UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANGELO T. MARSHALL,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

CH-0752-10-0903-I-2

DATE: September 16, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

J. Ward Morrow, Esquire, Washington, D.C., for the appellant.

Neil Bloede, Indianapolis, Indiana, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which 

reversed the appellant’s removal. For the reasons discussed below, we GRANT 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 petition for review, REVERSE the initial decision, and SUSTAIN the 

appellant’s removal. 2

¶2 The agency removed the appellant from his Management Assistant position 

with the Defense Finance and Accounting Service (DFAS) based on a decision of 

the Washington Headquarters Service (WHS) Clearance Appeal Board (CAB) to 

uphold the decision of the WHS Consolidated Adjudications Facility (CAF) 

denying the appellant eligibility to occupy a noncritical sensitive (NCS) position. 

MSPB Docket No. CH-0752-10-0903-I-1 (I-1), Initial Appeal File (IAF), Tab 6, 

Subtabs 4a, 4b, 4d.

¶3 After a hearing on appeal, the administrative judge reversed the removal 

action. MSPB Docket No. CH-0752-10-0903-I-2 (I-2), IAF, Tab 23, Initial 

Decision (ID) at 2, 14. Applying the Board’s decisions in Conyers v. Department 

of Defense, 115 M.S.P.R. 572 (2010), and Northover v. Department of Defense, 

115 M.S.P.R. 451 (2010), the administrative judge found that the Board may 

review the merits of the agency’s decision to deny the appellant eligibility to 

occupy an NCS position, and that the agency must prove that the removal action 

is supported by preponderant evidence, promotes the efficiency of the service, 

and is a reasonable penalty. ID at 3-5. The administrative judge held that the 

agency failed to prove its charge that the appellant is ineligible to occupy an NCS 

position, failed to show that discipline for the appellant’s conduct promoted the 

efficiency of the service, and failed to prove that the penalty of removal was 

reasonable even assuming that the agency had properly sustained its charge. ID 

at 5-13. Regarding the penalty, the administrative judge found that the deciding 

official did not truly determine the penalty because he had no choice but to 

remove the appellant, and that the real decision-makers were the CAB, through its 

 2 Except as otherwise noted in this decision, we have applied the Board’s regulations 

that became effective November 13, 2012. We note, however, that the petition for 

review in this case was filed before that date. Even if we considered the petition under 

the previous version of the regulations, the outcome would be the same.
3

decision upholding a letter of decision issued by the WHS CAF, and the agency’s 

human resources department, through its instruction to remove the appellant from 

service. ID at 12. The administrative judge noted that the deciding official 

testified that he did not know of any positions not requiring an NCS clearance, 

and that the record did not demonstrate that the deciding official viewed the 

appellant’s conduct as warranting removal or that he had an opportunity to 

mitigate the penalty. ID at 12-13. Finally, the administrative judge found that 

the appellant did not prove his affirmative defenses of harmful error and a 

violation of due process. ID at 13-14.

¶4 The agency asserts on review that the administrative judge erred in applying 

Conyers and Northover because those decisions were not yet final, and should 

have applied an abuse of discretion standard in reviewing the agency’s decision to 

deny the appellant eligibility to occupy an NCS position. I-2, Petition for Review 

(PFR) File, Tab 1 at 7-12. The agency also challenges the administrative judge’s 

findings on the merits of the appeal. Id. at 12-23. The appellant has filed an 

opposition to the agency’s petition for review. PFR File, Tab 3.

¶5 The Clerk of the Board thereafter issued an Order informing the parties that 

the U.S. Court of Appeals for the Federal Circuit’s decision in Gargiulo v. 

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

outcome of the case, and inviting the parties to file briefs addressing the possible 

application of Gargiulo to the appellant’s constitutional due process claims. PFR 

File, Tab 6. The parties have filed responses to the Order issued by the Clerk of 

the Board. Id., Tabs 7, 8.

¶6 In Conyers, 115 M.S.P.R. 572, ¶ 13, and Northover, 115 M.S.P.R. 451, 

¶ 13, the Board held that the U.S. Supreme Court’s decision in Department of the 

Navy v. Egan, 484 U.S. 518 (1988), limited Board review of an otherwise 

appealable action only if that action was based upon a denial, revocation, or 

suspension of a “security clearance,” i.e., a denial of access to classified 

information or eligibility for such access. Accordingly, the Board found in 
4

Conyers and Northover that an adverse action based on the agency’s decision that 

an employee was not eligible to occupy an NCS position was subject to the same 

review as other actions under 5 U.S.C. chapter 75, including review of the merits 

of the agency’s decision on eligibility. See Conyers, 115 M.S.P.R. 572, ¶¶ 13, 

32-34; Northover, 115 M.S.P.R. 451, ¶¶ 13, 30-33.

¶7 A divided Federal Circuit panel reversed the Board’s decisions in Conyers 

and Northover, holding that the Board cannot review the merits of an agency’s 

national security determinations regarding an employee’s eligibility to occupy a 

sensitive position that implicates national security. Berry v. Conyers, 692 F.3d 

1223, 1225, 1237 (Fed. Cir. 2012). The court later vacated the above panel 

decision and granted rehearing en banc. Berry v. Conyers, 497 F. App’x 64 

(Fed. Cir. 2013). The court then issued an en banc decision in which a majority 

of the court reversed and remanded the Board’s decision in Northover and 

dismissed the appeal in Conyers for lack of jurisdiction. Kaplan v. Conyers, 

733 F.3d 1148, 1150-52, 1166-67 (Fed. Cir. 2013), cert. denied, Northover v. 

Archuleta, 134 S. Ct. 1759 (2014). In its en banc decision in Conyers, 733 F.3d 

at 1158-60, the Federal Circuit held that Egan prohibits Board review of

Department of Defense (DoD) national security determinations concerning the 

eligibility of an individual to occupy a “sensitive” position, regardless of whether 

the position requires access to classified information. In support of this holding, 

the court found that “there is no meaningful difference in substance between a 

designation that a position is ‘sensitive’ and a designation that a position requires 

‘access to classified information.’ Rather, what matters is that both designations 

concern national security.” Id. at 1160. Accordingly, under the Federal Circuit’s 

decision in Conyers, the limited scope of review set forth in Egan applies to 

appeals such as this one, where an adverse action is based on the decision that an 

employee is not eligible to occupy an NCS position. See id. at 1158-60; Ingram 

v. Department of Defense, 120 M.S.P.R. 420, ¶ 9 (2013).
5

¶8 In Egan, the Supreme Court held that the Board does not have authority to 

review the substance of a security clearance determination, contrary to what is 

required generally in other adverse action appeals. Egan, 484 U.S. at 530-31. 

The Court held that, in an appeal under 5 U.S.C. § 7513 based on the denial of a 

security clearance, the Board has authority to review only whether: (1) an 

executive branch employer determined the employee’s position required a 

security clearance; (2) the clearance was denied or revoked; (3) the employee was 

provided with the procedural protections specified in 5 U.S.C. § 7513; and 

(4) whether transfer to a nonsensitive position was feasible when another source, 

such as a statute or regulation, provides the employee a substantive right to such 

reassignment. See Conyers, 733 F.3d at 1151 (citing Egan, 484 U.S. at 530); 

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

Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 14 n.5 (2014). 

The Court ruled that “[n]othing in the [statute enacting 5 U.S.C. § 7513] . . . 

direct[ed] or empower[ed] the Board to go further.” Egan, 484 U.S. at 530. Our 

review is therefore limited to the issues set forth in Egan.

¶9 In applying the limited scope of review under Egan, we must affirm the 

agency’s removal action. See Ingram, 120 M.S.P.R. 420, ¶¶ 12-13. The 

appellant’s position of Management Assistant required that he maintain eligibility 

to occupy an NCS position. I-1, IAF, Tab 6, Subtab 4j, Tab 7 at 15; Hearing 

Compact Disc (HCD), MP3-1 (testimony of the proposing and deciding officials). 

Furthermore, the WHS CAF issued a letter denying the appellant eligibility for 

access to classified information and/or occupancy of a sensitive position. I-1, 

IAF, Tab 6, Subtabs 4h, 4i; I-2, IAF, Tab 17 at 24. The CAB affirmed that 

decision. I-1, IAF, Tab 6, Subtab 4e; I-2, IAF, Tab 18 at 160. In addition, the 

agency complied with the procedural protections specified in 5 U.S.C. § 7513 in 

removing the appellant from his position. The agency provided the appellant with 

30 days’ advance written notice of the proposed removal, reasons for the 

proposed action, and a reasonable opportunity to reply. I-1, IAF, Tab 6, Subtab 
6

4d; see 5 U.S.C. § 7513(b)(1)- (2). The agency notified the appellant of his right 

to be represented by an attorney and provided him with a written decision letter. 

I-1, IAF, Tab 6, Subtabs 4b, 4d; see 5 U.S.C. § 7513(b)(3)- (4). Therefore, the 

agency complied with the requirements of 5 U.S.C. § 7513 in removing the 

appellant. There is no indication that the agency was required to consider 

transferring the appellant to a nonsensitive position. See I-1, IAF, Tab 6, Subtab 

1 at 12.

¶10 Regarding the due process issue in this case, employees do not have a 

property interest in access to classified information, and the termination of that 

access does not implicate any due process concerns. Flores v. Department of 

Defense, 121 M.S.P.R. 287, ¶ 9 (2014). Like a security clearance, the granting of 

eligibility to occupy a sensitive position is a matter within the executive’s broad 

discretion to make determinations concerning national security. Id. Therefore, 

just as it is obvious that no one has a right to a security clearance, it is likewise 

clear that an employee has no property interest in eligibility to occupy a sensitive 

position, and the denial of the appellant’s eligibility to occupy a sensitive position 

is not itself subject to due process requirements. Id.

¶11 Nevertheless, by virtue of being an employee under 5 U.S.C. § 7511, and 

thus removable only for cause, the appellant did have a property interest in his 

continued employment. Id., ¶ 10. Therefore, he was entitled to due process, 

including notice and a meaningful opportunity to respond, prior to being 

removed. Id.; see Gargiulo, 727 F.3d at 1185 (although Mr. Gargiulo had no due 

process rights relating to the procedures used to determine whether to suspend or 

revoke his security clearance, he did have due process rights concerning his 

indefinite suspension). It is the appellant’s removal, not his loss of eligibility to 

occupy a sensitive position, that triggered due process protections. Flores, 

121 M.S.P.R. 287, ¶ 10. The Board may review the due process protections 

afforded in the removal proceedings without second guessing the underlying 

eligibility determination. Id.; see Buelna, 121 M.S.P.R. 262, ¶ 15 (the Court did 
7

not have occasion in Egan to decide if the Board was authorized to consider a 

claim that an agency denied due process in taking an adverse action based on a 

security clearance determination).

¶12 In Buelna, 121 M.S.P.R. 262, ¶¶ 3-4, 26-28, which involved an indefinite 

suspension based in part on the suspension of a security clearance, the Board held 

that, if there are “viable alternatives” to the indefinite suspension, due process 

requires that the employee be afforded an opportunity to invoke the discretion of 

a deciding official with authority to select such alternatives. The Board found 

that the right to invoke the deciding official’s discretion exists only in such cases 

where there is doubt as to the appropriateness or necessity of the penalty, and that 

due process does not demand that the deciding official consider alternatives that 

are prohibited, impracticable, or outside management’s purview. Id., ¶ 27.

¶13 In response to the appellant’s argument that the agency could retain him as 

a DFAS employee because he performed union representational duties instead of 

the duties of his assigned position, the deciding official indicated in his decision 

letter that, “to stay on DFAS rolls, an employee must be assigned to an official, 

funded DFAS position for which he is qualified.” I-1, IAF, Tab 6, Subtab 4b at 1. 

Thus, the deciding official rejected the appellant’s request that he be allowed to 

remain in the position for which he no longer qualified and simply perform

nonsensitive duties. Id. The deciding official also noted in the decision letter 

that there were no vacant nonsensitive positions to which the appellant could be 

reassigned. Id. at 2; see HCD, MP3-1 (testimony of the deciding official that all 

of the positions at DFAS were categorized as NCS, and that he had to remove the 

appellant and could not reassign him because the appellant was not eligible to 

occupy a NCS position). Thus, the deciding official testified that he did not 

consider any penalty other than removal because the appellant did not have the

credentials required for his position. HCD, MP3-1. 

¶14 The appellant has not identified any viable alternatives to his removal in 

this case, and we find no such alternatives. Given the record evidence 
8

establishing that all positions within DFAS were classified as NCS, any 

alternative to removal that would have retained the appellant in his Management 

Assistant position, reassigned him to another position within DFAS, or 

indefinitely assigned him to nonsensitive duties without his being assigned to a 

position in the civil service was either prohibited, impracticable, or outside the 

purview of DFAS management. See 5 U.S.C. § 2105(a)(1) (defining “employee” 

as an individual appointed in the civil service); 5 U.S.C. § 2101(1) (the “civil 

service” consists of all appointive positions in the executive, judicial, and 

legislative branches); Bracey v. Office of Personnel Management, 236 F.3d 1356, 

1359 (Fed. Cir. 2001) (“We are aware of no setting in the federal employment 

system in which an employee is considered to hold a ‘position’ consisting of a set 

of ungraded, unclassified duties that have been assigned to that employee on an 

ad hoc basis.”); cf. McFadden v. Department of Defense, 85 M.S.P.R. 18, ¶ 20 

(1999) (an agency is not obligated to accommodate a disabled employee by 

permanently assigning her to light-duty tasks when those tasks do not comprise a 

complete and separate position). 

¶15 When an agency has effected an indefinite suspension without pay pending 

the completion of an investigation and/or resolution of an appellant’s security 

clearance status, the Board has suggested that placement on administrative leave 

“may” be a viable alternative to suspension without pay. See Buelna, 

121 M.S.P.R. 262, ¶¶ 4, 28. Here, however, there was no pending adjudication of 

the appellant’s eligibility to occupy a NCS position. Rather, such eligibility had 

been denied and the appellant’s removal had been proposed. Even assuming that 

there was a “practicable” alternative in the sense that someone in DFAS 

management may have had the authority to create a nonsensitive position for the 

appellant to occupy, see Haeuser v. Department of Law, Government of Guam, 

97 F.3d 1152, 1159 n.4 (9th Cir. 1996) (contrasting the terms “practicable” and 

“practical,” with “practicable” referring to something that can be put into effect, 

and “practical” referring to something that is also sensible and worthwhile), the 
9

Board does not have the authority to determine whether such an alternative would 

be practicable, see Skees v. Department 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.”); see also Conyers, 733 F.3d at 1155 

(“Egan, at its core, explained that it is essential for the President and the DOD to 

have broad discretion in making determinations concerning national security.”). 

The Board is not permitted to second-guess the agency’s determination to classify 

positions as NCS. We find that the appellant has not established a due process 

violation in the absence of a showing that there were viable alternatives to his 

removal. Brown v. Department of Defense, 2014 MSPB 74, ¶ 16; see Buelna, 

121 M.S.P.R. 262, ¶¶ 26-28.

¶16 Accordingly, the agency’s petition for review is GRANTED, the initial 

decision is REVERSED, and the appellant’s removal is SUSTAINED.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 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 
10

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 

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