UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOAN RYAN,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

PH-0752-13-5283-I-1

DATE: August 18, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL*

Peter B. Broida, Esquire, Arlington, Virginia, for the appellant.

David Myers, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed the appellant’s appeal for lack of jurisdiction as premature. Generally, 

we grant petitions such as this one only when: the initial decision contains 

erroneous findings of material fact; the initial decision is based on an erroneous 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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 affected 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. See 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, and based on the following 

points and authorities, 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 Familiarity with the underlying facts of this appeal is presumed. See Ryan 

v. Department of Homeland Security, 2014 MSPB 64, ¶¶ 2-3 (Ryan I). This is the 

third appeal filed by the appellant arising out of her indefinite suspension based 

upon the loss of her access to classified information. In Ryan I, we affirmed the 

appellant’s indefinite suspension based upon the suspension of her security 

clearance; rejected her argument that under Douglas v. Veterans Administration, 5 

M.S.P.R. 280 (1981), an agency must consider lesser penalties before imposing a 

proposed indefinite suspension; and found that because the condition subsequent 

triggering the cessation of the appellant’s indefinite suspension has not yet 

occurred, i.e., a final determination on her access to classified information, the 

Board cannot order the appellant restored to duty following her acquittal on the 

criminal charges which served as the basis for the suspension of her clearance. 

See Ryan I, 2014 MSPB 64, ¶¶ 6, 7-10, 13-15. In Ryan II, we rejected the 

appellant’s argument that the agency’s delay in rendering a final determination on 

her access to classified information following her criminal acquittal improperly 

extended her indefinite suspension. See Ryan v. Department of Homeland 
3

Security, MSPB Docket No. PH-0752-13-0343-I-1, Nonprecedential Final Order, 

¶¶ 2-3 (Aug. 18, 2014) (Ryan II). 

¶3 In her current appeal, the appellant asserts that the agency constructively 

amended the basis for her indefinite suspension when it issued a decision to 

revoke her security clearance, thus giving rise to another opportunity for her to 

contest her indefinite suspension. Initial Appeal File (IAF), Tab 1 at 2. The 

record reflects that the agency suspended the appellant’s security clearance in 

September, 2012, implemented her indefinite suspension from employment based 

upon the suspension of her clearance in November, 2012, and issued a decision to 

revoke her security clearance in July, 2013. IAF, Tab 4 at 20-37. The appellant 

maintains that she is now entitled to a second opportunity to contest her indefinite 

suspension based upon the July 2013 revocation of her security clearance. IAF, 

Tabs 1, 6; see also Petition for Review (PFR) File, Tab 1 at 5-6. In support of her 

argument, the appellant cites to a provision of the Federal Emergency 

Management Agency’s internal policies requiring notices of adverse action to be 

specific. IAF, Tab 6. We agree with the administrative judge, however, that the 

Board lacks jurisdiction over the appellant’s instant appeal. 

¶4 We cannot accept the appellant’s argument that the agency “changed the 

factual underpinnings of the [adverse] action against Appellant[.]” PFR File,

Tab 1 at 6. It is undisputed that after proposing the appellant’s indefinite 

suspension and giving her a period of time to respond, the agency indefinitely 

suspended the appellant based upon the suspension of her security clearance. 

IAF, Tab 4 at 35. At bottom, the agency’s indefinite suspension is predicated 

upon the appellant’s inability to access classified information, which is a 

condition of her position of employment with the agency, id., and the agency’s 

subsequent decision to revoke, rather than just suspend, her security clearance 

does not change the rationale for the agency’s adverse action but rather is an 

intermediate step toward the agency’s identified condition subsequent, viz., a 

final determination by the agency on her ability to maintain a security clearance 
4

and access classified information. Id. (letter imposing indefinite suspension 

stating that “It is my decision that your indefinite suspension pending a final 

adjudication of your future eligibility for access to classified information is fully 

warranted and will promote the efficiency of the Federal service.”). The agency, 

moreover, did not rescind or reissue its notice of proposed adverse action or its

letter of decision, and we find no support for the appellant’s argument that the 

revocation of her security clearance, rather than just its suspension, either 

explicitly or implicitly amended the basis for her indefinite suspension. See, e.g., 

Fickie v. Department of the Army, 86 M.S.P.R. 525, ¶ 29 n.5 (2000) (noting that 

the agency properly restarted the proposed adverse action after amending 

its charges). 

¶5 As we noted in both Ryan I and II, moreover, an agency is not required to 

terminate its indefinite suspension action until the determinable condition 

subsequent it identified in its notice of adverse action is triggered. Ryan I, 2014 

MSPB 64, ¶¶ 13-14; Ryan II, Nonprecedential Final Order, ¶¶ 2-3. Here, the 

agency’s deciding official determined that the appellant’s indefinite suspension 

was warranted pending a final adjudication of her access to classified information 

and that the appellant’s indefinite suspension would continue through the notice 

period of any subsequent adverse action in the event that a final determination is 

made to revoke her clearance. IAF, Tab 4 at 35. The appellant has internally 

appealed the July 2013 revocation of her clearance, id. at 18, and there is no 

evidence that the agency has rendered a final adjudication on her access to 

classified information. Because the identifiable condition subsequent specified 

by the agency in its indefinite suspension decision has not yet occurred, the 

appellant’s challenge to her continued placement on indefinite suspension 

remains premature. See Ryan I, 2014 MSPB 64, ¶¶ 13-14. 
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 

deadline and that filings that do not comply with the deadline must be dismissed. 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the 

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information 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, and 11. 

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board