                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LARRY BERRIOCHOA,                               DOCKET NUMBER
                  Appellant,                         DE-0752-13-0211-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 19, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           R. Bobby Devadoss, Esquire, Dallas, Texas, for the appellant.

           Jaime L. Preciado, Esquire, San Francisco, California, 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 the agency’s indefinite suspension action. For the following reasons, we
     DENY the appellant’s petition for review.             Except as modified by 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     constitutional due process analysis set forth below, we AFFIRM the initial
     decision. The agency’s indefinite suspension action is SUSTAINED.

                                     BACKGROUND
¶2        The appellant was formerly employed as a Federal Air Marshal (FAM) with
     the Transportation Security Administration (TSA).      Initial Appeal File (IAF),
     Tab 1 at 1, Tab 16 at 25. As a condition of employment, a FAM is required to
     obtain and maintain a top secret security clearance.     IAF, Tab 16 at 99.     By
     memorandum dated January 4, 2013, the TSA’s Personnel Security Section
     notified the appellant that his top secret security clearance was suspended,
     effective immediately, pending an internal agency review.      Id. at 46-47.   The
     memorandum indicated that the clearance suspension was based on potentially
     disqualifying information regarding the appellant’s alcohol consumption and
     personal conduct. Id. at 46.
¶3        By notice dated January 24, 2013, the agency proposed to indefinitely
     suspend the appellant based on the suspension of his security clearance.        Id.
     at 41-43. The proposal informed the appellant that he had 7 calendar days from
     his receipt of the decision to make an oral and/or written reply. Id. at 42. The
     appellant responded in writing to the deciding official. Id. at 33-39. By letter
     dated March 1, 2013, the deciding official notified the appellant that he was
     suspended without pay, effective that date, and that the suspension would remain
     in effect until the resolution of the appellant’s security clearance status.    Id.
     at 27-31.   The appellant timely filed an appeal with the Board on March 11,
     2013. 2 IAF, Tab 1.
¶4        The administrative judge issued an initial decision affirming the agency’s
     action. IAF, Tab 22, Initial Decision (ID) at 2, 10. He found that the agency had

     2
       On May 15, 2013, the agency issued a decision removing the appellant from federal
     service on that date. See Berriochoa v. Department of Homeland Security, MSPB
     Docket No. DE-0752-13-0326-I-1. The appellant has filed a separate appeal of his
     removal. Id.
                                                                                       3

     established the merits of its action by preponderant evidence and that it
     established nexus. ID at 3-4, 9-10. He further found that, in the absence of an
     agency regulation requiring that the agency attempt to reassign an employee who
     has lost his security clearance, the Board lacks the authority to review the
     feasibility of reassignment. ID at 9-10.
¶5        In addition, the administrative judge addressed the appellant’s assertion that
     the agency had denied him constitutional due process when it indefinitely
     suspended him.      ID at 4-9.   Citing to the Board’s decision in McGriff v.
     Department of the Navy, 118 M.S.P.R. 89, ¶¶ 24-25 (2012), the administrative
     judge found that the appellant was entitled to due process concerning his
     indefinite suspension, and that the Board had authority to review whether due
     process was provided. ID at 4-5. Again citing McGriff, the administrative judge
     further found that in determining the requirements of due process, he would apply
     the balancing test employed in Gilbert v. Homar, 520 U.S. 924 (1997), and
     consider the following factors: (1) the private interest affected by the official
     action; (2) the risk of erroneous deprivation of the interest through the procedures
     used, and the probable value, if any, of additional or substitute procedural
     safeguards; and (3) the government’s interest. See McGriff, 118 M.S.P.R. 89,
     ¶¶ 27-28; see Homar, 520 U.S. at 931-32 (citing Mathews v. Eldridge, 424 U.S.
     319, 335 (1976)).    In analyzing the Homar—more accurately, the Mathews—
     factors the administrative judge determined that the first and third factors were
     not dispositive. ID at 6. Regarding the second factor, the administrative judge
     found that the agency had adequately informed the appellant of the reasons for
     the indefinite suspension. ID at 6-8. The administrative judge further found that,
     although the deciding official had no authority to change the decision to suspend
     the appellant’s security clearance, he had the authority to choose an alternative to
     the proposed indefinite suspension, such as placement on administrative leave.
     ID at 9.   Hence, the administrative judge concluded, the appellant received a
     meaningful opportunity to respond to the proposed indefinite suspension. ID at 9.
                                                                                          4

¶6             The appellant timely filed a petition for review. Petition for Review (PFR)
          File, Tab 1. The agency has filed a response to the petition for review. PFR File,
          Tab 3.
¶7             On review, the appellant reiterates his contention that the agency failed to
          provide him with a meaningful opportunity to respond to the proposed indefinite
          suspension and thereby denied him constitutional due process in indefinitely
          suspending him. PFR File, Tab 1 at 6-9. First, the appellant argues that the
          agency denied him a meaningful opportunity to respond to the proposed indefinite
          suspension by failing to provide him with all of the materials relating to the
          suspension of his security clearance. Id. at 6-7, 9. In particular, the appellant
          contends the agency failed to provide him with a copy of the Incident Tracking
          Report. Id. at 9. Second, the appellant contends that he was denied a meaningful
          opportunity to persuade the deciding official to take an action other than the
          proposed indefinite suspension. Id. at 8-9.

                          DISCUSSION OF ARGUMENTS ON REVIEW
     ¶8        In Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), the
          Supreme Court held that in an appeal of an adverse action under chapter 75
          based on the denial or revocation of a required security clearance, the Board may
          not review the merits of the underlying clearance determination, but may review,
          inter alia, whether the employee’s position required a security clearance, whether
          the security clearance was revoked, and whether the procedures set forth
          in 5 U.S.C. § 7513(b) were followed.          The holding in Egan has since been
          applied to indefinite suspensions based on the suspension of a security clearance.
          See Cheney v. Department of Justice, 479 F.3d 1343, 1352 (Fed. Cir. 2007)
          (defining the Board’s scope of review in a case involving an indefinite
          suspension based on the suspension of the appellant’s security clearance); see
          also Hesse v. Department of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000) (same).
          While Egan also controls where an adverse action is taken under the TSA
                                                                                      5

     personnel system, the procedural requirements of section 7513 are not directly
     applicable in such cases.    Buelna v. Department of Homeland Security, 121
     M.S.P.R. 262, ¶ 14 (2014). However, the Board has the authority under section
     7701(c)(2)(A) to review the agency’s compliance with its own procedures, which
     include the similar provisions of TSA Management Directive (MD) 1100.75-3. 3
     Id.
     The agency proved its charge and established nexus.
¶9         It is undisputed that the appellant’s position was subject to a top secret
     security clearance and the clearance was suspended. IAF, Tab 16 at 46-47, 99.
     Accordingly, we agree with the administrative judge’s finding that the agency
     proved its charge by preponderant evidence. ID at 10; see Buelna, 121 M.S.P.R.
     262, ¶ 11 (sustaining an agency’s charge of suspension of the appellant’s top
     secret security clearance where the position required a security clearance and the
     clearance was suspended).
¶10        The administrative judge correctly found that an indefinite suspension based
     on the suspension of a required security clearance promotes the efficiency of the
     service.   ID at 9-10; see Buelna, 121 M.S.P.R. 262, ¶ 11; see also Jones v.
     Department of the Navy, 978 F.2d 1223, 1226-27 (Fed. Cir. 1992).          Such an
     action is also expressly authorized under the TSA personnel system.
     Buelna, 121 M.S.P.R. 262, ¶ 11; see MD 1100.75-3 Handbook, § J(1)(d) (2009).
¶11        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




     3
       The provisions of MD 1100.75-3 and the accompanying Handbook, rather than
     chapter 75, govern disciplinary actions against TSA employees. Buelna, 121 M.S.P.R.
     262, ¶ 5 n.2.
                                                                                      6

  of reassignment to a position not requiring a security clearance would have been
  feasible. 4 Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 12 (2014).
  The appellant has failed to show that the agency violated his constitutional due
  process rights in indefinitely suspending him.
¶12    While this appeal was pending on review, the Federal Circuit issued its
  decision in Gargiulo v. Department of Homeland Security, 727 F.3d 1181 (2013).
  Following Gargiulo, the Board issued its decision in Buelna, in which it
  reaffirmed its authority to determine whether an agency afforded an appellant
  due process in taking an adverse action based on a security clearance
  determination but clarified its recent analysis of the Mathews factors in McGriff.
  See Buelna, 121 M.S.P.R. 262, ¶¶ 15, 18. The administrative judge did not have
  the benefit of Buelna when the initial decision was issued; accordingly, to the
  extent the administrative judge’s constitutional due process analysis is
  inconsistent with Buelna, it is hereby modified.
¶13    As noted by the administrative judge, the second Mathews factor—the risk
  of erroneous deprivation of the interest through the procedures used, and the
  probable value, if any, of additional or substitute procedural safeguards—is
  decisive here. ID at 6; see Buelna, 121 M.S.P.R. 262, ¶¶ 16, 21. In considering
  this factor, the Board clarified in Buelna that, for purposes of responding to the
  charge, due process does not require an opportunity to contest the merits of the
  clearance determination.     Buelna, 121 M.S.P.R. 262, ¶¶ 23-24.          The Board
  further clarified that, as to the charge, the agency was not required as a matter of
  constitutional due process to notify the appellant of the specific reasons for the
  suspension of the security clearance. Id., ¶ 25. Rather, it is sufficient for an
  agency to inform the appellant that his position required a security clearance, and
  that he could no longer hold his position once his clearance was suspended. Id.


  4
    As noted by the administrative judge, the appellant does not contend that the agency
  has an official policy requiring reassignment following the suspension of a security
  clearance. ID at 9.
                                                                                    7

  The appellant in this case received adequate notice of these essential facts with
  the notice of proposed suspension.          Accordingly, we find that the agency
  provided the appellant with minimum due process of law regarding the charge.
¶14    Even if due process does not require notice of the factual basis for the
  underlying security clearance determination concerning the charge, the appellant
  was still entitled to notice of this information if the deciding official’s penalty
  determination was influenced by it. See id., ¶ 31. The appellant in this case has
  not established that the deciding official relied on any information that had not
  already been provided to the appellant along with the proposal notice. As noted
  by the administrative judge, the deciding official declared under penalty of
  perjury that he relied exclusively on the materials enclosed with the proposal
  notice and the appellant’s written response in making his decision to indefinitely
  suspend the appellant.    ID at 7; IAF, Tab 19 at 23.        Moreover, even if the
  deciding official did consider additional information beyond what was included
  in the proposal notice, the appellant has not established that the information
  considered was new and material. See Buelna, 121 M.S.P.R. 262, ¶ 32; see also
  Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375 (Fed. Cir.
  1999) (explaining factors that are relevant to determining whether an ex parte
  communication introduces new and material information).
¶15    The appellant’s contention that he was denied a meaningful opportunity to
  persuade the deciding official to take an action other than the proposed indefinite
  suspension is also unavailing. PFR File, Tab 1 at 8-9. To the extent there may
  have existed viable alternatives to suspension without pay, e.g., placement on
  administrative leave, the appellant had a due process right to invoke the
  discretion   of   a   deciding   official   to   select   such   alternatives.   See
  Buelna, 121 M.S.P.R. 262, ¶ 28. Here, as noted by the administrative judge, the
  deciding official declared under penalty of perjury that he had authority to
  choose alternatives to the proposed indefinite suspension, including placing the
  appellant on administrative leave. ID at 9; IAF, Tab 19 at 23-24. The appellant
                                                                                       8

  has not rebutted this evidence, and we conclude that he was afforded an
  opportunity to invoke the discretion of a deciding official with authority to
  change the outcome of the proposed action to the extent that may have been
  feasible.   See Buelna, 121 M.S.P.R. 262, ¶ 28.        Based on the foregoing, we
  conclude that the appellant has not shown that he was denied due process.
  The appellant did not establish harmful procedural error.
¶16     To prove harmful procedural error, an appellant must prove that the agency
  committed an error in the application of its procedures that is 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. See 5 C.F.R. § 1201.56(c)(3). The
  relevant procedures in this case are set forth in the MD 1100.75-3 Handbook,
  which provides, inter alia, that an employee facing an adverse action receive
  written notice stating the charges and specifications and a description of the
  evidence that supports the charge. MD 1100.75-3 Handbook, § I(2)(a)(i) (2009).
  The directive further provides that the employee is entitled to see the materials
  relied upon to support each charge and specification.           Id., § I(2)(a)(x).   In
  addition, the employee must be provided an opportunity to respond orally and in
  writing to a deciding official who will consider the replies and decide the
  outcome based on all of the evidence of record and the applicable Douglas
  factors. Id., § I(2)(c).
¶17     To the extent the appellant is attempting to assert that the agency failed to
  comply with its procedures in indefinitely suspending him, we find that any such
  claim lacks merit. 5 The notice suspending the appellant’s security clearance,



  5
    In determining whether the agency provided the appellant with requisite procedural
  protections, the administrative judge appears to conflate the question of whether the
  agency denied the appellant due process with the question of whether it committed
  harmful error. See ID at 4-9. In any event, any such error does did not prejudice the
  appellant’s substantive rights because the agency correctly provided the appellant with
  the procedural protections under MD 1100.75-3 in indefinitely suspending him. See
  Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory
                                                                                            9

  coupled with the notice proposing his indefinite suspension, informed him of the
  basis for the suspension of his security clearance, i.e., the appellant’s alleged
  alcohol consumption and personal conduct.                We find this was sufficient
  information to allow for an informed response, as required under agency
  procedures. See Buelna, 121 M.S.P.R. 262, ¶ 34 (finding the agency provided
  the appellant with sufficient information to make an informed response when it
  notified him that his security clearance was being suspended based on alleged
  fraudulent claims, then informed him he was being indefinitely suspended based
  on the suspension of his security clearance).
¶18     As mentioned above, the appellant has not shown by preponderant evidence
  that the agency failed to provide any additional evidence on which the deciding
  official relied. Assuming arguendo that the agency did commit procedural error
  in that regard, the appellant has not shown that the agency was likely to have
  reached a different decision in the absence of that error.               Furthermore, as
  discussed above, the appellant was provided the opportunity to respond orally
  and in writing to a deciding official with authority to decide the outcome of the
  proposed indefinite suspension. The appellant, therefore, has failed to establish
  harmful error. See id., ¶ 35. Accordingly, the appellant’s indefinite suspension
  is SUSTAINED.

                    NOTICE TO THE APPELLANT REGARDING
                       YOUR FURTHER REVIEW RIGHTS
         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 the United States Court of Appeals for the Federal Circuit to review this
  final decision.    You must submit your request to the court at the following
  address:


  error that is not prejudicial to a party’s substantive rights provides no basis for reversal
  of an initial decision).
                                                                                 10

                           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, 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.
                                                    11

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