                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 70

                            Docket Nos. DE-0752-12-0039-I-3
                                        DE-0752-12-0040-I-3

                                   Kristi L. Putnam,
                                       Appellant,
                                            v.
                         Department of Homeland Security,
                                         Agency.
                                     August 27, 2014

           Kevin L. Owen, Esquire, and Rosalind Herendeen, Silver Spring,
             Maryland, for the appellant.

           Remy N. Savin, San Francisco, California, for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed her indefinite suspension and dismissed her involuntary retirement
     appeal for lack of jurisdiction. Petition for Review (PFR) File, Tab 3; MSPB
     Docket No. DE-0752-12-0039-I-3 (0039), Initial Appeal File (IAF), Tab 6, Initial
                                                                                             2

     Decision (ID). 1 For the reasons that follow, the administrative judge’s initial
     decision affirming the appellant’s indefinite suspension is AFFIRMED AS
     MODIFIED by this Opinion and Order, and the administrative judge’s dismissal
     of the appellant’s involuntary retirement appeal is AFFIRMED.

                                        BACKGROUND
¶2         The following basic facts are not in dispute. The appellant served as the
     Assistant Federal Security Director at the Grand Junction Regional Airport in
     Grand Junction, Colorado.       0039, IAF, Tab 2 at 136.        As a condition of her
     position, the appellant was required to maintain a security clearance. Id. at 122.
     On October 26, 2010, citing statements the appellant had made to local police, the
     agency placed the appellant on administrative leave.               MSPB Docket No.
     DE-0752-12-0040-I-3 (0040), IAF, Tab 3 at 49.             Based upon the appellant’s
     statements to the police, the agency suspended the appellant’s security clearance
     on January 26, 2011, id. at 66-67, and it thereafter proposed the appellant’s
     indefinite suspension on February 1, 2011, citing the suspension of her security
     clearance “based on allegations regarding [her] mental health and personal
     conduct” as outlined in the agency’s January 26, 2011 letter, id. at 78-79.            In
     response to the appellant’s request for the information the agency relied on in
     proposing her suspension, the agency explained that it only relied on the notice it
     received from its Personnel Security Division that the appellant’s security
     clearance had been suspended. 0040, IAF, Tab 3 at 65. The deciding official


     1
       As the administrative judge explained in his initial decision, some of the relevant
     submissions are filed in MSPB Docket No. DE-0752-12-0039-I-3, while others are filed
     in MSPB Docket No. DE-0752-12-0040-I-3.                  At the time of their filing, the
     administrative judge treated MSPB Docket No. DE-0752-12-0039-I-1 as challenging the
     appellant’s indefinite suspension, and MSPB Docket No. DE-0752-12-0040-I-1 as
     challenging the appellant’s alleged involuntary retirement. We cite to the petition for
     review file in the lead docket number assigned to these joined matters, MSPB Docket
     No. DE-0752-12-0039-I-3. Because the underlying factual material is contained in both
     initial appeal files, we will cite to the respective initial appeal files where necessary.
                                                                                       3

     subsequently imposed the appellant’s indefinite suspension effective March 10,
     2011. 0039, IAF, Tab 2 at 55-57.
¶3         The appellant amended a pending equal employment opportunity (EEO)
     complaint she had filed with the agency to include a challenge to her indefinite
     suspension, and after the passage of 120 days, she filed her appeal with the Board
     challenging both her indefinite suspension and her intervening decision to retire
     after the agency revoked her security clearance in August 2011.         See MSPB
     Docket No. DE-0752-13-0039-I-1, IAF, Tab 1.          The appellant withdrew her
     request for a hearing, and based on the written record, the administrative judge
     affirmed the appellant’s indefinite suspension and dismissed her involuntary
     retirement appeal for lack of jurisdiction. ID at 7-16. In reaching his decision on
     the appellant’s indefinite suspension, the administrative judge applied the
     Board’s then-controlling case law, which held, inter alia, that an employee had a
     due process right to notice of the reasons for the suspension of her security
     clearance and to reply to a deciding official who had the authority to change the
     outcome of the proposed adverse action. See, e.g., McGriff v. Department of the
     Navy, 118 M.S.P.R. 89, ¶¶ 25, 33 (2012).          Applying these standards, the
     administrative judge found that the agency afforded the appellant a meaningful
     opportunity to respond to the suspension of her security clearance, thus also
     satisfying due process concerning her proposed indefinite suspension, and that
     the deciding official had the authority to change the outcome of her proposed
     indefinite suspension by reassigning her but that he elected not to exercise his
     discretion under the facts of this case. ID at 12-14. The administrative judge
     further explained that he would not adjudicate the appellant’s disability
     discrimination claim challenging the agency’s decision not to reassign her
     because it was intertwined with the agency’s decision to suspend her clearance,
     ID at 9, and, applying the Board’s jurisdictional standard over a constructive
     adverse action, he found that the appellant failed to nonfrivolously allege that her
                                                                                      4

     working conditions were so intolerable that she had no choice but to retire, ID
     at 14-16.
¶4         The appellant has filed a petition for review of the administrative judge’s
     initial decision.   PFR File, Tab 3.   After the agency filed a response to the
     petition for review, and the appellant filed a reply, PFR File, Tabs 6-7, the U.S.
     Court of Appeals for the Federal Circuit issued its decision in Gargiulo v.
     Department of Homeland Security, 727 F.3d 1181, 1185 (Fed. Cir. 2013), holding
     that employees have “no due process rights with respect to the procedures used to
     determine whether to suspend or revoke [a] security clearance,” and also
     explaining that while employees have due process rights to contest indefinite
     suspensions as adverse actions, those rights “[do] not include the right to contest
     the merits of the decision to suspend [their] security clearance[s].” The agency
     moved to submit additional argument on petition for review concerning
     Gargiulo’s impact on this case, PFR File, Tab 8, and the Board granted the
     agency’s motion, giving both the agency and the appellant an opportunity to
     submit additional argument on this issue, PFR File, Tabs 17-18.
¶5         As explained below, although we agree with the administrative judge’s
     ultimate conclusion sustaining the appellant’s indefinite suspension, the Federal
     Circuit’s decision in Gargiulo, and the Board’s recent decision in Buelna v.
     Department of Homeland Security, 121 M.S.P.R. 262 (2014), require a different
     analysis of the appellant’s appeal of her indefinite suspension.     Applying the
     standards outlined in Gargiulo and Buelna, we AFFIRM AS MODIFIED the
     administrative judge’s initial decision sustaining the appellant’s indefinite
     suspension.    Because these decisions do not affect the disposition of the
     appellant’s involuntary retirement appeal, and because we agree with the
     administrative judge’s jurisdictional dismissal of this claim, we AFFIRM the
     initial decision regarding the appellant’s allegation of an involuntary retirement,
     and we AFFIRM the administrative judge’s decision not to adjudicate the
                                                                                      5

     appellant’s disability discrimination affirmative defense because it is intertwined
     with the agency’s security clearance determination.

                                        ANALYSIS
     Recent case law sets forth the analysis to be used when an adverse action is based
     on the suspension or revocation of a security clearance.
¶6         In Buelna, the Board recently outlined the principles and standards
     applicable in chapter 75 appeals of adverse actions based on the suspension or
     revocation of a security clearance.     See 121 M.S.P.R. 262, ¶¶ 13-15, 23-25,
     27-31. First, relying on the Federal Circuit’s decision in Gargiulo, the Board
     reaffirmed that employees have a due process right in connection with an
     indefinite suspension or removal based upon the suspension or revocation of a
     security clearance and that the Board also has the authority to review whether an
     agency provided an employee with due process in taking such an adverse action.
     See Buelna, 121 M.S.P.R. 262, ¶¶ 13-15 (citing, inter alia, Gargiulo, 727 F.3d
     at 1185).
¶7         Second, pursuant to the Federal Circuit’s decision in Gargiulo, the Board
     explained that due process does not require that an employee have an opportunity
     to challenge the merits of the agency’s security clearance suspension or
     revocation.   Buelna, 121 M.S.P.R. 262, ¶¶ 18 n.7, 24.           In reaching this
     conclusion, the Board further explained that, in cases where the employee does
     receive an opportunity to contest the clearance determination prior to the adverse
     action proceedings, that opportunity alone is insufficient to satisfy due process
     concerning the proposed adverse action because due process requires that the
     employee have a right to respond to a proposed adverse action, which is distinct
     from a security clearance determination. Id., ¶ 24 n.9.
¶8         Next, the Board addressed an issue left open by the court in Gargiulo, see
     727 F.3d at 1185 n.4, and it held that due process does not demand that the
     deciding official consider alternatives to the proposed adverse action that are
     prohibited,     impracticable,     or     outside     management’s        purview.
                                                                                           6

      Buelna, 121 M.S.P.R. 262, ¶ 27. In reaching this conclusion, the Board explained
      that due process in connection with an adverse action based on the suspension or
      revocation of a security clearance is limited “to invok[ing] the discretion of a
      deciding official with authority to change the outcome of the proposed action to
      the extent that may have been feasible.” Id., ¶ 28. This standard differed from
      the Board’s earlier approach, which had held that due process required that the
      deciding official have the authority to change the outcome of the proposed
      adverse action by either reinstating the appellant’s access to classified
      information or by reassigning her to a position not requiring such access. See,
      e.g., Diehl v. Department of the Army, 118 M.S.P.R. 344, ¶ 12 (2012).
¶9          Lastly, the Board expounded upon the impact of the Ward/Stone 2 line of
      authority on adverse actions based upon the suspension or revocation of a
      security clearance.     See Buelna, 121 M.S.P.R. 262, ¶¶ 30-31.             The Board
      explained that the only information material to an agency’s charge involving the
      suspension or revocation of a clearance is whether the employee’s position
      required a security clearance and whether the clearance was suspended or
      revoked; the Board concluded that any additional information a deciding official
      may consider in connection with such a charge cannot be new and material
      information under Ward/Stone. Id., ¶ 31.
¶10         Regarding the deciding official’s penalty determination, however, the
      Board found that, under the Ward/Stone line of cases, an employee is entitled to
      advanced notice of all of the information a deciding official may rely on in
      considering   the   employee’s    proposed    suspension    or   removal,    including
      information concerning the extent to which “the deciding official’s penalty
      determination [may be] influenced by the factual basis for the underlying security


      2
        Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011); Stone v. Federal Deposit
      Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999).
                                                                                       7

      clearance determination.” Id. In the event that an appellant cannot establish a
      Ward/Stone violation concerning the deciding official’s penalty determination, as
      in all other instances involving alleged due process violations, the Board will
      then conduct a harmful error analysis to determine if the agency erred in the
      application of its procedures, and, if so, whether such an error caused the agency
      to reach a conclusion different from the one it would have reached in the absence
      or cure of the error. Id., ¶ 33; see Bennett v. Department of Justice, 119 M.S.P.R.
      685, ¶ 12 (2013) (under Ward/Stone, if no due process violation is found, then a
      harmful error analysis must be conducted).

      The appellant’s indefinite suspension is AFFIRMED.
¶11         As explained above, the administrative judge did not have the benefit of
      our decision in Buelna, or the Federal Circuit’s decision in Gargiulo, when he
      issued his initial decision sustaining the appellant’s indefinite suspension. Thus,
      to the extent that the initial decision considered whether the appellant was
      afforded due process in connection with the agency’s security clearance
      determination, and to the extent that the administrative judge found that the
      process afforded the appellant in connection with the security clearance
      determination satisfied her due process rights as to the adverse action, see ID
      at 8, 12, we MODIFY the initial decision and AFFIRM the charge underlying the
      indefinite suspension based on the undisputed facts that the appellant was
      required to maintain a security clearance as a condition of her position of
      employment and that her clearance was suspended. See Buelna, 121 M.S.P.R.
      262, ¶¶ 23, 31; 0039, IAF, Tab 2 at 55-57, 78-79; see also Ulep v. Department of
      the Army, 120 M.S.P.R. 579, ¶ 4 (2014) (in an appeal based on the denial,
      revocation, or suspension of a security clearance, the Board’s authority is limited
      to determining if a position requires a clearance; whether the clearance was
      denied, revoked, or suspended; and whether the procedural protections
      of 5 U.S.C. § 7513 were followed).
                                                                                       8

¶12         Citing the Board’s pre-Gargiulo decisions in McGriff, 118 M.S.P.R. 89,
      and Diehl, 118 M.S.P.R. 344, the appellant argues on petition for review that her
      due process rights were violated because the deciding official did not have the
      authority to impose a penalty other than her proposed indefinite suspension. PFR
      File, Tab 3 at 13-16. Under our recent decision in Buelna, however, due process
      in the context of an adverse action based upon the suspension or revocation of a
      security clearance does not require that the deciding official have the unfettered
      discretion to take any action he or she believes is appropriate upon considering
      the proposed adverse action. See Buelna, 121 M.S.P.R. 262, ¶ 27 (due process
      does not demand that the deciding official consider alternatives that are
      prohibited, impracticable, or outside management’s purview).            Thus, the
      appellant’s assertion of a due process violation based on the deciding official’s
      purported limited authority to select a penalty other than the appellant’s proposed
      suspension is no longer germane to the issues in this case. Id.
¶13         We also find that the appellant’s assertion that the deciding official had
      limited authority to impose an alternative penalty is unsupported. Although the
      appellant argues that the deciding official had no authority to reassign her, the
      deciding official testified that he had the authority to consider reassigning the
      appellant to another position but that he exercised his discretion and elected not
      to reassign her under the facts of this case. 0040, IAF, Tab 3 at 73-74 (deposition
      of the deciding official). Although the appellant ascribes error to the deciding
      official’s decision, when a security clearance has been suspended or revoked,
      “the Board does not have the authority to review the feasibility of [] reassignment
      in the absence of an additional agency regulation or policy statement providing
      for such a transfer.” Biggers v. Department of the Navy, 745 F.3d 1360, 1362
      n.1 (Fed. Cir. 2014); see Schnedar v. Department of the Air Force, 120 M.S.P.R.
      516, ¶ 7 n.1 (2014). Here, there is no evidence that the agency has a policy of
      compulsory reassignment before imposing an indefinite suspension. See ID at 15.
      Thus, under our due process standard articulated in Buelna, we find that the
                                                                                      9

      appellant had the opportunity to invoke the discretion of the deciding official,
      thereby satisfying the minimum requirements of due process as to her indefinite
      suspension. See Buelna, 121 M.S.P.R. 262, ¶ 28.
¶14         The appellant also argues on petition for review that the deciding official
      improperly considered the underlying reasons supporting the suspension of her
      security clearance in making his penalty determination, thus violating her due
      process   rights     under   Ward/Stone.     PFR   File,   Tab 3   at 16-19;   see
      Buelna, 121 M.S.P.R. 262, ¶ 31. We do not agree.
¶15         The Board’s decisions under Ward/Stone recognize that not all ex parte
      communications rise to the level of due process violations; rather, only ex parte
      communications which introduce new and material information to the deciding
      official are constitutionally infirm. Lange v. Department of Justice, 119 M.S.P.R.
      625, ¶ 8 (2013). Here, based upon the language and scope of information cited in
      the agency’s notice of proposed indefinite suspension, we find that the deciding
      official did not consider new and material information in rendering his penalty
      analysis. The agency’s notice of proposed indefinite suspension explained that
      the appellant’s indefinite suspension was being proposed based upon the
      suspension of her security clearance and that the agency’s security office
      “suspended [her] security clearance based on allegations regarding [the
      appellant’s] mental health and personal conduct.     The details of the basis for
      suspension of [the appellant’s] access to classified information are contained in
      the letter issued . . . [by the agency’s security office] on January 26, 2011.”
      0039, IAF, Tab 2 at 78.       In response to her proposed indefinite suspension,
      moreover, the appellant, through counsel, specifically addressed, and contested,
      the underlying reasons cited by the agency in support of its interim security
      clearance determination, thus placing the underlying reasons for her security
      clearance suspension—i.e., her personal conduct—into controversy before the
      deciding official.     0040, IAF, Tab 2 at 61 (the appellant’s response to the
      deciding official arguing that the appellant is fit for duty and that she does not
                                                                                             10

      present a danger to herself or others).        Thus, to the extent that the deciding
      official may have considered the reasons for the appellant’s security clearance
      suspension in rendering his penalty determination, we find this information
      did not constitute new and material information under Ward/Stone. 3                   See
      Buelna, 121 M.S.P.R. 262, ¶ 32 (finding that the underlying reasons for the
      appellant’s security clearance suspension had already been cited in the proposal
      notice    and   did not   violate   Ward/Stone);    Lange,    119 M.S.P.R.     625,   ¶8
      (information is new and material when, inter alia, the employee did not know
      about the information and did not have a chance to respond to it).
¶16            In response to the Board’s motion granting the parties an additional
      opportunity to brief the effect of Gargiulo on this case, the appellant contends
      that the agency committed harmful error in connection with her indefinite
      suspension when it took over 6 months to decide whether to reinstate or revoke
      her security clearance.       PFR File, Tab 18 at 8.         However, the appellant’s
      indefinite suspension was imposed in March 2011, and the decision to revoke her
      clearance was not issued until August 2011.              0039, IAF, Tab 2 at 48-53
      (revocation of her clearance), 55-57 (decision on the indefinite suspension). The
      decision to revoke the appellant’s clearance almost 5 months after her indefinite
      suspension went into effect could not constitute harmful error in connection with
      the decision to impose the indefinite suspension. See 5 C.F.R. § 1201.56(c)(3)
      (defining harmful error as “[e]rror by the agency . . . that is likely to have caused
      the agency to reach a conclusion different from the one it would have reached in
      the absence or cure of the error”).




      3
        We also find that, to the extent that the deciding official considered this information,
      his consideration does not constitute harmful error.
                                                                                        11

      The administrative judge properly found that the Board could not adjudicate the
      appellant’s disability discrimination claim.
¶17          The appellant also argues on petition for review that the administrative
      judge erred in concluding that the Board is precluded from reviewing allegations
      of discrimination in connection with an adverse action based upon the suspension
      or revocation of a security clearance. PFR File, Tab 3 at 19-23; ID at 9. The
      appellant argued below that the agency discriminated against her on the basis of a
      perceived mental disability when the deciding official declined to reassign her
      and instead imposed her indefinite suspension. 0040, IAF, Tab 3 at 36-46. For
      the reasons that follow, we find that the administrative judge properly declined to
      adjudicate this affirmative defense.
¶18          In Pangarova v. Department of the Army, 42 M.S.P.R. 319, 322-23 (1989),
      the Board found that it is precluded from reviewing allegations of prohibited
      discrimination and reprisal when such affirmative defenses relate to the
      revocation of a security clearance. Analyzing an appellant’s discrimination and
      reprisal claims in such cases would require the Board to focus on the validity of
      the agency’s legitimate, nondiscriminatory reason for taking the challenged
      action, i.e., the validity of the security clearance determination. Id. at 323. Thus,
      the Board is not permitted to adjudicate whether an agency’s adverse action,
      which is premised on the suspension or revocation of a security clearance,
      constitutes impermissible discrimination or reprisal. See, e.g., Doe v. Department
      of   Justice,   118 M.S.P.R.   434,    ¶ 40   (2012);   Hesse   v.   Department    of
      State, 82 M.S.P.R. 489, ¶ 9 (1999), aff’d, 217 F.3d 1372 (Fed. Cir. 2000);
      Pangarova, 42 M.S.P.R. at 322-23.
¶19          The appellant maintains on review that she has presented a colorable claim
      of disability-based discrimination in connection with the agency’s decision to
      indefinitely suspend her when it failed to reassign her to a nonsensitive position
      within the agency. PFR File, Tab 3 at 19-23. A cursory review of the elements
      of proof needed to prevail on such a claim demonstrates that it would require the
                                                                                            12

      Board to review the propriety of the agency’s security clearance determination.
      We find no reason to depart from the Board’s precedent finding that it has no
      authority to review allegations of prohibited discrimination or reprisal related to
      the revocation or suspension of a security clearance. See Doe, 118 M.S.P.R. 434,
      ¶ 40; Hesse, 82 M.S.P.R. 489, ¶¶ 7, 9; Pangarova, 42 M.S.P.R. at 322-23. 4

      The administrative judge properly dismissed the appellant’s involuntary
      retirement claim for lack of jurisdiction.
¶20         Finally, the appellant argues on review that the administrative judge
      wrongly dismissed her allegation of an involuntary retirement for lack of
      jurisdiction. PFR File, Tab 3 at 18-19. We find, however, that the administrative
      judge properly dismissed this claim. ID at 14-16.
¶21         A retirement is presumed to be voluntary and outside of the Board’s
      jurisdiction.   Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 16
      (2013). An involuntary retirement, however, is equivalent to a forced removal
      within the Board’s jurisdiction under chapter 75. Id. An appellant must make
      nonfrivolous allegations of jurisdiction to be entitled to a hearing, at which point
      she would be required to prove her claim by a preponderance of the evidence. Id.
      An appellant who claims that her retirement was involuntary may rebut the
      presumption of voluntariness in a variety of ways, including by showing that the
      retirement was the result of intolerable working conditions.             Id., ¶ 17; see
      Conforto v. Merit Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir.
      2013). Here, the appellant argued that her retirement was the product of coercion


      4
        In Helms v. Department of the Army, 114 M.S.P.R. 447, ¶ 9 n.* (2010), the Board
      assumed without deciding that an appellant could maintain a disparate treatment claim
      based upon an allegation that other employees outside of the appellant’s protected class
      were treated more favorably, i.e., reassigned to positions which did not require security
      clearances, as compared to the appellant, who was subjected to a more severe adverse
      action. Because the appellant makes no such allegation of disparate treatment in this
      case, we do not resolve the issue left open in Helms.
                                                                                        13

      based upon intolerable working conditions flowing from the suspension, and
      subsequent revocation, of her security clearance. ID at 15. The administrative
      judge found that the appellant failed to nonfrivolously allege that these
      circumstances left her no choice but to retire. Id. We agree.
¶22         As the Federal Circuit recently observed, “[t]he doctrine of coercive
      involuntariness is a narrow one, requiring that the employee satisfy a demanding
      legal standard.”   Conforto, 713 F.3d at 1121.     “An employee’s dissatisfaction
      with the options that an agency has made available to him is not sufficient to
      render his decision to resign or retire involuntary.” Id. Accordingly, “coerced
      involuntariness does not apply if the employee resigns or retires because he
      does not like agency decisions such as a new assignment, a transfer, or other
      measures that the agency is authorized to adopt, even if those measures make
      continuation in the job so unpleasant . . . that he feels he has no realistic option
      but to leave.”     Id. at 1121-22.   Importantly, moreover, under this test for
      involuntariness, “the coercion must be the result of improper acts by the agency.”
      Id. at 1122.
¶23         Here, the appellant argues that the decisions to suspend her clearance and
      to place her on indefinite suspension left her no realistic alternative but to retire
      from federal service. 0040, IAF, Tab 3 at 29-30. These allegations, however, fail
      to meet the “demanding legal standard” required to demonstrate coercion. See
      Conforto, 713 F.3d at 1121. As the administrative judge correctly explained, the
      agency had not yet reached a final decision to permanently revoke the appellant’s
      security clearance at the time of her retirement, and it remained possible that she
      would be reinstated to employment in the event her clearance was reinstated. ID
      at 15. We do not agree that the suspension of a clearance alone rises to the level
      of coercion for the purposes of a constructive adverse action. The appellant’s
      choice to retire, rather than await the final disposition of her security clearance
      determination, was not the result of improper pressure, intimidation, or coercion.
      ID at 14-16.     Additionally, because of the Board’s limited scope of review
                                                                                        14

      involving the suspension or revocation of a security clearance, we cannot
      consider whether the agency committed any improper acts in connection with its
      security clearance determination, see Gargiulo, 727 F.3d at 1185, and we have
      otherwise found no evidence of any improper act in the course of the agency’s
      decision to indefinitely suspend the appellant that could supply the jurisdictional
      basis for an appeal of an involuntary retirement, see Schnedar, 120 M.S.P.R. 516,
      ¶¶ 8, 12.

                                            ORDER
¶24         For the foregoing reasons, we AFFIRM AS MODIFIED the initial decision
      sustaining the appellant’s indefinite suspension, we AFFIRM the administrative
      judge’s decision not to adjudicate the appellant’s disability discrimination
      affirmative defense, and we AFFIRM the initial decision dismissing the
      appellant’s involuntary retirement appeal for lack of jurisdiction. This is the final
      decision of the Merit Systems Protection Board in this appeal. Title 5 of the
      Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).

                       NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
                       IN MSPB DOCKET NO. DE-0752-12-0039-I-3
            You have the right to request further review of the final decision in MSPB
      Docket No. DE-0752-12-0039-I-3 regarding the indefinite suspension.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).        If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013
                                                                                   15

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.           See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.
                                                                                 16

                  NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
                  IN MSPB DOCKET NO. DE-0752-12-0040-I-3
      You have the right to request further review of the final decision in MSPB
Docket No. DE-0752-12-0040-I-3 regarding the involuntary retirement.
      You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).    You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
      If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
                                                                            17

attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
