forth in the notice of action[,] which may include the completion of
      any subsequent adverse action”). 2
¶12         Based on the foregoing, the appellant’s petition for review is denied and the
      initial decision sustaining the appellant’s removal is affirmed.




      2
        None of the cases cited by the appellant in her amended petition for review stand for
      the proposition that an employee who is properly on an indefinite suspension must be
      returned to a paid status during the notice period for a subsequent adverse action. See,
      e.g., Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 687-89 (1991) (holding
      that an employee who was separated after completing her probationary period was
      entitled to back pay for the 30-day period preceding her separation).
                                                                                  8

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
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
title 5 of the U.S. 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
                                                                                  9

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.
