# Nathaniel J Willingham v. Department of the Navy

> Merit Systems Protection Board · February 24, 2025

URL: https://www.frixlaw.com/law-library/cases/10805734

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** February 24, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

NATHANIEL J. WILLINGHAM, DOCKET NUMBER
Appellant, SF-0752-23-0404-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
3

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

2
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.
4

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

3
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).
5

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

4
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.
6

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
7

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
8

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:

5
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.
9

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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10805734. Public record. Not legal advice.