Indefinite Suspension After Security Clearance Restoration is MSPB Reviewable
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
Appellant, an electrician at the Department of the Navy, serves in a sensitive position that requires him to maintain a security clearance. On April 13, 2015, the Agency suspended appellant’s access to classified information and, as a result, proposed his indefinite suspension. On April 29, 2015, the Agency issued a decision indefinitely suspending the appellant, effective on June 18, 2015. It informed Appellant that the suspension would continue until his security clearance decision was resolved. It further informed the Appellant that, if the Department of Defense Consolidated Adjudication Facility (DOD CAF) did not revoke his security clearance, he would be returned to a duty status. On August 16, 2016, DOD CAF issued a favorable security determination to the Appellant. That same day, the Agency was also notified of the favorable adjudication. It determined that the Appellant was eligible to return to duty. Appellant returned to duty August 29, 2016.
He filed an initial appeal to the Merit Systems Protection Board (MSPB) in September 2016, contesting the continuation of his indefinite suspension beyond the condition subsequent: his favorable security clearance resolution. In October 2016, after the employee filed his appeal, the Agency retroactively placed Appellant on a Leave Without Pay status from August 16 to August 29, thus retroactively curtailing his indefinite suspension. The administrative judge then issued an initial decision dismissing the appeal for lack of jurisdiction, determining that, even if the appellant was constructively suspended from August 16 to 29, the period totaled 13 days and thus the Board lacked jurisdiction. Appellant filed a petition for review, arguing that he established that the Board has jurisdiction over the suspension. The Board agreed with Appellant, holding that it had jurisdiction over the matter.
The Board has jurisdiction over suspensions of more than 14 days, and its jurisdiction is determined by the nature of an agency’s action against an appellant at the time his appeal is filed. If an agency unilaterally modifies its adverse action after an appeal has been filed, it will not divest the Board of jurisdiction unless the appellant consents or the Agency completely rescinds the adverse action. The Board found that neither condition for divestment was met in this case.
Here, the Agency placed Appellant on an indefinite suspension on June 18, 2015 and returned the Appellant to duty on August 29, 2016. “It was only after the Appellant filed his September 22, 2016 Board appeal that the Agency . . . retroactively place[d] him on LWOP.” There was no evidence that the Appellant consented to the Agency’s unilateral modification of the indefinite suspension. Therefore, the Board’s jurisdiction could not be divested as a result of the change to LWOP status unless the action was completely rescinded, which it was not.
Next, the Board held that it has jurisdiction over the Agency’s continuation of the indefinite suspension. “An indefinite suspension ends with the occurrence of the pending conditions set forth in the notice of action.” The condition that should have ended the indefinite suspension occurred on August 16, 2016, when Appellant’s access to classified information was restored. According to the Board, if a suspension continues after the condition that should terminate it, though, the continuation of the suspension is a reviewable agency action separate from the initial imposition of the suspension. But, because the imposition of the indefinite suspension and the continuation of the indefinite suspension concerned the same personnel action, the appeal of the continuation relates to the whole adverse action – here the entire, lengthy suspension – when determining MSPB jurisdiction. Therefore, the length of the entire indefinite suspension must be considered to determine if the Board has jurisdiction over an agency action. Here, the continuation of the suspension may have only lasted 13 days, but the entire indefinite suspension was well over 14 days. As a result, the appeal was within the Board’s jurisdiction.
The Board next addressed the merits of the appeal. When hearing an appeal alleging an improper continuation of an indefinite suspension, the Board must ascertain (1) whether the condition identified by the agency has occurred, and (2) whether the agency acted within a reasonable amount of time to terminate the suspension following the satisfaction of the condition. In Appellant’s case, both parties, as well as the Board, agree that the identified condition occurred. Therefore, the “issue is whether the Agency acted within a reasonable amount of time to end the suspension” once DOD CAF issued its favorable security determination.
Appellant’s favorable security determination was issued on August 16, 2016, and, that same day, the Agency contacted the Appellant and advised him that he was able to return to work. Appellant then requested that he be returned to duty on August 29, 2016, in order to complete a training period. The Agency granted this request, thus continuing the suspension. The Agency then retroactively returned Appellant to duty on August 16 and carried him in LWOP status until August 29. The Board held that, in order to determine whether the Agency acted within a reasonable time, it must know whether the training the Appellant requested to complete was work-related, and whether the Agency was obligated to place him in a paid duty status during that training. The record did not indicate the nature of the training and whether it was work related. As a result, the Board vacated the initial decision and remanded the appeal to the regional office to determine whether the Agency acted within a reasonable amount of time to end the Appellant’s suspension.
Find the full case here: Sikes v. Department of the Navy.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.