UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN W. LITTLE, DOCKET NUMBER
Appellant, SF-0752-16-0607-I-1
v.
DEPARTMENT OF THE NAVY, DATE: October 19, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John W. Little, Bremerton, Washington, pro se.
Eric M. Pederson and Alan Mygatt-Tauber, Silverdale, Washington, 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
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 aff ected 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. 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 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 As further detailed in the initial decision, the appellant holds the noncritical
sensitive position of Mechanical Engineer for the agency’s Naval Facilities
Command, Northwest. Initial Appeal File (IAF), Tab 21, Initial Decision (ID)
at 3. In 2014, his security clearance expired, 10 years after issuance. Id. While
reinvestigation of his security clearance commenced, the agency permitted him to
continue accessing controlled areas. Id. However, in May 2016, while the
reinvestigation was still pending, the agency proposed suspending his access t o
classified information and areas, and assignment to sensitive duties, based on the
results of a psychological/psychiatric evaluation and the appellant’s conduct. ID
at 3-4; IAF, Tab 7 at 25-33, Tab 12 at 6. After the appellant responded, the
agency issued a decision suspending his access. ID at 4. The agency then
proposed the appellant’s indefinite suspension for failure to meet a condition of
his employment, specifically, access to classified information and assignment to a
sensitive position. Id. After the appellant responded both orally and in writing to
the proposal, the agency issued a decision upholding the indefinite suspension,
effective June 23, 2016, pending a final clearance determination from the
Department of Defense Consolidated Adjudication Facility. ID at 4-5, 12; IAF,
Tab 7 at 13-16. The instant appeal followed. IAF, Tab 1.
3
¶3 The administrative judge informed the appellant of the Board’s limited
authority to review matters relating to security clearance determinations. E.g.,
IAF, Tab 9 at 2. She limited the issues for hearing accordingly. IAF, Tab 12
at 2-3; ID at 5. The administrative judge then issued a decision affirming the
appellant’s indefinite suspension. ID at 5-13. The appellant has filed a petition
for review. Petition for Review (PFR) File, Tab 1. 2 The agency has filed a
response. PFR File, Tab 3.
¶4 An indefinite suspension lasting more than 14 days is an adverse action
appealable to the Board under 5 U.S.C. § 7513(d). 5 U.S.C. § 7512(2); Palafox v.
Department of the Navy, 124 M.S.P.R. 54, ¶ 8 (2016). It is well settled that an
agency may indefinitely suspend an appellant when his access to classified
information has been suspended and he needs such access to perform his job.
Palafox, 124 M.S.P.R. 54, ¶ 8. In such a case, the Board lacks the authority to
review the merits of the decision to suspend access. Id. However, the Board
retains the authority to review whether: (1) the appellant’s position required
access to classified information; (2) his access to classified information was
suspended; and (3) he was provided with the procedural protections specified in
5 U.S.C. § 7513. Id. In addition, the Board has the authority under 5 U.S.C.
§ 7701(c)(2)(A) to review whether the agency provided the procedural protections
required under its own regulations. Id. Finally, because a tenured Federal
employee has a property interest in continued employment, the Board also may
consider whether the agency provided minimum due process in taking the
indefinite suspension action. Id.
2
With his petition for review, the appellant attached a number of documents. PFR File,
Tab 1 at 10-28. These documents are duplicates of ones provided below. Compare id.,
with IAF, Tab 3 at 26, Tab 7 at 25, Tab 11 at 13-14, 20-22, 35-39, Tab 16 at 42, Tab 17
at 15-30. Evidence submitted on review that is already a part of the record below is not
considered new. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980);
5 C.F.R. § 1201.115.
4
¶5 On review, the appellant first argues that the agency ordered him to undergo
a mental health evaluation, and that amounted to a prohibited personnel practice
under 5 U.S.C. § 2302(b)(2). PFR File, Tab 1 at 4; see IAF, Tab 6 at 7, Tab 11
at 2, 4; see generally Mattison v. Department of Veterans Affairs, 123 M.S.P.R.
492, ¶ 11 (2016) (recognizing that section 2302(b)(2) “relates to statements or
recommendations by outsiders, like senators or congressmen; the legislative
objective was to forestall political or partisan interference in personnel actions”
(quoting Depte v. United States, 715 F.2d 1481, 1484 (Fed. Cir. 1983), overruled
on other grounds by Stone v. Federal Deposit Insurance Corporation, 179 F.3d
1368, 1376 n.4 (Fed. Cir. 1999)). This allegation falls outside the Board’s
limited authority in the context of this appeal, as described above . Supra ¶ 4; see
Doe v. Department of Justice, 121 M.S.P.R. 596, ¶ 10 (2014) (finding that the
Board is not permitted to adjudicate affirmative defenses of discrimination or
reprisal in the context of an agency’s adverse action premised on the suspension
or revocation of a security clearance). Because section 2302(b)(2) does not
provide an independent source of Board jurisdiction, we are without authority to
consider this alleged prohibited personnel practice further . See Wren v.
Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867 (D.C. Cir.
1982).
¶6 The appellant next argues that the agency failed to comply with the
procedural requirements set forth in its Personnel Security Program, SECNAV
M-5510.30, by not providing timely notification of its determinations. PFR File,
Tab 1 at 5 (referencing IAF, Tab 17 at 29). This argument relies on the following
agency policy: “Whenever a determination is made to suspend access to
classified information . . . [t]he individual concerned must be notified of the
determination in writing within 10 days.” IAF, Tab 17 at 29 (emphasis added).
Here, the agency met that requirement. The agency proposed the suspension of
the appellant’s access on May 9, he responded on May 13, and the agency issued
its written decision suspending his access that same day. IAF, Tab 7 at 23, 25,
5
Tab 12 at 6. The appellant is suggesting that the agency’s other determinations
were similarly subject to this 10-day time limit, including the agency’s earlier
decision to place him on administrative leave and subsequent decision to
indefinitely suspend him. PFR File, Tab 1 at 5. We disagree. The 10-day notice
requirement in SECNAV M-5510.30 is specific to the suspension of access to
classified information.
¶7 The appellant also argues that he was entitled to reassignment during his
security clearance investigation, pursuant to SECNAV M-5510.30. PFR File,
Tab 1 at 5 (referencing IAF, Tab 17 at 28). This argument similarly misconstrues
agency policy. The cited policy states, “[w]hen questionable or unfavorable
information becomes available concerning an individual who has been granted
access to classified information or assigned to sensitive duties . . . [ c]ommanding
officers will determine whether . . . to suspend or limit an individual’s access to
classified information, or reassign the individual to non-sensitive duties pending
a final [clearance determination].” IAF, Tab 17 at 28 (emphasis added). The
plain language of this policy demonstrates that reassignment is a discretionary
option, not a requirement. There is simply no basis for us to conclude that
reassignment was required during his period of suspended access. See Palafox,
124 M.S.P.R. 54, ¶ 8 n.1, ¶ 11 (referring to SECNAV M-5510.30 and upholding
an indefinite suspension based on the suspension of access to classifie d
information, despite arguments concerning the possibility of reassignment).
¶8 In addition to the aforementioned arguments, the appellant seems to assert
that his indefinite suspension did not meet the efficiency of the service
requirement of 5 U.S.C. § 7513 because he had a history of good performance.
PFR File, Tab 1 at 6. We disagree. It is well settled that, when an adverse action
is based on the failure to maintain a security clearance—or in this case, the
failure to maintain eligibility to access classified information and assignment to a
sensitive position—the adverse action promotes the efficiency of the service
because the absence of a properly authorized security clearance is fatal to the job
6
entitlement. See Grimes v. Department of Justice, 122 M.S.P.R. 36, ¶ 14 (2014).
The appellant also identifies what he describes as a number of “discrepancies” in
the administrative judge’s decision. PFR File, Tab 1 at 5-8. For example, the
appellant suggests that the initial decision erroneously identified his place of
employment in 2004, when he first received his security clearance. Id. at 5-6. In
another example, the appellant suggests that the administrative judge’s decision
misstates the access limitations signified by different color -coded badges used
within the agency. Id. at 6-8. However, the appellant has not shown that any of
these alleged errors or discrepancies warrants a different result. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (recognizing that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
¶9 Accordingly, we affirm the initial decision for the reasons set forth above.
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of 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 and 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.
3
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.
7
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
8
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:
9
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. 4 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).
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
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
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.