Ryan v. Dep't of Homeland Sec., No. 14-3181 (Fed. Cir. 2015)
Annotate this CaseRyan was employed by FEMA (Department of Homeland Security). Her position required top secret security clearance. The agency suspended Ryan’s access to classified information after learning she had been indicted on federal charges of conflict of interest, soliciting a gratuity, and making a false statement. FEMA indefinitely suspended her without pay pending final determination by FEMA's Chief Security Officer concernng future eligibility for access to classified information. Ryan appealed to the Merit Systems Protection Board (MSPB). Although Ryan was acquitted, the MSPB found she was not entitled to immediate termination of the suspension because it “was based upon the suspension of her clearance and not the underlying reasons … (the indictment)” and MRPB cannot order reinstatement to a position requiring access to classified information while Ryan is without the required clearance. Ryan filed another appeal asserting unreasonable delay in adjudication of her security clearance. The MSPB affirmed dismissal for lack of subject matter jurisdiction. In a third decision, the MSPB found the basis for her suspension was not constructively amended. The Federal Circuit affirmed, noting that “denial of a security clearance . . . is not subject to [MSPB] review.” It was Ryan’s inability to access classified information, not the underlying reasons for the inability, that caused her suspension.
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