                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                     2015 MSPB 54

                            Docket No. AT-0752-14-0682-I-1

                               Wendell Terry Rogers,
                                      Appellant,
                                           v.
                               Department of Defense,
                                        Agency.
                                  September 30, 2015

           Wendell Terry Rogers, Huntsville, Alabama, pro se.

           Dean Korsak, Esquire, and James J. Delduco, Esquire, Redstone Arsenal,
             Alabama, for the agency.

                                       BEFORE

                           Susan Tsui Grundmann, Chairman
                              Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The agency has filed a petition for review of the initial decision that
     reversed the appellant’s indefinite suspension based on the suspension of his
     access to classified information pending final adjudication of his security
     clearance. For the reasons set forth below, we GRANT the petition for review
     and REVERSE the initial decision.       The appellant’s indefinite suspension
     is SUSTAINED.
                                                                                          2

                                       BACKGROUND
¶2         The appellant is an NH-1515-III Operations Research Analyst for the
     agency. Initial Appeal File (IAF), Tab 4 at 27. Operations Research Analyst is a
     noncritical sensitive position that requires the incumbent to maintain a secret
     security clearance. Id. at 49-50. On August 13, 2013, the agency suspended the
     appellant’s access to classified information pending a final security determination
     by the Department of Defense (DOD) Central Adjudication Facility (CAF)
     concerning whether to revoke his security clearance. 1 Id. at 45-47. That same
     day, the agency proposed the appellant’s indefinite suspension based on the
     suspension of his access to classified information. Id. at 41-44. After receiving
     the appellant’s response, id. at 36-40, the agency indefinitely suspended him
     effective October 10, 2013, id. at 27-30.
¶3         The appellant filed a Board appeal, and the administrative judge reversed
     the indefinite suspension, finding that the agency committed harmful procedural
     error. 2 IAF, Tab 19, Initial Decision (ID). Specifically, he found that the agency




     1
       Under DOD regulations, the term “security clearance” refers to a determination that a
     person is eligible for access to classified information.       IAF, Tab 4 at 89-90
     (DOD 5200.2-R § DL1.1.21). The issuance of a security clearance is distinct from the
     determination to grant access to classified information, which is made solely on the
     basis of the individual’s need for classified information in order to perform official
     duties. Id. at 87 (DOD 5200.2-R § C7.1.1.1); see id. at 89 (DOD 5200.2-R § C7.1.1.17)
     (stating that “[a]ccess . . . to classified information shall not be afforded to any
     individual solely by virtue of the individual’s . . . security clearance”). Although
     clearance determinations are within the purview of an authorized adjudicatory entity,
     e.g., the CAF, access to classified information is granted by command to cleared
     individuals on a need-to-know basis. See King v. Alston, 75 F.3d 657, 659 (Fed. Cir.
     1996); Jones v. Department of the Navy, 120 M.S.P.R. 607, ¶ 2 n.1 (2014); 32 C.F.R.
     §§ 154.48, 154.49.
     2
      The appellant did not request a hearing, and the case was decided on the basis of the
     written record. IAF, Tab 12 at 1.
                                                                                         3

     violated its regulations when it indefinitely suspended the appellant before
     affording him its unfavorable administrative action procedures. 3 ID at 4-5.
¶4            The agency has filed a petition for review. Petition for Review (PFR) File,
     Tab 1. It argues that the administrative judge erred in interpreting its regulations.
     According to the agency, it was not required to afford the appellant the
     unfavorable administrative action procedures because they do not apply to
     adverse actions based on the suspension of access to classified information
     pending final adjudication of a security clearance.        Id. at 7-16.   Although the
     appellant inquired into the status of his appeal, he did not file a substantive
     response. PFR File, Tab 3.

                                            ANALYSIS
¶5            An indefinite suspension lasting more than 14 days is an adverse action
     appealable to the Board under 5 U.S.C. § 7513 (d).          5 U.S.C. § 7512 (2).   An
     agency may indefinitely suspend an employee when his access to classified
     information has been suspended and he needs such access to perform his job.
     Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318 , ¶ 13 (2010)
     (listing this type of situation among the limited circumstances in which the Board
     and its reviewing court have permitted the use of indefinite suspensions). The
     Board lacks authority to review the merits of the decision to suspend access.
     Jones v. Department of the Navy, 48 M.S.P.R. 680 , 690 (finding that the Board
     lacks authority to review the merits of an agency’s suspension of security access
     in an indefinite suspension appeal), aff’d as modified on recons., 51 M.S.P.R.
     607 (1991), aff’d, 978 F.2d 1223 (Fed. Cir. 1992). Rather, in an appeal of an
     adverse action based on the denial, revocation, or suspension of a security
     clearance, the Board will generally only review whether:           (1) the employee’s
     position required a security clearance; (2) the clearance was denied, revoked, or

     3
         These procedures are described below. Infra ¶ 8 n.4.
                                                                                        4

     suspended; and (3) the employee was provided with the procedural protections
     specified in 5 U.S.C. § 7313 .    Hesse v. Department of State, 217 F.3d 1372 ,
     1376 (Fed. Cir. 2000) (citing Department of the Navy v. Egan, 484 U.S. 518 ,
     530-31 (1988)).
¶6         The appellant does not dispute the administrative judge’s findings that his
     position required access to classified information and that his access was
     suspended. ID at 2; see IAF, Tab 4 at 51. We adopt those findings herein and
     find that the agency proved its charge. See Buelna v. Department of Homeland
     Security, 121 M.S.P.R. 262 , ¶ 23 (2014). Further, there is no dispute that the
     agency provided the procedural protections required by section 7513 prior to
     indefinitely suspending him.
¶7         Section 7513, however, is not the only source of procedural protections for
     employees subject to adverse actions; the Board also has the authority under
     5 U.S.C. § 7701 (c)(2)(A) to review whether an agency taking an adverse action
     complied   with   required     procedural   protections   for   security    clearance
     determinations, including those set forth in its own regulations.          Romero v.
     Department of Defense, 527 F.3d 1324 , 1329-30 (Fed. Cir. 2008); Schnedar v.
     Department of the Air Force, 120 M.S.P.R. 516 , ¶¶ 7-8 (2014).         Thus, under
     5 U.S.C. § 7701 (c)(2)(A), the Board will not sustain an agency decision if the
     appellant proves the affirmative defense of harmful error in the agency’s
     application of its procedures in arriving at such decision.                Schnedar,
     120 M.S.P.R. 516 , ¶ 8. To prove this affirmative defense, the appellant must
     show both that the agency committed procedural error and that the error was
     harmful. Parker v. Defense Logistics Agency, 1 M.S.P.R. 505 , 513 (1980). An
     agency error is harmful only where the record shows that it was likely to have
     caused the agency to reach a conclusion different from the one it would have
     reached in the absence or cure of the error.       Stephen v. Department of the
     Air Force, 47 M.S.P.R. 672 , 681, 685 (1991).
                                                                                            5

¶8          We begin by analyzing the agency’s procedures set forth in DOD
      regulation 5200.2-R. Section C8.2.2 of DOD 5200.2-R provides, with exceptions
      not applicable here, that the agency may not take an “unfavorable administrative
      action” based on a “personnel security determination” without affording the
      subject employee “unfavorable administrative action procedures.” 4 IAF, Tab 4
      at 72, 154 (DOD 5200.2-R § C8.2.2); see id. at 87, 91 (DOD 5200.2-R
      §§ DL1.1.2, DL1.1.29-.30). It is undisputed that the appellant was not afforded
      unfavorable administrative action procedures prior to the suspension of his access
      to classified information by local command. IAF, Tab 4 at 46; see PFR File,
      Tab 1 at 8-9. The administrative judge determined that this constituted harmful
      procedural error. We disagree.
¶9          The agency’s regulations define an “unfavorable administrative action” as
      an “[a]dverse action taken as the result of personnel security determinations and
      unfavorable personnel security determinations as defined in this Regulation.”
      IAF, Tab 4 at 91 (DOD 5200.2-R § DL1.1.29). Adverse actions covered by the
      regulation include those appealable to the Board under chapter 75 of title 5,
      including a suspension of more than 14 days. 5 U.S.C. §§ 7512 (1)-(5), 7513(d);
      IAF, Tab 4 at 87, 91 (DOD 5200.2-R §§ DL1.1.2, DL1.1.29).                 Only if the
      indefinite suspension in this case was “taken as a result of [an] unfavorable
      personnel security determination[],” however, would it constitute an “unfavorable
      administrative action” under the agency’s regulations.
¶10         As stated above, the indefinite suspension in this case was taken as a result
      of the interim suspension of access pending final adjudication of the appellant’s
      security clearance. Suspension of access to classified information is not the same

      4
        “Unfavorable administrative action procedures” include written notice of the reasons
      for the action, an opportunity to respond to the appropriate CAF, a decision by the CAF,
      an opportunity to appeal that decision to the Personnel Security Appeals Board (PSAB),
      and a final decision by the PSAB. Schnedar, 120 M.S.P.R. 516, ¶ 10 (interpreting the
      regulatory provisions); IAF, Tab 4 at 154-56 (DOD 5200.2-R §§ C8.2.2.1-C8.2.2.5).
                                                                                        6

      as a suspension for eligibility pending final adjudication of a security clearance.
      We therefore turn to the question of whether a suspension of access pending final
      adjudication of a security clearance constitutes an “unfavorable personnel
      security determination” under the agency’s regulations.
¶11         An “unfavorable personnel security determination” includes both “[a]
      denial or revocation of clearance for access to classified information” and a
      “denial or revocation of access to classified information.”      IAF, Tab 4 at 91
      (DOD 5200.2-R § DL.1.1.30).       As the agency correctly notes, however, a
      “suspension” of access to classified information pending final adjudication of a
      security clearance is not included in the definition of “unfavorable personnel
      security determination.”     PFR File, Tab 01 at 10 n.2; IAF, Tab 4 at 91
      (DOD 5200.2-R § DL.1.1.30); see id. at 148 ( DOD 5200.2-R § DL.1.1.1) (stating
      that “[e]xcept for suspension of access pending final adjudication of a security
      clearance, access may not be finally denied for cause without applying”
      unfavorable administrative action procedures) (emphasis added).
¶12          Furthermore, section C8.1.3 of DOD 5200.2-R sets forth separate
      procedures for access suspensions pending final adjudication of security
      clearances .    IAF, Tab 4 at 152-53 (D OD 5200.2-R § C8.1.3).                Thus,
      section C8.1.3.1 provides that, upon the receipt of derogatory information, local
      command must determine whether to take interim action to suspend an
      employee’s access to classified information.    Id. Local command must report
      such access suspensions promptly to the CAF, which will make a final
      determination    on   the   employee’s   security   clearance.    Id.   at   152-53
      (DOD 5200.2-R §§ C8.1.3.3, C8.1.3.5).      The access suspension decision itself
      is not subject to CAF review.        See IAF, Tab 4 at 148 (DOD 5200.2-R,
      § C7.1.1.1). Rather, the CAF undertakes a separate review of whether to revoke
      the employee’s security clearance, i.e., his eligibility for access to classified
      information.    Id. at 148 (DOD 5200.2-R § C7.1.1.1), 151-53 (DOD 5200.2-R
      §§ C.8.1.2.1, C8.1.3.5). Although the CAF may not make a final determination
                                                                                          7

      on an employee’s security clearance without first applying unfavorable
      administrative action procedures, no similar restriction appears in the agency’s
      regulations concerning local command’s determination to take interim action to
      suspend access. 5
¶13         Based on the foregoing, we conclude that a suspension of access pending
      final adjudication of a security clearance is not an “unfavorable personnel
      security determination” under the agency’s regulations.         It follows that the
      adverse action in this case—an indefinite suspension—was not “taken as the
      result of [an] unfavorable personnel security determination[].” IAF, Tab 4 at 91
      (DOD 5200.2-R § DL1.1.29).        Therefore, the indefinite suspension was not an
      “unfavorable administrative action” under DOD 5200.2-R, sections DL1.1.2 and
      DL1.1.29, and the agency’s unfavorable administrative action procedures did not
      apply. Accordingly, the appellant failed to establish that the agency committed
      harmful procedural error by failing to afford him such procedures prior to
      suspending his access pending final adjudication of his security clearance. See
      Hylick v. Department of the Air Force, 85 M.S.P.R. 145 , ¶ 13 (2000) (the
      appellant failed to show that the agency committed any procedural error, and
      therefore failed to prove his harmful error defense).
¶14         The appellant does not dispute the agency’s penalty determination, and we
      find no basis to mitigate the penalty.      See Ryan v. Department of Homeland
      Security, 793 F.3d 1368 (Fed. Cir. 2015) (finding that, in the absence of a statute
      or regulation creating a substantive right to reassignment, the Board is precluded




      5
        We are not presented in this case with the circumstances before the Board in Ulep v.
      Department of the Army, 120 M.S.P.R. 579 (2014). In Ulep, the agency’s proposal
      notice stated that the appellant’s indefinite suspension was based on local command’s
      informal suspension of his security clearance, not interim suspension of his access to
      classified information. Id., ¶ 2. Here, by contrast, local command suspended the
      appellant’s access to classified information, not his clearance.
                                                                                        8

      from requiring the agency to transfer the appellant to a position not requiring a
      security clearance).
¶15         For these reasons, we reverse the initial decision and sustain the indefinite
      suspension.

                                            ORDER
¶16         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 States Code, at our website, http://www.mspb.gov/appeals/uscode/htm .
      Additional     information      is   available    at    the     court’s    website,
                                                                                9

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 United States 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 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.
