# Matthew C Litton v. Department of Justice

> Merit Systems Protection Board · September 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10594678

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** September 30, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
v.

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THIS ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
2
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.
3

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
4

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.
5

¶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.
6

¶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,

3
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.
7

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
8

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
4
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.
9

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
5
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.
10

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
11

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.

6
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.
12

¶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
13

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.
14

¶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).

7
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.
15

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
16

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
17

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
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

8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
18

Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10594678. Public record. Not legal advice.