The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOAN RYAN, DOCKET NUMBER
Appellant, PH-0752-13-5283-I-1
v.
DEPARTMENT OF HOMELAND DATE: August 18, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Peter B. Broida, Esquire, Arlington, Virginia, for the appellant.
David Myers, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s appeal for lack of jurisdiction as premature. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See 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, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 Familiarity with the underlying facts of this appeal is presumed. See Ryan
v. Department of Homeland Security, 2014 MSPB 64, ¶¶ 2-3 (Ryan I). This is the
third appeal filed by the appellant arising out of her indefinite suspension based
upon the loss of her access to classified information. In Ryan I, we affirmed the
appellant’s indefinite suspension based upon the suspension of her security
clearance; rejected her argument that under Douglas v. Veterans Administration, 5
M.S.P.R. 280 (1981), an agency must consider lesser penalties before imposing a
proposed indefinite suspension; and found that because the condition subsequent
triggering the cessation of the appellant’s indefinite suspension has not yet
occurred, i.e., a final determination on her access to classified information, the
Board cannot order the appellant restored to duty following her acquittal on the
criminal charges which served as the basis for the suspension of her clearance.
See Ryan I, 2014 MSPB 64, ¶¶ 6, 7-10, 13-15. In Ryan II, we rejected the
appellant’s argument that the agency’s delay in rendering a final determination on
her access to classified information following her criminal acquittal improperly
extended her indefinite suspension. See Ryan v. Department of Homeland
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Security, MSPB Docket No. PH-0752-13-0343-I-1, Nonprecedential Final Order,
¶¶ 2-3 (Aug. 18, 2014) (Ryan II).
¶3 In her current appeal, the appellant asserts that the agency constructively
amended the basis for her indefinite suspension when it issued a decision to
revoke her security clearance, thus giving rise to another opportunity for her to
contest her indefinite suspension. Initial Appeal File (IAF), Tab 1 at 2. The
record reflects that the agency suspended the appellant’s security clearance in
September, 2012, implemented her indefinite suspension from employment based
upon the suspension of her clearance in November, 2012, and issued a decision to
revoke her security clearance in July, 2013. IAF, Tab 4 at 20-37. The appellant
maintains that she is now entitled to a second opportunity to contest her indefinite
suspension based upon the July 2013 revocation of her security clearance. IAF,
Tabs 1, 6; see also Petition for Review (PFR) File, Tab 1 at 5-6. In support of her
argument, the appellant cites to a provision of the Federal Emergency
Management Agency’s internal policies requiring notices of adverse action to be
specific. IAF, Tab 6. We agree with the administrative judge, however, that the
Board lacks jurisdiction over the appellant’s instant appeal.
¶4 We cannot accept the appellant’s argument that the agency “changed the
factual underpinnings of the [adverse] action against Appellant[.]” PFR File,
Tab 1 at 6. It is undisputed that after proposing the appellant’s indefinite
suspension and giving her a period of time to respond, the agency indefinitely
suspended the appellant based upon the suspension of her security clearance.
IAF, Tab 4 at 35. At bottom, the agency’s indefinite suspension is predicated
upon the appellant’s inability to access classified information, which is a
condition of her position of employment with the agency, id., and the agency’s
subsequent decision to revoke, rather than just suspend, her security clearance
does not change the rationale for the agency’s adverse action but rather is an
intermediate step toward the agency’s identified condition subsequent, viz., a
final determination by the agency on her ability to maintain a security clearance
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and access classified information. Id. (letter imposing indefinite suspension
stating that “It is my decision that your indefinite suspension pending a final
adjudication of your future eligibility for access to classified information is fully
warranted and will promote the efficiency of the Federal service.”). The agency,
moreover, did not rescind or reissue its notice of proposed adverse action or its
letter of decision, and we find no support for the appellant’s argument that the
revocation of her security clearance, rather than just its suspension, either
explicitly or implicitly amended the basis for her indefinite suspension. See, e.g.,
Fickie v. Department of the Army, 86 M.S.P.R. 525, ¶ 29 n.5 (2000) (noting that
the agency properly restarted the proposed adverse action after amending
its charges).
¶5 As we noted in both Ryan I and II, moreover, an agency is not required to
terminate its indefinite suspension action until the determinable condition
subsequent it identified in its notice of adverse action is triggered. Ryan I, 2014
MSPB 64, ¶¶ 13-14; Ryan II, Nonprecedential Final Order, ¶¶ 2-3. Here, the
agency’s deciding official determined that the appellant’s indefinite suspension
was warranted pending a final adjudication of her access to classified information
and that the appellant’s indefinite suspension would continue through the notice
period of any subsequent adverse action in the event that a final determination is
made to revoke her clearance. IAF, Tab 4 at 35. The appellant has internally
appealed the July 2013 revocation of her clearance, id. at 18, and there is no
evidence that the agency has rendered a final adjudication on her access to
classified information. Because the identifiable condition subsequent specified
by the agency in its indefinite suspension decision has not yet occurred, the
appellant’s challenge to her continued placement on indefinite suspension
remains premature. See Ryan I, 2014 MSPB 64, ¶¶ 13-14.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.