United States of America 

Merit Systems Protection Board 

Central Regional Office 

Rhonda K.	 Conyers, Docket Number 

Appellant, CH-0752-09-0925-I-1 

v.	 Nina Puglia 

Administrative Judge 

Department	 of Defense, 

Agency. October 13, 2009 

Agency Response 

Introduction 

The Defense Finance and Accounting Service (DFAS or Agency) 

is an age,ncy of the United States Department of Defense (000). 

32 C.F.R. § 352a.1. Among other things, DFAS employees provide 

finance and accounting services to the Office of the Secretary 

of Defense; the Military Departments; the Chairman, Joint Chiefs 

of Staff and Joint Staff; the Unified and Specified Commands; 

the Inspector General of the Department of Defense; other 

Defense Agencies; and the 000 Field Activities. 32 C.F.R. § 

352a.4 (c) (2). 

In accordance with the 000 Personnel Security Program, 000 

Regulation 5200.2-R, all civilian positions are categorized 

(with respect to security sensitivity) as either criticalsensitive, noncritical-sensitive, or nonsensitive. 32 C.F.R. § 
154.13(b). The position at issue in this appeal has been 

designated "non-critical sensitive."l Tab 4a. 

Statement of Facts 

The pertinent facts of this matter are not in dispute. 

Appellant is an Accounting Technician, GS-525-05, for DFAS 

Columbus. On June 27, 2007, Appellant received a Statement of 

Reasons (SOR) to Deny Eligibility for Access to Classified 

Information and/or Occupancy of a Sensitive Position, which was 

issued by the Washington Headquarters Services (WHS) Consolidated Adjudications Facility (CAF). Tab 4b. Among other 

things, the SOR explained that a tentative determination had 

been made to deny Appellant eligibility for access to classified 

information and/or occupancy of a sensitive position. Information from an investigation of Appellant's personal history, her 

Questionnaire for Public Trust Positions, ..... 

bureau report had led to security concerns and had raised 

questions about her trustworthiness, reliability, and judgment. 

Id. Appellant was advised that if the tentative determination 

later became final, she would not be eligible for access to 

classified information and/or occupancy of a sensitive position. 

Appellant was further advised that she could challenge the 

tentative determination. 

The Director of DFAS was delegated authority to designate any DFAS position 

as a "sensitive" position. See 32 C.F.R. Part 352a Appendix. 

2 

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Appellant acknowledged that she received the SOR. Tab 4c. 

She chose to challenge the tentative determination by sUbmitting 

a response through her Agency Security Director. Id. 2 

On February 18, 2009, the CAF denied Appellant's e1igibility for access to classified information and/or occupancy of a 

sensitive position. Tab 4e. On February 26, 2009, Appellant 

acknowledged that she had received a Letter of Denial of her 

eligibility for access to classified information and/or 

occupancy of a sensitive position. Tab 4f. She also requested 

an appearance before an administrative judge with the Defense 

Office of Hearings and Appeals (DOHA). Id. 

On April 13, 2009, the Agency issued a "Notice of 

Proposed Indefinite Suspension" (Proposal) to suspend 

Appellant without pay from her position as an Accounting 

Technician, GS-0525-05 not earlier than 30 calendar days 

from the date that Appellant received the notice. Tab 4g. 

The reason for this Proposal was that Appellant was 

occupying a "non-critical sensitive" position, and the CAF 

had denied her eligibility for assess to sensitive or 

classified information and/or occupancy of a sensitive 

position: 

Because your official position as a GS-525-5 

Accounting Technician requires that you have access to 

2 Her response included an explanation as to why she had omitted some debts 

from Item 22b in the Questionnaire for Public Trust. Tab 4d. 

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sensitive or classified information and the CAF denied 

your access to such information, you no longer meet a 

qualification requirement for your position and we may 

not permit you to perform your regularly assigned 

duties. 

Id. There were no vacant nonsensitive positions to which the 

Agency could temporarily detail or reassign Appellant while her 

DOHA appeal was pending. Id. Appellant was unable to perform 

the duties of her Accounting Technician position. Therefore, 

the Agency proposed to place Appellant on an indefinite 

suspension without pay until such time as DOHA issued a decision 

and the Agency could take any necessary follow-on administrative 

actions related to that decision. Id. Among other things, the 

Agency a~vised Appellant that she had the right to submit a 

written and/or verbal reply to the Notice within 15 days, that 

she had the right to submit documentary evidence, and that she 

had the right to be represented by an attorney or other personal 

representative. Id. Because Appellant was no longer qualified 

to occupy her non-critical sensitive position, the Agency 

temporarily detailed Appellant to a nonsensitive set of duties. 

Id. 

Although Appellant had the right to reply to the Proposal 

in writing, she did not do so. Instead, she met briefly with 

the deciding official, Cassandra McDuff. Tab 4h. Appellant did 

not indicate to Ms. McDuff that her security clearance had been 

reinstated. 

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On September 3, 2009, the Agency issued the Notice of 

Decision (Decision), which advised Appellant that she would be 

suspended from duty without pay from her position as an 

Accounting Technician, GS-0525-5, for an indefinite period of 

time. Tab 4i. Her suspension was effective September 11, 2009. 

Tab 4j. 

Argument 

I.	 Sin~e the MSPB lacks jurisdiction to review a security 

clearance, Appellant cannot challenge the Agency's decision 

to suspend her indefinitely. 

In Department of the Navy v. Egan, 484 U.s. 518 (1988), the 

issue before the court was whether the Merit Systems Protection 

Board (M~PB or Board) had authority to review the substance of 

an underlying decision to deny or revoke a security clearance in 

the course of reviewing a removal action. In Egan, a new 

laborer at a Navy submarine facility was denied a required 

security clearance and ultimately removed from his position. He 

appealed his removal to the MSPB. The MSPB determined that it 

did not have jurisdiction over an action where the underlying 

decision involved the granting of a security clearance. Egan v. 

Department of the Navy, 28 M.S.P.R. 509 (1986). Egan appealed. 

The Court of Appeals reversed, finding that the MSPB had 

jurisdiction. Egan v. Department of the Navy, 802 F.2d 1563 

(Fed. Cir. 1986). 

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The Supreme Court agreed with the initial determination 

that the MSPB made: in an adverse action over which the MSPB has 

jurisdiction and which is based sUbstantially on the agency's 

revocatio'n or denial of a security clearance, the MSPB has no 

authority to review the agency's stated reasons for the security 

clearance determination. 

Accordingly, the MSPB does not have jurisdiction to hear an 

action ch'allenging the denial, revocation, or suspension of a 

security clearance. Therefore, the MSPB cannot review the 

merits of the CAF's decision that denied Appellant's eligibility 

for assess to sensitive or classified information and/or 

occupancy' of a sensitive position. Egan. 

II. Since Appellant's position as an Accounting Technician, GS525-05 required her to assess sensitive or classified 

information and the CAF's decision denied Appellant access 

to sensitive or classified information, the Agency properly 

suspended Appellant indefinitely. . 

The Agency determined that the Accounting Technician 

position, GS-525-05, which Appellant occupied, required a noncritical "sensitive" security clearance. Tab 4a. The CAF had 

denied her eligibility for assess to sensitive or classified 

information and/or occupancy of a sensitive position. Tab 4e. 

Therefore, the Agency properly indefinitely suspended Appellant 

from her position. Tamburello v. Department of Defense, 2006 

MSPB Lexis 5279 (Sept. 5, 2006). 

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III. Since the Agency provided Appellant with procedural due 

process, her indefinite suspension was proper. 

When an appellant challenges an agency action that is based 

on the suspension or revocation of a security clearance, the 

MSPB's authority is limited. Tamburello. The Board can 

determine: (1) whether the position required a security 

clearance; (2) whether the employee lost or was denied the 

security clearance; and (3) whether the employee was given 

minimal due process rights. Egan. In determining minimal due 

process, the MSPB is only entitled to a review of whether the 

due process procedures of 5 V.S.C § 7513 were met. That statute 

entitles a Federal employee to (1) 15 days written notice with 

the reasons for the proposed action; (2) a reasonable time 

period to respond; (3) representation; and (4) a written 

decision. Hesse v. Department of State, 217 F.3d 1372 (Fed. 

Cir. 2000); Norrup v. Department of the Navy, 87 M.S.P.R. 444, 

446 (2001). 

Appellant was given the appropriate due process protections 

when she lost her security clearance. Tabs 4b and 4e. 

Appellant was given written notice in the SOR of DoD's intent to 

deny her eligibility for access to classified information and/or 

occupancy of a sensitive position. Tab 4b. Appellant was given 

thirty days for her opportunity to respond. Id. When the WHS 

denied her eligibility for access to classified material and/or 
occupancy of a sensitive position, Appellant was given a further 

opportunity to appeal to the CAB with all pertinent information. 

Tab 4e. 

When Appellant was given the "Notice of Proposed Indefinite 

Suspension," which outlined the basis for her indefinite 

suspension, Appellant was given another opportunity to respond 

orally and/or in writing, and seek legal representation. Tab 

4g. However, her security clearance had not been reinstated; 

therefore, her indefinite suspension was still warranted. Tab 

4i. Appellant was given a written decision that indefinitely 

suspended her from her position. Id. Therefore, the Agency 

satisfied the procedural requirements. 

IV. Since the Agency did not have work available for Appellant 

to perform without a security clearance, her removal 

promoted the efficiency of the service because it allowed 

her superior to replace her with someone who met all the 

qualifications of the GS-525-4 position. 

Absent a statute or regulation requiring reassignment to a 

nonsensitive position, it is within the Agency's discretion 

whether or not to reassign an employee. The Agency is not 

required to find other suitable employment for an employee who· 

has lost her security clearance. Instead, the Agency may do 

whatever is in the best interests of the Government. Kriner v. 

Department of the Navy, 61 M.S.P.R 526 (1994). Federal courts 

have concluded that Egan did not impose on an agency the 

"obligation, independent of statute or regulation, to transfer 

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employees who lose their security clearance. H Griffin v. 

Defense Mapping Agency, 864 F.2d 1579, 1580 (Fed. Cir. 1989); 

Jamil v. Secretary, Department of Defense, 910 F.2d 1203, 1209 

(4 th Cir. 1990). 

In the case at bar, no statute or regulation required the 

Agency to transfer Appellant to another position. Furthermore, 

the Agency did not have any work available that Appellant could 

perform without a security clearance. Tab 4c. Therefore, 

reassignment was not an option. Appellant's removal promoted 

the efficiency of the Federal service because her removal 

allowed her supervisor to replace her with someone who met all 

the qualifications of the GS-525-05 position, including the 

requirement that the occupant have a non-critical sensitive 

security clearance, eligibility for assess to sensitive or 

classified information and/or occupancy of a sensitive position. 

Tamburello. 

Conclusion 

For the above reasons, the Agency requests that the MSPB 

dismiss this appeal. 

Respectfully submitted, 

I

;)

/ 

. C 'cQ. 

nt la . urnrnln s 

9 
Senior Associate Counsel and 

Agency Representative 

DFAS Office of General Counsel 

P.O. Box 182317 

Columbus, OH 43218-2317 

614-693-8134 

Fax 693-8031 

Cynthia.Cummings@dfas.rnil 

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