United States Court of Appeals 

for the Federal Circuit ______________________ 

JOAN RYAN,

Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent 

______________________ 

JOAN RYAN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

JOAN RYAN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2014-3181, 2014-3182, 2014-3183

______________________ 

Petitions for review of the Merit Systems Protection 

Board in Nos. PH-0752-13-0127-I-1, PH-0752-13-5283-I-1, 

PH-0752-13-0343-I-1. 
2 RYAN v. DEP’T OF HOMELAND SEC. 

______________________ 

Decided: July 13, 2015

______________________ 

 PETER B. BROIDA, Arlington, VA, argued for petitioner.

 HILLARY STERN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent Department of Homeland 

Security. Also represented by JOYCE BRANDA, ROBERT E.

KIRSCHMAN, JR., ALLISON KIDD-MILLER. 

 CALVIN M. MORROW, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, argued 

for respondent Merit Systems Protection Board. Also 

represented by BRYAN G. POLISUK. 

______________________ 

Before O’MALLEY and WALLACH, Circuit Judges, and 

GILSTRAP,* District Judge.

WALLACH, Circuit Judge. 

Petitioner Joan Ryan appeals three decisions of the 

Merit Systems Protection Board (“MSPB” or “Board”). In 

the first decision, the MSPB upheld Ms. Ryan’s indefinite 

suspension from duty based on an underlying suspension 

of her security clearance, found she was not entitled to 

consideration for transfer to a position not requiring a 

security clearance, and found acquittal of the criminal 

charges underlying the security clearance suspension did 

not entitle her to reinstatement. Ryan v. Dep’t of Homeland Sec. (Ryan I), 2014 M.S.P.B. 64 (2014) (J.A. 13–24), 

* The Honorable Rodney Gilstrap, District Judge, 

United States District Court for the Eastern District of 

Texas, sitting by designation.

 
RYAN v. DEP’T OF HOMELAND SEC. 3

overruled by Freeze v. Dep’t of the Navy, 2015 M.S.P.B. 9 

(2015).1 In the second decision, the MSPB found it did 

not have authority to order Ms. Ryan restored to her 

position simply because of delay with respect to a final 

decision on her security clearance. Ryan v. Dep’t of Homeland Sec. (Ryan II), No. PH-0752-13-0343-I-1 (M.S.P.B. 

Aug. 18, 2014) (J.A. 51–54). In the third decision, the 

MSPB found the basis for the suspension of Ms. Ryan’s 

employment was not constructively amended when the 

suspended security clearance was eventually revoked. 

Ryan v. Dep’t of Homeland Sec. (Ryan III), No. PH-0752-

13-5283-I-1 (M.S.P.B. Aug. 18, 2014) (J.A. 41–45). This 

court affirms. 

BACKGROUND

Ms. Ryan was employed as a regional Mission Support Division Director, level GS-15, by the Federal Emergency Management Agency (“the agency” or “FEMA”), an 

agency within the Department of Homeland Security 

(“DHS”). The position required her to maintain a top 

secret security clearance. The agency suspended Ms. 

Ryan’s access to classified information after it learned she 

had been indicted on federal criminal charges related to 

conflict of interest, solicitation of a gratuity, and making a 

false statement. Because she no longer met the requirements of the position, FEMA indefinitely suspended her 

from duty without pay “until such time as a final determination is made by the FEMA Office of the Chief Security Officer (OCSO) with respect to [her] future eligibility 

for access to classified information.” J.A. 78. 

Ms. Ryan appealed the indefinite suspension to the 

MSPB. Although Ms. Ryan was acquitted of all criminal 

charges in February 2013, the MSPB Administrative 

Judge (“AJ”) found she was not entitled to an immediate 

1 See infra note 2.

 
4 RYAN v. DEP’T OF HOMELAND SEC. 

termination of the indefinite suspension from duty because “the indefinite suspension was based upon the 

suspension of her clearance and not the underlying reasons for the suspension of the clearance (the indictment).” 

J.A. 39. This decision was upheld on appeal by the 

MSPB. Ryan I, 2014 M.S.P.B. 64. The MSPB noted that 

it was “precluded from ordering the appellant’s reinstatement to a position requiring access to classified 

information when she is without the required clearance to 

access such information.” Id. ¶ 15.

While Ms. Ryan’s appeal in Ryan I was pending, she 

filed another appeal asserting, among other things, that 

“the agency [was] unreasonably delaying the adjudication 

of her [security] clearance.” J.A. 56. In an initial decision, the AJ dismissed the claim for lack of subject matter 

jurisdiction, and the MSPB affirmed. Ryan II, No. PH0752-13-0343-I-1. In the initial decision, the AJ noted 

“[t]he condition subsequent—the completion of the agency’s readjudication of her security clearance—has simply 

not yet occurred” and therefore “the Board does not have 

jurisdiction over her claim.” J.A. 57.2 In affirming the 

2 Ryan I was overruled by Freeze, 2015 M.S.P.B. 9, 

“to the extent that it holds that, where an agency indefinitely suspends an appellant based upon the suspension 

of her security clearance, the condition subsequent triggering the cessation of the suspension is the restoration of 

her security clearance.” Id. ¶ 11 n.2 (emphasis added). 

The MSPB noted that it “cannot impose a condition 

subsequent of restoration of an appellant’s security clearance where the letter indefinitely suspending the appellant identifies the condition subsequent as the completion 

and disposition of all issues regarding the appellant’s 

security clearance.” Id. (emphases added). The use in 

Ryan I of the term “restoration” rather than “disposition” 

does not affect the outcome of the present appeal. The 

 
RYAN v. DEP’T OF HOMELAND SEC. 5

AJ’s decision, the MSPB noted “appellant has cited no 

support for her contention that the Board has the authority to order her restored based solely upon the amount of 

time that has elapsed since her acquittal, notwithstanding the fact that the agency has yet to decide whether to 

reinstate her access to classified information.” Ryan II, at 

3 ¶ 3. 

The suspension of Ms. Ryan’s security clearance occurred in September 2012. After the agency revoked her 

security clearance in July 2013, she filed a third appeal 

asserting the basis for her indefinite suspension was 

constructively amended when her security clearance was 

revoked. Ryan III, No. PH-0752-13-5283-I-1. Specifically, 

she asserted that “the revocation was based (at least in 

part) on reasons not specified in her notice of proposed 

suspension” and “she has never had a chance to contest” 

those new reasons. J.A. 48. The AJ dismissed the action, 

finding “the new underlying details do not change the 

basis for the suspension [of Ms. Ryan’s employment], and 

[Ms. Ryan] has the opportunity to challenge this new 

information in her security clearance appeal.” J.A. 49. 

The MSPB affirmed, noting “the appellant’s inability to 

access classified information” was the basis for her indefinite suspension, and the fact that Ms. Ryan’s security 

clearance had been revoked, rather than just suspended, 

parties appear to recognize that, as stated in Freeze, the 

condition subsequent could have included, but was not 

limited to, the restoration of Ryan’s security clearance. 

See Pet’r’s Br. 48 (“e.g., restoration of the clearance”); 

Brief for Respondent DHS 8 (“[T]he condition subsequent . . . was the final adjudication of her security clearance.”); Brief for Respondent MSPB 8 (“[T]he condition 

subsequent is the one identified by the agency in its

decision imposing the indefinite suspension.”). 

 
6 RYAN v. DEP’T OF HOMELAND SEC. 

did not “explicitly or implicitly amend[] the basis for her 

indefinite suspension [from duty].” Ryan III, at 5–6 ¶ 4. 

Appeals from Ryan I, Ryan II, and Ryan III were consolidated before this court and form the basis of the 

present appeal. This court has jurisdiction under 28 

U.S.C. § 1295(a)(9) (2012). 

DISCUSSION

I. Standard of Review

When considering appeals from the MSPB, 

th[is] court shall review the record and hold unlawful and set aside any agency action, findings, 

or conclusions found to be— (1) arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law; (2) obtained without procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial 

evidence. 

5 U.S.C. § 7703(c) (2012). The MSPB’s determination 

with respect to its jurisdiction is reviewed de novo. Forest 

v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).

II. The MSPB Correctly Determined Ms. Ryan Was Not 

Entitled to Be Considered for Transfer to Another 

Position

The MSPB does not have authority “to review the 

substance of an underlying decision to deny or revoke a 

security clearance in the course of reviewing an adverse 

action,” such as discharge or indefinite suspension. Dep’t 

of the Navy v. Egan, 484 U.S. 518, 520 (1988). Rather, the 

MSPB has the authority to review only whether: (1) the 

petitioner’s position required a clearance; (2) the clearance was denied, suspended, or revoked; and (3) the

procedural protections specified in 5 U.S.C. § 7513 were 

followed. Hesse v. Dep’t of State, 217 F.3d 1372, 1376 

(Fed. Cir. 2000). 
RYAN v. DEP’T OF HOMELAND SEC. 7

Ms. Ryan does not dispute that the position required a 

clearance or that the clearance was suspended and then 

revoked. Instead, she argues MSPB precedent requires 

the MSPB to conduct a “mitigation analysis . . . in cases of 

indefinite suspensions.” Pet’r’s Br. 12. That is, the MSPB 

should have “assess[ed] the propriety of an indefinite 

suspension rather than [a less severe] alternative,” such 

as transfer or demotion to another position that did not 

require a security clearance. Id. at 38. It should have 

done so, she asserts, because the MSPB “[f]or decades . . . 

has applied a Douglas penalty review in indefinite suspension appeals” and should have done so in this case. 

Pet’r’s Br. 24; see Douglas v. Veterans Admin., 5 M.S.P.B. 

313 (1981).

Douglas, however, addressed the question of whether 

the MSPB’s statutory authority “includes authority to 

modify or reduce a penalty imposed on an employee by an 

agency’s adverse action.” Douglas, 5 M.S.P.B. at 313 

(emphases added); see also 5 U.S.C. § 7501(2) (A “suspension” reviewable pursuant to § 7513(d) “means the placing 

of an employee, for disciplinary reasons, in a temporary 

status without duties and pay.”) (emphasis added); id.

§ 7511(a)(2). The Supreme Court has made clear “[a] 

denial of a security clearance is not . . . an ‘adverse action,’ and by its own force is not subject to [MSPB] review.” Egan, 484 U.S. at 530. 

Ms. Ryan asserts that, although the denial of a security clearance is not an adverse action, the indefinite suspension occasioned by the loss of a security clearance is an 

adverse action. She emphasizes the hardships occasioned 

by an indefinite suspension, noting the suspended employee “is out of work for what is likely assumed to be 

questionable circumstances by a prospective private 

sector employer who, suspending disbelief, may not be 

inclined to assume the risk of hiring someone who on 

short notice may return to government employment.” 

Pet’r’s Br. 25. 
8 RYAN v. DEP’T OF HOMELAND SEC. 

Although Ms. Ryan is correct that an indefinite suspension constitutes an adverse action, see 5 U.S.C.

§ 7512,3 in her case it was not imposed as a penalty for 

wrongdoing or poor job performance, but was caused by 

Ms. Ryan’s loss of her security clearance, which resulted 

in her no longer possessing a qualification required for the 

position. Douglas was a decision addressing the consolidated cases of seven individual appellants who “were each 

removed by their agencies upon charges of job-related 

misconduct.” Douglas, 5 M.S.P.B. at 313–14. No security 

clearances were at issue in Douglas or in the other authorities cited by Ms. Ryan. See Pet’r’s Br. 27–30 (citing 

Sanchez v. Dep’t of Energy, 2011 M.S.P.B. 95 (2011); Vega 

v. Dep’t of Justice, 37 M.S.P.R. 115 (1988); Martin v. Dep’t 

of the Treasury, 10 M.S.P.B. 568 (1982)). Similarly, 

decisions of this court considering or mentioning a Douglas mitigation analysis have involved penalties for misconduct rather than loss of a required qualification for a 

position. See, e.g., MacLean v. Dep’t of Homeland Sec., 

714 F.3d 1301 (Fed. Cir. 2013) (unauthorized disclosure of 

sensitive security information); Greenstreet v. Soc. Sec. 

Admin., 543 F.3d 705 (Fed. Cir. 2008) (damage of computer and other office equipment during “isolated outburst”); 

Jacobs v. Dep’t of Justice, 35 F.3d 1543 (Fed. Cir. 1994) 

(falsification of documents); Beard v. Gen. Servs. Admin., 

801 F.2d 1318 (Fed. Cir. 1986) (violation of agency rules 

regarding the use of mace). 

The rationale underlying the Douglas mitigation 

analysis reflects the general principle that penalties 

3 See also Perez v. Dep’t of Justice, 480 F.3d 1309, 

1314 (Fed. Cir. 2007) (Dyk, J., dissenting) (“[A]gencies 

have the authority to indefinitely suspend employees . . . 

but . . . such suspensions are adverse actions appealable 

to the Board.”); Dunnington v. Dep’t of Justice, 956 F.2d 

1151, 1153 (Fed. Cir. 1992). 

 
RYAN v. DEP’T OF HOMELAND SEC. 9

should be proportional to misconduct. See Douglas, 5 

M.S.P.B. at 313 (The MSPB has “authority to mitigate 

penalties when the [MSPB] determines that the agencyimposed penalty is clearly excessive, disproportionate to 

the sustained charges, or arbitrary, capricious, or unreasonable.”). If no security clearance suspension were at 

issue and Ms. Ryan had been indefinitely suspended from 

duty based on the underlying alleged criminal misconduct, a Douglas mitigation analysis might be proper, but 

those are not the facts with which this court has been 

presented in this appeal. 

To the extent Ms. Ryan suggests the MSPB should 

nevertheless apply Douglas to require that Ms. Ryan be 

considered for transfer to a position not requiring a security clearance, the MSPB is precluded from doing so by 

Griffin v. Defense Mapping Agency, 864 F.2d 1579 (Fed. 

Cir. 1989). In Griffin, an employee “was denied a top 

secret clearance because he falsified pre-employment 

security forms.” Id. at 1580. This court explained that, 

where a security clearance is required for a position and 

the employee does not possess one, the MSPB “has no 

authority to inquire into the feasibility of transfer to 

alternative positions” unless a “substantive right [to be 

transferred] is available from some other source, such as a 

statute or regulation.” Id. (emphasis added); see also 

Hesse, 217 F.3d at 1381 (“[A]n employee has a right to be 

transferred to a nonsensitive position only if that right is 

manifested in statute or regulation.”); Lyles v. Dep’t of the 

Army, 864 F.2d 1581, 1583 (Fed. Cir. 1989) (Egan “does 

not create any substantive right to consideration for 

alternative employment” and an individual who does not 

meet the requirements of a position may be dismissed 

“unless additional rights are available from some other 

source.”). Ms. Ryan cites no statute or regulation manifesting a right to transfer to a nonsensitive position. 

Hesse is particularly relevant. Like Ms. Ryan, Mr. 

Hesse was employed by the government in a position that 
10 RYAN v. DEP’T OF HOMELAND SEC. 

required a top secret security clearance. Hesse, 217 F.3d 

at 1374. After a series of alleged security violations by 

Mr. Hesse, his security clearance was suspended. Id. 

“Based on the suspension of Mr. Hesse’s security clearance, the agency suspended him from his position.” Id. 

Applying the Supreme Court’s decision in Egan, this court 

concluded “the [MSPB] is not authorized to review security clearance determinations or agency actions based on 

security clearance determinations.” Id. at 1376 (emphasis 

added). The MSPB is therefore not authorized to review 

FEMA’s determination with respect to the feasibility of 

Ms. Ryan’s transfer to an alternative position, given the 

MSPB’s finding that FEMA does not have a policy requiring it to consider reassignment in cases where security 

clearances have been lost or suspended. 

III. The MSPB Correctly Declined to Order Remedial 

Action Following Ms. Ryan’s Acquittal

Ms. Ryan argues that after she was acquitted, the 

MSPB improperly declined to exercise jurisdiction to 

review the indefinite suspension. See Pet’r’s Br. 44 (“The 

appeal following Ryan’s acquittal . . . was within the 

[MSPB’s] jurisdiction.”) (capitalization modified). “Once 

the condition subsequent has occurred, the agency must 

terminate the [indefinite] suspension within a reasonable 

amount of time.” Rhodes v. Merit Sys. Prot. Bd., 487 F.3d 

1377, 1380–81 (Fed. Cir. 2007). In Rhodes, the petitioner 

was indefinitely suspended following indictment on 

criminal charges, and was later acquitted. Id. at 1379. 

No security clearance was at issue. 

By contrast, in this case the condition subsequent was 

not the acquittal of criminal charges, but the “final determination . . . by the FEMA [OCSO] with respect to [Ms. 

Ryan’s] future eligibility for access to classified information.” J.A. 78. The letter informing Ms. Ryan that her 

security clearance was revoked is dated July 26, 2013. 

Therefore, at the time of the AJ’s decision that led to the 
RYAN v. DEP’T OF HOMELAND SEC. 11

MSPB’s decision in Ryan II—July 15, 2013—a final 

determination with respect to her access to classified 

information had not occurred. Moreover, the eventual 

condition subsequent in this case—which took the form of 

clearance revocation—meant that at no point following 

her clearance suspension did Ms. Ryan hold the necessary 

qualifications for her position. The MSPB correctly held 

it is without authority to order the agency to return an 

uncleared employee to a position that requires a security 

clearance. See Skees v. Dep’t of the Navy, 864 F.2d 1576, 

1578 (Fed Cir. 1989) (“If the Board cannot review the 

employee’s loss of security clearance, it is even further 

beyond question that it cannot review the Navy’s judgment that the position itself requires the clearance.”).

To the extent Ms. Ryan is arguing the MSPB should 

consider whether the determination with respect to her 

security clearance, as opposed to her indefinite suspension, was unduly delayed, the Supreme Court has stated 

“no one has a ‘right’ to a security clearance.” Egan, 484 

U.S. at 528. The Court explained that “[f]or reasons . . . 

too obvious to call for enlarged discussion, the protection

of classified information must be committed to the broad 

discretion of the agency responsible.” Id. at 529 (internal 

quotation marks and citation omitted); see also Gargiulo 

v. Dep’t of Homeland Sec., 727 F.3d 1181, 1185 (Fed. Cir. 

2013) (Plaintiff has “no due process rights with respect to 

the procedures used to determine whether to suspend or 

revoke his security clearance.”). An agency’s broad discretion in evaluating eligibility for a security clearance 

suggests the agency similarly has broad discretion to 

determine how much time is required to evaluate whether 

the revocation of a suspended clearance is appropriate.4

4 In any event, Ms. Ryan has not established the 

time between the suspension and revocation of her security clearance was clearly excessive or unreasonable. Ms. 

 
12 RYAN v. DEP’T OF HOMELAND SEC. 

IV. The Basis of the Indefinite Suspension 

Did Not Change After Acquittal

Ms. Ryan also objects to the revocation of her security 

clearance after she was acquitted of the charges that 

originally gave rise to the suspension of her security 

clearance. See Pet’r’s Br. 54. However, neither this court 

nor the MSPB may review the merits of an agency’s 

decision to suspend or revoke a security clearance. See

Egan, 484 U.S. at 530 (“A denial of a security clearance . . . is not subject to [MSPB] review.”). Moreover, 

even if the agency’s suspension of Ms. Ryan’s employment 

had been based on her indictment rather than on the 

suspension of her security clearance, acquittal of criminal 

charges under the “beyond a reasonable doubt” standard 

does not require the agency to reinstate the employee. 

See Richardson v. U.S. Customs Serv., 47 F.3d 415, 421 

(Fed. Cir. 1995) (rejecting the theory “that the grounds for 

suspension disappear[] as a result of . . . later acquittal”).

Finally, Ms. Ryan asserts she “was not provided a 

new notice of the implicit change in the basis for the 

indefinite suspension.” Pet’r’s Br. 55. She explains:

The transition from clearance suspension to clearance revocation was accompanied by a notice stating the reasons for the revocation, which included 

the specifics of the indictment (as opposed to just 

Ryan’s access to classified information was suspended on 

March 28, 2012 and she was acquitted of criminal charges 

on February 19, 2013. Her security clearance was revoked approximately five months later, on July 26, 2013. 

This court has previously observed that security clearance 

investigations “often take up to a year.” Griffin, 864 F.2d 

at 1581; see also Gargiulo, 727 F.3d at 1182–83 (approximately sixteen-month period between suspension of 

clearance and revocation of clearance).

 
RYAN v. DEP’T OF HOMELAND SEC. 13

the existence of the indictment, referenced in the 

clearance suspension), and to which was added a 

basis not stated in the indictment: misleading 

statements to an ethics officer.

Id. at 54. As already noted, “[a] denial of a security 

clearance . . . is not subject to [MSPB] review.” Egan, 484 

U.S. at 530. The notice discussed in detail the bases for 

the clearance revocation. It did not alter the basis for 

suspending Ms. Ryan’s employment. The suspension, as 

stated in the letter informing Ms. Ryan of the indefinite 

suspension of her employment, was “based exclusively 

upon the suspension of your access to classified information.” J.A. 78. It was therefore Ms. Ryan’s inability to 

access classified information, rather than the underlying 

reasons for that inability, that formed the basis of the 

indefinite suspension. See Gargiulo, 727 F.3d at 1185 (An 

employee indefinitely suspended for failure to maintain a 

required security clearance “ha[s] due process rights with 

respect to [the] indefinite suspension, but they [do] not 

include the right to contest the merits of the decision to 

suspend [the] security clearance.”). The revocation of Ms. 

Ryan’s clearance made this inability permanent. 

CONCLUSION

For these reasons, the decisions of the MSPB are 

AFFIRMED