Brian Neil v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRIAN NEIL, DOCKET NUMBER

Appellant, DE-0752-22-0064-I-1

v.

DEPARTMENT OF JUSTICE, DATE: May 28, 2026

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Brian Neil , Lone Tree, Colorado, pro se.

Luke Archer , Esquire, Springfield, Virginia, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

REMAND ORDER

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

dismissed his appeal challenging his indefinite suspension as premature. For the

reasons discussed below, we GRANT the appellant’s petition for review and

VACATE the initial decision. We AFFIRM the agency’s indefinite suspension

action between August 23, 2021, and December 13, 2022, and we REMAND the

case to the field office for further adjudication of whether the agency properly

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

continued the indefinite suspension after December 13, 2022, in accordance with

this Remand Order.

BACKGROUND

The appellant was a GS-13 Criminal Investigator. Neil v. Department of

Justice, MSPB Docket No. DE-0752-22-0064-I-1, Initial Appeal File (0064 IAF),

Tab 8 at 41. As a condition of employment, he was required to maintain

eligibility for access to National Security Information (NSI). 0064 IAF, Tab 19

at 47. Specifically, he was required to hold a Top Secret security clearance. Id.

On May 5, 2021, the appellant was involved in a traffic incident, which resulted

in the filing of an arrest warrant for the appellant by the Lone Tree, Colorado

police department. 0064 IAF, Tab 8 at 85-89. Effective June 17, 2021, the

agency suspended the appellant’s eligibility for access to NSI and his Top Secret

clearance based his behavior during the traffic incident and the subsequent arrest

warrant. Id. at 71, 75-76. On July 22, 2021, the agency proposed to indefinitely

suspend the appellant based on the suspension of his access to NSI, and the

proposal was sustained on August 23, 2021. Id. at 22-25, 42-43. The decision

letter notified the appellant that he would remain on indefinite suspension

“pending a final decision regarding revocation of your eligibility for access to

NSI and any resulting administrative action is finalized.” Id. at 42.

Effective October 8, 2021, the criminal charges against the appellant were

dismissed. Id. at 35-36, 0064 IAF, Tab 11 at 16-22. On December 10, 2021, the

appellant filed a Board appeal, wherein he asserted that the indefinite suspension

should have been terminated within a reasonable time following the resolution of

the criminal charges. 0064 IAF, Tab 1 at 6. After finding jurisdiction over the

appeal, 0064 IAF, Tab 12 at 3, the administrative judge issued an order, wherein

he confirmed that the appellant was not challenging the validity of his placement

on an indefinite suspension but was instead appealing the agency’s alleged failure

to timely terminate the indefinite suspension, 0064 IAF, Tab 22 at 2. After a

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hearing which was limited to argument only, 2 0064 IAF, Tab 25 at 7, the

administrative judge issued an initial decision finding that the Board lacks the

authority to order the agency to terminate the appellant’s indefinite suspension

based on the allegedly unreasonable amount of time the agency has taken to

arrive at its final adjudication regarding the appellant’s eligibility for access to

NSI. 0064 IAF, Tab 32, Initial Decision (ID) at 1-6. He found that the

conditions subsequent identified by the agency, i.e., a final decision on the

appellant’s eligibility for access to NSI and any final administrative action had

not yet occurred, and he therefore dismissed the appeal as premature. Id. The

appellant has filed a petition for review, the agency has filed a response, and the

appellant has filed a reply. Neil v. Department of Justice, MSPB Docket No.

DE-0752-22-0064-I-1, Petition for Review (0064 PFR) File, Tabs 1, 3-4.

While this matter was pending on review, the Office of the Clerk of the

Board issued an order to show cause instructing the agency to provide an update

regarding whether the agency had made a final determination concerning the

appellant’s eligibility for access to classified information. 0064 PFR File, Tab 8.

The agency responded that, on December 13, 2022, it issued a final decision

revoking the appellant’s eligibility for NSI. 0064 PFR File, Tab 9 at 4, 7. On

March 29, 2023, the agency issued a notice of proposed removal based on

misconduct. Neil v. Department of Justice, MSPB Docket No. DE-0752-23-0303-

I-1, Initial Appeal File (0303 IAF), Tab 1 at 9-27. The agency sustained the

proposal and removed the appellant from Federal service, effective July 27, 2023.

Id. at 28; 0303 IAF, Tab 4 at 4-5, 9. According to the appellant, he remained on

indefinite suspension through the effective date of his removal. 0303 IAF, Tab 4

at 4.

2

The administrative judge denied all requested witnesses, finding that there were no

material issues of fact. 0064 IAF, Tab 25 at 7.

4

DISCUSSION OF ARGUMENTS ON REVIEW

We vacate the dismissal of this appeal as premature.

To be valid, an indefinite suspension must have an ascertainable end, that

is, a determinable condition subsequent that will bring the suspension to a

conclusion. Jones v. Department of the Army, 111 M.S.P.R. 350, ¶ 11 (2009).

The agency’s indefinite suspension letter identified the conditions subsequent that

would trigger the cessation of the appellant’s suspension as “a final decision

regarding revocation of [his] eligibility for access to NSI and any resulting

administrative action.” 0064 IAF, Tab 1 at 14. At the time the appellant filed his

initial appeal, neither of those conditions had occurred and the administrative

judge dismissed the appeal as premature. ID at 1-6. In doing so, the

administrative judge cited Freeze v. Department of the Navy, 122 M.S.P.R. 179

(2015), and the Board’s nonprecedential decision in Wickert v. Department of

Homeland Security, MSPB Docket No. NY-0752-11-0343-I-1, Final Order

(June 5, 2013). ID at 6. Both decisions discuss the dismissal of appeals as

premature prior to the occurrence of the condition subsequent. Before these

decisions, however, the Board routinely addressed these types of appeals, i.e.,

challenges to indefinite suspensions prior to the occurrence of the condition

subsequent, on the merits rather than dismissing them as premature. E.g., Drain

v. Department of Justice, 108 M.S.P.R. 562, ¶ 11 (2008) (holding that, because

the condition subsequent that would end the appellant’s indefinite suspension has

not yet occurred, the continuation of the indefinite suspension was proper);

Arrieta v. Department of Homeland Security, 108 M.S.P.R. 372, ¶ 10 (2008)

(forwarding the appeal to the regional office for adjudication of whether the

agency properly continued an indefinite suspension after one of two conditions

subsequent occurred); Romero v. Department of Defense, 104 M.S.P.R. 245,

¶¶ 11-12 (2006) (remanding the appeal to the regional office for adjudication of

whether the agency properly continued an indefinite suspension before the

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condition subsequent occurred). Thus, it appears that the Board has been

inconsistent in its treatment of these types of appeals.

We need not decide the appropriate disposition of the appeal at the time of

the initial decision because, while the appeal was pending on review, the agency

issued a final decision revoking the appellant’s eligibility for access to NSI and

subsequently proposed and effected his removal from Federal service. 0064 PFR

File, Tab 9 at 4, 7; 0303 IAF, Tab 1 at 28. Accordingly, we vacate the

administrative judge’s dismissal of the appeal as premature and address the

appeal on the merits.

Because the agency identified two conditions subsequent, a final decision

regarding revocation of his eligibility for access to NSI and any resulting

administrative action, we consider two distinct time periods in this appeal. First

is the period between August 23, 2021, when the indefinite suspension began, and

December 13, 2022, when the agency issued a final decision regarding the

appellant’s access to NSI. 0064 IAF, Tab 8 at 42-43; 0064 PFR File, Tab 9 at 4,

7. Second is between the December 13, 2022 decision and the agency’s “final

administrative action,” i.e., his July 27, 2023 removal from Federal service. 0064

PFR File, Tab 9 at 4, 7; 0303 IAF, Tab 1 at 28, Tab 4 at 9. We address each in

turn.

We affirm the indefinite suspension between August 23, 2021, and

December 13, 2022.

In his December 10, 2021 appeal to the Board, the appellant asserted that

(1) the indefinite suspension continued too long after the resolution of the

criminal charges and (2) the agency had an obligation to move expeditiously to

adjudicate his clearance and end the indefinite suspension. 0064 IAF, Tab 1 at 6;

ID at 3, 5-6. As to the first point, the agency did not identify the resolution of

criminal charges as a condition subsequent that would end the indefinite

suspension. See Freeze, 122 M.S.P.R. 179, ¶ 11 n.2 (explaining that the Board

may not impose a condition subsequent other than the one identified by the

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agency). Regarding the second point, the Supreme Court held in Department of

the Navy v. Egan, 484 U.S. 518, 530-32 (1988), that the Board does not have the

authority to review the substance of a security clearance determination.

Notwithstanding, when an agency indefinitely suspends an employee based on the

suspension of his security clearance, the Board may consider whether a bona fide

security clearance investigation is taking place throughout the duration of the

indefinite suspension. See Jones v. Department of the Navy, 48 M.S.P.R. 680,

686, aff’d as modified on recons., 51 M.S.P.R. 607 (1991), aff’d, 978 F.2d 1223

(Fed. Cir. 1992). This is because indefinite suspensions are permitted only under

limited circumstances, including when an employee’s required access to

classified information has been suspended, pending a final determination on the

employee’s access to classified information. See Gonzalez v. Department of

Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010) (citing Jones, 48 M.S.P.R.

at 687-91).

In this appeal, we are persuaded that a bona fide security clearance

investigation was taking place between August 2021 and December 2022. The

appellant’s assertion that the agency “admitted that it is not even in the process of

adjudicating the clearance concerns,” 0064 PFR File, Tab 1 at 13, is undermined

by the agency’s issuance of a final decision on December 13, 2022. To the extent

the appellant asserts that the 18-month period it took the agency to adjudicate his

clearance while he was indefinitely suspended was, on its face, unreasonable, we

disagree. See Drain, 108 M.S.P.R. 562, ¶ 9 (explaining that the passage a year,

by itself, did not render an otherwise properly effected indefinite suspension

improper); see, e.g., Ryan v. Department of Homeland Security, 793 F.3d 1368,

1374 n.4 (Fed. Cir. 2015) (finding that a 16-month period between an indefinite

suspension and revocation of a security clearance was not “clearly excessive or

unreasonable”); Jones v. Department of the Navy, 978 F.2d 1223, 1227 (Fed. Cir.

1992) (upholding indefinite suspensions lasting 14 months based on security

clearance investigations); cf. Brown v. Department of State, MSPB Docket No.

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SF-0752-22-0091-I-1, Remand Order at ¶¶ 7-10 (Aug. 28, 2023) (questioning the

validity of an indefinite suspension when it continued for approximately 6 years).

Accordingly, we affirm the agency’s indefinite suspension between August 2021

and December 13, 2022.

We remand the appeal for the administrative judge to determine whether the

agency properly continued the indefinite suspension after December 13, 2022.

The next time period we examine is between December 13, 2022, when the

agency revoked the appellant’s eligibility for NSI, and July 2023, when it

finalized its “administrative action” and effected the appellant’s removal from

Federal service for misconduct related to the incident described in paragraph 2

above. 0064 PFR File, Tab 9 at 4, 7; 0303 IAF, Tab 1 at 9-28, Tab 4 at 9. These

events represent the conditions subsequent identified by the agency that would

end the indefinite suspension. 0064 IAF, Tab 8 at 42.

Our case law is clear that an indefinite suspension may extend through the

completion of both a pending investigation into whether an employee’s required

access to classified information should be revoked and any subsequent

administrative action. See, e.g., Romero, 104 M.S.P.R. 245, ¶¶ 9-11. However,

in such circumstances, an agency must initiate administrative action within a

reasonable period of time after completion of the pending investigation. Id., ¶ 11;

Drain, 108 M.S.P.R. 562, ¶ 8. After the final decision to revoke the appellant’s

access to NSI in December 2022, the agency had to promptly return the appellant

to duty or take some other personnel action within a reasonable time. See

Romero, 104 M.S.P.R. 245, ¶ 11. To permit the agency to take an unlimited

amount of time to determine what action to take while keeping the appellant on

an indefinite suspension would run contrary to the requirement that an indefinite

suspension have an ascertainable end. See Drain, 108 M.S.P.R. 562, ¶ 8;

Romero, 104 M.S.P.R. 245, ¶ 11; see also Camaj v. Department of Homeland

Security, 119 M.S.P.R. 95, ¶¶ 12-13 (2012) (examining the circumstances of a

3-month delay in bringing adverse action following the resolution of criminal

8

charges and finding that the delay in ending an indefinite suspension was

unjustified, emphasizing that the mere existence of an open agency investigation

into misconduct does not serve as cause for continuing an indefinite suspension).

We are unable to determine, on the record before us, whether the agency

acted promptly after the revocation of the appellant’s eligibility for access to NSI

in December 2022. It appears that the agency took no further action regarding the

appellant’s employment for at least 3 months after the revocation decision and did

not effect the appellant’s removal from Federal service for approximately

7 months. 0303 IAF, Tab 1 at 9-29, Tab 4 at 9. A determination of whether such

a delay is reasonable requires consideration of the attendant circumstances.

Romero, 104 M.S.P.R. 245, ¶ 12; see Arrieta, 108 M.S.P.R. 372, ¶ 10. Therefore,

we remand this case to the administrative judge for further proceedings to

determine whether the agency improperly continued the appellant’s indefinite

suspension after December 13, 2022. On remand, the administrative judge shall

give the agency an opportunity to identify any factors contributing to the time it

took to finalize its administrative action against the appellant. The administrative

judge shall also provide the appellant an opportunity to submit evidence and

argument concerning the continuation of his indefinite suspension. If the

administrative judge finds that the agency’s delay was unreasonable, he shall

reinstate the appellant effective December 13, 2022. See Romero v. Department

of Defense, 106 M.S.P.R. 284, ¶¶ 10-11 (2007).

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ORDER

For the reasons discussed above, we remand this case to the field office for

further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.