The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHEILA MARIE CLARK, DOCKET NUMBER
Appellant, DC-0752-14-0741-I-1
v.
DEPARTMENT OF HOMELAND DATE: December 16, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sheila Marie Clark, Indian Head, Maryland, pro se.
Brian Wilberg, 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 appeal for lack of jurisdiction. 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 interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as
expressly modified by this Final Order, we AFFIRM the initial decision.
¶2 The appellant filed an appeal challenging the agency’s decision to revoke
her security clearance on June 25, 2013. Initial Appeal File (IAF), Tab 1. The
record reflects that the appellant was employed in the Senior Executive Service
with a Top Secret security clearance, but she was removed from federal service
on May 6, 2013, prior to receiving a written decision regarding the proposed
revocation of her security clearance. 2 The appellant alleged that, when the
agency revoked her security clearance on June 25, 2013, the procedures used by
the agency violated her right to due process. Id.
¶3 The administrative judge noted that the appeal was untimely filed and that,
while the appellant had been provided the specific opportunity to submit evidence
and argument showing that the Board has jurisdiction over this appeal, the
appellant did not respond. Initial Decision (ID) at 2. The administrative judge
then found that the appellant has no appeal right to the Board to challenge the
revocation of her security clearance, whether as to the merits or the procedures
used to effect that revocation. ID at 2-3. Because the appellant was challenging
2
The appellant filed a separate appeal of her removal, MSPB Docket No. DC-0752-13-
0661-I-1, which is pending at the Board’s Washington Regional Office.
3
only the alleged impropriety of the agency’s revocation of her security clearance,
the administrative judge dismissed the appeal for lack of jurisdiction. ID at 3.
¶4 The appellant has filed a petition for review in which she asserts that the
administrative judge erred in stating that her appeal was untimely filed. Petition
for Review (PFR) File, Tab 1 at 4. She asserts that her appeal was timely because
she filed her appeal within 30 days from the May 9, 2014 date of the agency’s
final decision on the revocation of her security clearance. Id. However, while
the administrative judge stated that the appeal was untimely filed, the
administrative judge did not dismiss the appeal on this basis. Rather, the
administrative judge dismissed the appeal for lack of Board jurisdiction. Thus,
the timeliness issue was not determinative in the outcome of this appeal. Further,
even if the administrative judge erred in finding her appeal untimely filed,
because the administrative judge correctly dismissed this appeal for lack of
jurisdiction, the appellant has not shown that her substantive rights were harmed.
An adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision. Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
¶5 The appellant also contends that the administrative judge erred by finding
that she did not respond to either the agency’s motion to dismiss for lack of
jurisdiction or to the administrative judge’s show cause order. PFR File, Tab 1
at 4. The appellant asserts that her response was due on June 18, 2014, and that
she e-filed her response on June 17, 2014. Id. at 4-5. Thus, she asserts that the
administrative judge erred by failing to consider her response prior to issuing the
initial decision. Id. We agree. While the appellant’s response was timely filed
on June 17, 2014, and the initial decision was issued on July 11, 2014, the
administrative judge stated that the appellant did not respond, and thus she
apparently did not consider the appellant’s submission. ID at 2. We have
therefore considered the arguments in the appellant’s response and, for the
reasons set forth below, find that the appellant has failed to make the requisite
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nonfrivolous allegations to merit a jurisdictional hearing. See Garza v.
Department of the Navy, 119 M.S.P.R. 91, ¶ 6 (2012).
¶6 On review, the appellant reiterates the argument she raised below that the
Board has jurisdiction over her appeal because the agency violated its procedures
by revoking her security clearance after she was no longer an agency employee.
PFR File, Tab 1; IAF, Tab 8. The appellant contends that, because she was no
longer an agency employee, the agency had no authority to adjudicate her security
clearance or to revoke it under agency regulations. However, as the
administrative judge correctly found, the appellant has the right to appeal to the
Board an adverse action such as a suspension or removal taken as a result of a
revocation of a security clearance, and she has pursued that right in a separate
appeal. Here, the appellant is challenging only the alleged impropriety of the
agency’s process in revoking her security clearance. See IAF, Tabs 1, 3-7; see
also PFR File, Tab 1. However, under Department of the Navy v. Egan, 484 U.S.
518, 530-31 (1988), the Board does not have authority to review the substance of
the underlying security clearance determination. Further, as in Gargiulo v.
Department of Homeland Security, 727 F.3d 1181, 1187 (Fed. Cir. 2013), the
appellant has no due process rights regarding the procedures used to determine
whether to suspend or revoke her security clearance. While the appellant has due
process rights concerning her removal, her removal is not at issue in this case,
and the appellant does not have the right to contest the merits of the decision to
revoke her security clearance. See Gargiulo, 727 F.3d at 1187; see also Cheney
v. Department of Justice, 479 F.3d 1343, 1352 (Fed. Cir. 2007). Accordingly,
the administrative judge correctly dismissed this appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
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final decision. 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.