NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3177
LICIA MOODY,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
Licia Moody, of Pensacola, Florida, pro se.
Christopher J. Carney, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on the
brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and
Todd M. Hughes, Assistant Director. Of counsel on the brief was Anne D. Turner, Senior
Associate Counsel, Office of General Counsel, Defense Finance and Accounting Services,
of Columbus, Ohio.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3177
LICIA MOODY,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
DECIDED: August 14, 2007
__________________________
Before NEWMAN, RADER, and PROST, Circuit Judges.
PER CURIAM.
Licia Moody appeals a January 31, 2007 decision by the Merit Systems
Protection Board (“MSPB” or “Board”) affirming her indefinite suspension from her
position as an accounting systems administrator with the Defense Finance &
Accounting Services (“DFAS”). Moody v. Dep’t of Defense, No. AT0752060812-I-1
(Jan. 31, 2007). Because the MSPB’s decision is fully supported by substantial
evidence, in accordance with law, and not procedurally defective, arbitrary, or
capricious, we affirm.
I. BACKGROUND
Ms. Moody was employed by DFAS as an accounting systems administrator in
Pensacola, Florida. On May 19, 2005, her security clearance and eligibility to occupy a
sensitive position were revoked due to her long history of financial irresponsibility.
Since Ms. Moody’s position required that she have access to sensitive information, this
revocation meant she no longer met the qualifications of her position and could not
perform her regularly assigned duties. Therefore, DFAS assigned her non-sensitive
duties to perform.
On April 19, 2006, DFAS sent Ms. Moody a Notification of Proposed Indefinite
Suspension, which explained that she was being indefinitely suspended since she was
no longer qualified for her position. Ms. Moody contested the suspension in a written
reply and requested to be permitted to continue performing non-sensitive duties until a
decision was rendered in an appeal of the revocation of her security clearance.
However, on May 19, 2006 Ms. Moody was given written notice of the final decision
regarding her indefinite suspension. The notice denied her request to continue
performing non-sensitive duties, since doing so would not promote the efficiency of the
service, and indefinitely suspended her effective May 27, 2006.
Ms. Moody appealed to the MSPB, where an administrative judge issued an
initial decision affirming her indefinite suspension. Moody v. Dep’t of Defense,
No. AT0752060812-I-1 (Aug. 23, 2006). Ms. Moody filed a petition for review with the
Board, but the Board denied her petition, finding that no new evidence was presented
and that the administrative judge made no errors of law or regulation that affected the
outcome. Moody v. Dep’t of Defense, No. AT0752060812-I-1 (Jan. 31, 2007).
2007-3177 2
Accordingly, the initial decision became the final decision of the Board. Ms. Moody now
appeals to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
Our review of the Board’s decision is limited by statute. See 5 U.S.C. § 7703(c).
We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” Id. The petitioner bears the burden of establishing error in the
Board’s decision. See, e.g., Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140
(Fed. Cir. 1986).
On appeal, Ms. Moody argues that the eleven-month delay between the
revocation of her security clearance and the notification of her proposed suspension
violated 5 C.F.R. Pt. 752 and DFAS 1426.1. Ms. Moody also contends that DFAS “set a
preceden[t] when it allowed [her] to work over a year in a non-sensitive position even
though [there] was no statute or regulation to substantiate [her] placement into a
position other than the position [she] was hired for.” We disagree.
Although Ms. Moody argues that the eleven-month delay between the revocation
of her security clearance and the notification of her proposed suspension violated
5 C.F.R. Pt. 752 and DFAS 1426.1, nothing in those regulations sets a rigid timetable
for the government to initiate an adverse action. At best, DFAS 1426.1 merely requires
disciplinary actions to be taken “promptly.” However, Ms. Moody’s indefinite
suspension, although an adverse action, was not disciplinary in nature. Moreover, Ms.
Moody has failed to demonstrate that the delay adversely affected her ability to defend
2007-3177 3
herself, or otherwise affected the decision to indefinitely suspend her. Accordingly, her
contention that the eleven-month delay between the revocation of her security
clearance and the notification of her proposed suspension prejudiced her or violated the
law is without merit.
The DFAS also did not “set a preceden[t] when it allowed [her] to work over a
year in a non-sensitive position.” Simply put, the DFAS’s effort to find Ms. Moody non-
sensitive work following the revocation of her security clearance does not prevent it from
subsequently suspending her for losing her security clearance or give her any vested
interest in her interim duties. See Skees v. Dep’t of Navy, 864 F.2d 1576, 1578-79
(Fed. Cir. 1989) (“We do not subscribe to the view that when [an agency], whether
through benevolence or self-interest, tries to keep an employee who loses his security
clearance aboard in another capacity, it thereby opens itself up to administrative and
judicial second-guessing.”).
III. CONCLUSION
Because the MSPB’s decision is fully supported by substantial evidence, in
accordance with law, and not procedurally defective, arbitrary, or capricious, we affirm.
No costs.
2007-3177 4