Petition for review of the Merit Systems Protection Board in No. SF0752100268-I-1.
WENDY COLE LASCHER, Ferguson Case Orr Paterson, LLP, of Ventura, California, argued for petitioner.
HILLARY A. STERN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Director.
Before LOURIE, DYK, and TARANTO, Circuit Judges.
Dyk, Circuit Judge.
Gary Biggers appeals from a decision of the Merit Systems Protection Board (" Board" ) sustaining his indefinite suspension by the Department of the Navy (" Navy" ) and holding that Biggers was not entitled to back pay in connection with his indefinite suspension. The Board also held that it lacked jurisdiction over Biggers' claim for back pay independent of his suspension. We affirm.
Biggers had been employed by the Navy for twenty-nine years and in 2007 was employed as Security Manager for the Naval Facilities Engineering Service Center (" Center" ). The Security Manager position required him to have and maintain a top secret security clearance.
In April 2008, a duty officer found that one of the outer vault doors of the Secret Internet Protocol Router Network room was left open at the Center. Biggers and the Command Duty Officer notified the Commanding Officer of the Center about the potential violation. The Commanding Officer appointed a Command Evaluator to investigate the Center to determine if there were other security weaknesses. After the investigation, the Command Evaluator recommended that all security personnel (including Biggers) have their access to classified material suspended because " the investigation revealed numerous systemic problems, violations and deficiencies in security procedures and practices." J.A. 103 ¶ 8.
As a result, in April 2008, Biggers' security clearance was suspended pending a final determination by the Department of Navy Central Adjudication Facility (" DONCAF" ). In May 2008, Biggers was sent a notice of proposed suspension from his position as Security Manager. After Biggers responded to the notice, DONCAF issued a final decision imposing an indefinite suspension pursuant to 5 U.S.C. § 7513 on Biggers effective June 27, 2008, pending a decision by DONCAF regarding his security clearance eligibility.
On April 8, 2009, DONCAF concluded that the information provided by Biggers and the Center " sufficiently explained, mitigated, or provided extenuating circumstances regarding the disqualifying information," and therefore, Biggers was " determined eligible for a Top Secret security clearance, assignment to a sensitive position, and access to [Sensitive Compartmented Information]" and returned to duty status. J.A. 105. His indefinite suspension had lasted a little over nine months. The Navy did not provide Biggers with back pay for his period of suspension or treat him as employed for the purpose of calculating retirement benefits during that time.
Biggers appealed his indefinite suspension to the Board and also sought back pay for the period of suspension. He alleged that the agency's decision to suspend his security clearance was motivated by retaliatory animus arising from his participation in an Equal Employment Opportunity Commission Proceeding. In September 2010, the administrative judge determined that under Department of the Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the Board ...