Opinion

Nathaniel J Willingham v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Feb 24, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NATHANIEL J. WILLINGHAM, DOCKET NUMBER

Appellant, SF-0752-23-0404-I-1

DEPARTMENT OF THE NAVY, DATE: February 24, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nathaniel J. Willingham , Virginia Beach, Virginia, pro se.

James Yu , Esquire, and Stephanie Rogers , Esquire, Norco, California, for

the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed his indefinite suspension based on the suspension of his access to

classified information. On petition for review, the appellant asserts that the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

administrative judge incorrectly concluded that the record did not support his

claim that he obtained a Top Secret clearance for a prior position, and he

reiterates his argument that the review of his access to classified information was

initiated in reprisal for whistleblowing and other protected activity. Petition for

Review File, Tab 1. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous 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

administrative 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. 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, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review. 2

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

SUPPLEMENT the initial decision to find that the indefinite suspension promotes

the efficiency of the service and is reasonable, we AFFIRM the initial decision.

In affirming the appellant’s indefinite suspension based on the charge of

suspension of access to classified information and assignment to sensitive

position, the administrative judge correctly found, based largely on the parties’

stipulations, that the appellant’s position is classified as non-critical sensitive and

requires the appellant to maintain clearance eligibility of at least Secret and that,

as a condition of employment, he must maintain eligibility for access to classified

information and be able to occupy assignment in a sensitive position. Initial

Appeal File (IAF), Tab 18, Initial Decision (ID) at 15-17, Tab 12 at 13. He also

correctly found that the appellant’s eligibility for clearance or assignment to a

sensitive position was suspended. ID at 18; IAF, Tab 5 at 43, Tab 12 at 13. Such

The appellant’s reiteration of his claims of reprisal in his petition for review do not

provide a basis to disturb the administrative judge’s conclusion that that the Board is

without authority to consider those claims. Initial Appeal File, Tab 18, Initial Decision

at 6. Although we acknowledge that the appellant is not asking the Board to determine

whether the subsequent derogatory information uncovered by the Defense

Counterintelligence and Security Agency Consolidated Adjudication Services (DCAS

CAS) was sufficient to warrant the suspension of his clearance or access to classified

information, his assertion that DCAS CAS’s review of his access to classified

information was the result of reprisal does ultimately go to the merits of a decision to

suspend his access because it requires a determination of whether the proffered reason

for the suspension was legitimate. The Board is explicitly prohibited from making such

a determination. See Department of the Navy v. Egan, 484 U.S. 518, 530 (1988). When

a claim requires the Board to consider whether the reasons for the suspension of the

clearance or access to classified information are legitimate, such as a claim of

discrimination or, as is the case here, reprisal, the Board is without authority to review

those claims. See Putnam v. Department of Homeland Security, 121 M.S.P.R. 532,

¶¶ 18-19 (2014) (concluding that the Board is not permitted to review allegations of

prohibited discrimination or reprisal relating to an adverse action premised on the

suspension or revocation of a security clearance where doing so would involve a

prohibited inquiry into the validity of the security clearance determination). As such,

the administrative judge properly declined to consider the appellant’s reprisal claims.

findings are sufficient to sustain the charge here. 3 See Buelna v. Department of

Homeland Security, 121 M.S.P.R. 262, ¶ 11 (2014) (sustaining a charge of

suspension of a Top Secret security clearance based on the parties’ stipulations

that the appellant’s position required a security clearance and that he “lost” the

security clearance); 5 C.F.R. § 1201.63 (explaining that a stipulation will satisfy

a party’s burden of proving the fact alleged).

To sustain an indefinite suspension under chapter 75, the agency must also

show that there is a nexus between the suspension of the appellant’s access to

classified information and the efficiency of the service and that the penalty was

reasonable. Hall v. Department of Defense, 117 M.S.P.R. 687, ¶¶ 6, 10 (2012).

The administrative judge did not address these issues in the initial decision. The

Board has consistently held that a nexus exists between an indefinite suspension

based on the suspension or revocation of a security clearance or access to

classified information and the efficiency of the service. See Munoz v. Department

of Homeland Security, 121 M.S.P.R. 483, ¶ 13 (2014) (explaining when an

adverse action is based on the failure to maintain a security clearance required by

the job description, the action promotes the efficiency of the service because “the

absence of a properly authorized security clearance is fatal to the job

entitlement”) (internal citations omitted); Buelna, 121 M.S.P.R. 262, ¶ 11

(agreeing with the administrative judge that an indefinite suspension based on the

suspension of a required security clearance promotes the efficiency of the

service). It has also consistently upheld the penalty of an indefinite suspension

The administrative judge also correctly found that the indefinite suspension action

appropriately included a condition subsequent that would terminate the suspension and

that the agency did not have a formal policy entitling the appellant to reassignment in

lieu of an indefinite suspension. ID at 21-22; IAF, Tab 12 at 14; see Munoz v.

Department of Homeland Security, 121 M.S.P.R. 483, ¶ 15 (2014); Hernandez v.

Department of the Navy, 120 M.S.P.R. 14, ¶ 6 (2013). We also agree with his

conclusion that the agency complied with all necessary procedural protections and

afforded the appellant due process. ID at 19-21; IAF, Tab 12 at 13-14; see 5 U.S.C.

§ 7513(b); Palafox v. Department of the Navy, 124 M.S.P.R. 54, ¶ 8 (2016).

when an employee’s clearance or access to classified information is suspended or

revoked. See Palafox v. Department of the Navy, 124 M.S.P.R. 54 (2016)

(upholding an indefinite suspension for failure to meet a condition of employment

based on the suspension of access to classified information); Rogers v.

Department of Defense, 122 M.S.P.R. 671, ¶ 5 (2015) (stating that 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). Accordingly, we

supplement the initial decision to find that the appellant’s indefinite suspension

promotes the efficiency of the service and is a reasonable penalty.

NOTICE OF APPEAL RIGHTS 4

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. 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.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following

address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.