Petitions for review of the Merit Systems Protection Board in Nos. PH-0752-13-0127-I-1, PH-0752-13-5283-I-1, PH-0752-13-0343-I-1.
PETER B. BROIDA, Arlington, VA, argued for petitioner.
HILLARY STERN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent Department of Homeland Security. Also represented by JOYCE BRANDA, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER.
CALVIN M. MORROW, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent Merit Systems Protection Board. Also represented by BRYAN G. POLISUK.
Before O'MALLEY and WALLACH, Circuit Judges, and GILSTRAP,[*] District Judge.
Wallach, Circuit Judge.
Petitioner Joan Ryan appeals three decisions of the Merit Systems Protection Board (" MSPB" or " Board" ). In the first decision, the MSPB upheld Ms. Ryan's indefinite suspension from duty based on an underlying suspension of her security clearance, found she was not entitled to consideration for transfer to a position not requiring a security clearance, and found acquittal of the criminal charges underlying the security clearance suspension did not entitle her to reinstatement. Ryan v. Dep't of Homeland Sec. ( Ryan I ), 2014 M.S.P.B. 64 (2014) (J.A. 13-24), overruled by Freeze v. Dep't of the Navy, 2015 M.S.P.B. 9 (2015). In the second decision, the MSPB found it did not have authority to order Ms. Ryan restored to her position simply because of delay with respect to a final decision on her security clearance. Ryan v. Dep't of Homeland Sec. ( Ryan II ), No. PH-0752-13-0343-I-1, 121 M.S.P.R. 439 (M.S.P.B. Aug. 18, 2014) (J.A. 51-54). In the third decision, the MSPB found the basis for the suspension of Ms. Ryan's employment was not constructively amended when the suspended security clearance was eventually revoked. Ryan v. Dep't of Homeland Sec. ( Ryan III ), No. PH-0752-13-5283-I-1, 121 M.S.P.R. 439 (M.S.P.B. Aug. 18, 2014) (J.A. 41-45). This court affirms.
Ms. Ryan was employed as a regional Mission Support Division Director, level GS-15, by the Federal Emergency Management Agency (" the agency" or " FEMA" ), an agency within the Department of Homeland Security (" DHS" ). The position required her to maintain a top secret security clearance. The agency suspended Ms. Ryan's access to classified information after it learned she had been indicted on federal criminal charges related to conflict of interest, solicitation of a gratuity, and making a false statement. Because she no longer met the requirements of the position, FEMA indefinitely suspended her from duty without pay " until such time as a final determination is made by the FEMA Office of the Chief Security Officer (OCSO) with respect to [her] future eligibility for access to classified information." J.A. 78.
Ms. Ryan appealed the indefinite suspension to the MSPB. Although Ms. Ryan was acquitted of all criminal charges in February 2013, the MSPB Administrative Judge (" AJ" ) found she was not entitled to an immediate termination of the indefinite suspension from duty because " the indefinite suspension was based upon the suspension of her clearance and not the underlying reasons for the suspension of the clearance (the indictment)." J.A. 39. This decision was upheld on appeal by the MSPB. Ryan I, 2014 M.S.P.B. 64. The MSPB noted that it was " precluded from ordering the appellant's reinstatement to a position requiring access to classified information when she is without the required clearance to access such information." Id. ¶ 15.
While Ms. Ryan's appeal in Ryan I was pending, she filed another appeal asserting, among other things, that " the agency [was] unreasonably delaying the adjudication of her [security] clearance." J.A. 56. In an initial decision, the AJ dismissed the claim for lack of subject matter jurisdiction, and the MSPB affirmed. Ryan II, No. PH-0752-13-0343-I-1, 121 M.S.P.R. 439. In the initial decision, the AJ noted " [t]he condition subsequent--the completion of the agency's readjudication of her security clearance--has simply not yet occurred" and therefore " the Board does not have jurisdiction over her claim." J.A. 57. In affirming the AJ's decision, the MSPB noted " appellant has cited no support for her contention that the Board has the authority to order her restored based solely upon the amount of time that has elapsed since her acquittal, notwithstanding the fact that the agency has yet to decide whether to reinstate her access to classified information." Ryan II, at 3 ¶ 3, 121 M.S.P.R. 439.
The suspension of Ms. Ryan's security clearance occurred in September 2012. After the agency revoked her security clearance in July 2013, she filed a third appeal asserting the basis for her indefinite suspension was constructively amended when her security clearance was revoked. Ryan III, No. PH-0752-13-5283-I-1, 121 M.S.P.R. 439 . Specifically, she asserted that " the revocation was based (at least in part) on reasons not specified in her notice of proposed suspension" and " she has never had a chance to contest" those new reasons. J.A. 48. The AJ dismissed the action, finding " the new underlying details do not change the basis for the suspension [of Ms. Ryan's employment], and [Ms. Ryan] has the opportunity to challenge this new information in her security clearance appeal." J.A. 49. The MSPB affirmed, noting " the appellant's inability to access classified information" was the basis for her indefinite suspension, and the fact that Ms. Ryan's security clearance had been revoked, rather than just suspended, did not " explicitly or implicitly amend the basis for her indefinite suspension [from duty]." Ryan III, at 5-6 ¶ 4, 121 M.S.P.R. 439.
Appeals from Ryan I, Ryan II, and Ryan III were consolidated before this court and form the basis of the present appeal. This court has jurisdiction ...