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Sharpe v. Department of the Navy

U.S. Court of Appeals, Federal Circuit


September 14, 1999

KATHLEEN J. SHARPE,
PETITIONER,
V.
DEPARTMENT OF THE NAVY,
RESPONDENT.

Rader, Circuit Judge, Friedman and Archer, Senior Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

Kathleen J. Sharpe appeals the decision of the Merit Systems Protection Board (Board) affirming the decision of the Department of the Navy (Navy) to suspend Ms. Sharpe indefinitely from her employment with the Navy based on the suspension of her security access. *fn1 We affirm.

DISCUSSION

Ms. Sharpe makes two contentions on appeal - that the suspension of her security clearance was improper, and that because she was ultimately reinstated she should receive back pay for the duration of the suspension from employment.

We may only set aside a decision of the Board when it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence . . . ." 5 U.S.C. § 7703(c) (1994).

In an appeal of an indefinite suspension from employment due to a suspension of a security clearance, the Board is precluded from reviewing the reasons for the suspension of the security clearance. See Navy v. Egan, 484 U.S. 518, 530 (1988); King v. Alston, 75 F.3d 657, 661 (Fed. Cir. 1996). When an indefinite suspension is upheld, the law does not provide a basis upon which back pay for the period of the suspension can be awarded. See Jones v. Navy, 978 F.2d 1223, 1227 (Fed. Cir. 1992).

Ms. Sharpe's contentions - that there was no basis for revoking her clearance, that she was penalized for a "crime that [she] did not commit," that she had health problems which prevented her from taking her medication, and that she had requested "[m]anagement to take corrective action" - are all directed to the propriety of the loss of her security clearance. In the initial decision, the AJ properly determined that the Board could not inquire into the merits of the Navy's reasons for suspending Ms. Sharpe's security access. Thus, we discern no error in the Board's consideration of this matter.

Ms. Sharpe also asserts that because she was ultimately reinstated to her position, she is entitled to back pay for the period of time that she was suspended from employment pending the investigation of her security access. The AJ noted that Ms. Sharpe received sufficient due process considerations concerning the indefinite suspension. Ms. Sharpe has not challenged the sufficiency of the Navy's procedures in effecting the indefinite suspension, and thus, we conclude that the Board acted properly in upholding it. Because the suspension was not improperly imposed, Ms. Sharpe is not entitled to any award of back pay for the suspension period. The decision of the Board is affirmed.


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