745 F.3d 1360
Fed. Cir.2014Background
- Biggers, a Navy Security Manager with 29 years’ service, required a Top Secret clearance.
- In April 2008, an outer vault door issue prompted an investigation and security-weakness findings.
- Biggers’ clearance was suspended pending final DONCAF determination; May 2008 notice proposed suspension; June 27, 2008 indefinite suspension under 5 U.S.C. § 7513.
- DONCAF, after review, determined on April 8, 2009 that Biggers was eligible for clearance and returned him to duty.
- The suspension lasted just over nine months; Navy did not grant back pay or treat it as employment for retirement purposes.
- Biggers challenged the suspension to the Board, arguing retaliatory animus; Board and this court upheld the suspension and denied back pay.
- Court held Egan limits Board review of merits of security clearance suspensions; Jones governs back-pay entitlement post-suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can the Board review the merits of the security clearance suspension under Egan? | Biggers argued for merits review of suspension regarding clearance. | Navy argued Egan confines review to procedural aspects, not merits. | No merits review; only procedural aspects are reviewable. |
| Is Biggers entitled to back pay for the suspension period? | Biggers seeks back pay for the nine-month suspension. | Jones bars back pay when suspension is upheld (even if later cleared). | Biggers not entitled to back pay under Jones. |
| Does DoD Regulation 5200.2-R, Chapter 8, Section 3.2 authorize back-pay benefits here? | Regulation provides back-pay-like benefits after reinstatement. | Regulation applies only to suspensions/removals under 3571/7532, not 7513. | Regulation does not apply; Board lacks jurisdiction to hear this back-pay claim. |
Key Cases Cited
- Department of Navy v. Egan, 484 U.S. 518 (U.S. 1988) (limits Board to procedural review of clearance suspensions)
- Jones v. Department of the Navy, 978 F.2d 1223 (Fed. Cir. 1992) (no back pay when suspension is upheld)
- Wiemers v. Merit Sys. Prot. Bd., 792 F.2d 1113 (Fed. Cir. 1986) (back-pay denial precedent upon reinstatement after suspension)
- Brown v. Department of Justice, 715 F.2d 662 (D.C. Cir. 1983) (back-pay logic cited in analogous context)
- Griffin v. Defense Mapping Agency, 864 F.2d 1579 (Fed. Cir. 1989) (Egan transfers/feasibility considerations not substantive right)
- Cheney v. Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007) (Egan line of review implications reaffirmed)
- Drumheller v. Department of the Army, 49 F.3d 1566 (Fed. Cir. 1995) (review framework for agency actions under § 7513)