Opinion

John Lloyd v. Department of the Army

Court: Merit Systems Protection Board
Filed: Aug 2, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding that an employee was not provided with the opportunity to make a meaningful response to the notice of proposed suspension when he had to guess at the reasons for his security clearance suspension

How later courts described this case

finding that an employee was not provided with the opportunity to make a meaningful response to the notice of proposed suspension when he had to guess at the reasons for his security clearance suspension

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN T. LLOYD, DOCKET NUMBER

Appellant, DE-0752-16-0247-I-1

DEPARTMENT OF THE ARMY, DATE: August 2, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

John T. Lloyd, Colorado Springs, Colorado, pro se.

Daniel Dougherty, Colorado Springs, Colorado, for the agency.

James D. Bush, Peterson Air Force Base, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

sustained his indefinite suspension. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

findings of material fact; the 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 administrative 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 avai lable that, despite

the petitioner’s due diligence, was not available when the record closed. 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, we conclude that the appellant

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 to clarify the administrative judge’s analysis of

the appellant’s due process claim, we AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant served as the Program Director of the Special Mission Office

at the agency’s Peterson Air Force Base. Initial Appeal File (IAF), Tab 5 at 42.

The position required that he maintain a top secret security clearance. Id. at 329.

On August 20, 2015, the agency suspended the appellant’s access to classified

information and placed him on administrative leave. Id. at 40. Based on that

suspension, the agency proposed the appellant’s indefinite suspension from duty

without pay on January 4, 2016. Id. at 38. The appellant responded both orally

and in writing to the proposal notice, and the deciding official sustained the

action, effective March 1, 2016. Id. at 21-26. This appeal followed. IAF, Tab 1.

¶3 After determining that the requested hearing was unnecessary, the

administrative judge issued an initial decision affirming the indefinite suspension.

IAF, Tab 15, Initial Decision (ID) at 1-2. He found that: the appellant’s position

required him to hold a valid security clearance; the agency afforded him

minimum due process in the imposition of the indefinite suspension and the

suspension of his access to classified information; the agency identified the

conditions subsequent for the termination of the appellant’s indefinite suspension;

and the appellant failed to prove his harmful procedural error claim. ID at 3-7.

¶4 The appellant has filed a petition for review challenging the administrative

judge’s finding that the agency afforded him minimum due process in the

suspension of his access to classified information. Petition for Review (PFR)

File, Tab 3. The agency has responded in opposition, and the appellant has

replied to the agency’s response. PFR File, Tabs 5-6.

¶5 In the initial decision, the administrative judge stated that the minimal due

process to be afforded the appellant here included sufficient notice of the reasons

for the suspension of his access to classified information an d the opportunity to

make an informed reply. ID at 2-3. Our reviewing court, however, has clarified

the Board’s line of cases on which the administrative judge relied, finding that,

because an employee has no property interest in a security clearance , an agency is

not obliged as a matter of constitutional due process to notify the employee of the

specific reasons for the suspension of his clearance. Gargiulo v. Department of

Homeland Security, 727 F.3d 1181, 1185-86 (Fed. Cir. 2013); see Buelna v.

Department of Homeland Security, 121 M.S.P.R. 262, ¶ 25 (2014). Rather, for

purposes of due process, it is sufficient for an agency to inform the employee that

his position required a security clearance and that he can no longer hold his

position once he lost his clearance. Buelna, 121 M.S.P.R. 262, ¶ 25. Here, the

agency provided the appellant with this information, and we find no due process

violation. IAF, Tab 5 at 38-40.

¶6 Separate from constitutional due process, the Board will reverse an

indefinite suspension based on the suspension of a security clearance if an

appellant is able to prove harmful procedural error. Buelna, 121 M.S.P.R. 262,

¶ 33; 5 C.F.R. § 1201.56(c)(1). To do so, an appellant must prove that the agency

committed an error in the application of its procedures that is likely to have

caused the agency to reach a conclusion different from the one it would have

reached in the absence or cure of the error. Buelna, 121 M.S.P.R. 262, ¶ 33;

5 C.F.R. § 1201.4(r). The appellant argued below that the agency committed

harmful procedural error when it failed to follow Department of Defense

Regulation 5200.2-R and Department of the Army Regulation 380-67. IAF,

Tab 13 at 4-8. The administrative judge found that the appellant failed to prove

this claim, ID at 4-6, the appellant does not challenge this finding on review, and

we discern no basis to disturb it.

¶7 In addition, pursuant to the statutory requirement of 5 U.S.C. § 7513(e), an

employee facing an adverse action must be notified of the specific reasons for a

proposed adverse action. Buelna, 121 M.S.P.R. 262, ¶ 25. In the context of an

indefinite suspension based on the suspension of a security clearance,

section 7513 requires that the appellant be provided sufficient information to

make an informed reply, including a statement of the reasons for the clearance

suspension. Id., ¶ 34.

¶8 In this case, the agency’s proposal to indefinitely suspend the appellant

informed him that his access to classified information was suspended “due to the

circumstances from the on-going [sic] G32 investigation into the allegations of

the improper storage and control of classified material.” IAF, Tab 5 at 38.

Despite the appellant’s claims to the contrary, we find that the agency provided

him with sufficient information to make an informed reply to the proposed

indefinite suspension, including the reasons for the clearance suspension , and that

the requirements of section 7513 were satisfied. See King v. Alston, 75 F.3d 657,

662 (Fed. Cir. 1996) (finding that the agency provided an employee with

sufficient information to make an informed reply when it notified him that his

security clearance was being suspended because of “a potential medical

condition” and then informed him that he was being indefinitely suspended from

duty based on the suspension of his security clearance); Buelna, 121 M.S.P.R.

262, ¶ 34 (finding that the notice suspending an appellant’s security clearance,

coupled with the notice proposing his indefinite suspension, adequately informed

him of the basis for the suspension of his security clearance, i. e., alleged

fraudulent claims); cf. Cheney v. Department of Justice, 479 F.3d 1343, 1353

(Fed. Cir. 2007) (finding that an employee was not provided with the opportunity

to make a meaningful response to the notice of proposed suspension when he had

to guess at the reasons for his security clearance suspension).

¶9 In his petition for review, the appellant asserts that the agency has favorably

adjudicated his security clearance and that he was returned to paid status on

May 26, 2016. PFR File, Tab 3 at 7. This information does not change our

analysis. See Buelna, 121 M.S.P.R. 262, ¶ 23 (finding that the suspension of a

security clearance may serve as a basis for imposing an indefinite suspens ion

even when the agency ultimately determines that the facts warrant restoration of

the clearance). He also asserts that, as of the filing of his petition for review, the

agency had not yet restored him to his previous position. PFR File, Tab 3 at 7-8.

To the extent the appellant is requesting the Board to order his reinstatement,

such a request is outside the scope of our authority given he did not prevail in his

appeal. Cf. Ulep v. Department of the Army, 120 M.S.P.R. 579, ¶ 4 (2014)

(ordering the cancelation of the appellant’s indefinite suspension and his

retroactive restoration when he proved his harmful procedural error claim and the

Board reversed the agency’s action).

¶10 Accordingly, we affirm the initial decision as modified herein sustaining the

appellant’s indefinite suspension.

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes t he

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation an d

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 3 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the