Fuller v. Department of the Navy

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LERON J. FULLER,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
2011-3180
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DC0752110275-I-1.
___________________________
Decided: February 13, 2012
___________________________
LERON J. FULLER, of Virginia Beach, Virginia, pro se.
KENNETH D. WOODROW, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and PATRICIA M.
MCCARTHY, Assistant Director.
__________________________
FULLER v. NAVY 2
Before BRYSON, CLEVENGER, and O’MALLEY, Circuit
Judges.
PER CURIAM.
DECISION
LeRon J. Fuller petitions for review of a decision of
the Merit Systems Protection Board upholding his sus-
pension from his position with the Department of the
Navy after the Navy suspended his access to classified
information. We affirm.
BACKGROUND
Mr. Fuller was employed by the Navy as a Marine
Machinery Mechanic at the Norfolk Naval Shipyard. On
November 3, 2010, Mr. Fuller became disruptive and
aggressive towards security personnel at the shipyard’s
security building. He was physically removed from the
building, and his badge was confiscated because his
disruptive behavior raised concerns about the potential
for workplace violence.
Mr. Fuller was directed to report to the office of the
personnel security supervisor the next day. When he
reported as directed, Mr. Fuller was given written notifi-
cation that the Navy intended to suspend his security
access. The notification included documentation setting
forth the information that led to the proposed suspension,
and it accorded him the right to respond to the proposed
suspension.
On November 9, 2010, Mr. Fuller provided his re-
sponse to the information in the notice. After considering
the response, the shipyard’s security director, who had
the authority to suspend employees’ access to classified
3 FULLER v. NAVY
and sensitive information, suspended Mr. Fuller’s secu-
rity access. On that day, Mr. Fuller was scheduled to
meet with an administrative services specialist for a pre-
action interview, but he did not appear for that interview.
The deputy shipyard production superintendent sub-
sequently issued a notice proposing to suspend Mr. Fuller
indefinitely from his position, with the suspension to take
effect no earlier than 30 days from the date of the notice.
The notice stated that the reason for the proposed indefi-
nite suspension was the suspension of Mr. Fuller’s access
to classified and sensitive information. The notice added
that Mr. Fuller would continue to be on paid administra-
tive leave status during the notice period, and it further
provided that Mr. Fuller could respond to the proposed
suspension orally or in writing within 15 days. Mr. Fuller
received the notice on November 16, 2010, but he did not
submit a response.
On December 2, 2010, the production resource man-
ager at the shipyard issued a final decision suspending
Mr. Fuller indefinitely from his position, effective as of
December 17, 2010. Mr. Fuller received a letter advising
him of his indefinite suspension on December 9, 2010.
The letter explained Mr. Fuller’s appeal rights, and Mr.
Fuller appealed the suspension to the Merit Systems
Protection Board. On April 5, 2011, a Board administra-
tive judge conducted a hearing on Mr. Fuller’s appeal.
Following the hearing, the administrative judge sus-
tained Mr. Fuller’s suspension. The administrative judge
found that Mr. Fuller’s position required a security clear-
ance, that his security access was suspended, and that he
was indefinitely suspended from his job on that basis.
The administrative judge also found that Mr. Fuller had
been given all the adverse action procedural rights to
FULLER v. NAVY 4
which he was entitled under 5 U.S.C. § 7513(b) and 5
C.F.R. Part 752. The administrative judge rejected Mr.
Fuller’s arguments that his rights under section 7513(b)
and under the Constitution had been violated. When Mr.
Fuller did not file a petition for review by the full Board,
the administrative judge’s decision became final. This
appeal followed.
DISCUSSION
The Merit Systems Protection Board has jurisdiction
to review “adverse actions” against federal employees, 5
U.S.C. § 7513(d), including suspensions for more than 14
days, id. § 7512(2). When an employee is subjected to an
adverse action following the denial or revocation of a
security clearance, however, the Board may not review
the merits of the underlying security clearance determi-
nation. Hesse v. Dep’t of State, 217 F.3d 1372, 1376 (Fed.
Cir. 2000). Instead, in the case of an adverse action
following the denial or revocation of a security clearance,
review by the Board and by this court is limited to deter-
mining whether the security clearance in question was
denied or revoked, whether having a security clearance
was a requirement of the employee’s position, and
whether the agency followed the prescribed procedures
set forth in 5 U.S.C. § 7513 and 5 C.F.R. Part 752 in
taking the action in question. Hesse, 217 F.3d at 1376.
It is undisputed that the Navy suspended Mr. Fuller’s
access to classified information and that Mr. Fuller’s
position required access to classified information. As to
the remaining question, we sustain the administrative
judge’s determination that the agency followed the requi-
site procedures in effecting his suspension.
Section 7513(b) of Title 5 states:
5 FULLER v. NAVY
An employee against whom an action is proposed
is entitled to—
(1) at least 30 days’ advance written notice, unless
there is reasonable cause to believe the employee
has committed a crime for which a sentence of
imprisonment may be imposed, stating the spe-
cific reasons for the proposed action;
(2) a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish affi-
davits and other documentary evidence in support
of the answer;
(3) be represented by an attorney or other repre-
sentative; and
(4) a written decision and the specific reasons
therefor at the earliest practicable date.
As applied to an employee in Mr. Fuller’s position, the
pertinent regulations set forth the essentially same rights
in greater detail. See 5 C.F.R. § 752.404.
The record reflects that Mr. Fuller was given advance
written notice of the proposed suspension and a meaning-
ful opportunity to respond. His indefinite suspension
began on December 17, 2010. He was provided with
notice of the Navy’s intent to suspend his security access
on November 4, 2010. The notice included documentation
setting forth the information that led to the proposed
suspension. Mr. Fuller admits that he received the no-
tice, and he responded to it on November 8, 2010. On
November 16, Mr. Fuller received notice of his proposed
indefinite suspension; the notice explained that his sus-
pension would begin no earlier than 30 days from the date
Mr. Fuller received the notice. The notice further ex-
FULLER v. NAVY 6
plained that Mr. Fuller would continue on paid adminis-
trative leave during the notice period, that the reason for
his proposed indefinite suspension was the suspension of
his access to classified information, and that he was
entitled to respond to the notice within 15 days. Mr.
Fuller does not dispute that he received that notice.
Mr. Fuller contends that he was not afforded a pre-
action interview and that the Navy therefore did not
comply with section 7513(b). The Board determined,
however, that Mr. Fuller voluntarily failed to appear for
his pre-action interview, and substantial evidence sup-
ports that determination. Mr. Fuller also failed to submit
a response to the notice of proposed indefinite suspension,
even though that notice expressly provided him with the
right to respond within 15 days. Moreover, the record
reflects that Mr. Fuller was represented by a union repre-
sentative and that he received a timely written decision
regarding his suspension. Accordingly, we uphold the
administrative judge’s determination that Mr. Fuller was
not denied any of the rights to notice and to be heard that
are provided under section 7513.
We also reject Mr. Fuller’s argument that the Navy
violated his rights under section 7513(b) or his constitu-
tional rights when it confiscated his badge. Mr. Fuller
remained on administrative leave with pay for approxi-
mately six weeks following the confiscation of his badge,
so the confiscation itself did not have the effect of sus-
pending him. By statute, a suspension results in “a
temporary status without duties and pay,” 5 U.S.C.
§ 7501(2) (emphasis added), so he was not suspended
until his pay status was revoked on December 17, 2010.
Moreover, Mr. Fuller has no liberty or property interest in
access to classified information or to restricted govern-
ment premises. Government credentials and access
7 FULLER v. NAVY
badges are not the personal property of the credentialed
individual, but are government-issued documents indicat-
ing that the holder is entitled to special access to re-
stricted government premises or materials. Because
individual employees have no vested right to such access,
the confiscation of Mr. Fuller’s badge, and the resulting
termination of his right of access to restricted premises
did not implicate any due process concerns. Robinson v.
Dep’t of Homeland Sec., 498 F.3d 1361, 1364-65 (Fed. Cir.
2007); Hesse, 217 F.3d at 1381; Jones v. Dep’t of the Navy,
978 F.2d 1223, 1225 (Fed. Cir. 1992). His statutory and
constitutional claims based on the confiscation of his
badge therefore lack merit.
No costs.
AFFIRMED