# Brian Neil v. Department of Justice

> Merit Systems Protection Board · May 28, 2026

URL: https://www.frixlaw.com/law-library/cases/11333618

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** May 28, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11333618

## How later opinions describe it (automated extraction)

- finding that a 16-month period between an indefinite suspension and revocation of a security clearance was not “clearly excessive or unreasonable”

## Opinion text

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
3

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
5

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
6

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.
7

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).
9

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11333618. Public record. Not legal advice.