UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN W. LITTLE,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-16-0607-I-1

DATE: October 19, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 classified 

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 RIGHTS3

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. 4The 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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board