                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 43

                             Docket No. SF-0752-16-0219-I-1

                                  Michael R. Palafox,
                                        Appellant,
                                             v.
                                Department of the Navy,
                                         Agency.
                                    December 20, 2016

           Elbridge W. Smith, Esquire, Honolulu, Hawaii, for the appellant.

           Jason Zhao, Esquire, Pearl Harbor, Hawaii, for the agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision that
     sustained his indefinite suspension. For the reasons set forth below, we DENY
     the petition and AFFIRM the initial decision.

                                     BACKGROUND
¶2        At all times relevant to this appeal, the appellant was employed as a
     Shipfitter Supervisor I, WS-3820-10, at the agency’s Pearl Harbor Naval
     Shipyard & Intermediate Maintenance Facility (PHNSY & IMF, or Shipyard) in
     Pearl Harbor, Hawaii. Initial Appeal File (IAF), Tab 4 at 13. The parties have
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     stipulated that the appellant’s position required access to classified information.
     IAF, Tab 22.
¶3        On September 15, 2015, the Shipyard Commander issued a notice of intent
     to suspend the appellant’s access to classified information and the controlled
     industrial area (CIA) because of security concerns involving his “Personal
     Conduct and Drug Involvement.” IAF, Tab 4 at 134-45. The notice stated that
     the appellant had been interviewed by PHNSY & IMF investigators in connection
     with an investigation into illegal drug use by certain PHNSY & IMF employees,
     and that the investigation found that the appellant had falsely denied having used
     marijuana during his Shipyard employment. Id. at 134. According to the notice,
     the appellant’s illegal drug activity was corroborated by other Shipyard
     employees, as follows:
           a. a Shipyard employee stated that during the time period beginning
              around 2005 until around 2010 or 2011, he smoked marijuana
              with [the appellant] two times. He stated that the two occasions
              on which he smoked marijuana with [the appellant] took place at
              [the appellant’s] home. He observed [the appellant] smoke
              marijuana in a joint and a pipe. He also stated that [the appellant
              is] a “stoner.”

           b. the employee also stated that he has purchased marijuana from
              [the appellant] between six to eight times and that he paid $60.00
              for the marijuana. He also stated that other Shipyard employees
              have purchased marijuana from [the appellant] and that [the
              appellant is] a “dealer” and does not give away free marijuana.
              He stated that [the appellant has] transacted marijuana at the
              Shipyard.    The employee stated that, when marijuana was
              purchased from [the appellant], [the appellant] brought the
              marijuana to the Shipyard and the transactions occurred in the
              shop at Intermediate Maintenance Facility.

           c. a different Shipyard employee stated that he purchased marijuana
              from [the appellant] around three or four months ago. He stated
              he went to [the appellant’s] home and that he waited outside on
              the road, [the appellant] then came outside and sold him
              marijuana.
                                                                                         3

     Id.   The appellant was provided an opportunity to respond in writing, and he
     availed himself of that opportunity. Id. at 133-34. On September 30, 2015, the
     Shipyard Commander notified the appellant of his decision to suspend the
     appellant’s access to classified information and the CIA effective that day
     pending a final determination by the Department of Defense Consolidated
     Adjudication Facility (DOD CAF) on his continued eligibility for a security
     clearance and assignment to sensitive duties. Id. at 133.
¶4         By notice dated October 5, 2015, the agency proposed to indefinitely
     suspend the appellant for failure to meet a condition of employment based on the
     suspension of his access to classified information. Id. at 127-30. The proposal
     reiterated the reasons the appellant’s access to classified information had been
     suspended, as set out in the September 15, 2015 notice of intent. Id. at 127-28.
     The proposing official explained that he also had considered the possibility of
     carrying the appellant on administrative leave or reassigning him to another
     position not requiring access to classified information, but had concluded that
     neither alternative was “viable.” Id. at 128. The appellant responded orally and
     in writing. Id. at 29-117.
¶5         On December 10, 2015, the agency issued a decision indefinitely
     suspending the appellant effective December 12, 2015, pending a final decision
     by DOD CAF on the appellant’s security clearance and access to classified
     information, and any subsequent appeal of DOD CAF’s decision. Id. at 14-18.
     The deciding official stated that he concurred with the proposing official in his
     finding that administrative leave and reassignment were not “viable” alternatives.
     Id. at 15.
¶6         The appellant filed a timely Board appeal.      IAF, Tab 1.    Following oral
     argument, the administrative judge issued an initial decision sustaining the
     indefinite suspension. IAF, Tab 24, Initial Decision (ID). Regarding the ch arge,
     the administrative judge found that the parties had stipulated that the appellant’s
     position required access to classified information, and that his access to classified
                                                                                         4

     information had been suspended pending a final determination by DOD CAF
     regarding his security clearance. ID at 4; IAF, Tab 22. The administrative judge
     also found that the appellant failed to establish his affirmative defenses that the
     agency violated his due process rights and committed harmful procedural error.
     ID at 4-9.    Finally, the administrative judge determined that the indefinite
     suspension had a condition subsequent that would bring it to an end. ID at 9 -10.
¶7        On review, the appellant again argues that the agency denied him due
     process.   Petition for Review (PFR) File, Tab 1.      The agency has responded.
     PFR File, Tab 4.

                                        ANALYSIS
¶8         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); Rogers v.
     Department of Defense, 122 M.S.P.R. 671, ¶ 5 (2015). It is well settled that an
     agency may indefinitely suspend an appellant when his access to classified
     information has been suspended and he needs such access to perform his job. See
     Rogers, 122 M.S.P.R. 671, ¶ 5. In such a case, the Board lacks the authority to
     review the merits of the decision to suspend access.     Id. However, the Board
     retains the authority to review whether: (1) the appellant’s position required
     access to classified information; (2) the appellant’s access to classified
     information was suspended; and (3) the appellant was provided with the
     procedural protections specified in 5 U.S.C. § 7513. See id., ¶ 5. In addition, the
     Board has the authority under 5 U.S.C. § 7701(c)(2)(A) to review whether the
     agency provided the procedural protections required under its own regulations.
     Id., ¶ 7. 1 Finally, because a tenured Federal employee has a property interest in


     1
       In this regard, the Board has found that DOD procedures governing “personnel
     security determinations” do not apply to the suspension of access to classified
     information by local commands, such as the Shipyard in this case.            Rogers,
     122 M.S.P.R. 671, ¶¶ 8-13. We discern no error in the administrative judge’s finding
                                                                                             5

     continued employment, the Board also may consider whether the agency provided
     minimum due process in taking the indefinite suspension action. See Buelna v.
     Department of Homeland Security, 121 M.S.P.R. 262, ¶¶ 13-15 (2014) (holding
     that the Board has the authority to review whether the agency provided due
     process in taking an indefinite suspension action based on the suspensi on of a
     security clearance).    Here, the only issue remaining in dispute is whether the
     agency provided the appellant due process.
¶9         Due process requires, at a minimum, that an employee being deprived of
     his property interest be given “the opportunity to be heard ‘at a meaningful time
     and in a meaningful manner.'” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
     (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 2 As the U.S. Supreme
     Court explained in Cleveland Board of Education v. Loudermill, 470 U.S. 532,
     542-46 (1985), the opportunity to respond to a proposed adverse action is
     important for two reasons.      First, an adverse action will often involve factual
     disputes and consideration of the employee’s response may clarify such disputes.
     Id. at 543; see Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
     1376 (Fed. Cir. 1999).          Second, “[e]ven where the facts are clear, the
     appropriateness or necessity of the [penalty] may not be,” and in such cases the
     employee must receive a “meaningful opportunity to invoke the discretion of the
     decision maker.”     Loudermill, 470 U.S. at 543; see Stone, 179 F.3d at 1376.
     Thus, “the employee's response is essential not only to the issue of whether the
     allegations are true, but also with regard to whether the level of penalty to be


     that the local command acted within its authority in suspending the appellant’s access
     to classified information pending a final decision by DOD CAF on his security
     clearance. ID at 6-7 (citing Secretary of the Navy Manual 5510.30, ¶ 9-7); see Rogers,
     121 M.S.P.R. 671, ¶ 12 (citing DOD 5200.2-R, § C8.1.3).
     2
       Because the appellant was afforded an opportunity to respond to the proposed
     indefinite suspension prior to being suspended, it is clear that the hearing took place at
     a “meaningful time.” Buelna, 121 M.S.P.R. 262, ¶ 21.
                                                                                         6

      imposed is appropriate.” Stone, 179 F.3d at 1376; see Buelna, 121 M.S.P.R. 262,
      ¶ 22 (finding that the considerations described in Loudermill were present in
      determining whether an agency provided due process to an employee who was
      indefinitely suspended based on the suspension of his security clearance).
¶10         As to the facts underlying the proposed action, the agency provided
      minimal due process by informing the appellant of the basis for the indefinite
      suspension, i.e., that his position required access to classified information and
      that his access had been suspended. See Buelna, 121 M.S.P.R. 262, ¶ 25. The
      agency further complied with the procedural requirements of 5 U.S.C. § 7513 by
      informing the appellant of the specific reasons for the suspension of his access to
      classified information.   See King v. Alston, 75 F.3d 657, 662 (Fed. Cir. 1996)
      (finding that the agency provided the employee with sufficient information to
      make an informed reply when it notified him that his security clearance was being
      suspended because of a “potential medical condition” and then informed him that
      he was being indefinitely suspended from duty based on the suspension of his
      security clearance); cf. Cheney v. Department of Justice, 479 F.3d 1343, 1353
      (Fed. Cir. 2007) (finding that the employee was not provided w ith the opportunity
      to make a meaningful response to the notice of proposed suspension when he had
      to guess at the reasons for his security clearance suspension).
¶11         Regarding the penalty, the appellant argues that he was denied a
      meaningful opportunity to persuade the deciding official to reassign him instead
      of imposing the proposed indefinite suspension. PFR File, Tab 1 at 8-11. He
      contends that the deciding official did not have the authority to choose that
      alternative because, according to the proposal notice, reassignment would have
      been “inconsistent” with official agency policy.      IAF, Tab 4 at 15, 128. The
      agency asserts that, notwithstanding the proposing official’s statement, there is in
      fact no agency policy prohibiting reassignment following a l oss of access to
      classified information. PFR File, Tab 4 at 6. However, even if agency policy did
      prohibit reassigning the appellant, that restriction would not constitute a due
                                                                                        7

      process violation, because due process does not require that a deciding offi cial
      consider alternatives that are prohibited, impracticable, or outside management’s
      purview. Buelna, 121 M.S.P.R. 262, ¶ 27.
¶12         Furthermore, to the extent administrative leave may have been a viable
      alternative to suspension without pay, the appellant was not denied his due
      process right to invoke the discretion of a deciding official with the authority to
      select that alternative. See id., ¶ 28. The appellant cites deposition testimony in
      which the deciding official indicated that he could not think of a scenario in
      which he would have considered keeping the appellant on administrative leave.
      PFR, Tab 1 at 17 (deposition transcript at 40-41). However, the deciding official
      went on to clarify that his statement did not mean that the appellant “couldn't
      come up with some evidence that [he] would consider.” Id. (deposition transcript
      at 41).   In particular, he explained that he might carry an employee in the
      appellant’s position on administrative leave if he believed that the allegations
      underlying the suspension of the employee’s access to class ified information were
      not well founded. Id. at 16-17 (deposition transcript at 37-40). Thus, we find
      that the deciding official did have discretion to select administrative leave as an
      alternative to suspension without pay. While the appellant did not succeed in
      persuading the deciding official to carry him on administrative leave, the re cord
      reflects that he was notified of the allegations underlying the suspension of his
      access to classified information, and received an opportunity to present rebuttal
      evidence before the final penalty determination was made. IAF, Tab 4 at 29-130.
¶13         The appellant further contends that he was denied due process because his
      access to classified information “was suspended through a process by which he
      was not afforded the right to review information relied upon and provide a
      meaningful response to the officials proposing and deciding suspension of access
      to classified information.” PFR File, Tab 1 at 12. However, it is well settled that
      employees “do not have a liberty or property interest in access to classified
      information, and the termination of that access therefore [does] not implicate any
                                                                                         8

      due process concerns.” Gargiulo v. Department of Homeland Security, 727 F.3d
      1181, 1184-85 (Fed. Cir. 2013) (quoting Jones v. Department of the Navy,
      978 F.2d 1223, 1225 (Fed. Cir. 1992)); see Buelna, 121 M.S.P.R. 262, ¶ 24.
¶14         In sum, we agree with the administrative judge’s determination that the
      agency did not deprive the appellant of due process. Accordingly, we deny the
      petition for review. The initial decision is affirmed.

                                             ORDER
¶15         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
      U.S. Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order.         See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
      Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
      has held that normally it does not have the authority to waive this statutory
      deadline and that filings that do not comply with the deadline must be dismissed.
      See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you need further information about your right to appeal this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      title 5 of the 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
                                                                                  9

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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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:


______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
