                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                         2014 MSPB 64

                             Docket No. PH-0752-13-0127-I-1

                                          Joan Ryan,
                                           Appellant,
                                               v.
                           Department of Homeland Security,
                                            Agency.
                                         August 18, 2014

           Peter B. 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



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision which
     sustained her indefinite suspension following the suspension of her security
     clearance.   Petition for Review (PFR) File, Tab 1.      On review, the appellant
     argues that the agency erred when it indefinitely suspended her, rather than
     indefinitely demoting her or continuing her paid administrative leave. She also
     asserts that the agency erred by not returning her to employment following her
     acquittal on the criminal charges which served as the basis for suspending her
     security clearance.   Id. at 5-6.     For the reasons that follow, the appellant’s
     petition for review is DENIED, and the initial decision is AFFIRMED.
                                                                                        2

                                      BACKGROUND
¶2          The appellant serves as a regional Mission Support Division Director,
     GS-15, with the Federal Emergency Management Agency, and must maintain a
     top secret security clearance as a condition of her position. Initial Appeal File
     (IAF), Tab 4 at 84. The agency issued the appellant notice that it was suspending
     her access to classified information based upon its receipt of information that she
     had been indicted on federal criminal charges of a conflict of interest, solicitation
     of a gratuity, and making a false statement. See id. at 58, 62, 67. Following the
     suspension of her security clearance, the appellant was placed on a period of
     administrative leave, see id. at 64-65, and the agency subsequently proposed her
     indefinite suspension from employment based upon the suspension of her security
     clearance, which the deciding official      sustained, see id. at 19-22 (letter of
     decision), 35-37 (notice of proposed indefinite suspension).
¶3          The appellant filed an initial appeal challenging her indefinite suspension.
     IAF, Tab 1. After the filing of her appeal, but prior to the hearing held in this
     matter, the appellant was acquitted of all criminal charges against her.        IAF,
     Tab 10. The administrative judge held a hearing and issued an initial decision
     affirming the appellant’s indefinite suspension.     IAF, Tab 16, Initial Decision
     (ID) at 16. The administrative judge found that the agency did not violate the
     appellant’s rights to due process in effecting her suspension because the deciding
     official:   (1) had the discretion to impose alternative penalties, although she
     elected to impose the proposed indefinite suspension; and (2) did not consider
     new and material ex parte information in rendering her decision to indefinitely
     suspend the appellant.      ID at 8-14.      In reaching these conclusions, the
     administrative judge rejected the appellant’s argument that, pursuant to Douglas
     v. Veterans Administration, 5 M.S.P.R. 280 (1981), the agency was under an
     affirmative obligation to consider issuing an indefinite demotion to a lower-level
     position, which did not require access to classified information, or continued
     placement on paid administrative leave before issuing an indefinite suspension.
                                                                                      3

     ID at 10-12.   Lastly, the administrative judge found that the agency was not
     required to restore the appellant to work following her acquittal because the basis
     of her indefinite suspension was the suspension of her security clearance, not her
     indictment on criminal charges, and because the condition subsequent specified
     by the agency in its indefinite suspension action—the restoration of her security
     clearance—had not occurred. ID at 14-16.
¶4         The appellant has filed a petition for review reiterating her contentions
     that, under Douglas, an agency must consider penalties less severe than an
     indefinite suspension before effecting such an action, and the agency has
     impermissibly extended her indefinite suspension by not returning her to a paid
     status following her acquittal on criminal charges. PFR File, Tab 1 at 5-6. The
     agency has filed a response to the petition for review, and the appellant has filed
     a reply. See PFR File, Tabs 3, 4.

                                         ANALYSIS
     The agency established the propriety of its indefinite suspension action by a
     preponderance of the evidence.
¶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 clearance
     determination. Gamboa v. Department of the Air Force, 120 M.S.P.R. 594, ¶ 5
     (2014) (citing Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988)).
     Rather, the Board only has the authority to review 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. Ulep v. Department of the Army, 120 M.S.P.R. 579,
     ¶ 4 (2014) (citing Hesse v. Department of State, 217 F.3d 1372, 1376 (Fed. Cir.
     2000)). Section 7513, however, is not the only source of procedural protections
     for employees subject to adverse actions; agencies must also comply with the
     procedures set forth in their own regulations. Id. An employee also has a due
                                                                                      4

     process right to notice of the grounds in support of the adverse action—here,
     notice that her position required a security clearance and that she could no longer
     remain in that position once her clearance was suspended—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 Buelna v. Department of Homeland Security, 121 M.S.P.R. 262,
     ¶¶ 25-28 (2014); see also Flores v. Department of Defense, 121 M.S.P.R. 287,
     ¶ 10 (2014).
¶6         Here, there is no dispute that the appellant’s position required a security
     clearance or that her clearance was suspended based upon her indictment on
     federal criminal charges. IAF, Tab 4 at 58 (security clearance determination),
     84 (position description); ID at 9.   The agency, moreover, complied with the
     procedural protections of section 7513 by providing the appellant at least
     30 days’ advanced notice of its proposed action, a period of time of more than
     7 days to reply, the right to be represented, and a written decision on the
     proposed action, see 5 U.S.C. § 7513(b)(1)-(4); IAF Tab 4 at 19-21, 36.        The
     appellant has not argued that the agency violated one of its specific policies or
     regulations in effecting her indefinite suspension. See, e.g., Ulep, 120 M.S.P.R.
     579, ¶¶ 5-6 (finding that the agency violated its own process regarding
     “unfavorable    administrative   actions”   relating   to   personnel    security).
     Additionally, we agree with the administrative judge that the agency did not
     violate the appellant’s right to due process in effecting her suspension because
     she had the opportunity to invoke the discretion of a deciding official who, within
     the parameters of the agency’s disciplinary procedures, had the authority to
                                                                                           5

     consider and impose alternative forms of discipline in lieu of the proposed
     indefinite suspension. ID at 10-11; 1 see Buelna, 121 M.S.P.R. 262, ¶¶ 25-28.
     In an adverse action arising out of a security clearance determination, an agency
     need only consider whether an employee’s reassignment to a nonsensitive
     position is feasible when statutes, regulations, or policies require it to do so.
¶7         We agree with the administrative judge’s finding that the agency does not
     have a policy requiring it to consider reassigning an employee to a nonsensitive
     position or placing an employee on paid administrative leave following the
     suspension of her security clearance. 2 See ID at 10; IAF, Tab 8 at 22-50. As
     discussed below, we also agree with the administrative judge’s conclusion that
     the agency did not otherwise err by not reassigning the appellant to a nonsensitive
     position. See Schnedar v. Department of the Air Force, 120 M.S.P.R. 516, ¶ 7
     n.1 (2014) (the Board may review whether an employee’s transfer to a
     nonsensitive position is feasible only where a statute or regulation provides the
     employee a substantive right to such a reassignment) (citing Griffin v. Defense
     Mapping Agency, 864 F.2d 1579, 1580 (Fed. Cir. 1989)).
¶8         The appellant argues on review that, under Douglas, the agency should
     have considered alternative forms of discipline prior to imposing her indefinite
     suspension and that its failure to do so entitles the agency’s penalty selection to
     less deference. PFR File, Tab 1 at 8-20. Although acknowledging the Federal


     1
       To the extent the administrative judge relied upon the Board’s decisions which are
     modified by Buelna, see 121 M.S.P.R. 262, ¶ 18 n.7, the administrative judge’s initial
     decision is similarly modified.
     2
       The appellant suggests on review that the agency’s “own personnel policies call for
     consideration of demotion as an alternative to a more serious sanction.” PFR File,
     Tab 1 at 15. The section of the agency’s disciplinary policy cited by the appellant,
     however, addresses demotions in general, not in the specific context of a revocation or
     suspension of access to classified information, and we find nothing in this policy to
     suggest that the agency has an internal policy granting employees a substantive right to
     reassignment following the revocation or suspension of their access to classified
     information.
                                                                                              6

     Circuit’s longstanding approach that an agency need only consider transferring an
     employee to a nonsensitive position where a statute, regulation, or agency policy
     provides the employee with a substantive right to reassignment, see Griffin,
     864 F.2d at 1580-81; PFR File, Tab 1 at 11, the appellant argues that, under
     Douglas, an agency is also required to assess the reasonableness of its penalty
     selection by demonstrating that it considered whether lesser forms of discipline
     were feasible before imposing an indefinite suspension, see PFR File, Tab 1 at 8
     (“the Board requires due process to be applied and appropriate penalty
     considerations by agencies under Douglas despite recognition that an indefinite
     suspension is not an ordinary disciplinary action . . .”). For the reasons below,
     we decline the appellant’s invitation to reanimate under Douglas what our
     reviewing court has expressly foreclosed in Griffin.
¶9           In Griffin, and Lyles v. Department of the Army, 864 F.2d 1581 (Fed.
     Cir. 1989), which were decided on the same day, the Federal Circuit held that, in
     the absence of a statute, regulation, or policy mandating the transfer or
     reassignment of an employee who is denied a security clearance, “the Board has
     no role” in reviewing whether an employee should have been reassigned instead
     of receiving an adverse action. Griffin, 864 F.2d at 1581; see Lyles, 864 F.2d
     at 1583-84. Despite the appellant’s arguments to the contrary, consideration of
     the Douglas factors would be inappropriate in this case, because in the absence of
     a statute or regulation requiring the agency to seek out alternative employment,
     we lack authority to review whether the lesser sanction of reassignment to a
     nonsensitive position would have been feasible. 3 See Flores, 121 M.S.P.R. 287,
     ¶ 12.


     3
       The appellant argues on review that Holley v. Department of the Navy, 62 M.S.P.R.
     300 (1994), requires a deciding official to determine whether it is “feasible to maintain
     the appellant in a duty status,” and that the deciding official in this case erred when she
     “made no such determination.” PFR File, Tab 4 at 11 (citing Holley, 62 M.S.P.R.at 305
     n.3). The Board’s holding in Holley, however, makes clear that the Board does not
                                                                                              7

¶10          The appellant cites earlier Board decisions which opined that an agency
      had to demonstrate that reassigning an employee to a nonsensitive position was
      not possible before it would affirm an employee’s indefinite suspension based
      upon the loss or revocation of a security clearance. See PFR File, Tab 1 at 8-10
      (citing Martin v. Department of the Treasury, 12 M.S.P.R. 12, 21 (1982), aff’d in
      part, rev’d in part on other grounds sub nom. Brown v. Department of
      Justice, 715 F.2d 662 (D.C. Cir. 1983), and aff’d sub nom. Otherson v.
      Department of Justice, 728 F.2d 1513 (D.C. Cir. 1984), modified on other
      grounds by Barresi v. U.S. Postal Service, 65 M.S.P.R. 656, 663 n.5 (1994)); 4
      Woroneski v. Department of the Navy, 39 M.S.P.R. 366, 369 n.2 (1988) (the
      Board has held that the agency bears the burden, as part of its case in chief, to
      show that it could not reassign the appellant to a nonsensitive position within the
      facility where he was employed) (citing Van Duzer v. Department of the Navy, 39
      M.S.P.R. 202, 206 (1988)). The Board decisions cited by the appellant, however,
      predate Griffin and Lyles and they cannot be harmonized with this later line of
      cases. 5   Griffin and Lyles, moreover, are controlling authority which we are


      have the authority to review the feasibility of reassignment to a nonsensitive position
      and that there was no claim that the agency had a regulation requiring it to consider
      reassignment prior to suspending the appellant. See Holley, 62 M.S.P.R. at 304-05. To
      the extent the footnote in Holley suggests otherwise, we find that it is dicta and it does
      not require an agency to affirmatively demonstrate that reassignment is not feasible
      before imposing an indefinite suspension.
      4
       The Board modified Martin on other grounds not relevant to this appeal in Barresi v.
      U.S. Postal Service, 65 M.S.P.R. 656, 663 n.5 (1994). In any case, at issue in Martin
      were indefinite suspensions where the agency had reasonable cause to believe that the
      appellants had committed crimes for which imprisonment could be imposed. Martin,
      12 M.S.P.R. at 13. We do not find such suspensions to be comparable to those arising
      out of security clearance determinations.
      5
        Accordingly, to the extent Woroneski and Van Duzer hold that an agency must
      demonstrate that it considered reassigning an employee to a nonsensitive position
      before removing or indefinitely suspending the employee based upon the denial or
      suspension of a security clearance, these decisions are OVERRULED. See Biggers v.
      Department of the Navy, 745 F.3d 1360, 1362 n.1 (Fed. Cir. 2014).
                                                                                          8

      bound to follow unless modified by our reviewing court. See Conner v. Office of
      Personnel Management, 120 M.S.P.R. 670, ¶ 6 (2014) (precedential decisions of
      the Federal Circuit are controlling authority for the Board which the Board is
      bound to follow unless otherwise overruled by the court sitting en banc). We
      therefore find the appellant’s arguments unpersuasive.
¶11            We further reject the appellant’s suggestion that she has a due process right
      to be considered for reassignment to a nonsensitive position. PFR File, Tab 1 at
      14-15, 19-20, Tab 4 at 7-9. Although the Board has found that an employee has a
      constitutional due process right to respond to a notice of proposed adverse action
      based upon the suspension of her security clearance, see Buelna, 121 M.S.P.R.
      262, ¶¶ 15-16, the Board has recently clarified that this right is limited to
      invoking the discretion of a deciding official who has the authority to select from
      among alternative penalties, to the extent such alternatives are permitted,
      feasible, and within management’s purview, see id., ¶¶ 27-28.          Thus, we find
      misplaced the appellant’s arguments that the agency committed a due process
      violation by not adequately justifying why it did not consider reassigning her to a
      posted vacancy or why it did not continue to keep her on paid administrative
      leave.     PFR File, Tab 1 at 14-15.     Under Griffin and Lyles, moreover, if an
      appellant does not have a right to be considered for a reassignment following the
      suspension of her security clearance unless granted by agency policy, statute, or
      regulation, then an appellant does not have a greater due process right to be
      considered for such a reassignment.           See, e.g., Gargiulo v. Department of
      Homeland Security, 727 F.3d 1181, 1186 (Fed. Cir. 2013) (explaining that,
      under 5 U.S.C. § 7513(b), an employee has a “statutory, not constitutional” right
      to respond to a proposed adverse action based upon a suspension of his access to
      classified information, and that “employees do not have constitutional due
      process     rights   in   connection   with   security   clearance   determinations”);
      Buelna, 121 M.S.P.R. 262, ¶ 25 (the right to notice of the specific reasons
                                                                                        9

      underlying a security clearance suspension is not constitutional, but rather is
      statutory, or in some cases a matter of agency policy).
¶12          Finally, although not challenged by the appellant on review, we find no
      error with the administrative judge’s conclusion that the deciding official did not
      consider new and material ex parte information in rendering her decision to
      indefinitely suspend the appellant. ID at 12-14. A deciding official violates an
      employee’s right to due process when she relies upon new and material ex parte
      information as a basis for her decision on the merits of the proposed charge or the
      penalty to be imposed. Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 8
      (2013); see Buelna, 121 M.S.P.R. 262, ¶¶ 31-32 (discussing this right in the
      context of an adverse action based on a security clearance determination). We
      agree with the administrative judge that the record does not demonstrate that the
      deciding official considered any new or material information in reaching her
      decision on the appellant’s proposed indefinite suspension that would render her
      decision to indefinitely suspend the appellant constitutionally infirm.         See
      Buelna, 121 M.S.P.R. 262, ¶ 32; Lange, 119 M.S.P.R. 625, ¶ 8.
      The administrative judge correctly declined to order the appellant’s reinstatement
      to employment or placement on paid administrative leave following her acquittal
      on criminal charges.
¶13          The appellant also argues on review that the administrative judge should
      have   ordered   her reinstatement    to   employment     or   placement   on   paid
      administrative leave following her acquittal on the criminal charges which served
      as the basis for the suspension of her security clearance.        PFR File, Tab 1
      at 20-22, Tab 4 at 14-17. The Board’s decisions recognize that, 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). 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
                                                                                          10

      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).
¶14         Here, the agency indefinitely suspended the appellant based upon the
      suspension of her security clearance.         IAF, Tab 4 at 19.         The condition
      subsequent triggering the cessation of the appellant’s suspension, therefore, is the
      restoration of her security clearance. Id. The agency, however, has not restored
      the appellant’s security clearance, and, 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. See, e.g., Smallwood v. Department of the Navy, 62 M.S.P.R.
      221, 225 (1994) (an agency was not required to give an employee a deadline for
      when it would make a decision on his security clearance, which was the condition
      subsequent stated in his indefinite suspension); LaBatte v. Department of the Air
      Force, 58 M.S.P.R. 586, 594 (1993) (the lack of a security clearance constitutes a
      compelling reason not to return the appellant to his prior position).
¶15         Although the appellant asks the Board to order her placement on paid
      administrative leave as a way to counterbalance the agency’s unfettered
      discretion to review and control her access to classified information, see PFR
      File, Tab 4 at 13, we find that ordering the appellant’s reinstatement to paid
      administrative leave while her security clearance remains suspended would be
      tantamount   to   undoing    the   agency’s    indefinite   suspension    action,   see
      Buelna, 121 M.S.P.R. 262, ¶ 28 (finding that the deciding official’s authority to
      choose to continue the appellant’s administrative leave status was sufficient to
      satisfy due process).    The Board, moreover, is precluded from ordering the
      appellant’s reinstatement to a position requiring access to classified information
      when she is without the required clearance to access such information. See Skees
      v. Department of the Navy, 864 F.2d 1576, 1578 (Fed Cir. 1989) (“If the Board
                                                                                      11

      cannot review the employee’s loss of security clearance, it is even further beyond
      question that it cannot review the Navy’s judgment that the position itself
      requires the clearance.”); King v. Department of the Navy, 98 M.S.P.R. 547, ¶ 20
      (2005) (the Board has no authority to review the substance of an agency’s
      decision to grant, deny, or suspend a security clearance), aff’d, 167 F. App’x 191
      (Fed. Cir. 2006). Additionally, we find that ordering the appellant’s restoration
      to duty or to a paid administrative leave status before the agency reinstates her
      access to classified information would intrude upon the agency’s authority to
      regulate and manage employees’ access to classified information. See Kaplan v.
      Conyers, 733 F.3d 1148, 1155 (Fed. Cir. 2013) (“Egan, at its core, explained that
      it is essential for the President and the [Department of Defense] to have broad
      discretion in making determinations concerning national security.”), cert denied
      sub nom. Northover v. Archuleta, 134 S. Ct. 1759 (2014); Gargiulo, 727 F.3d
      at 1187 (finding that an employee does not have a due process right “in
      connection with a security clearance determination[, which] justifies an inquiry
      into whether the agency had reasonable grounds for suspending or revoking the
      employee’s security clearance”); Buelna, 121 M.S.P.R. 262, ¶ 27 (due process
      does not demand that the deciding official consider alternatives that are
      prohibited, impracticable, or outside management’s purview).      We accordingly
      find no support for the appellant’s argument that she should be reinstated to a
      paid administrative leave status pending a determination on her security
      clearance.

                                       CONCLUSION
¶16         For the reasons discussed above, we find that the agency has established
      the propriety of its indefinite suspension action based on the suspension of the
      appellant’s security clearance, and that the appellant is not entitled to be placed
      on paid administrative leave pending the agency’s decision on the reinstatement
      of her security clearance.     Additionally, because the condition subsequent
                                                                                       12

      identified by the agency in its notice of adverse action has not occurred, the
      agency is not required to terminate its indefinite suspension action, and the Board
      is without the authority to order the agency to adjudicate or process a final
      determination on the appellant’s access to classified information.              The
      administrative judge’s initial decision is AFFIRMED, and the appellant’s petition
      for review is DENIED.

                                            ORDER
¶17         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
      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
                                                                               13

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.
