                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOE COX,                                        DOCKET NUMBER
                         Appellant,                  NY-3330-13-0035-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: August 6, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joe Cox, Adams, New York, pro se.

           Christina Anne Cotter, New York, New York, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal for failure to state a claim upon which relief can be granted.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the judge’s rulings during either the course of the
     appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.            See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. Except as modified by this Final
     Order, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         The appellant is a preference-eligible veteran with a fifty percent
     service-connected disability. Initial Appeal File (IAF), Tab 1 at 1, 18. In May
     2011, he applied for a Criminal Investigator (CI) position with the agency’s U.S.
     Immigration and Customs Enforcement Office (ICE) in response to a vacancy
     announcement posted on the USAJOBS website. 2 IAF, Tab 12 at 53, 56-62. The
     announcement stated that the position was open to displaced federal employees,
     pursuant    to   the   Interagency     Career   Transition    Assistance    Plan,    and
     preference-eligible veterans or veterans who had been separated under honorable
     conditions after 3 years or more of continuous service, pursuant to the Veterans
     Employment Opportunities Act of 1998 (VEOA). Id. at 56.
¶3         By letter dated June 3, 2011, the agency notified the appellant that it had
     decided to use the Veterans Recruitment Appointment (VRA) hiring authority to

     2
       Although the appellant applied for the position almost 2 months after the closing date
     of the vacancy announcement, the agency accepted his application because of his status
     as a disabled veteran with a service-connected disability of thirty percent or more. IAF,
     Tab 1 at 22.
                                                                                     3

     address its short-term hiring needs and, therefore, no further consideration would
     be given to applicants who did not meet VRA eligibility requirements by
     June 10, 2011.       IAF, Tab 12 at 50.      Because the appellant met those
     requirements, the agency continued to process his application under the VRA and
     scheduled him for the Special Agent Test Battery and Writing Sample
     Assessment. Id. at 23. The appellant received a score of 91 on the Test Battery,
     and, due to his compensable service-connected disability rating of thirty percent
     or more, 10 points were added to his score, for an adjudicated score of 101. Id.
     at 23, 27.   Because he passed both the Test Battery and the Writing Sample
     Assessment, the appellant participated in an Oral Interview, which he also
     passed. Id. at 23.
¶4        On October 26, 2011, the agency issued a letter notifying the appellant that
     he had been tentatively selected for a CI position. Id. at 42. In the letter, the
     agency informed the appellant that a final offer of employment was contingent
     upon his timely submission of all required forms and his successful completion
     of all pre-employment requirements, the major components of which are a drug
     test, a medical examination, and a background investigation. Id. at 42-43. The
     agency informed the appellant that, after he successfully completed the
     pre-employment requirements, and depending on the availability of funding, the
     agency would contact him by telephone to offer him a duty location assignment
     and to arrange his entrance-on-duty. Id. at 43. It is the standard practice of the
     agency to make final offers to new selectees in the order in which they clear the
     pre-employment requirements. Id. at 24.
¶5        The agency also notified the appellant that assignments to training classes
     at the Federal Law Enforcement Training Center (FLETC) are made when a final
     offer is extended.    Id. at 43.   The selectees attend a Criminal Investigator
     Training Program (CITP) class of approximately twenty-four students. Id. at 23.
     Due to budgetary constraints, only two CITP classes were held between January
                                                                                             4

     and September 2012—one class started on February 28, 2012, and the other on
     September 24, 2012. Id. at 24.
¶6         The appellant passed his drug test on November 10, 2011, his background
     investigation was completed on November 18, 2011, and he cleared his medical
     examination on January 6, 2012.             IAF, Tab 12 at 24.           By that time,
     approximately fifty tentatively selected applicants for the CI position had cleared
     the pre-employment requirements. 3 Id. at 33-34. The agency extended a final
     job offer to nineteen of those applicants, fifteen of whom accepted the offer and
     participated in the February 2012 CITP class. 4 Id. at 24, 33, 36. None of the
     tentatively selected applicants for the CI position participated in the September
     2012 class. 5
¶7         On August 22, 2012, the appellant filed a complaint with the Department of
     Labor (DOL) in which he alleged that the agency violated his veterans’
     preference rights when it did not include him in the February 2012 CITP class.
     See IAF, Tab 6 at 9. On November 8, 2012, DOL issued a letter notifying the
     appellant of its determination that the evidence did not support his allegation that
     the agency had violated his veterans’ preference rights. Id. Specifically, DOL
     found that the agency had properly considered his veterans’ preference for the
     VRA appointment.        Id.   DOL also found that there did not appear to be any

     3
       Not all of the fifty tentatively selected applicants for the CI position who cleared the
     pre-employment requirements before the appellant had applied for the position under
     the same vacancy announcement. IAF, Tab 12 at 24. Some had applied under a
     previous vacancy announcement that had been cancelled due to the abolishment of the
     Federal Career Intern Program. Id.
     4
       The other members of the class included four lateral transfers, one individual who was
     returning to the class after an injury, and three former Student Career Experience
     Program (SCEP) students. IAF, Tab 12 at 36.
     5
       The September 2012 class consisted of nineteen former SCEP students, one lateral
     transfer, one person who was returning to the class following a medical injury, an
     individual who only needed to take ICE Special Agent Training, an individual who was
     placed into the CI position pursuant to a settlement agreement, and one person who was
     returning to the FLETC. IAF, Tab 19 at 7.
                                                                                        5

     noncompliance with the Uniformed Services Employment and Reemployment
     Rights Act of 1994 (USERRA) (codified at 38 U.S.C. §§ 4301-4333). Id.
¶8           The appellant filed a Board appeal alleging that the agency violated his
     veterans’ preference rights under VEOA by making final offers to applicants
     based on the order in which they cleared the pre-employment requirements,
     rather than on their numerical ranking. IAF, Tab 1 at 5-7, Tab 6 at 4-7, Tab 13
     at 7.    The appellant also alleged that the agency’s actions violated USERRA
     because disabled veterans may be subject to lengthier medical examination
     periods than nondisabled individuals. IAF, Tab 1 at 3, 5, 7, Tab 5. He did not
     request a hearing. IAF, Tab 1 at 2.
¶9           The administrative judge issued orders advising the appellant of the
     requirements for establishing Board jurisdiction over an appeal under VEOA and
     USERRA. IAF, Tabs 3, 4. Both parties filed responses to the orders. IAF,
     Tabs 5, 6, 12.      In its response, the agency moved to dismiss the appellant’s
     appeal for lack of jurisdiction. IAF, Tab 12 at 13, 16-17.
¶10          Based on the parties’ submissions, the administrative judge issued an initial
     decision that dismissed the appeal for failure to state a claim upon which relief
     may be granted. IAF, Tab 20, Initial Decision (ID) at 2, 10. Regarding the
     appellant’s VEOA claim, the administrative judge found that the Board has
     jurisdiction over the claim; however, there is no statute or regulation relating to
     veterans’ preference that the agency violated under the circumstances presented
     here. ID at 8. The administrative judge found that “the appellant’s disagreement
     with the agency’s policy of placing a selectee on a list after those who have
     cleared their pre-employment requirements before he did, [does not] raise any
     issue concerning veterans’ preference.” ID at 8.
¶11          The administrative judge also dismissed the appellant’s USERRA claim,
     noting that the Board has held that disparate impact claims are not cognizable
     under USERRA.          ID at 10 n.10 (citing Harellson v. U.S. Postal Service,
     115 M.S.P.R. 378, ¶ 15 (2011)).         The administrative judge found that the
                                                                                         6

  appellant did not allege that the contested action was based on improper motive.
  ID at 10 n.10. The administrative judge also found that the appellant’s USERRA
  claim was duplicative of his VEOA claim. ID at 10 n.10.
¶12     The appellant has filed a petition for review. Petition for Review (PFR)
  File, Tab 1. The agency has filed a response to the petition for review. PFR
  File, Tab 3. The appellant has filed a reply to the agency’s response. PFR File,
  Tab 4. The agency has filed a surreply to the appellant’s reply. 6 PFR File,
  Tab 13.

                                      ANALYSIS
  The initial decision is consistent with required procedures.
¶13     On review the appellant argues that the initial decision is not consistent
  with required procedures because he was not given an opportunity to expand the
  written record after the administrative judge determined that the Board has
  jurisdiction over this appeal.      PFR File, Tab 1 at 5-6.         In support of this
  argument, the appellant notes that the administrative judge stated in her
  jurisdictional order that, if the appellant did not request a hearing, he would be
  given an opportunity to further develop the written record with respect to his
  VEOA claim. Id. at 5; IAF, Tab 3 at 8. The appellant asserts that, although he
  did not request a hearing, he was not given an opportunity to further develop the
  written record with respect to his VEOA claim in violation of the jurisdictional

  6
    The appellant has filed an objection to the agency’s surreply, requesting that the
  Board strike the agency’s surreply from the record on the grounds that the surreply does
  not comply with the Board’s order directing the agency to limit its surreply to an
  explanation as to why the case cited in the appellant’s reply to the agency’s response to
  the petition for review, Graves v. Department of Veterans Affairs, 114 M.S.P.R. 245
  (2010), is not applicable to this appeal. PFR File, Tabs 11, 14. In support of his
  request, the appellant asserts that, in addition to offering historical information and a
  summary of the agency’s version of the information the appellant submitted below, the
  agency’s surreply also includes a statement by the agency as to how it would like the
  case adjudicated. PFR File, Tab 14. We find, however, that the agency’s surreply
  complies with the Board’s order. Therefore, we DENY the appellant’s request to strike
  the surreply.
                                                                                    7

  order.   PFR File, Tab 1 at 5-6.    He contends that, if he had been given the
  opportunity to expand the written record after the administrative judge
  determined that the Board has jurisdiction over this appeal, then the
  administrative judge’s ruling would have been different, as he would have
  focused more heavily on the particular details of the VEOA violations. Id.
¶14    We find this argument unpersuasive. As the administrative judge explained
  in the initial decision, an appeal that is within the Board’s jurisdiction can
  nevertheless be dismissed for failure to state a claim upon which relief can be
  granted if the appellant cannot obtain effective relief before the Board even if his
  allegations are accepted as true.    ID at 8 (citing Simpkins v. Department of
  Labor, 107 M.S.P.R. 651, 658 (2008)).        Thus, by dismissing this appeal for
  failure to state a claim upon which relief can be granted, the administrative judge
  determined that, even if the appellant’s allegations were true, he could not
  prevail as a matter of law.      See Haasz v. Department of Veterans Affairs,
  108 M.S.P.R. 349, ¶ 8 (2008) (dismissal for failure to state a claim is appropriate
  if, taking the appellant’s allegations as true and drawing all reasonable
  inferences in his favor, he could not prevail as a matter of law).       Given the
  administrative judge’s determination that the appellant cannot prevail as a matter
  of law even if all of his allegations were true, expanding the written record with
  respect to his VEOA claim would have been an empty exercise for the appellant.
  Therefore, even if the administrative judge erred by issuing the initial decision
  without allowing the appellant an opportunity to expand the record, any such
  error is harmless, as it would not have affected the result in this appeal. See
  Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (an
  administrative judge’s procedural error is of no legal consequence unless it is
  shown to have adversely affected a party’s substantive rights).
                                                                                           8

  The appellant failed to show that the agency violated his veterans’ preference
  rights.
¶15     On review, the appellant reasserts his argument below that the agency
  violated 5 C.F.R. part 302 by making final offers to applicants for the CI position
  based on the order in which they completed the pre-employment requirements,
  rather than on their numerical ranking. PFR File, Tab 1 at 8-12; IAF, Tab 1
  at 5-7; Tab 6 at 4-7, Tab 7, Tab 13 at 7, Tab 18. In particular, the appellant
  alleges that the agency violated the following regulations:                (1) 5 C.F.R.
  § 302.304(b), which specifies the order in which an agency shall consider
  candidates for excepted service positions; and (2) 5 C.F.R. § 302.401, which
  governs the selection and appointment of candidates for excepted service
  positions. 7 PFR File, Tab 1 at 11.
¶16     Under 5 C.F.R. § 302.304(b), “an agency shall consider applicants on
  the . . . regular employment list who have been assigned eligible ratings for a
  given position in Order A, Order B, or Order C.” Order A requires the agency to
  first consider “the name of each qualified preference eligible who has a
  compensable, service-connected disability of 10 percent or more and is entitled
  to a 10-point preference . . . in the order of his/her numerical ranking.” 5 C.F.R.
  § 302.304(b)(1).     Title 5 C.F.R. § 302.401 provides that, when making an
  appointment from a list on which candidates have received numerical scores, an
  agency must make its selection for each vacancy from not more than the highest
  three names available for appointment in the order provided in 5 C.F.R.
  § 302.304.


  7
    In the initial decision, the administrative judge rejected the appellant’s claim that the
  agency violated 5 C.F.R. § 302.201, which provides that, when numerical scores are
  used in the evaluation and referral of candidates, an agency must add 10 points to the
  score of preference-eligibles with a disability rating of thirty percent or more. See ID
  at 8 (citing IAF, Tabs 7 and 18). The administrative judge found that the agency
  complied with this regulation when it added 10 points to the appellant’s Special Agent
  Test Battery score. ID at 8. The appellant does not challenge this finding on review,
  and we discern no reason to disturb it.
                                                                                   9

¶17    On review the appellant reiterates his argument below that, pursuant to
  5 C.F.R. §§ 302.304 and 302.401, the order of names on the list of tentatively
  selected applicants awaiting a final offer for the CI position should have been
  based on the applicants’ numerical ranking rather than the order in which the
  applicants completed the pre-employment requirements.         PFR File, Tab 1 at
  11-12; IAF, Tab 6 at 5-6, Tab 7 at 4, Tab 13 at 7, Tab 18. He alleges that, as a
  result of the agency’s failure to comply with 5 C.F.R. §§ 302.304(b) and
  302.401, he was not offered a slot in the February 2012 CITP class despite
  having a higher numerical ranking than all but one of the nineteen tentatively
  selected applicants who received such an offer. PFR File, Tab 1 at 10-11; IAF,
  Tab 6 at 7. The appellant contends that he thus was passed over for appointment
  as a CI in February 2012, in violation of his veterans’ preference rights. PFR
  File, Tab 1 at 8.
¶18    The administrative judge rejected this argument in the initial decision,
  finding that, because the agency tentatively selected all of the applicants who
  were entitled to a 10-point preference and who passed the Special Agent Test
  Battery, Writing Assessment, and Oral Interview, none of these applicants,
  including the appellant, were passed over. ID at 10. The administrative judge
  further found that, once the agency selected the appellant from the applicant list,
  it fulfilled its obligations under the regulations governing veterans’ preference.
  ID at 10.   Accordingly, the administrative judge rejected as unpersuasive the
  appellant’s argument that the agency violated 5 C.F.R. § 302.304(b) by placing
  his name on a list behind other selectees who were also waiting to take the CITP
  class and had already cleared the pre-employment requirements.           ID at 9.
  Regarding the appellant’s argument that the agency violated 5 C.F.R. § 302.401
  by not offering him a slot in the February 2012 CITP class, the administrative
  judge noted that 5 C.F.R. § 302.401 only provides for initial selections from a
  list of applicants and does not govern entrance-on-duty dates of selectees who
                                                                                 10

  come from multiple lists of eligibles based on separate agency announcements.
  ID at 10.
¶19    On review, the appellant challenges the administrative judge’s finding that
  the agency fulfilled its obligations under the regulations governing veterans’
  preference once it selected him from the applicant list. PFR File, Tab 1 at 10. In
  particular, the appellant alleges that the administrative judge erroneously
  concluded that a tentative selection is synonymous with consideration and
  selection for appointment under 5 C.F.R. §§ 302.304(b) and 302.401. Id.       The
  appellant argues that a tentative selection does not satisfy the requirements of
  5 C.F.R. §§ 302.304(b) or 302.401 because an applicant is not eligible for
  selection until he completes all of the pre-employment requirements. Id. at 6.
  Even then, the appellant asserts, an applicant might not “receive a selection or
  appointment because selections, [also known as] appointments or entrance on
  duty, are based additionally on funding.” Id. at 7. He contends that, as of the
  time that he cleared the pre-employment requirements, he was an applicant
  “waiting on selection” rather than a selectee. Id. at 10.
¶20    The appellant further asserts on review that in Graves the Board
  “recognized and ruled on the difference between selection and tentative
  selection,” and found, “contrary [to] the Administrative Judge’s interpretation of
  the law,” that an agency does not satisfy its obligations regarding veterans’
  preference by “merely tentatively selecting” an applicant.      PFR File, Tab 4
  at 5-7. The appellant in Graves, a 10-point preference-eligible, filed a VEOA
  appeal alleging that the agency violated his veterans’ preference rights by
  selecting a nonpreference-eligible for a Medical Records Technician/Coder
  (MRT) position instead of him.       Graves, 114 M.S.P.R. 245, ¶¶ 2, 13.      The
  administrative judge denied the appellant’s request for corrective action, finding
  that, before receiving the appellant’s application on January 30, 2009, the agency
  had already identified a selectee for the MRT position. Id., ¶ 5. In making this
  finding, the administrative judge credited the agency’s Lead Human Resources
                                                                                     11

  Specialist’s (LHRS) testimony that she believed the selectee was “tentatively
  selected” in November or December 2008. Id., ¶¶ 15-16. On review, however,
  the Board found that the LHRS’s testimony regarding the timing of the selection
  was “of little value,” inasmuch as she also testified that “she had no involvement
  in [the] selection.” The Board further found that “even if the cited testimony
  were credible, a ‘tentative selection’ is insufficient to preempt the appellant’s
  veterans’ preference rights; a selection is not operative until it is official.” Id.,
  ¶ 17. The Board found that the agency did not officially complete its selection
  until February 19, 2009, and, accordingly, the appellant’s January 30, 2009
  application was pending before the agency at the same time as the selectee’s
  application. Id. The Board found that the agency, which did not consider the
  appellant’s application, violated the appellant’s veterans’ preference rights in
  selecting another person for the position. Id., ¶¶ 18-21.
¶21    Relying on the Board’s statement in Graves that a tentative selection is not
  operative until it is official, the appellant argues on review that, because the
  agency’s October 26, 2011 letter described his selection for the CI position as
  tentative, his selection was insufficient to satisfy the agency’s obligations under
  the regulations governing veterans’ preference.      PFR File, Tab 4 at 6.        The
  appellant’s reliance on Graves is misplaced, however, as the tentative selection
  in Graves is not similar to the selection at issue in the instant appeal.
  Specifically, the tentative selection in Graves was not documented, whereas the
  appellant’s selection was documented in the agency’s October 26, 2009 letter
  notifying the appellant of his selection. See IAF, Tab 12 at 42-44. Further, as
  the agency explained in the letter, the appellant’s selection was tentative only
  insofar as the appellant’s appointment was contingent upon his timely
  submission    of   the   required   forms   and   successful   completion    of   the
  pre-appointment requirements, as well as the availability of funding.             Id.
  Therefore, when using the term “tentative selection” in Graves, the Board was
  referring to an undocumented selection, not a documented selection that was
                                                                                   12

  contingent upon the selectee’s successful completion of the pre-employment
  requirements and the availability of funding.
¶22    Moreover, Graves actually undercuts the appellant’s argument on review
  that selection is synonymous with appointment and entrance-on-duty. See PFR
  File, Tab 1 at 7. As noted above, the Board in Graves found that the agency
  “officially” made its selection on February 19, 2009. Graves, 114 M.S.P.R. 245,
  ¶ 17. The Board also found, however, that “the [documentary evidence] shows
  that . . . no actions to complete the appointment process (physical, contact of
  employer, etc.) were taken until March 2009, and that the ‘confirmed entry on
  duty date’ was May 26, 2009.” Id., ¶ 14. In fact, the official selection occurred
  even before the selecting official issued a memorandum requesting permission to
  hire a qualified Coder. Id. In light of the Board’s finding in Graves that the
  agency made an official selection for the MRT position well before the selectee’s
  appointment or entrance-on-duty, Graves does not support the appellant’s
  contention on review that he was never selected for the CI position because he
  has not been appointed or provided an entrance-on-duty date.        See PFR File,
  Tab 1 at 6-7.    Therefore, we find unavailing the appellant’s argument that,
  because he has not yet entered on duty, the administrative judge erred in
  concluding that the appellant was selected for the position. Id.
¶23    In   sum, we find      unpersuasive   the   appellant’s   argument   that   the
  administrative judge erroneously determined that he had been selected for the CI
  position. The appellant was awarded a 10-point preference and selected for the
  CI position. His selection was documented in the agency’s October 26, 2011
  letter, which explained that a final offer of employment for the CI position was
  contingent upon his successful completion of the pre-employment requirements.
  IAF, Tab 12 at 43. Thus, contrary to the appellant’s argument on review, once
  he cleared the pre-employment requirements, he was not an applicant “waiting
  on selection;” rather, he was an applicant who had been selected for the position
  and was waiting for the extension of a final appointment offer, at which time the
                                                                                13

  agency would provide him with an entrance-on-duty date. See PFR File, Tab 1
  at 10; IAF, Tab 12 at 43. While the agency’s policy of appointing new selectees
  in the order in which they complete the pre-employment requirements, rather
  than their numerical ranking, undoubtedly delayed the appellant’s entrance-on-
  duty date, veterans’ preference laws do not govern delays in entrance-on-duty
  dates. Consequently, we find no basis for disturbing the administrative judge’s
  finding that the agency fulfilled its obligations under the regulations governing
  veterans’ preference once it selected him from the applicant list.
  The administrative judge properly dismissed the appellant’s USERRA claim.
¶24    On review the appellant also reiterates his assertion that the agency’s
  method of “determining the order to select, or appoint applicants . . .
  disproportionately negatively affects disabled Veterans, because they are almost
  certain to take longer in the physical portion of the tentative selection process
  due to additional medical clearances that the agency requires for 10 point Vets.”
  PFR File, Tab 1 at 11-12. To the extent that the appellant is reasserting his
  argument below that the agency’s pre-employment criteria violated USERRA
  because disabled veterans may be subject to lengthier medical examinations, we
  find this argument unavailing.     As noted above, in the initial decision the
  administrative judge explained that, under Board precedent, disparate impact
  claims are not cognizable under USERRA because intent is a required element of
  proof to establish discrimination under that statute.      ID at 10 n.10 (citing
  Harellson, 115 M.S.P.R. 378, ¶ 15). We agree with the administrative judge that
  the appellant did not even allege, let alone prove, that the contested agency
  action was based on an improper motive. Id. Thus, the administrative judge
  properly dismissed the appellant’s USERRA claim.
  The appropriate disposition of this appeal is to deny the appellant’s request for
  relief.
¶25    Although the administrative judge properly found that the appellant failed
  to show that the agency violated his rights under VEOA, because the
                                                                                 14

administrative judge relied on documentary evidence submitted by both the
appellant and the agency, it was inappropriate to dismiss the appeal for failure to
state a claim upon which relief can be granted. See Williamson v. U.S. Postal
Service, 106 M.S.P.R. 502, ¶ 9 n.* (2007). Dismissal for failure to state a claim
is appropriate only if, taking the appellant’s allegations as true without reference
to the agency’s submissions and drawing all reasonable inferences in his favor,
he cannot prevail as a matter of law. Id. Disposing of a claim in favor of a
defending party, without an evidentiary hearing, and based on submissions
beyond the claimant’s allegations is not dismissal for failing to state a claim
upon which relief may be granted. See Fed. R. Civ. P. 12(d). We therefore deny
the appellant’s request for relief.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.   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).
                                                                                 15

         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.
