Opinion

Matthew C Litton v. Department of Justice

Court: Merit Systems Protection Board
Filed: Sep 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MATTHEW C. LITTON, DOCKET NUMBERS

Appellant, DC-0752-14-0353-C-1

DC-0752-14-1110-C-1

DEPARTMENT OF JUSTICE, DATE: September 30, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Christine Kumar , Esquire, and Kristin Alden , Esquire, Washington, D.C.,

for the appellant.

Drew Ambrose , Monica Hansen , Marisa C. Ridi , Esquire, and

Chad Y. Tang , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

ORDER

¶1 The appellant has filed a petition for review of a compliance initial decision

that granted in part and denied in part his petition for enforcement of a Board

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

order reversing two indefinite suspensions. 2 In the same petition for review, the

appellant challenges a compliance initial decision that denied his petition for

enforcement of a Board order reversing his removal. After fully considering the

filings in these appeals, we JOIN them under 5 C.F.R. § 1201.36(b) because

doing so will expedite processing without adversely affecting the interests of the

parties. Generally, we grant petitions such as these only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

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. 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, we conclude that the appellant has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. We AFFIRM the initial decisions.

We refer MSPB Docket No. DC-0752-14-0353-C-1 for compliance as set forth

below. This is the Board’s final decision in MSPB Docket No. DC-0752-14-

1110-C-1. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 On January 23, 2014, the appellant, a preference-eligible Special Agent with

the agency’s Federal Bureau of Investigation (FBI), filed a Board appeal

challenging two indefinite suspensions. Litton v. Department of Justice, MSPB

To the extent that the compliance initial decision granted the appellant’s petition for

enforcement, the agency has submitted evidence and argument on the issue of its

compliance with the administrative judge’s order. The agency’s submission has been

docketed as a compliance referral and will be addressed in a separate decision. Litton v.

Department of Justice, MSPB Docket No. DC-0752-14-0353-X-1.

Docket No. DC-0752-14-0353-I-1, Initial Appeal File (0353 IAF), Tab 1 at 5.

The first indefinite suspension, effective upon his receipt of a September 15, 2010

letter, was based on the agency’s assertion that there was reasonable cause to

believe he had committed a crime for which a sentence of imprisonment could be

imposed. Id. at 15. The second indefinite suspension, effective November 5,

2010, was based on the suspension of the appellant’s security clearance.

0353 IAF, Tab 1 at 7, 17.

¶3 On January 24, 2012, the agency notified the appellant that it was

reinstating his clearance, but that it would conduct an independent review to

determine his suitability to maintain a clearance. 0353 IAF, Tab 3 at 24. The

agency restored the appellant to a paid duty status on January 31, 2012. Litton v.

Department of Justice, MSPB Docket No. DC-0752-14-0791-I-1, Initial Appeal

File (0791 IAF), Tab 44 at 7, 68.

¶4 However, on February 12, 2014, the agency again suspended the appellant’s

security clearance. 0791 IAF, Tab 11 at 27. On April 17, 2014, the agency

indefinitely suspended the appellant based on his failure to maintain a security

clearance. Id. at 29-30. The letter stated that the clearance was suspended

because of allegations that the appellant omitted certain medical information from

his FBI SF-93 Report of Medical History and lacked candor during subsequent

questioning about the matter. 0791 IAF, Tab 1 at 8-10, Tab 11 at 29. On

June 13, 2014, the appellant filed a separate appeal challenging the third

indefinite suspension. 0791 IAF, Tab 1.

¶5 The administrative judge joined the two appeals. 0353 IAF, Tab 28;

0791 IAF, Tabs 9, 12. After the appellant withdrew his request for a hearing,

0353 IAF, Tab 56 at 4, the administrative judge issued an initial decision based

on the written record, reversing the first and second indefinite suspensions and

sustaining the third indefinite suspension, Litton v. Department of Justice, MSPB

Docket Nos. DC-0752-14-0791-I-1, DC-0752-14-0353-I-1, Initial Decision at 8,

22, 28 (Aug. 11, 2016). The Board then affirmed the initial decision with

modifications and ordered the agency to cancel the appellant’s first two indefinite

suspensions and retroactively restore him effective September 15, 2010, through

January 31, 2012. Litton v. Department of Justice, MSPB Docket Nos. DC-0752-

14-0791-I-1, DC-0752-14-0353-I-1, Final Order, ¶¶ 1, 31 (Oct. 11, 2022). The

Board agreed with the administrative judge that the agency took the first and

second indefinite suspensions without due process. Id., ¶¶ 5, 24-26. With respect

to the first indefinite suspension, the Board also agreed that the agency violated

the Rehabilitation Act of 1973 because the agency’s underlying medical inquiries

in its SF-93 were overbroad. Id., ¶¶ 6, 12-19. The Board ordered the agency to

pay the appellant the “correct amount of back pay, interest on back pay and other

benefits under the Office of Personnel Management’s regulations.” Id., ¶ 32.

¶6 The appellant then filed a petition for enforcement. Litton v. Department of

Justice, MSPB Docket No. DC-0752-14-0353-C-1, Compliance File (0353 CF),

Tab 1. The administrative judge found that the agency had canceled the

suspensions. 0353 CF, Tab 15, Compliance Initial Decision (0353 CID) at 7. She

also concluded that, contrary to the appellant’s claim, the agency was not

required to pay back pay from September 14, 2010, through January 23, 2012,

because the appellant’s security clearance was suspended during that time, and

therefore, he was not available to perform the duties of his position, as required to

receive back pay under 5 C.F.R. § 550.805(c)(2). 0353 CID at 7-9. The

administrative judge acknowledged the appellant’s claims that two agency

employees had been paid back pay under similar circumstances and that an

agency directive entitled him to back pay, but found that the Board lacks the

authority to review instances in which the agency, at its discretion, awarded more

relief than legally required under the Back Pay Act, 5 U.S.C. § 5596. 0353 CID

at 9-10. Because the appellant’s security clearance was reinstated on January 24,

2012, the administrative judge awarded him back pay from that date through

January 31, 2012. 0353 CID at 11.

¶7 During the pendency of those appeals, on September 22, 2014, the appellant

filed a third Board appeal challenging his September 10, 2014 removal. Litton v.

Department of Justice, MSPB Docket No. DC-0752-14-1110-I-1, Initial Appeal

File, Tab 1 at 3. On September 22, 2017, the administrative judge issued an

initial decision reversing the removal and ordering the agency to provide the

appellant with interim relief. Litton v. Department of Justice, MSPB Docket

No. DC-0752-14-1110-I-2, Appeal File (1110 AF), Tab 72, Initial Decision at 2,

27, 29. On January 16, 2018, the agency revoked the appellant’s security

clearance. Litton v. Department of Justice, MSPB Docket No. DC-0752-14-1110-

I-2, Petition for Review (1110 PFR) File, Tab 28 at 8-11. On November 19,

2018, the agency denied his security clearance revocation appeal. Litton v.

Department of Justice, MSPB Docket No. DC-0752-14-1110-C-1, Compliance

File (1110 CF), Tab 4 at 683-86. On October 13, 2022, the Board affirmed the

initial decision and ordered the agency to retroactively reinstate the appellant,

effective September 10, 2014, and pay him the “correct amount of back pay,

interest on back pay and other benefits under the Office of Personnel

Management’s regulations.” Litton v. Department of Justice, MSPB Docket

No. DC-0752-14-1110-I-2, Final Order, ¶¶ 1, 29-30 (Oct. 13, 2022).

¶8 The appellant then filed a petition for enforcement of the final decision

reversing his removal. 1110 CF, Tab 1. The administrative judge issued a

compliance initial decision denying the petition. 1110 CF, Tab 12, Compliance

Initial Decision (1110 CID) at 1, 10. The administrative judge concluded that the

agency was not required to pay back pay in connection with the appellant’s

September 2014 removal. 1110 CID at 8. She reasoned that his security

clearance was suspended on February 12, 2014, and subsequently revoked on

January 16, 2018. Id. Thus, she concluded that he did not have the security

clearance necessary for his position and was not available to perform his duties.

Id. She also found, among other things, that the Board lacks authority to consider

claims that the agency’s security clearance process was flawed. Id. at 9.

¶9 The appellant has filed a petition for review. 3 Litton v. Department of

Justice, MSPB Docket No. DC-0752-14-0353-C-1, Compliance Petition for

Review (0353 CPFR) File, Tabs 1, 5; Litton v. Department of Justice, MSPB

Docket No. DC-0752-14-1110-C-1, Compliance Petition for Review (1110 CPFR)

File, Tabs 1, 4. The agency has filed a response opposing the petition, and the

appellant has replied. 0353 CPFR File, Tabs 9, 10; 1110 CPFR File, Tabs 8, 9.

ANALYSIS

The appellant is not entitled to back pay related to his first two indefinite

suspensions from September 14, 2010, through January 23, 2012, when his

security clearance was suspended.

¶10 When the Board finds a personnel action unwarranted, the aim is to place

the employee, as nearly as possible, in the situation he would have been in had

the wrongful personnel action not occurred, i.e., the status quo ante. Tubesing v.

Department of Health and Human Services, 115 M.S.P.R. 327, ¶ 5 (2010); Sink v.

Department of Energy, 110 M.S.P.R. 153, ¶ 19 (2008); Black v. Department of

Justice, 85 M.S.P.R. 650, ¶ 6 (2000). In particular, the agency must reinstate the

appellant to his former position and duties absent a strong overriding interest or

compelling reasons for not doing so. Tubesing, 115 M.S.P.R. 327, ¶ 5; LaBatte v.

Department of the Air Force, 58 M.S.P.R. 586, 594 (1993). The agency bears the

burden of proving its compliance with a Board order. Tubesing, 115 M.S.P.R.

327, ¶ 5.

¶11 “In a suit against the United States, there cannot be a right to money

damages without a waiver of sovereign immunity.” United States v. Testan,

The appellant has filed a single petition for review challenging the compliance initial

decisions that we address here and the initial decision in Litton v. Department of

Justice, MSPB Docket No. DC-0752-23-0016-I-1, Petition for Review (PFR) File,

Tabs 5, 7-8. We grant the appellant’s request to join MSPB Docket Nos. DC-0752-14-

0353-C-1 and DC-0752-14-1110-C-1 because these appeals contain many of the same

relevant facts and the petition for review submissions are the same. We deny the

appellant’s joinder motion as it pertains to MSPB Docket No. DC-0752-23-0016-I-1.

We will issue a separate decision in that matter.

424 U.S. 392, 400 (1976). Therefore, the Board’s authority to award back pay

must derive, if at all, from the Back Pay Act, a settlement agreement, or some

other source, such as a collective bargaining agreement, that imposes on it the

mandatory obligation to award back pay. Kelley v. Department of the Air Force,

50 M.S.P.R. 635, 639 (1991). Under the Back Pay Act, an employee who prevails

in an adverse action appeal before the Board is generally entitled to back pay for

the period for which the adverse action was in effect. 5 U.S.C. § 5596. However,

under 5 C.F.R. § 550.805(c)(2), the back pay calculation may not include “[a]ny

period during which an employee was unavailable for the performance of his or

her duties for reasons other than those related to, or caused by, the unjustified or

unwarranted personnel action.”

¶12 In this case, it is undisputed that the appellant’s position required a security

clearance and that the appellant’s clearance was suspended from September 14,

2010, through January 23, 2012. 0353 CID at 2, 8. The administrative judge

found that, under 5 C.F.R. § 550.805(c)(2), the appellant was not entitled to back

pay for this period because he was unavailable for duty for reasons unrelated to

the indefinite suspensions. Id. at 7-8.

¶13 On review, the appellant argues that 5 C.F.R. § 550.805(c)(2) does not

apply to his situation because the suspension of his security clearance is related to

the first two unwarranted indefinite suspensions. 0353 CPFR File, Tab 5

at 13-15. In support of this argument, the appellant cites to Martin v. Department

of the Air Force, 184 F.3d 1366, 1371 (Fed. Cir. 1999), for the proposition that

the Board must look to “the cause” of the employee’s unavailability “before

excluding the period of time” from the back pay computation. 0353 CPFR File,

Tab 5 at 15. However, Martin is inapplicable here because it involved an

appellant’s inability to work due to an incapacitating injury, pursuant to 5 C.F.R.

§ 550.805(c)(1), and not because he was “unavailable for the performance of

his . . . duties” because he did not possess a security clearance, pursuant to

section 550.805(c)(2). Martin, 184 F.3d at 1370-72; see White v. Department of

the Army, No. 2007-3135, 2007 WL 2914536 at *3 (Fed. Cir. Oct. 5, 2007)

(distinguishing between 5 C.F.R. § 550.805(c)(1) and (c)(2)). 4

¶14 In any event, we find that the relationship between the security clearance

determination and the indefinite suspension is not of the type contemplated in the

regulation. The security clearance suspension and the first indefinite suspension

may have shared a cause (suspected criminal activity), but the actions were taken

independently of one another. As for the second indefinite suspension, the

security clearance suspension was the cause of that adverse action—not the other

way around. As we interpret 5 C.F.R. § 550.805(c), its function is to ensure that

an appellant’s receipt of a back pay award does not put him in a better position

than he would have been in had the adverse action never occurred. See

Washington v. Tennessee Valley Authority, 22 M.S.P.R. 377, 379 (1984)

(“Cancellation of [an adverse action] is intended to make the appellant whole, but

cannot be permitted to require a ‘windfall.’”). In this case, even if the agency had

never suspended the appellant under 5 U.S.C. chapter 75, his security clearance

would still have been suspended, and for that reason, he would have been unable

to work. To award the appellant back pay for this period would place him in a

better position than if the suspension had never occurred, and we find that the

Back Pay Act and the Office of Personnel Management (OPM)’s implementing

regulations prohibit such an award.

¶15 Next, the appellant reargues that the agency’s practice in denying him back

pay is “arbitrary and capricious” because it has paid back pay to other employees

who were similarly situated. 0353 CF, Tab 13 at 5-10; 0353 CPFR File, Tab 5

at 19-21. Here, the appellant reasserts that he is entitled to back pay pursuant to

FBI Policy Directive 0622D, which states that, in a situation like this one, in

which an employee was indefinitely suspended unrelated to a proposed removal,

the “[A]ssistant [D]irector of [the Human Resources Division] will review the

The Board may rely on nonprecedential decisions of the U.S. Court of Appeals for the

Federal Circuit when it finds their reasoning persuasive, as we do here. Covington v.

Department of the Interior, 2023 MSPB 5, ¶ 19 n.5.

circumstances to determine whether back pay may be appropriate for the period

of the indefinite suspense and make a decision on a case-by-case basis.”

0353 CF, Tab 1 at 27, 33; 0353 CPFR File, Tab 5 at 16-17. Similarly, FBI Policy

Directive 0975D provides that when an indefinite suspension is not related to a

proposed removal, an employee may submit a request for back pay to the

Assistant Director, Human Resources Division, “who will review requests on a

case-by-case basis.” 1110 CF, Tab 1 at 27. He argues that the agency’s policies

do not make back pay contingent on the restoration of an employee’s security

clearance and that the agency applies these policies “inconsistently.” 0353 CPFR

File, Tab 5 at 18, 20. The administrative judge considered and rejected this

argument, finding that, even if the agency applied its own directives for providing

back pay in an “arbitrary and capricious manner” by providing some employees

back pay and not others, this was nevertheless within the agency’s discretion.

0353 CID at 9. We find no reason to disturb the administrative judge’s

conclusion that the Board’s authority to order back pay is governed by the Back

Pay Act and 5 C.F.R. part 550, subpart H. Id. If the agency, within its discretion,

chooses to provide a benefit beyond that provided for in the Back Pay Act or

OPM’s implementing regulations, it is outside the Board’s reviewing authority. 5

Id.; cf. Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶¶ 15 - 20 (determining that

OPM could not expand the bases for determining an agency acted arbitrarily and

Because the Board lacks authority to award back pay under the agency’s discretionary

policies, we decline to address the appellant’s arguments concerning the administrative

judge’s alternative finding that the agency’s payment of other individuals under

allegedly comparable circumstances was due to agency error. 0353 CID at 9-10;

0353 CPFR File, Tab 5 at 19-22 & n.3, 24-26. Nor do we address the agency’s response

arguing that neither policy is applicable and that FBI Policy Directive 0975 superseded

FBI Policy Directive 0622. 0353 CPFR File, Tab 9 at 30-31. Further, a reply is limited

to the factual and legal issues raised by another party in the response to the petition for

review. Lin v. Department of the Air Force, 2023 MSPB 2, ¶ 8 n.4; 5 C.F.R.

§ 1201.114(a)(4). It may not raise new allegations of error. Lin, 2023 MSPB 2, ¶ 8 n.4;

5 C.F.R. § 1201.114(a)(4). Accordingly, we will not consider the appellant’s argument,

raised for the first time in his reply, that he is entitled to back pay under the

Rehabilitation Act in connection with his September 2010 indefinite suspension.

0353 CPFR File, Tab 10 at 10-12 & n.6.

capriciously in denying a request for restoration to duty following an on -the-job

injury to include greater obligations undertaken by the agency because Congress

did not authorize OPM to redelegate OPM’s rulemaking authority).

The appellant is not entitled to back pay in connection with his removal appeal.

¶16 As explained above, the agency removed the appellant effective

September 10, 2014. It is undisputed that the appellant’s security clearance was

suspended on February 12, 2014, and thereafter revoked on January 16, 2018.

1110 CID at 8. In the compliance initial decision, the administrative judge found

that, under 5 C.F.R § 550.805(c)(2), the appellant was not entitled to any back

pay in connection with his removal because he did not have an active security

clearance during any part of the back pay period. Id. at 7-10.

¶17 On review, the appellant argues that 5 C.F.R § 550.805(c)(2) does not apply

because his security clearance suspension and revocation were related to his

removal. 1110 CPFR File, Tab 4 at 28-33. For the reasons discussed above, in

connection with back pay for the indefinite suspensions, we disagree with this

argument. Supra ¶ 14.

¶18 The appellant also argues that the agency cannot rely on the January 2018

security clearance revocation to deny back pay related to his removal.

1110 CPFR File, Tab 4 at 46-54; 1110 CF, Tabs 4, 11. Specifically, he argues

that the agency failed to comply with Executive Order 12968, 60 Fed. Reg. 40245

(Aug. 2, 1995), and its own regulations and policy when it failed to give him a

comprehensive explanation of the basis for the security clearance revocation and

provide documents, records, and reports upon which the revocation was based.

Therefore, he asserts, the Board should conclude that the period of the revoked

clearance is not a period of “unavailability” under 5 C.F.R. § 550.805(c)(2).

1110 CPFR File, Tab 4 at 46-54.

¶19 We have considered the appellant’s argument, but we agree with the

administrative judge that the Board lacks authority to review the agency’s

security clearance revocation in the context of this petition for enforcement

because the removal was not based on the revocation of the appellant’s security

clearance. 1110 CID at 8-9. Similarly, to the extent that the appellant alleges for

the first time on review that the agency is required to reinvestigate his security

clearance every 5 years, the Board also lacks authority to consider that claim

unless the agency has imposed an adverse action based on the security clearance

revocation. 1110 CPFR File, Tab 4 at 54-57; see Schnedar v. Department of the

Air Force, 120 M.S.P.R. 516, ¶ 8 (2014) (finding that the Board may review

whether the agency complied with its own procedures in imposing an adverse

action based on a security clearance determination). For the reasons discussed

above, we agree with the administrative judge that the appellant is not entitled to

back pay related to his September 20, 2014 removal because he was unavailable

to perform the duties of his position due to his lack of a valid security clearance

during the relevant backpay period, i.e., from September 20, 2014, to the present.

1110 CID at 7-8. 6

Any failure by the agency to comply with the interim relief order is now moot.

¶20 On review, the appellant reargues that he was entitled to interim relief

related to his removal for the period beginning September 22, 2017, the date of

the initial decision reversing his removal, through October 23, 2022, the date of

the Board’s final decision affirming that initial decision and ordering his

reinstatement. 1110 CF, Tab 1 at 5, Tab 11 at 7, 15; 1110 CPFR File, Tab 5

at 33-38. The administrative judge did not consider this claim below. The

agency argues that the issue of interim relief is no longer properly before the

Board because the appellant raised that issue in the petition for review of the

removal appeal and the Board declined to dismiss the agency’s petition for

review. 1110 CPFR File, Tab 8 at 43. We agree with the agency.

The appellant has a separate pending petition for review, Litton v. Department of

Justice, MSPB Docket No. DC-0752-23-0016-I-1, in which he claims that the agency

constructively suspended him by failing to return him to duty after his removal was

reversed. We do not decide here whether the appellant would be entitled to any remedy

should he prevail in that appeal.

¶21 There is no basis in a compliance proceeding for an administrative judge to

consider assertions that an agency failed to provide interim relief. Owens v.

Department of Transportation, 99 M.S.P.R. 377, ¶ 10 (2005); Boyd v. Department

of Veterans Affairs, 93 M.S.P.R. 386, 389 n.2 (2003) (finding that allegations an

agency failed to provide interim relief pertain to the merits of the case and are not

before the Board in that compliance proceeding); LaBatte, 58 M.S.P.R. at 592-93

(stating that the only remedy for an agency’s failure to comply with an interim

relief order is dismissal of the agency’s petition for review; interim relief is not at

issue in a compliance proceeding). Once an appellant has received a final Board

order on the merits in his favor, any question regarding the agency’s compliance

with the interim relief order is moot. Gannon v. U.S. Postal Service, 61 M.S.P.R.

41, 48 (1994).

¶22 Here, because the appellant has received a Final Order on the merits in his

favor, we find that the issue of the agency’s compliance with the interim relief

order is moot and subsumed in the Board’s Final Order. Specifically, in the

Board’s Final Order, it declined to dismiss the agency’s petition for review based

on the appellant’s claim that the agency failed to provide him with interim relief

and instead denied the petition for review and affirmed, with modifications, the

initial decision reversing the appellant’s removal. Litton, MSPB Docket No. DC-

0752-14-1110-I-2, Final Order, ¶ 9. The Board explained that “[i]f a dispute

arises concerning the pay to which the appellant is entitled under the Board’s

Final Order, the appellant may file, as indicated below, a petition for enforcement

concerning that matter with the regional office.” Id.; see 5 C.F.R. § 1201.116(g)

(providing that, if the initial decision granted the appellant interim relief and the

appellant prevails in the final Board order disposing of a petition for review, then

any interim relief enforcement motion filed will be treated as a motion for

enforcement of the final decision under 5 C.F.R. § 1201.183). The Board’s Final

Order provided that the agency is to “cancel the appellant’s removal and

retroactively restore him effective September 10, 2014.” Litton, MSPB Docket

No. DC-0752-14-1110-I-2, Final Order, ¶ 29. It further provided that the agency

“pay the appellant the correct amount of back pay, interest on back pay, and other

benefits under the Office of Personnel Management’s regulations, no later than

60 calendar days after the date of [the] decision.” Id., ¶ 30 Thus, because the

Board declined to dismiss the agency’s petition for review and instead denied it

on the merits in the appellant’s favor, the issue of the agency’s noncompliance

with the interim relief order is moot and the sole issue before us is whether the

agency is in compliance with the Board’s Final Order. Gannon, 61 M.S.P.R.

at 43.

¶23 For the reasons described herein, we affirm the administrative judge’s

conclusion that the appellant was not entitled to back pay related to his first two

indefinite suspensions, from September 14, 2010, through January 23, 2012, or

his September 10, 2014 removal, during any period in which his security

clearance was suspended. Regarding the period January 24 through 30, 2012,

when the appellant’s security clearance was active, the agency does not dispute

that the appellant is entitled to back pay for those dates. The agency’s fulfillment

of its back pay obligations for those dates will be addressed in a separate order,

under MSPB Docket No. DC-0752-14-0353-X-1.

ORDER

¶24 This order does not constitute a final order as to MSPB Docket

No. DC-0752-14-0353-C-1, and it is therefore not subject to judicial review under

5 U.S.C. § 7703(a)(1) regarding that matter. As stated above, some issues raised

in the appellant’s petition for enforcement are being addressed separately in a

compliance referral matter, under MSPB Docket No. DC-0752-14-0353-X-1.

Upon final disposition of the compliance referral, a final order shall be issued in

MSPB Docket Nos. DC-0752-14-0353-C-1 and DC-0752-14-0353-X-1, which

shall be subject to judicial review.

¶25 This is the final decision of the Merit Systems Protection Board regarding

the compliance proceedings in connection with the appellant’s 2014 removal

under MSPB Docket No. DC-0752-14-1110-C-1.

NOTICE OF APPEAL RIGHTS

IN MSPB DOCKET NO. DC-0752-14-1110-C-1 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. 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.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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

If you submit a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 8 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the