                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ZIPPORE EARLY,                                  DOCKET NUMBER
                   Appellant,                        CH-0752-11-0039-I-2

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: September 16, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Gony F. Goldberg, Washington, D.C., for the appellant.

           Cynthia C. Cummings, Esquire, Indianapolis, Indiana, 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
     affirmed both her indefinite suspension and removal after the agency determined
     that she could no longer occupy a noncritical sensitive position. Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     findings of material fact; the 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. As explained below, however, because both the
     Federal Circuit and the Board have issued several decisions which alter the
     analysis the Board must conduct in cases such as this, we AFFIRM the initial
     decision as MODIFIED with respect to the agency’s removal action for the
     reasons set forth below. Additionally, we VACATE the initial decision regarding
     the indefinite suspension action and, differing from the administrative judge,
     instead DISMISS the appellant’s challenge to her indefinite suspension as
     untimely filed without good cause shown. Further, we VACATE that portion of
     the initial decision adjudicating the appellant’s disparate impact affirmative
     defense and find that the administrative judge should not have adjudicated this
     claim on the merits.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     Background and procedural history.

¶2        The appellant began working for the agency’s Defense Finance and
     Accounting Service in 1981 and was promoted several times during her career,
     ultimately securing a position as an Accounting Technician. Petition for Review
     (PFR) File, Tab 3 at 3 (citing hearing testimony); Initial Appeal File (IAF), Tab 4
                                                                                      3

     at 88.     Although the appellant’s position was originally designated as
     nonsensitive, the agency redesignated the position as noncritical sensitive, and
     the appellant was required to undergo a background investigation.       PFR File,
     Tab 3 at 6 (citing hearing testimony); IAF, Tab 4 at 89.       After conducting a
     background investigation, the agency’s Washington Headquarters Services
     Consolidated Adjudications Facility (CAF) issued the appellant a statement of
     reasons denying her eligibility to access classified information and/or occupy a
     sensitive position based on an outstanding delinquent debt. PFR File, Tab 3 at 7;
     IAF, Tab 4 at 83-87. The CAF subsequently issued the appellant a letter of denial
     denying her eligibility to access classified information and/or occupy a sensitive
     position. IAF, Tab 4 at 74-80. The appellant elected to appeal the CAF’s letter
     of denial to a Defense Office of Hearings and Appeals (DOHA) administrative
     judge. Id. at 71.
¶3         Citing the CAF’s letter of denial, the agency proposed to indefinitely
     suspend the appellant based upon her ineligibility to occupy a noncritical
     sensitive position. Id. at 71-73. The appellant submitted a written response to
     her proposed indefinite suspension.      Id. at 59-67.    The agency indefinitely
     suspended the appellant effective January 18, 2010, and informed her of her right,
     inter alia, to file an appeal with the Board challenging her indefinite suspension.
     Id. The appellant did not file an appeal with the Board at that time.
¶4         On April 12, 2010, the agency’s Clearance Appeal Board accepted the
     recommendation of a DOHA administrative judge and issued a final decision
     affirming the CAF’s determination that the appellant was ineligible to access
     classified information and/or occupy a sensitive position. Id. at 46. Based upon
     this final determination, the agency issued the appellant a notice of proposed
     removal charging her with an inability to occupy a noncritical sensitive position.
     Id. at 43-45. The appellant again filed a written response to the proposed adverse
     action. Id. at 36-42. The deciding official issued a letter of decision imposing
                                                                                          4

     the appellant’s removal effective October 7, 2010, and again informed her of her
     right, inter alia, to file an appeal with the Board. Id. at 28-35.
¶5         The appellant filed an appeal with the Board on October 8, 2010, seeking to
     challenge both her indefinite suspension and her removal.            IAF, Tab 1.   The
     administrative judge issued an initial decision affirming the agency’s actions,
     citing the Board’s decision in Conyers v. Department of Defense, 115 M.S.P.R.
     572, ¶¶ 26-33 (2010), appeal dismissed, 733 F.3d 1148 (Fed. Cir. 2013), cert.
     denied, 134 S. Ct. 1759 (2014), which held that the Board has the authority to
     review the underlying basis for the agency’s determination that the employee is
     unable to occupy a noncritical sensitive position in connection with its
     adjudication of the agency’s adverse action. Refiled Appeal File, Tab 30, Initial
     Decision (ID) at 2-5.        Applying the Board’s standard in Conyers, the
     administrative judge found that the agency had established the underlying reasons
     for denying the appellant eligibility to occupy a noncritical sensitive position and
     sustained both the indefinite suspension action and the removal. ID at 2-5, 7.
     The administrative judge also adjudicated the appellant’s affirmative defense of
     race-based disparate impact and rejected her argument that the agency’s use of
     credit checks in making its security clearance determinations had a disparate
     impact on African American employees. ID at 5-6. Lastly, the administrative
     judge found that the agency’s penalty of removal was reasonable 2 and rejected the
     appellant’s argument that the deciding official failed to conduct a proper Douglas
     factors analysis because “[a]ny review of the pertinent ‘Douglas factors’ could
     afford no additional remedy” to the appellant. ID at 7.
¶6         The appellant has filed a petition for review challenging the administrative
     judge’s decision to affirm her indefinite suspension and removal, and she also
     argues that the deciding official erred when he did not conduct a full Douglas
     factors analysis. PFR File, Tab 3 at 11, 20-22. The appellant further asserts that
     2
      The administrative judge did not expressly address the reasonableness of the agency’s
     decision to indefinitely suspend the appellant. See ID at 6-7.
                                                                                       5

     she was denied due process because the deciding official testified that he had
     been informed that the appellant had been denied eligibility to occupy a
     noncritical sensitive position and that he could not have decided to maintain the
     appellant in a pay status because the adverse action was based on a security issue,
     which was “out of [his] control.”     Id. at 22 (citing hearing testimony).     The
     agency has filed a response to the petition for review. PFR File, Tab 7.
¶7        The Board subsequently issued two show cause orders seeking additional
     briefing from the parties. PFR File, Tabs 8, 10. First, the Board provided the
     parties an opportunity to submit additional argument following the Federal
     Circuit’s decision in Gargiulo v. Department of Homeland Security, 727 F.3d
     1181 (Fed. Cir. 2013), concerning the appellant’s constitutional due process
     claim, PFR File, Tab 8; only the agency responded to this show cause order, PFR
     File, Tab 9.    Second, the Board issued the appellant a show cause order
     concerning the timeliness of her challenge to her indefinite suspension. PFR File,
     Tab 10. In its show cause order, the Board explained to the appellant that she
     was indefinitely suspended effective January 18, 2010, but did not file an appeal
     with the Board until October 8, 2010. Id. The Board provided the appellant an
     opportunity to demonstrate that her indefinite suspension claim was timely, or
     that good cause exists for adjudicating the merits of her indefinite suspension. Id.
     Neither party responded to Board’s order as to the timeliness of the indefinite
     suspension.
     The appellant’s indefinite suspension claim is dismissed as untimely without
     good cause shown.
¶8        Although chapter 75 contains no specific reference to “indefinite
     suspensions,” the requirements of subchapter II of chapter 75 apply to “a
     suspension for more than 14 days.” 5 U.S.C. § 7512(2); Gonzalez v. Department
     of Homeland Security, 114 M.S.P.R. 318, ¶ 12 (2010).                An “indefinite
     suspension” is a “suspension” for purposes of chapter 75, even though it is
     imposed without a definitive end date, and where, as here, an indefinite
                                                                                       6

      suspension lasts for more than 14 days, it becomes an action subject to the
      requirements of subchapter II of chapter 75. See Gonzalez, 114 M.S.P.R. 318,
      ¶ 12.
¶9            An appeal of an agency action must generally be filed no later than 30 days
      after the effective date of the action being appealed or 30 days after the date of
      the receipt of the agency’s decision, whichever is later. Miranne v. Department
      of the Navy, 121 M.S.P.R. 235, ¶ 8 (2014); 5 C.F.R. § 1201.22(b). The appellant
      bears the burden of proof on the issue of timeliness. 5 C.F.R. § 1201.56(a)(2).
      Here, the record reflects that the agency imposed the appellant’s indefinite
      suspension effective January 18, 2010, and that the appellant received notice of
      her indefinite suspension on January 14, 2010.        IAF, Tab 4 at 53-54.     The
      appellant, however, did not file an appeal with the Board until October 8, 2010,
      1 day after the effective date of her removal. IAF, Tab 1, Tab 4 at 28-35. Thus,
      we find that the appellant’s challenge to her indefinite suspension is untimely by
      over 8 months.
¶10           The Board will generally dismiss an untimely claim unless the appellant
      establishes    good    cause   for   the   delay.     Mauldin    v.   U.S.   Postal
      Service, 115 M.S.P.R. 513, ¶ 5 (2011); 5 C.F.R. § 1201.22(c). To establish good
      cause, a party must show that she exercised due diligence or ordinary prudence
      under the particular circumstances of the case. Alonzo v. Department of the Air
      Force, 4 M.S.P.R. 180, 184 (1980). To determine if an appellant has shown good
      cause, the Board will consider the length of the delay, the reasonableness of her
      excuse and her showing of diligence, whether she is proceeding pro se, and
      whether she has presented evidence of the existence of circumstances beyond her
      control that affected her ability to comply with the time limits or of unfavorable
      casualty or misfortune which similarly shows a causal relationship to her inability
      to timely file her claim. Moorman v. Department of the Army, 68 M.S.P.R. 60,
      62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
                                                                                         7

¶11         Here, we find no good cause for accepting the appellant’s untimely
      challenge to her indefinite suspension. The 8-month lapse in time between the
      effective date of the appellant’s indefinite suspension and the filing of her initial
      appeal is significant, and the record reflects that the agency informed the
      appellant of her right to file an appeal with the Board following the imposition of
      her indefinite suspension. IAF, Tab 4 at 53-58. The appellant, moreover, has not
      responded to the Board’s timeliness order, and we can discern no basis from the
      current record which would justify her untimely challenge to her indefinite
      suspension. We note, moreover, that this is not a situation where the appellant’s
      appeal of her removal could be construed as a timely challenge to the agency’s
      continuation of her indefinite suspension. See, e.g., Lemons v. Department of the
      Army, 111 M.S.P.R. 178, ¶ 9 (2009). In such cases, the Board has found that an
      appellant may separately challenge an agency’s continuation of an indefinite
      suspension when the identifiable condition subsequent which should trigger the
      end of the indefinite suspension has occurred, but the agency has not returned the
      appellant to duty within a reasonable period of time. Id. Here, however, the
      agency’s identifiable condition subsequent which would have triggered the
      appellant’s return to duty—a determination that she could occupy a noncritical
      sensitive position—never occurred, and at no point was the agency under an
      obligation to return the appellant to an active duty status within a reasonable
      period of time of the condition subsequent.      See, e.g., Ryan v. Department of
      Homeland Security, 2014 MSPB 64, ¶¶ 13-14 (finding that the agency was not
      required to return the appellant to duty because her security clearance had not
      been reinstated). Furthermore, the Board has held that an agency may keep an
      appellant who has been indefinitely suspended in a nonpay status while the
      agency initiates a separate removal proceeding.         See Campbell v. Defense
      Logistics Agency, 31 M.S.P.R. 691, 695 (1986), aff’d, 833 F.2d 1024 (Fed. Cir.
      1987) (Table).
                                                                                            8

¶12         Under these circumstances, we find that there is no basis to accept the
      appellant’s untimely challenge to her indefinite suspension.           The appellant’s
      indefinite suspension claim is therefore DISMISSED as untimely without good
      cause shown.
      The agency’s removal of the appellant for failure to occupy a noncritical sensitive
      position is affirmed.
¶13         Applying the Board’s previous decision in Conyers, the administrative
      judge reviewed the reasons for the agency’s decision to deny the appellant
      eligibility to occupy a noncritical sensitive position in connection with his
      adjudication of the appellant’s removal.             ID at 2-5.        In Kaplan v.
      Conyers, 733 F.3d 1148, 1160 (Fed. Cir. 2013), cert. denied, 134 S. Ct. 1759
      (2014), however, the Federal Circuit subsequently held that “there is no
      meaningful difference in substance between a designation that a position is
      ‘sensitive’ and a designation that a position requires ‘access to classified
      information,’” and it ruled that the Board is precluded from reviewing the
      Department of Defense’s national security determinations concerning the
      eligibility of an individual to occupy a sensitive position, regardless of whether
      that position requires access to classified information.         Conyers, 733 F.3d at
      1160; 3 see also Ingram v. Department of Defense, 120 M.S.P.R. 420, ¶ 9 (2013).
      In such cases, the Board’s review is limited under Egan v. Department of the
      Navy, 484 U.S. 518 (1988), to whether:          (1) an Executive Branch employer
      determined     the   employee’s      position   required     a    security   clearance;
      (2) the clearance was denied or revoked; and (3) the employee was provided with
      the procedural protections specified in 5 U.S.C. § 7513. Gamboa v. Department
      of the Air Force, 120 M.S.P.R. 594, ¶ 5 (2014). 4

      3
        The Federal Circuit’s decision in Conyers was issued after the administrative judge
      issued his initial decision in this case.
      4
        The Board may also consider whether transfer to a nonsensitive position was feasible
      but only where a statute or regulation provides the employee with a substantive right to
      such a reassignment. See Ryan, 2014 MSPB 64, ¶ 7.
                                                                                       9

¶14        We agree with the administrative judge’s initial decision insofar as it found
      that the agency established that the appellant’s position was designated as
      noncritical sensitive, that the appellant was denied eligibility to occupy such a
      position, and that the agency complied with the procedural protections
      of 5 U.S.C. § 7513 by providing the appellant with 30 days’ advanced written
      notice of its proposed adverse 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 ID at 2; Ryan, 2014 MSPB 64, ¶ 6; 5 U.S.C. § 7513(b)(1)-(4). The appellant,
      moreover, has not established that the agency violated one of its specific policies
      in effecting her removal, and we discern no basis for reversing the appellant’s
      removal on this ground. See Ryan, 2014 MSPB 64, ¶ 6; Ulep v. Department of
      the Army, 120 M.S.P.R. 579, ¶ 4 (2014). Furthermore, because the appellant was
      unable to occupy her noncritical sensitive position, we concur with the
      administrative judge that the appellant’s removal satisfies the efficiency of the
      service standard under 5 U.S.C. § 7513. See ID at 3-4; Munoz v. Department of
      Homeland Security, 2014 MSPB 66, ¶ 13 (removal based on failure to maintain a
      security clearance promotes the efficiency of the service).
      The deciding official did not err in imposing the appellant’s removal under
      Douglas and the appellant has not established that she was denied due process.
¶15        On review, the appellant argues that the deciding official failed to conduct a
      thorough Douglas factors analysis and that her constitutional right to due process
      was violated because the deciding official testified that he had limited authority
      to impose a penalty other than removal based upon the denial of her eligibility to
      occupy a noncritical sensitive position. PFR File, Tab 3 at 11, 20-22. Neither
      argument, however, supports the appellant’s challenges to her removal.
¶16        First, the Board has recently held that the traditional Douglas factors
      analysis does not apply in cases involving adverse actions based on the
      suspension or revocation of a security clearance or a national security
      determination that an employee cannot occupy a sensitive position.             See
                                                                                       10

      Munoz, 2014 MSPB 66, ¶ 15; Ryan, 2014 MSPB 64, ¶ 9; Flores v. Department of
      Homeland Security, 121 M.S.P.R. 287, ¶ 12 (2014).           Thus, the appellant’s
      arguments on review that the deciding official failed to consider her length of
      service, lack of disciplinary record, or favorable work record are of no moment.
      See PFR File, Tab 3 at 11, 20-21. We thus cannot agree with the appellant the
      agency’s selected penalty is entitled to less deference under these circumstances.
      The appellant, moreover, has neither argued nor demonstrated that there exists a
      statute, regulation, or agency policy requiring that she be considered for
      reassignment prior to being removed under these circumstances.                  See
      Ryan, 2014 MSPB 64, ¶¶ 9-10.          Absent evidence of a right to compulsory
      reassignment, the appellant’s argument that the agency erred under Douglas by
      failing to consider alternative penalties prior to imposing her removal is
      inapplicable under the facts of this case. Id., ¶¶ 9-11.
¶17         Second, we also find the appellant’s assertion of a due process violation is
      without support in the record.         In Buelna v. Department of Homeland
      Security, 121 M.S.P.R. 262 (2014), the Board found that an employee’s due
      process rights in connection with an adverse action based on the suspension or
      revocation of a security clearance is limited to invoking the discretion of a
      deciding official who, within the parameters of the agency’s disciplinary
      procedures, had the authority to consider and impose alternative forms of
      discipline in lieu of the proposed adverse action. See Ryan, 2014 MSPB 64, ¶ 6
      (citing Buelna, 121 M.S.P.R. 262, ¶¶ 25-28). As we made clear in Buelna, due
      process does not demand that the deciding official consider alternatives that are
      prohibited, impracticable, or outside management’s purview.       See Buelna, 121
      M.S.P.R. 262, ¶ 27.
¶18         Applying this standard, we discern no constitutional error in connection
      with the agency’s removal action. The record reflects that the appellant had the
      opportunity to respond to her proposed removal to a deciding official but that the
      deciding official had limited authority to consider alternative penalties because of
                                                                                      11

      the agency’s determination that the appellant could not occupy a noncritical
      sensitive position.    PFR File, Tab 3 at 22 (citing hearing testimony).    Under
      Buelna, these facts do not present a constitutional deprivation warranting reversal
      of the agency’s adverse action. See Buelna, 121 M.S.P.R. 262, ¶¶ 25-28. The
      appellant, moreover, has not argued that the deciding official considered
      additional information outside the scope of the notice of proposed removal in
      rendering his decision on her proposed removal, and we find no colorable due
      process violation under Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir.
      2011).   See Buelna, 121 M.S.P.R. 262, ¶¶ 31-32 (explaining that a deciding
      official cannot consider ex parte information when rendering his penalty
      determination in an adverse action based on the suspension or revocation of a
      security clearance).
      The administrative judge erred in adjudicating the appellant’s disparate impact
      affirmative defense.
¶19        Lastly, we VACATE the portion of the administrative judge’s initial
      decision in which the administrative judge adjudicated the merits of the
      appellant’s race-based disparate impact affirmative defense. See ID at 5-6. In
      Pangarova v. Department of the Army, 42 M.S.P.R. 319 (1989), the Board found
      that it is precluded from reviewing allegations of prohibited discrimination and
      reprisal when such affirmative defenses relate to the revocation of a security
      clearance because it is without the expertise or authority to adjudicate whether an
      agency’s adverse action, which is premised on the suspension or revocation of a
      security clearance, constitutes impermissible discrimination or reprisal. See id.
      at 322-23. The Board and the Federal Circuit have followed this approach in
      subsequent cases. See, e.g., Doe v. Department of Justice, 118 M.S.P.R. 434,
      ¶ 40 (2012); Hesse v. Department of State, 82 M.S.P.R. 489, ¶ 9 (1999),
      aff’d, 217 F.3d 1372 (Fed. Cir. 2000). We therefore find that the administrative
      judge should not have adjudicated the appellant’s Title VII affirmative defense
                                                                                     12

      challenging the process the agency followed in rendering its decision to deny her
      eligibility to hold a noncritical sensitive position.
¶20         For the foregoing reasons, the initial decision is AFFIRMED AS
      MODIFIED with respect to the agency’s removal action and VACATED with
      respect to the agency’s indefinite suspension action and the appellant’s disparate
      impact affirmative defense.       The appellant’s indefinite suspension claim is
      DISMISSED as untimely without good cause shown.          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 further review of this
      final decision.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).     If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                 Office of Federal Operations
                          Equal Employment Opportunity Commission
                                       P.O. Box 77960
                                  Washington, D.C. 20013

            If you submit your request via commercial delivery or by a method
      requiring a signature, it must be addressed to:
                                 Office of Federal Operations
                          Equal Employment Opportunity Commission
                                      131 M Street, NE
                                        Suite 5SW12G
                                  Washington, D.C. 20507

            You should send your request to EEOC no later than 30 calendar days after
      your receipt of this order. If you have a representative in this case, and your
      representative receives this order before you do, then you must file with EEOC no
                                                                                   13

later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.          See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




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