Joan Ryan v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOAN RYAN, DOCKET NUMBER

Appellant, PH-0752-13-0343-I-1

v.

DEPARTMENT OF HOMELAND DATE: August 18, 2014

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL *

Peter 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 her initial appeal challenging the continuation of her indefinite

suspension for lack of jurisdiction. Generally, we grant petitions such as this one

only when: the initial decision contains erroneous findings of material fact; 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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 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). In the

instant appeal, the appellant reasserts her challenge to her continued placement on

indefinite suspension based upon the suspension of her security clearance. See

Initial Appeal File (IAF), Tab 19, Initial Decision (ID) at 1; IAF, Tab 1. As a

part of her prior appeal of her indefinite suspension, the appellant argued that she

should be returned 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, ¶ 13. We rejected the appellant’s argument, noting that the condition

subsequent identified by the agency in its notice of indefinite suspension was a

final determination on her access to classified information, and that, in the

absence of the restoration of her security clearance, the Board is without the

authority to order that the appellant be returned to duty. Id., ¶ 14.

¶3 We find no reason to deviate from our prior decision. See id., ¶¶ 14-15.

The appellant’s argument on review that the agency’s delay amounts to a denial

of due process does not change our analysis, see Petition for Review File, Tab 1

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at 5, and the appellant has cited no support for her contention that the Board has

the authority to order her restored based solely upon the amount of time that has

elapsed since her acquittal, notwithstanding the fact that the agency has yet to

decide whether to reinstate her access to classified information, see Gargiulo v.

Department of Homeland Security, 727 F.3d 1181, 1186 (Fed. Cir. 2013)

(“[E]mployees do not have constitutional due process rights in connection with

security clearance determinations.”). As we explained in Ryan I, moreover, the

Board cannot order an employee restored to a position requiring a security

clearance when she does not possess such a clearance, and, absent some agency

policy, statute, or regulation requiring the agency to consider reassigning the

employee prior to indefinitely suspending her, “the Board has no role” in

reviewing whether an employee should have been reassigned instead of receiving

an adverse action. Ryan I, 2014 MSPB 64, ¶ 9 (quoting Griffin v. Defense

Mapping Agency, 864 F.2d 1579, 1581 (Fed. Cir. 1989)).

¶4 We agree with the administrative judge that the Board is without

jurisdiction over the appellant’s instant appeal and that the appellant’s appeal is

premature. ID at 3-4. The administrative judge’s initial decision is AFFIRMED.

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

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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

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.