UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NICHOLAS V. PANGELINAN,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-16-0218-I-1

DATE: January 6, 2017

THIS FINAL ORDER IS NONPRECEDENTIAL1

Elbridge W. Smith, Esquire, Honolulu, Hawaii, for the appellant.

Jason Zhao, Pearl Harbor, Hawaii, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, 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 

interpretation of statute or regulation or the erroneous application of the law to 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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. 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 The relevant facts underlying this appeal, as detailed in the initial decision, 

are not in dispute. Initial Appeal File (IAF), Tab 24, Initial Decision (ID) at 2-4. 

The appellant holds the position of Welder in Pearl Harbor, Hawaii. ID at 2. In 

September 2015, the agency issued notice that it intended to suspend his access to 

classified information and a controlled industrial area based on allegations that he 

falsely denied having engaged in illegal drug activity. Id. After the appellant 

responded, the agency issued a decision, suspending his access, pending a final 

determination by the Department of Defense Consolidated Adjudication Facility 

(DOD CAF). ID at 3. Days later, the agency proposed the appellant’s indefinite 

suspension from service for failure to meet a condition of 

employment-maintaining access to classified information. Id. The appellant 

again filed a response, but the deciding official sustained the indefinite 

suspension, effective December 12, 2015. Id.

¶3 The appellant filed the instant appeal, challenging his indefinite suspension. 

IAF, Tab 1. After the parties stipulated to the pertinent facts, see IAF, Tab 22, 

the administrative judge held oral arguments on the disputed legal issues before 

affirming the indefinite suspension, ID. The appellant has filed a petition for 

review. Petition for Review (PFR) File, Tab 1. The agency has filed a response. 

PFR File, Tab 3.
3

¶4 On review, the appellant presents due process arguments that mirror the 

ones we recently addressed in Palafox v. Department of the Navy, 2016 MSPB 43. 

For the same reasons as those we provided in that case, as detailed below, the 

appellant’s arguments fail.

¶5 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, 2016 MSPB 43, ¶ 8. 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, 2016 MSPB 

43, ¶ 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) the appellant’s access to classified information was suspended; 

and (3) the appellant 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.

2

 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. Here, the only issue remaining in dispute is 

whether the agency provided the appellant due process.

¶6 Due process requires, at a minimum, that an employee being deprived of his 

property interest be given “the opportunity to be heard ‘at a meaningful time and 

 

2

In this regard, the Board has found that DOD procedures governing “personnel 

security determinations” do not apply to the suspension of access to classified 

information by local commands, such as the Shipyard in this case. Palafox, 

2016 MSPB 43, ¶ 8 n.1. We discern no error in the administrative judge’s finding that 

the local command acted within its authority in suspending the appellant’s access to 

classified information pending a final decision by DOD CAF on his security clearance. 

See id.; ID at 7 (citing Secretary of the Navy Manual 5510.30, ¶ 9-7).
4

in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) 

(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).3 As the U.S. Supreme 

Court explained in Cleveland Board of Education v. Loudermill, 

470 U.S. 532, 542-46 (1985), the opportunity to respond to a proposed adverse 

action is important for two reasons. First, an adverse action will often involve 

factual disputes and consideration of the employee’s response may clarify such 

disputes. Id. at 543; see Stone v. Federal Deposit Insurance Corporation, 

179 F.3d 1368, 1376 (Fed. Cir. 1999). Second, “[e]ven where the facts are clear, 

the appropriateness or necessity of the [penalty] may not be,” and in such cases 

the employee must receive a “meaningful opportunity to invoke the discretion of 

the decision maker.” Loudermill, 470 U.S. at 543; see Stone, 179 F.3d at 1376. 

Thus, “the employee’s response is essential not only to the issue of whether the 

allegations are true, but also with regard to whether the level of penalty to be 

imposed is appropriate.” Stone, 179 F.3d at 1376; Palafox, 2016 MSPB 43, ¶ 9.

¶7 As to the facts underlying the proposed action, the agency provided minimal 

due process by informing the appellant of the basis for the indefinite suspension, 

i.e., that his position required access to classified information and that his access 

had been suspended. See Palafox 2016 MSPB 43, ¶ 10. The agency further 

complied with the procedural requirements of 5 U.S.C. § 7513 by informing the 

appellant of the specific reasons for the suspension of his access to classified 

information. See id.

¶8 Regarding the penalty, the appellant argues that he was denied a meaningful 

opportunity to persuade the deciding official to reassign him instead of imposing 

the proposed indefinite suspension. PFR File, Tab 1 at 8-11. He contends that 

the deciding official did not have the authority to choose that alternative because, 

according to the proposal notice, reassignment would have been “inconsistent” 

 

3 Because the appellant was afforded an opportunity to respond to the proposed 

indefinite suspension prior to being suspended, it is clear that the hearing took place at 

a meaningful time. See Palafox, 2016 MSPB 43, ¶ 9 n.2.
5

with official agency policy. IAF, Tab 4 at 91. The agency asserts that, 

notwithstanding the proposing official’s statement, there is in fact no agency 

policy prohibiting reassignment following a loss of access to classified 

information. PFR File, Tab 3 at 6. However, even if agency policy did prohibit 

reassigning the appellant, that restriction would not constitute a due process 

violation, because due process does not require that a deciding official consider 

alternatives that are prohibited, impracticable, or outside management’s purview. 

Palafox, 2016 MSPB 43, ¶ 11.

¶9 Furthermore, to the extent administrative leave may have been a viable 

alternative to suspension without pay, the appellant was not denied his due 

process right to invoke the discretion of a deciding official with the authority to 

select that alternative. See id., ¶ 12. The appellant cites deposition testimony in 

which the deciding official indicated that he could not think of a scenario in 

which he would have considered keeping the appellant on administrative leave. 

PFR, Tab 1 at 17 (Deposition Transcript at 40-41). However, the deciding 

official went on to clarify that his statement did not mean that the appellant 

“couldn’t come up with some evidence that [he] would consider.” Id. (Deposition 

Transcript at 41). In particular, he explained that he might carry an employee in 

the appellant’s position on administrative leave if he believed that the allegations 

underlying the suspension of the employee’s access to classified informatio n were 

not well founded. Id. at 16-17 (Deposition Transcript at 37-40). Thus, we find 

that the deciding official did have discretion to select administrative leave as an 

alternative to suspension without pay. While the appellant did not succeed in 

persuading the deciding official to carry him on administrative leave, the record 

reflects that he was notified of the allegations underlying the suspension of his 

access to classified information, and received an opportunity to present rebuttal 

evidence before the final penalty determination was made. E.g., IAF, Tab 4 

at 35-47.
6

¶10 The appellant further contends that he was denied due process because his 

access to classified information “was suspended through a process by which he 

was not afforded the right to review information relied upon and provide a 

meaningful response to the officials proposing and deciding suspension of access 

to classified information.” PFR File, Tab 1 at 12. However, it is well settled that 

employees “do not have a liberty or property interest in access to classified 

information, and the termination of that access therefore [does] not implicate any 

due process concerns.” Gargiulo v. Department of Homeland Security, 

727 F.3d 1181, 1184-85 (Fed. Cir. 2013) (quoting Jones v. Department of the 

Navy, 978 F.2d 1223, 1225 (Fed. Cir. 1992)); Palafox, 2016 MSPB 43, ¶ 13.

¶11 In sum, we agree with the administrative judge’s determination that the 

agency did not deprive the appellant of due process. Accordingly, we deny the 

petition for review. The initial decision is affirmed.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

U.S. 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). 
7

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 and other sections of the Unite d 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 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 

Merit Systems 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.

______________________________

Jennifer Everling

Acting Clerk of the Board