                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN DOE,                                       DOCKET NUMBER
                         Appellant,                  DC-1221-14-1070-W-2
                                                     DC-0432-14-0064-I-4
                  v.

     SECURITIES AND EXCHANGE
       COMMISSION,                                   DATE: March 9, 2016
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Peter B. Broida, Esquire, Arlington, Virginia, for the appellant.

           Daniel L. Garry, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                           ORDER

¶1         These appeals are before the Board based on the administrative judge’s
     October 16, 2015 order certifying an interlocutory appeal of her ruling that the
     appellant had not demonstrated a due process violation.               MSPB Docket
     No. DC-1221-14-1070-W-2, Appeal File (W-2 AF), Tab 38.               For the reasons


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                     2

     discussed below, we DISMISS the interlocutory appeal and RETURN the appeals
     to the administrative judge for further adjudication.
¶2         The appellant filed an appeal of the agency’s action separating her from
     Federal employment based on two charges of misconduct brought under
     chapter 75 and unacceptable performance brought under chapter 43.          MSPB
     Docket No. DC-0432-14-0064-I-1, Initial Appeal File (I-1 IAF), Tab 1.         The
     appellant also filed an individual right of action (IRA) appeal asserting reprisal
     for whistleblowing.    MSPB Docket No. DC-1221-14-1070-W-1, Initial Appeal
     File (W-1 IAF), Tab 1.        The administrative judge joined the appeals for
     adjudication in a September 19, 2014 order. W-1 IAF, Tab 3.
¶3         The appellant argued below that the agency violated her due process rights
     when the agency deciding official considered matters not set forth in the proposal
     notice and that, therefore, the removal action should be summarily reversed.
     W-2 AF, Tab 15.       The agency contested the appellant’s arguments.    W-2 AF,
     Tabs 16, 20. In an August 20, 2015 procedural order, the administrative judge
     found that additional proceedings were necessary to determine whether a due
     process violation occurred regarding the chapter 75 action and that the due
     process arguments were not applicable to the chapter 43 action. W-2 AF, Tab 31
     at 6-9.
¶4         The appellant moved that the administrative judge certify her two rulings as
     an interlocutory appeal, and the agency opposed that motion.       W-2 AF, Tabs
     34-36. The administrative judge granted the appellant’s request in an October 16,
     2015 order.    W-2 AF, Tab 38.        We agree with the administrative judge’s
     description of the issues presented by her certification as follows: (1) Did a due
     process violation justifying summary reversal result when the agency referenced a
     potentially aggravating factor in the Douglas Factors Review Form that was not
     contained in the proposal notice or is additional evidence required to determine
     what, if any, weight the deciding official placed on the issues raised in the
     worksheet?; (2) If a due process violation is ultimately found in regard to the
                                                                                           3

     Douglas factors in the chapter 75 action, is it applicable to the chapter 43 action
     because of the reference to both actions on the Douglas Factors Review Form?
     Id. at 6.
¶5         The Board’s regulation provides that an administrative judge will certify a
     ruling for interlocutory review if “[t]he ruling involves an important question of
     law or policy about which there is substantial ground for difference of opinion,”
     and “[a]n immediate ruling will materially advance the completion of the
     proceeding, or the denial of an immediate ruling will cause undue harm to a party
     or the public.” 5 C.F.R. § 1201.92.
¶6         After careful consideration, we find that an immediate ruling will not
     materially advance the adjudication of these appeals, and thus we dismiss the
     interlocutory appeal and return this matter to the administrative judge for further
     adjudication. 2




     FOR THE BOARD:                              ______________________________
                                                 William D. Spencer
                                                 Clerk of the Board
     Washington, D.C.




     2
       The administrative judge’s order certifying the interlocutory appeal did not stay the
     processing of the appeal; thus there is no need for the Board to vacate the stay order.
     See 5 C.F.R. § 1201.93(c) (stating that the administrative judge has the discretion to
     stay the processing of an appeal while an interlocutory appeal is pending). The parties
     are reminded that, because the Board has not ruled on the substance of the issues
     presented by the administrative judge’s certified ruling, they may raise the issues in a
     petition for review of the administrative judge’s initial decision.
