                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2014 MSPB 74

                             Docket No. CH-0752-10-0294-I-2

                                     Damon J. Brown,
                                         Appellant,
                                              v.
                                 Department of Defense,
                                          Agency.
                                     September 12, 2014

           Andres Grajales, Esquire, Washington, D.C., for the appellant.

           Neil Bloede, Indianapolis, Indiana, for the agency.

                                          BEFORE

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



                                  OPINION AND ORDER

¶1         The agency has filed a petition for review of an initial decision that
     reversed the agency’s removal action. The appellant has filed a cross petition for
     review of the initial decision’s finding that he did not prove harmful error. For
     the following reasons, we GRANT the agency’s petition for review, DENY the
     appellant’s cross petition for review, REVERSE the initial decision, and
     SUSTAIN the appellant’s removal. 1


     1
       Except as otherwise noted in this decision, we have applied the Board’s regulations
     that became effective November 13, 2012. We note, however, that the petition for
                                                                                           2

                                       BACKGROUND
¶2         The appellant served in the non-critical sensitive position of Accounting
     Technician with the Defense Finance and Accounting Service (DFAS). MSPB
     Docket No. CH-0752-10-0294-I-2 (I-2), Initial Appeal File (IAF), Tab 10 at 7,
     Tab 11 at 8.     The agency removed the appellant based on a charge that the
     Washington Headquarters Service (WHS) Consolidated Adjudications Facility
     (CAF) had denied him eligibility to occupy a sensitive position. MSPB Docket
     No. CH-0752-10-0294-I-1 (I-1), IAF, Tab 6, Subtabs 4c, 4f. During the 30-day
     advance notice period for the removal action, the agency temporarily detailed the
     appellant to a non-sensitive set of duties. Id., Subtab 4f.
¶3         Following a hearing, the administrative judge reversed the appellant’s
     removal.    I-2, IAF, Tab 16, Initial Decision (ID).          Relying on Conyers v.
     Department of Defense, 115 M.S.P.R. 572 (2010), and Northover v. Department
     of Defense, 115 M.S.P.R. 451 (2010), the administrative judge found as follows:
     (1) the Board’s review authority in a case like the present one, where the agency
     removed the appellant for losing a qualification to hold his position, included the
     authority to review the merits of the determination that the appellant lacked the
     required qualification; (2) the agency did not prove that the appellant is ineligible
     to hold a non-critical sensitive position; and (3) even if the agency proved its
     charge, it did not prove that disciplining the appellant promoted the efficiency of
     the service. ID at 7-11, 13-14. In response to the appellant’s contention that the
     agency denied him minimum due process of law because the deciding official did
     not have the discretion to weigh the factors set forth in Douglas v. Veterans
     Administration, 5 M.S.P.R. 280, 305-06 (1981), or take any action but removal,
     the administrative judge held that the deciding official did not have input into the
     penalty determination and testified that she would not have removed the appellant


     review in this case was filed before that date. Even if we considered the petition under
     the previous version of the regulations, the outcome would be the same.
                                                                                            3

     if given a choice.    ID at 14-15.     Thus, she found that the agency improperly
     imposed the penalty of removal even if the agency had properly sustained the
     charges. ID at 15. Finally, the administrative judge found that the appellant did
     not prove his affirmative defense of harmful error. ID at 12-13.
¶4         On petition for review, the agency asserts that the administrative judge
     should not have applied Conyers and Northover because those decisions were not
     yet final and, in any event, the Board decided those cases incorrectly and should
     give deference to its WHS CAF decision finding the appellant ineligible to
     occupy a sensitive position. I-2, Petition for Review (PFR) File, Tab 1 at 6-12.
     The agency further argues that the administrative judge’s findings on the merits,
     the efficiency of the service, and the penalty are incorrect. Id. at 12-20. The
     appellant has filed an opposition to the agency’s petition for review and a cross
     petition for review asserting that the administrative judge erred in finding that the
     appellant did not prove harmful error. PFR File, Tab 4.
¶5         The Clerk of the Board thereafter issued an Order informing the parties that
     the U.S. Court of Appeals for the Federal Circuit’s decision in Gargiulo v.
     Department of Homeland Security, 727 F.3d 1181 (Fed. Cir. 2013), may affect
     the outcome of this case and inviting the parties to file briefs addressing the
     possible application of Gargiulo to the appellant’s constitutional due process
     claims. PFR File, Tab 6. The parties have filed responses to the Order issued by
     the Clerk of the Board. Id., Tabs 7-8. 2

     2
       The appellant has filed a motion for leave to file a supplemental notice concerning the
     application of Gargiulo to his constitutional due process claim. PFR File, Tab 11. The
     appellant contends that there is a statement in a government brief in a separate U.S.
     Supreme Court case that supports his arguments and that did not become available until
     after the deadline for responding to the Order issued by the Clerk of the Board, that he
     wishes to submit only legal argument, and that the agency would not be prejudiced if
     the Board granted his motion. Id. at 2. We deny the motion upon finding that the
     appellant has not shown that this evidence or argument is new and material and was not
     readily available before the record closed. See Durr v. Department of Veterans Affairs,
     119 M.S.P.R. 195, ¶ 23 (2013); 5 C.F.R. § 1201.114(a)(5), (k).
                                                                                          4

                                          ANALYSIS
     The Board’s review of the agency’s action is limited.
¶6         In Conyers, 115 M.S.P.R. 572, ¶ 13, and Northover, 115 M.S.P.R. 451,
     ¶ 13, the Board held that the Supreme Court’s decision in Department of the Navy
     v. Egan, 484 U.S. 518 (1988), limited Board review of an otherwise appealable
     action only if that action was based upon a denial, revocation, or suspension of a
     “security clearance,” i.e., a denial of access to classified information or eligibility
     for such access. Accordingly, the Board found in Conyers and Northover that an
     adverse action that was based on the agency’s decision that an employee was not
     eligible to occupy a non-critical sensitive position was subject to the same review
     as other actions under 5 U.S.C. chapter 75, including review of the merits of the
     agency’s decision on eligibility. See Conyers, 115 M.S.P.R. 572, ¶¶ 13, 32-34;
     Northover, 115 M.S.P.R. 451, ¶¶ 13, 30-33.
¶7         A divided Federal Circuit panel reversed the Board’s decisions in Conyers
     and Northover, holding that the Board cannot review the merits of an agency’s
     national security determinations regarding an employee’s eligibility to occupy a
     sensitive position that implicates national security. Berry v. Conyers, 692 F.3d
     1223, 1225, 1237 (Fed. Cir. 2012).        The court later vacated the above panel
     decision and granted rehearing en banc.        Berry v. Conyers, 497 F. App’x 64
     (Fed. Cir. 2013). The court then issued an en banc decision in which a majority
     of the court reversed and remanded the Board’s decision in Northover and
     dismissed the appeal in Conyers for lack of jurisdiction.        Kaplan v. Conyers,
     733 F.3d 1148, 1150-52, 1166-67 (Fed. Cir. 2013), cert. denied, Northover v.
     Archuleta, 134 S. Ct. 1759 (2014). In its en banc decision in Conyers, 733 F.3d
     at 1158-60, the Federal Circuit held that Egan prohibits Board review of
     Department of Defense (DOD) national security determinations concerning the
     eligibility of an individual to occupy a “sensitive” position, regardless of whether
     the position requires access to classified information. In support of this holding,
     the court found that “there is no meaningful difference in substance between a
                                                                                        5

     designation that a position is ‘sensitive’ and a designation that a position requires
     ‘access to classified information.’ Rather, what matters is that both designations
     concern national security.” Id. at 1160. Accordingly, under the Federal Circuit’s
     decision in Conyers, the limited scope of review set forth in Egan applies to
     appeals such as this one, where an adverse action is based on the decision that an
     employee is not eligible to occupy a non-critical sensitive position.        See id.
     at 1158-60; Ingram v. Department of Defense, 120 M.S.P.R. 420, ¶ 9 (2013).
¶8         In Egan, the Supreme Court held that the Board does not have authority to
     review the substance of a security clearance determination, contrary to what is
     required generally in other adverse action appeals. Egan, 484 U.S. at 530-31.
     The Court held that, in an appeal under 5 U.S.C. § 7513 based on the denial of a
     security clearance, the Board has authority to review only whether:           (1) an
     executive branch employer determined that the employee’s position required a
     security clearance; (2) the clearance was denied or revoked; (3) the employee was
     provided with the procedural protections specified in 5 U.S.C. § 7513; and
     (4) transfer to a non-sensitive position was feasible when another source, such as
     a statute or regulation, provides the employee a substantive right to such
     reassignment. See Conyers, 733 F.3d at 1151 (citing Egan, 484 U.S. at 530);
     Griffin v. Defense Mapping Agency, 864 F.2d 1579, 1580 (Fed. Cir. 1989);
     Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 14 n.5 (2014).
     The Court ruled that “[n]othing in the [statute enacting 5 U.S.C. § 7513] . . .
     direct[ed] or empower[ed] the Board to go further.” Egan, 484 U.S. at 530. Our
     review is therefore limited to the issues set forth in Egan.
¶9         In applying the limited scope of review under Egan, we must affirm the
     agency’s removal action.       See Ingram, 120 M.S.P.R. 420, ¶¶ 12-13.           The
     appellant’s position of Accounting Technician required that he maintain
     eligibility to occupy a non-critical sensitive position. I-1, IAF, Tab 6, Subtabs
     4k, 4l, 4m; I-2, IAF, Tab 10 at 7; Hearing Transcript (HT) at 10, 58.
     Furthermore, the WHS CAF issued a letter denying the appellant eligibility for
                                                                                               6

      access to classified information and/or occupancy of a sensitive position. I-1,
      IAF, Tab 6, Subtab 4g; I-2, IAF, Tab 10 at 9. 3 In addition, the agency complied
      with the procedural protections specified in 5 U.S.C. § 7513 in removing the
      appellant from his position. Specifically, the agency provided the appellant with
      30 days’ advance written notice of the proposed removal, reasons for the
      proposed action, and a reasonable opportunity to reply. I-1, IAF, Tab 6, Subtab
      4f; see 5 U.S.C. § 7513(b)(1)-(2). The agency notified the appellant of his right
      to be represented by an attorney and provided him with a written decision letter.
      I-1, IAF, Tab 6, Subtabs 4c, 4f; see 5 U.S.C. § 7513(b)(3)-(4). Therefore, the
      agency complied with the requirements set forth at 5 U.S.C. § 7513 in removing
      the appellant. There is no indication in the record that the agency was required to
      consider transferring the appellant to a non-sensitive position. See I-1, IAF, Tab
      6, Subtab 1 at 11-12.

      The appellant has not proven that the agency violated his due process rights.
¶10          In its response to the Order issued by the Clerk of the Board, the agency
      asserts that the court’s holding in Gargiulo—that due process is not required in
      the suspension or revocation of a security clearance—should apply in this case to
      the revocation of eligibility to occupy a sensitive position. PFR File, Tab 7 at
      8-10. The agency therefore contends that the Board “need not consider whether
      the [a]ppellant was given due process procedures before a decision maker that


      3
        The appellant asserts on review that, while the cross petition for review in this case
      was pending, “DFAS re-investigated [the a]ppellant’s eligibility to occupy a sensitive
      position,” and, following the reinvestigation, restored the appellant to work. PFR File,
      Tab 8 at 7. The appellant contends that “[u]pon information and belief, DFAS found
      [the a]ppellant to be eligible to occupy a sensitive position and restored him to work in
      a sensitive position.” Id. Even assuming that the appellant has been returned to duty in
      2014, we find that his 2009 removal, I-1, IAF, Tab 6, Subtabs 4a, 4c, is still within our
      jurisdiction because there is no indication that the appellant has consented to divestiture
      of Board jurisdiction or that the agency has completely rescinded the action being
      appealed. See Himmel v. Department of Justice, 6 M.S.P.R. 484, 486 (1981).
                                                                                          7

      could ultimately change the outcome of the decision” because the Board “can
      only consider whether [the a]ppellant was given the appropriate procedures under
      5 U.S.C. § 7513,” and there is no dispute that the agency provided those
      procedures. PFR File, Tab 7 at 10-11. The appellant, by contrast, asserts that
      Gargiulo does not bar the appellant’s constitutional due process claim because
      Gargiulo is “limited to shielding from review only those agency procedures and
      determinations that are part of the sensitive position eligibility process” and does
      not eliminate the due process requirement that an agency appoint a deciding
      official with genuine decision-making authority. PFR File, Tab 8 at 4-5, 15-17.
¶11         We recognize that employees do not have a property interest in access to
      classified information and that the termination of that access does not implicate
      any due process concerns. Flores v. Department of Defense, 121 M.S.P.R. 287,
      ¶ 9 (2014).    Like a security clearance, the granting of eligibility to occupy a
      sensitive position is a matter within the Executive’s broad discretion to make
      determinations concerning national security. Id. Therefore, just as it is obvious
      that no one has a right to a security clearance, it is likewise clear that an
      employee has no property interest in eligibility to occupy a sensitive position, and
      the denial of the appellant’s eligibility to occupy a sensitive position is not itself
      subject to due process requirements. Id.
¶12         Nevertheless, by virtue of being an employee under 5 U.S.C. § 7511, and
      thus removable only for cause, the appellant did have a property interest in his
      continued employment.      Flores, 121 M.S.P.R. 287, ¶ 10.        Therefore, he was
      entitled to due process, including notice and a meaningful opportunity to respond,
      prior to being removed.      Id.; see Gargiulo, 727 F.3d at 1185 (although Mr.
      Gargiulo had no due process rights relating to the procedures used to determine
      whether to suspend or revoke his security clearance, he did have due process
      rights concerning his indefinite suspension). It is the appellant’s removal, not his
      loss of eligibility to occupy a sensitive position, that triggered due process
      protections.   Flores, 121 M.S.P.R. 287, ¶ 10.     The Board may review the due
                                                                                         8

      process protections afforded in the removal proceedings without second guessing
      the underlying eligibility determination. Id.; see Buelna, 121 M.S.P.R. 262, ¶ 15
      (the Court did not have occasion in Egan to decide if the Board was authorized to
      consider a claim that an agency denied due process in taking an adverse action
      based on a security clearance determination).
¶13         In Buelna, 121 M.S.P.R. 262, ¶¶ 3-4, 26-28, which involved an indefinite
      suspension based in part on the suspension of a security clearance, the Board held
      that, if there are “viable alternatives” to the indefinite suspension, due process
      requires that the employee be afforded an opportunity to invoke the discretion of
      a deciding official with authority to select such alternatives. The Board found
      that the right to invoke the deciding official’s discretion exists only in such cases
      where there is doubt as to the appropriateness or necessity of the penalty and that
      due process does not demand that the deciding official consider alternatives that
      are prohibited, impracticable, or outside management’s purview. Id., ¶ 27.
¶14         In the instant matter, the deciding official indicated in her decision letter
      that “I have no authority to review, change, or influence the determination made
      by CAF concerning either your access to sensitive information or whether your
      reply was timely filed.” I-1, IAF, Tab 6, Subtab 4c. The deciding official also
      noted in the decision letter that the agency had no available positions that did not
      require access to sensitive information.     Id.; HT at 14, 16 (testimony of the
      deciding official that she “had to remove” the appellant because all of the
      positions at DFAS were categorized as non-critical sensitive, and there were no
      positions that were not classified that way).      She further noted that “I have
      decided to take this action because your continued assignment to a set of
      temporary, non-sensitive duties for an indefinite period of time does not promote
      the efficiency of the service.”    I-1, IAF, Tab 6, Subtab 4c.      In addition, the
      agency’s representative indicated that DFAS “has no ability to impact, negotiate
      or change the risk determinations made by the DOD WHS,” and “DFAS is bound
      by the risk determinations notwithstanding DFAS’ desire to keep what it might
                                                                                         9

      determine are excellent employees in DFAS’ employ.” I-1, IAF, Tab 6, Subtab 1
      at 11-12. The deciding official testified that she did not consider any penalty
      other than removal and did not conduct a Douglas factor analysis because “I
      didn’t have a choice. That was the only thing that we, that we had, only option
      we had.”    HT at 16.    The deciding official testified that, because all DFAS
      positions were classified as non-critical sensitive, there were no positions to
      which she could have assigned the appellant. Id. at 14, 16. She further testified
      that she did not have a choice in deciding to remove the appellant, that she was
      told that she had to remove him, and that she would not have removed him if she
      had been given the choice. Id. at 18-19. The deciding official testified that,
      although she signed the decision letter, she did not prepare it. Id. at 19.
¶15         The appellant has not identified any viable alternatives to his removal in
      this case, and we find no such alternatives.           Given the record evidence
      establishing that all positions within DFAS were classified as non-critical
      sensitive, any alternative to removal that would have retained the appellant in his
      Accounting Technician position, reassigned him to another position within
      DFAS, or indefinitely assigned him to non-sensitive duties without his being
      assigned to a position in the civil service was either prohibited, impracticable, or
      outside the purview of DFAS management. See 5 U.S.C. § 2105(a)(1) (defining
      “employee” as an individual appointed in the civil service); 5 U.S.C. § 2101(1)
      (the “civil service” consists of all appointive positions in the executive, judicial,
      and legislative branches); Bracey v. Office of Personnel Management, 236 F.3d
      1356, 1359 (Fed. Cir. 2001) (“We are aware of no setting in the federal
      employment system in which an employee is considered to hold a ‘position’
      consisting of a set of ungraded, unclassified duties that have been assigned to that
      employee on an ad hoc basis.”); cf. McFadden v. Department of Defense,
      85 M.S.P.R. 18, ¶ 20 (1999) (an agency is not obligated to accommodate a
      disabled employee by permanently assigning her to light-duty tasks when those
      tasks do not comprise a complete and separate position).
                                                                                         10

¶16         When an agency has effected an indefinite suspension without pay pending
      the completion of an investigation and/or resolution of an appellant’s security
      clearance status, the Board has suggested that placement on administrative leave
      “may” be a viable alternative to suspension without pay.                See Buelna,
      121 M.S.P.R. 262, ¶¶ 4, 28. Here, however, there was no pending adjudication of
      the appellant’s eligibility to occupy a non-critical sensitive position. Rather, such
      eligibility had been denied and the appellant’s removal had been proposed. Even
      assuming that there was a “practicable” alternative in the sense that someone in
      DFAS management may have had the authority to create a non-sensitive position
      for the appellant to occupy, see Haeuser v. Department of Law, Government of
      Guam, 97 F.3d 1152, 1159 n.4 (9th Cir. 1996) (contrasting the terms
      “practicable” and “practical,” with “practicable” referring to something that can
      be put into effect, and “practical” referring to something that is also sensible and
      worthwhile), the Board does not have the authority to determine whether such an
      alternative would be practicable, see Skees v. Department of the Navy, 864 F.2d
      1576, 1578 (Fed. Cir. 1989) (“If the Board cannot review the employee’s loss of
      security clearance, it is even further beyond question that it cannot review the
      Navy’s judgment that the position itself requires the clearance.”); see also
      Conyers, 733 F.3d at 1155 (“Egan, at its core, explained that it is essential for the
      President and the DOD to have broad discretion in making determinations
      concerning national security.”). The Board is not permitted to second-guess the
      agency’s   determination    to   classify   positions   as   non-critical   sensitive.
      Accordingly, we find that the appellant has not established a due process
      violation in the absence of a showing that there were viable alternatives to his
      removal. See Buelna, 121 M.S.P.R. 262, ¶¶ 26-28.

      The appellant has not proven harmful error.
¶17         The administrative judge found that the appellant did not prove that the
      agency committed harmful error when it failed to forward a letter it had received
      from the appellant’s bankruptcy attorney to the CAF. ID at 4, 12-13. This letter
                                                                                       11

      was sent to the agency in response to the CAF’s Statement of Reasons (SOR) to
      Deny Eligibility for Occupancy of a Sensitive Position, indicated that the
      appellant had filed a bankruptcy petition to “help resolve his financial situation,”
      and enclosed a copy of the appellant’s outstanding creditors listed on his
      bankruptcy petition. I-2, IAF, Tab 10 at 17-28, 37. The administrative judge
      held that there was no violation of agency procedures because the letter in
      question was not signed by the appellant or provided by a representative
      designated by the appellant. ID at 12. She further found, in any event, that the
      appellant did not show that he was subjected to harm because the letter contained
      additional evidence of the appellant’s delinquent accounts with no evidence that
      they had been resolved.      ID at 12-13.    The administrative judge held that,
      although the appellant argued that the CAF’s decision would have been
      appealable if the agency had treated the letter as a response and forwarded it to
      the CAF, “[h]e does not argue, nor does the record show, that the CAF in receipt
      of the letter was likely to have found the appellant eligible for a [non-critical
      sensitive] position.” ID at 13.
¶18         The appellant asserts in his cross petition for review that the administrative
      judge erroneously found that the agency did not violate its procedures and that
      the appellant was not subjected to harm as a result of the alleged error. PFR File,
      Tab 4 at 26-32. In this regard, the appellant contends that the agency’s point of
      contact (POC) between the CAF and the appellant was responsible for ensuring
      that the appellant understood the procedures for responding to the SOR and that
      the appellant’s response was forwarded to the CAF. Id. at 27. The appellant
      asserts that the POC did not forward the letter he received from the appellant’s
      bankruptcy attorney to the CAF or at least ask the appellant whether that letter
      was intended to be his response to the SOR. Id. at 28-29. The appellant further
      contends that, if the POC had forwarded the letter to the CAF as a response to the
      SOR, the CAF would have based its letter of denial on the facts of the appellant’s
      financial situation, rather than on his failure to timely respond to the SOR, and
                                                                                       12

      likely would have granted the appellant conditional eligibility and reexamined his
      financial record at a later time. Id. at 29-31.
¶19         Pursuant to DOD Regulation 5200.2-R, “[t]he head of the local
      organization of the individual receiving an SOR shall designate a POC to serve as
      a liaison between the CAF and the individual.” I-2, IAF, Tab 12 at 71, 86. “The
      duties of the POC will include, but not necessarily be limited to, delivering the
      SOR; having the individual acknowledge receipt of the SOR; determining
      whether the individual intends to respond within the time specified; ensuring that
      the individual understands the consequences of the proposed action, as well as the
      [need] to respond in a timely fashion”; explaining how to obtain time extensions
      and procure copies of investigative records as well as the procedures for
      responding to the SOR; and ensuring that the individual understands that he can
      obtain legal counsel or other assistance at his own expense. Id. at 86-87. No
      unfavorable administrative action shall be taken unless the individual concerned
      has been afforded an opportunity to reply in writing to the CAF within 30
      calendar days.   Id.   A failure to reply within that time period “will result in
      forfeiture of all future appeal rights with regard to the unfavorable administrative
      action,” and responses to the CAF must be forwarded through the head of the
      employing organization. Id. at 86-87.
¶20         The appellant has not identified any particular provision of DOD
      Regulation 5200.2-R that the agency violated when it apparently determined that
      the letter from the bankruptcy attorney did not constitute a response to the SOR.
      See HT at 23, 28-29 (testimony of a POC that the letter from the bankruptcy
      attorney was not a response to the SOR, but merely information forwarded to the
      POC to assist the POC in helping the appellant respond to the SOR).           Even
      assuming, however, that the agency committed a procedural error, the appellant
      has not shown that the agency likely would have reached a different result in the
      absence of such an error. Harmful error is error by the agency in the application
      of its procedures that is likely to have caused the agency to reach a conclusion
                                                                                         13

      different from the one it would have reached in the absence or cure of the error.
      5 C.F.R. § 1201.56(c)(3). Although the appellant established that it was possible
      that the CAF could issue a conditional letter of eligibility if it is informed that an
      employee has filed a bankruptcy petition, see HT at 38-39, he has not shown that
      it is likely that the CAF in this case would have reached a different conclusion if
      it had known that the appellant had filed a bankruptcy petition, see Johnson v.
      Department of Transportation, 24 M.S.P.R. 475, 476 (1984); see also Parker v.
      Defense Logistics Agency, 1 M.S.P.R. 505, 514 (1980) (the mere theoretical
      possibility of prejudice cannot suffice as a basis for inferring actual prejudice).
      Thus, he has not shown that it is likely that the agency would not have removed
      him in the absence of any procedural error.
¶21         Accordingly, the agency’s petition for review is GRANTED, the
      appellant’s cross petition for review is DENIED, the initial decision is
      REVERSED, and the appellant’s removal is SUSTAINED.

                                            ORDER
¶22         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
            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,
                                                                                 14

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
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.
