UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TRAVIS BROWN,

Appellant,

v.

DEPARTMENT OF STATE,

Agency.

DOCKET NUMBER

SF-0752-22-0091-I-1

DATE: August 28, 2023

THIS ORDER IS NONPRECEDENTIAL1

Travis Brown, San Diego, California, pro se.

Emma Broches, Esquire, Jason Despain, Esquire, and Marianne 

Perciaccante, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The appellant petitions for review of the initial decision, which dismissed as 

untimely filed with no showing of good cause for the delay his appeal challenging 

the agency’s continuation of his indefinite suspension. For the reasons set forth 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

below, we GRANT the appellant’s petition for review, REVERSE the initial 

decision, and REMAND the appeal for further adjudication.

BACKGROUND

¶2 The appellant is employed as a GS-0967-11 Passport Specialist at the 

agency’s San Diego Passport Agency. Initial Appeal File (IAF), Tab 1 at 1. His 

position requires a security clearance. Id. at 9. On March 1, 2017, the agency 

suspended the appellant’s security clearance pending the outcome of an 

investigation and placed him on administrative leave. Id. at 9-10. By letter dated 

May 1, 2017, the agency proposed to indefinitely suspend the appellant without 

pay for failure to maintain a condition of employment, i.e., his security clearance, 

because the suspension of his security clearance rendered him unable to perform 

the duties of his Passport Specialist position. Id. By letter dated June 30, 2017, 

the agency sustained the proposed indefinite suspension and placed the appellant 

on indefinite suspension without pay, effective the same day. Id. at 14-16. The 

appellant did not appeal the imposition of the indefinite suspension. Id. at 16. 

¶3 On March 31, 2021, the appellant’s union representative filed a final step 

grievance on the appellant’s behalf through the parties’ negotiated grievance 

procedure challenging the agency’s continuation of his indefinite suspension. 

IAF, Tab 3 at 48. On October 25, 2021, the arbitrator dismissed the grievance 

because it was filed more than 30 days after the effective date of the indefinite 

suspension. IAF, Tab 1 at 25-35. The arbitrator noted that another viable path 

the appellant may have would be filing a Board appeal. Id. at 35.

¶4 On November 9, 2021, the appellant filed the instant Board appeal of the 

continuation of his indefinite suspension.

2

 IAF, Tab 1. Without holding a 

 

2

The appellant indicated that the agency sustained its decision to revoke his security 

clearance as of November 3, 2021, and that he “requested to appeal this decision and 

appear before the Security Appeals Panel with a date yet to be determined.” IAF, Tab 3 

at 12.
3

hearing, the administrative judge dismissed the appeal as untimely filed with no 

showing of good cause for the delay. IAF, Tab 9.

¶5 The appellant has petitioned for review of the initial decision. Petition for 

Review (PFR) File, Tab 1 at 4. The agency has responded to the petition and to 

an order issued by the Office of the Clerk of the Board.

3

 PFR File, Tabs 3-5.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The appellant asserts that, under Jones v. U.S. Postal Service, 65 M.S.P.R. 

306, 313-14 (1994), the Board should consider his appeal despite the 

administrative judge’s decision to dismiss it as untimely filed. PFR File, Tab 1 

at 4. We agree. In the absence of notice to the appellant of a right of appeal, an 

appellant’s “diligent action in filing promptly upon learning of their right of 

appeal sufficed to preserve their right.” Jones, 65 M.S.P.R. at 313. The agency 

did not notify the appellant of such a right, nor did it take any action that would 

have ended the indefinite suspension, which has lasted for over 6 years. The 

appellant, acting pro se, filed this Board appeal 2 weeks after an arbitrator 

suggested that he may have a right to appeal the matter to the Board. IAF, Tab 1, 

Tab 3 at 33. Under these circumstances, we find that the appellant’s right of 

appeal has been preserved, and we reverse the initial decision. See, e.g., Sikes v. 

Department of the Navy, 2022 MSPB 12, ¶ 7 n.2 (finding good cause for the 

untimely filing of an appeal of a continuation of an indefinite suspension when 

the appellant received no notice of a right to appeal such an action to the Board).

¶7 An indefinite suspension, to be valid, must have an ascertainable end. 

Rawls v. U.S. Postal Service, 98 M.S.P.R. 98, ¶ 6 (2004). This “ascertainable 

end” requirement derives from the statutory definition of a “suspension” as “the 

placing of an employee, for disciplinary reasons, in a temporary status without 

 

3

In its response to the order, the agency’s representative asserts that “[a]s of J une 26, 

2023, the Agency has not rendered a final decision on Appellant’s eligibility for a 

security clearance.” PFR File, Tab 5 at 4. 
4

duties and pay.” 5 U.S.C. § 7501(2) (emphasis added); see 5 U.S.C. § 7511(a)(2); 

Martin v. Department of the Treasury, 12 M.S.P.R. 12, 17 (1982), aff’d in part, 

rev’d in part on other grounds sub nom. Brown v. Department of Justice, 

715 F.2d 662 (D.C. Cir. 1983), and aff’d sub nom. Otherson v. Department of 

Justice, 956 F.2d 1151, 1155 (Fed. Cir. 1992); Martin modified on other grounds 

by Barresi v. U.S. Postal Service, 65 M.S.P.R. 656, 663 n.5 (1994). Because a 

suspension must be temporary, “an action imposed with no ascertainable end in 

sight is not sustainable as a suspension, because of [a] failure to meet the 

criterion of temporariness.” Martin, 12 M.S.P.R. at 17. An indefinite suspension 

may be found to have been reasonable when imposed, although facts later 

developed may cause the Board to find that an agency acted unreasonably in 

failing or refusing to vacate the action. Id. at 20. Board orders that sustain 

indefinite suspensions either explicitly or implicitly mandate that the agency 

move expeditiously and that the suspension terminate upon the occurrence of the 

condition subsequent. Id. Permitting an agency to take an unlimited amount of 

time to determine what action to take while keeping the appellant on an indefinite 

suspension contravenes the requirement that an indefinite suspension have an 

ascertainable end. Drain v. Department of Justice, 108 M.S.P.R. 562, ¶ 8 (2008); 

Arrieta v. Department of Homeland Security, 108 M.S.P.R. 372, ¶ 8 (2008). The 

agency has the burden of proving the validity of its continuing indefinite 

suspension. Farris v. Department of the Air Force, 29 M.S.P.R. 518, 520 (1985).

¶8 Here, the agency indefinitely suspended the appellant, effective June 30, 

2017, for failure to maintain a condition of employment. IAF, Tab 6 at 156-62. 

The agency indicated that the suspension would remain in effect until it “has 

made a final determination concerning your eligibility for a security clearance 

and/or there is sufficient evidence either to return you to duty or support 

additional administrative action.” Id. at 165. Thus, the agency appears to have 

set forth three separate and distinct bases that would end the appellant’s indefinite 

suspension. Unlike an indefinite suspension based on the resolution of possible 
5

criminal misconduct, all of these bases for ending the indefinite suspension are 

within the control of the Department of State as a whole, which is the agency 

captioned before the Board in this case. As noted above, as of the date of this 

Remand Order, the appellant has been indefinitely suspended for over 6 years,

and there is presently no end in sight. While the agency may have “broad 

discretion” to determine how much time is required to evaluate whether the 

revocation of a suspended clearance is appropriate, Ryan v. Department of 

Homeland Security, 793 F.3d 1368, 1374 (Fed. Cir. 2015), such discretion may 

not be unfettered, id. (noting that the petitioner did not show that the agency’s 

delay was “clearly excessive or unreasonable,” and observing that security 

clearance investigations “often take up to a year”).

¶9 Accordingly, we remand this appeal for further adjudication. On remand, 

the agency is ordered to submit evidence4and argument to the administrative 

judge proving by preponderant evidence the validity of the indefinite suspension 

by showing that there is an ascertainable end in sight such that the action can 

meet the statutory criterion of temporariness. At the very least, the agency must

explain what steps it is taking to end the indefinite suspension and indicate when 

it expects the indefinite suspension to end. If the agency does not meet this 

burden, the administrative judge shall reverse the indefinite suspension, effective 

upon the date on which the administrative judge finds that the indefinite 

suspension ceased to be temporary. 

¶10 The agency is also ordered on remand to submit evidence and argument to 

the administrative judge proving by preponderant evidence that the conditions 

supporting the continuation of the indefinite suspension are still in effect, i.e., 

that the agency has not made a final determination concerning the appellant’s 

eligibility for a security clearance, there is not sufficient evidence to return the 

appellant to duty, and there is not sufficient evidence to support additional 

 

4

The statements of a party’s representative in a pleading do not constitute evidence. 

Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995).
6

administrative action. Regarding the second of these possible bases for ending 

the indefinite suspension, we note that the appellant and the agency entered into a 

last chance agreement under which the agency agreed to hold the appellant’s 

proposed removal in abeyance if he satisfied certain conditions. IAF, Tab 1 

at 20-23. The appellant appears to have satisfied those conditions. Id. at 24. We 

therefore order the agency to explain to the administrative judge on remand why 

the appellant’s successful completion of the last chance agreement does not 

constitute sufficient evidence to “return [him] to duty,” if not in his former 

position, then in a position that does not require a security clearance if a statute, 

regulation, or agency policy manifests a right to transfer to such a position .

¶11 After receipt of the above evidence and argument from the agency, as well 

as any submission filed by the appellant, the administrative judge shall take any 

further action necessary to adjudicate the case and issue a new initial decision 

that determines whether the agency’s indefinite suspension action meets the 

statutory criterion of temporariness and, if so, whether the conditions subsequent 

that would end the indefinite suspension have been met.

ORDER

¶12 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board