Gary Biggers v. Department of the Navy

United States Court of Appeals
for the Federal Circuit
______________________
GARY BIGGERS,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
______________________
2013-3059
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752100268-I-1.
______________________
Decided: March 21, 2014
______________________
WENDY COLE L ASCHER, Ferguson Case Orr Paterson,
LLP, of Ventura, California, argued for petitioner.
HILLARY A. STERN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent. With her on the brief were S TUART F. D ELERY ,
Assistant Attorney General, J EANNE E. D AVIDSON, Direc-
tor.
______________________
Before L OURIE, D YK, and T ARANTO, Circuit Judges.

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BIGGERS v. NAVY 2
D YK, Circuit Judge.
Gary Biggers appeals from a decision of the Merit
Systems Protection Board (“Board”) sustaining his indefi-
nite 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.
BACKGROUND
Biggers had been employed by the Navy for twenty-
nine years and in 2007 was employed as Security Manag-
er 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 out-
er 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 Com-
mand 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 Manag-
er. After Biggers responded to the notice, DONCAF
issued a final decision imposing an indefinite suspension

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BIGGERS v. NAVY 3
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 infor-
mation provided by Biggers and the Center “sufficiently
explained, mitigated, or provided extenuating circum-
stances 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 Infor-
mation]” 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 suspen-
sion. 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 Depart-
ment of the Navy v. Egan, 484 U.S. 518, 530 (1988), the
Board may not review the merits of a security clearance
revocation or suspension. The administrative judge found
that Egan only permitted review of the following factors:
“whether a clearance was a requisite for the employee’s
position; whether, in fact, the clearance was denied;
whether it was feasible . . . to transfer the employee to a
non-sensitive position . . . and whether the employee was
afforded the procedural protections of [§ 7513].” J.A. 74
(citing Egan, 484 U.S. at 530). Because Biggers had
stipulated that he did not fall within these exceptions, the
administrative judge affirmed the indefinite suspension
by the Navy. The administrative judge also determined

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BIGGERS v. NAVY 4
that Biggers was not entitled to back pay, finding that
under Jones v. Department of the Navy, 978 F.2d 1223,
1227 (Fed. Cir. 1992), when an agency terminates an
employee’s indefinite suspension following reinstatement
of his security clearance, the employee is not entitled to
back pay for the period of suspension.
Biggers petitioned the full Board for review. The
Board denied his petition for review, finding that it lacked
authority under Egan to review the merits of a security
clearance revocation and that Biggers was not entitled to
back pay for his period of suspension under Jones.
Biggers timely appealed to this court, and we have juris-
diction under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C.
§ 1295(a)(9). We affirm.
D ISCUSSION
We may set aside a Board action only if we find it to
be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Bennett v. Merit Sys. Prot.
Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011).
On the issue of Biggers’ indefinite suspension, under
Egan, neither the Board nor this court may examine the
merits of a security clearance suspension. 484 U.S. at
530. We do not express any views concerning whether
Biggers might have had a back pay claim if DONCAF had
found that the original suspension was improper. But
DONCAF only restored Biggers’ security clearance and
did not make a finding that the original suspension was
unsupported. The Board lacked authority to review the
merits of the security clearance suspension. Id. at 529.
Although under Egan we may review the agency’s de-
termination for procedural violations, id. at 530, Biggers

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BIGGERS v. NAVY 5
made no claim of procedural error. Egan and its progeny
also permit us to decide whether the security clearance
was actually denied and whether the security clearance
was a requirement of the appellant’s position.1 Egan, 484
U.S. at 530; Cheney v. Dep’t of Justice, 479 F.3d 1343,
1352 (Fed. Cir. 2007); Drumheller v. Dep’t of the Army, 49
F.3d 1566, 1571 (Fed. Cir. 1995). Here, Biggers stipulat-
ed to each and every one of these factors.
On the issue of back pay for the period of indefinite
suspension, in Jones we found that where a court has
upheld the suspension, the employee is not eligible to
receive back pay. 978 F.2d at 1227 (citing Wiemers v.
Merit Sys. Prot. Bd., 792 F.2d 1113, 1116 (Fed. Cir. 1986)
(“‘[A]n employee lawfully suspended on the basis of his
indictment on job-related charges was not entitled to back
pay upon his acquittal and reinstatement by the agency.’”
(quoting Brown v. Dep’t of Justice, 715 F.2d 662, 669 (D.C.
Cir. 1983)))). Here, Biggers falls squarely within the class
of employees contemplated by Jones, and is therefore not
entitled to back pay on the merits.
Biggers also sought to recover back pay under De-
partment of Defense Regulation 5200.2-R, Chapter 8,
Section 3.2, which states:
1 In Griffin v. Defense Mapping Agency, we held
that Egan did not create a substantive right to transfer
an employee to a non-sensitive position, and therefore, the
Board does not have authority to review the feasibility of
such reassignment in the absence of an additional agency
regulation or policy statement providing for such transfer.
864 F.2d 1579, 1580 (Fed. Cir. 1989). Here, there was a
Navy policy stating “that reassignment following loss of
clearance . . . [was] neither mandatory nor desirable.”
J.A. 106.

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BIGGERS v. NAVY 6
A [Department of Defense] civilian employee
whose employment has been suspended or termi-
nated under this Regulation and who is reinstated
or restored to duty under the provisions of Section
3571 of Title 5, U.S. Code . . . is entitled to bene-
fits as provided for by Section 3 of Public Law 89-
380.
J.A. 71–72.
Here, the regulation cited by Biggers is directed at
suspensions and terminations pursuant to section 3571.
This section applies only to “individual[s] suspended or
removed under section 7532 of this title,” which provided
for suspensions or removals in the interest of national
security. 5 U.S.C. §§ 3571, 7532. Biggers was not sus-
pended under section 7532, but under section 7513.
Therefore, because this regulation does not apply to
Biggers, the Board did not have jurisdiction to hear this
particular back pay claim.
AFFIRMED

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