UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHEILA MARIE CLARK,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DC-0752-14-0741-I-1

DATE: December 16, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Sheila Marie Clark, Indian Head, Maryland, pro se.

Brian Wilberg, 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 her appeal for lack of jurisdiction. 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 interpretation of statute or 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

expressly modified by this Final Order, we AFFIRM the initial decision. 

¶2 The appellant filed an appeal challenging the agency’s decision to revoke 

her security clearance on June 25, 2013. Initial Appeal File (IAF), Tab 1. The 

record reflects that the appellant was employed in the Senior Executive Service

with a Top Secret security clearance, but she was removed from federal service 

on May 6, 2013, prior to receiving a written decision regarding the proposed 

revocation of her security clearance. 2

 The appellant alleged that, when the 

agency revoked her security clearance on June 25, 2013, the procedures used by 

the agency violated her right to due process. Id.

¶3 The administrative judge noted that the appeal was untimely filed and that, 

while the appellant had been provided the specific opportunity to submit evidence 

and argument showing that the Board has jurisdiction over this appeal, the 

appellant did not respond. Initial Decision (ID) at 2. The administrative judge 

then found that the appellant has no appeal right to the Board to challenge the 

revocation of her security clearance, whether as to the merits or the procedures 

used to effect that revocation. ID at 2-3. Because the appellant was challenging 

 2 The appellant filed a separate appeal of her removal, MSPB Docket No. DC-0752-13-

0661-I-1, which is pending at the Board’s Washington Regional Office. 
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only the alleged impropriety of the agency’s revocation of her security clearance, 

the administrative judge dismissed the appeal for lack of jurisdiction. ID at 3.

¶4 The appellant has filed a petition for review in which she asserts that the 

administrative judge erred in stating that her appeal was untimely filed. Petition 

for Review (PFR) File, Tab 1 at 4. She asserts that her appeal was timely because 

she filed her appeal within 30 days from the May 9, 2014 date of the agency’s 

final decision on the revocation of her security clearance. Id. However, while 

the administrative judge stated that the appeal was untimely filed, the 

administrative judge did not dismiss the appeal on this basis. Rather, the 

administrative judge dismissed the appeal for lack of Board jurisdiction. Thus, 

the timeliness issue was not determinative in the outcome of this appeal. Further, 

even if the administrative judge erred in finding her appeal untimely filed, 

because the administrative judge correctly dismissed this appeal for lack of 

jurisdiction, the appellant has not shown that her substantive rights were harmed. 

An adjudicatory error that is not prejudicial to a party’s substantive rights 

provides no basis for reversal of an initial decision. Panter v. Department of the 

Air Force, 22 M.S.P.R. 281, 282 (1984). 

¶5 The appellant also contends that the administrative judge erred by finding 

that she did not respond to either the agency’s motion to dismiss for lack of 

jurisdiction or to the administrative judge’s show cause order. PFR File, Tab 1 

at 4. The appellant asserts that her response was due on June 18, 2014, and that 

she e-filed her response on June 17, 2014. Id. at 4-5. Thus, she asserts that the 

administrative judge erred by failing to consider her response prior to issuing the 

initial decision. Id. We agree. While the appellant’s response was timely filed 

on June 17, 2014, and the initial decision was issued on July 11, 2014, the 

administrative judge stated that the appellant did not respond, and thus she 

apparently did not consider the appellant’s submission. ID at 2. We have 

therefore considered the arguments in the appellant’s response and, for the 

reasons set forth below, find that the appellant has failed to make the requisite 
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nonfrivolous allegations to merit a jurisdictional hearing. See Garza v. 

Department of the Navy, 119 M.S.P.R. 91, ¶ 6 (2012).

¶6 On review, the appellant reiterates the argument she raised below that the 

Board has jurisdiction over her appeal because the agency violated its procedures 

by revoking her security clearance after she was no longer an agency employee. 

PFR File, Tab 1; IAF, Tab 8. The appellant contends that, because she was no 

longer an agency employee, the agency had no authority to adjudicate her security 

clearance or to revoke it under agency regulations. However, as the 

administrative judge correctly found, the appellant has the right to appeal to the 

Board an adverse action such as a suspension or removal taken as a result of a 

revocation of a security clearance, and she has pursued that right in a separate 

appeal. Here, the appellant is challenging only the alleged impropriety of the 

agency’s process in revoking her security clearance. See IAF, Tabs 1, 3-7; see

also PFR File, Tab 1. However, under Department of the Navy v. Egan, 484 U.S.

518, 530-31 (1988), the Board does not have authority to review the substance of 

the underlying security clearance determination. Further, as in Gargiulo v. 

Department of Homeland Security, 727 F.3d 1181, 1187 (Fed. Cir. 2013), the 

appellant has no due process rights regarding the procedures used to determine 

whether to suspend or revoke her security clearance. While the appellant has due 

process rights concerning her removal, her removal is not at issue in this case, 

and the appellant does not have the right to contest the merits of the decision to 

revoke her security clearance. See Gargiulo, 727 F.3d at 1187; see also Cheney 

v. Department of Justice, 479 F.3d 1343, 1352 (Fed. Cir. 2007). Accordingly, 

the administrative judge correctly dismissed this appeal for lack of jurisdiction.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 
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final decision. 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