In Jones v. Department of the Navy, 2014 MSPB 10 (2/24/14), the Board reversed the agency’s indefinite suspension which was effected on the basis that the appellant had lost his eligibility to occupy a non-critical sensitive rigger position. The shipyard proposed the indefinite suspension prior to the time Jones had to respond to the Letter of Intent (LOI) to deny him eligibility for access to classified information and assignment to a sensitive position. The indefinite suspension was then implemented before Jones submitted his timely response to the LOI to the agency’s Central Adjudication Facility (DONCAF) which had not yet issued a final decision on his eligibility for access to classified information and/or assignment to a sensitive position.

The administrative judge ruled in favor of the Navy, relying upon the suspension of Jones’s security clearance. On appeal the Board pointed out that Jones was not charged with failure to maintain his security clearance but rather ineligibility to occupy a sensitive position. While the Board doesn’t have jurisdiction to review the substance of the clearance determination, it can review whether the clearance was denied or revoked — although a position may be sensitive regardless of whether it requires access to classified information. DONCAF has the sole authority to establish eligibility for access to classified information and/or assignment to a sensitive position within the Navy.

In this case DONCAF had not yet issued a Letter of Denial (LOD) denying Jones eligibility to occupy a sensitive position with the opportunity to appeal to higher level authority before the Navy imposed an adverse action based on a personnel security determination. The Board held that as DONCAF was the only entity with the authority to rule on the appellant’s eligibility to occupy a sensitive position, the Navy lacked the authority to find Jones ineligible to occupy a sensitive position: “Because the appellant has not been found ineligible to occupy a sensitive position at the time the agency indefinitely suspended him, the agency’s charge fails and the action cannot be sustained.”

The Board also noted that even a negative DONCAF LOD would not serve as a permissible basis for an indefinite suspension, and there is a DoD requirement for an opportunity to appeal to a higher level authority before an adverse action can be imposed.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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