# Samuel Shuttleworth v. Department of Homeland Security

> Merit Systems Protection Board · March 31, 2025

URL: https://www.frixlaw.com/law-library/cases/10838043

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 31, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10838043

## How later opinions describe it (automated extraction)

- stating that eligibility for LEO retirement coverage must be strictly construed

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SAMUEL SHUTTLEWORTH, DOCKET NUMBER
Appellant, DC-0842-22-0412-I-1

v.

DEPARTMENT OF HOMELAND DATE: March 31, 2025
SECURITY,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Samuel Shuttleworth , Suffolk, Virginia, pro se.

Nicholas R. Hankey , Esquire, and Melissa Williams , Esquire,
Washington, D.C., for the agency.

BEFORE

Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*

*The Board members voted on this decision before March 28, 2025.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s decision denying his request for retroactive law
enforcement officer (LEO) retirement coverage under the Federal Employees’
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Retirement System (FERS) for his period of employment with the Federal
Protective Service (FPS). Generally, we grant petitions such as this one 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 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 expressly MODIFIED to
apply the two-part, two-factor analysis for LEO retirement coverage in
accordance with Klipp v. Department of Homeland Security, 34 F.4th 1326
(Fed. Cir. 2022), we AFFIRM the initial decision.

BACKGROUND
The appellant held various law enforcement positions within FPS from
August 31, 1997, through his retirement on September 30, 2018, at age 66. Initial
Appeal File (IAF), Tab 21 at 4-5. According to the appellant, he always believed
he was entitled to LEO retirement coverage and did not learn of his ineligibility
until he received his estimated retirement annuity shortly before his retirement.
IAF, Tab 1 at 3, Tab 7 at 53, 63. He obtained a final agency decision on the issue
on May 2, 2022, which denied his claim for LEO retirement coverage. IAF,
Tab 1 at 6. This appeal followed. IAF, Tab 1.
After a hearing, the administrative judge issued an initial decision
affirming the agency’s decision. IAF, Tab 31, Initial Decision (ID). She
3

considered the appellant’s position descriptions and his actual duties and
determined that the reason for the appellant’s positions was the protection of
Federal property rather than the investigation, apprehension, or detention of
criminal suspects. ID at 10-23. She concluded that the appellant did not qualify
for LEO retirement coverage. ID at 23.
The appellant has filed a petition for review, re-raising several of his
arguments below and arguing prejudicial error in the administrative judge’s
decision to continue the August 1, 2022 hearing to August 22, 2022. Petition for
Review (PFR) File, Tab 1 at 2-15. The agency has responded to the petition for
review, and the appellant has submitted an untimely reply. 2 PFR File, Tabs 4-7.

DISCUSSION OF ARGUMENTS ON REVIEW
The LEO system is a special retirement system established by Congress for
Federal employees in certain positions to retire at an unusually early age.
Watson v. Department of the Navy, 262 F.3d 1292, 1296 (Fed. Cir. 2001). Under
5 U.S.C. § 8412(d), an employee covered under FERS may retire at age 50 after
completing 20 years of LEO service, or at any age after completing 25 years of
LEO service. A qualifying employee also receives a larger annuity than ordinary
civil service employees but is subject to larger salary deductions during his
employment. Watson, 262 F.3d at 1296. Because of this additional cost to the
Federal Government, eligibility for LEO retirement coverage must be strictly

2
The appellant moved for an extension of time to file a reply to the agency’s response
66 days after he allegedly received the agency’s response in the mail. PFR File, Tab 5
at 2. His motion was thus untimely by 56 days. See 5 C.F.R. § 1201.114(e), (f). He
subsequently submitted a substantive reply and has argued good cause for his untimely
submissions: he assumed that the agency did not perfect its response after it was
rejected by the Board due to length limitations because he received only one submission
by the agency in the mail. PFR File, Tab 5 at 2, Tab 7 at 3. We credit the appellant’s
explanation; however, we do not find that he exercised due diligence or ordinary
prudence under the circumstances. Therefore, we find his motion and substantive reply
to be untimely without good cause shown. See Alonzo v. Department of the Air Force,
4 M.S.P.R. 180, 184 (1980); 5 C.F.R. § 1201.114(g). We have reviewed his reply
nonetheless, and it does not warrant a different outcome. PFR File, Tab 7 at 6-14.
4

construed. Id. at 1298. As with all applications for retirement benefits, an
applicant seeking LEO retirement coverage bears the burden of proving
entitlement by preponderant evidence. See 5 C.F.R. § 1201.56(b)(2).
For purposes of FERS retirement coverage, there are two types of LEO
positions—rigorous (“primary”) and secondary. See 5 C.F.R. § 842.803(a)-(b);
see also Klipp, 34 F.4th at 1329. Primary law enforcement positions earning
credit are those in which an employee’s primary duties are “the investigation,
apprehension, or detention of individuals suspected or convicted of offenses
against the criminal laws of the United States, or [ ] the protection of officials of
the United States against threats to personal safety,” and the duties are
“sufficiently rigorous that employment opportunities should be limited to young
and physically vigorous individuals.” Id.; 5 U.S.C. § 8401(17)(A)(i)-(ii); see also
5 C.F.R. § 842.802. 3 Employees whose primary duties involve “maintaining
order, protecting life and property, guarding against or inspecting for violations
of law, or investigating persons other than those who are suspected or convicted
of offenses against the criminal laws of the United States” do not hold a primary
LEO position. See Watson, 262 F.3d at 1298; 5 C.F.R. § 842.802. Service in a
secondary LEO position is covered if the employee moves directly from a
rigorous position to a secondary position, the employee has completed 3 years of
service in a rigorous position, and the employee has been continuously employed
in a secondary position without a break in service exceeding 3 days. 5 U.S.C.
§ 8401(17)(C); 5 C.F.R. § 842.803(b). Consequently, if the employee never held
a rigorous, or primary, LEO position, he cannot meet the requirements for
secondary coverage either. 5 C.F.R. § 842.803(a)-(b).

3
“Primary duties” means those duties of a position that are paramount in influence or
weight; that is, constitute the basic reasons for the existence of the position; occupy a
substantial portion of the individual’s working time over a typical work cycle; and are
assigned on a regular and recurring basis . 5 C.F.R. § 842.802. In general, if an
employee spends an average of at least 50% of his time performing a duty or group of
duties, they are his primary duties. Id.
5

During the pendency of the petition for review, the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) issued a precedential decision that we
find to be instructive on the issues in this appeal. See Klipp, 34 F.4th at 1332-33.
The Federal Circuit explained that the Board must first examine the position
description (PD) to determine whether the position qualifies as a rigorous LEO
position, then, if the position fails to qualify, afford the appellant the opportunity
to show that the actual duties of his position are sufficient to establish LEO
status. Id. It emphasized that these findings must be independent. Id. at 1333.
Second, in assessing an appellant’s actual duties, the Federal Circuit explained
that “physical vigorousness” is the first and most important factor, and that the
“hazardousness” of the position need only be considered if the position is
sufficiently vigorous. Id. at 1332.
The Federal Circuit reiterated the subfactors it provided in Crowley v.
United States, 398 F.3d 1329, 1339 (Fed. Cir. 2005): “physical vigorousness” is
assessed by evaluating (in order of importance) whether the position has
(1) strenuous physical fitness requirements, (2) age requirements—such as a
mandatory retirement age or a maximum entry age, or (3) a requirement that the
appellant be on call 24 hours a day. See Klipp, 34 F.4th at 1332. Hazardousness
depends on—in order of importance—whether the position (1) requires frequent
and consistent contact with criminal suspects; or (2) authorizes the appellant to
carry a firearm. Id.
In this case, the administrative judge’s analysis was not fully consistent
with the Federal Circuit’s decision in Klipp. ID at 10-23. Nevertheless, because
the record is fully developed on the relevant issues, we will apply the analysis
outlined by the Federal Circuit. In making our findings, we have fully considered
the appellant’s arguments in his petition for review. PFR File, Tab 1 at 2-15.

The appellant’s position descriptions do not describe a rigorous LEO position.
The appellant held four different positions within FPS: (1) Police Officer,
from August 31, 1997, to June 6, 1998; (2) Supervisory Police Officer, from
6

June 7, 1998, to February 9, 2002; (3) Physical Security Specialist (Law
Enforcement Security Officer (LESO)), referred to as “Inspector,” from
February 10, 2002, to July 10, 2004, and approximately June 2015 to
September 30, 2018; and (4) Physical Security Specialist (LESO), referred to as
“Canine Handler,” from July 11, 2004 to approximately June 2015. IAF, Tab 21
at 4-5. We first examine whether, according to the position descriptions, the
primary duties of these positions were rigorous LEO duties. See Klipp, 34 F.4th
at 1333; see also 5 U.S.C. § 8401(17)(A)(i)-(ii); 5 C.F.R. § 842.802.
In the PD submitted by the appellant for his GS-8 Police Officer position,
PC5-B330, the first duty described is “law enforcement work in the protection of
life, property, and the rights of individual citizens . . . on Federal property.” IAF,
Tab 8 at 44-45. The PD, when read as a whole, reflects that the basic reason for
the existence of the position is to “patrol” an assigned area. IAF, Tab 8 at 45-47.
The Office of Personnel Management (OPM) regulation at 5 C.F.R. § 842.802
states that the definition of law enforcement officer does not include an employee
whose primary duties involve maintaining order, protecting life and property,
guarding against or inspecting for violations of law, or investigating persons
other than those who are suspected or convicted of offenses against the criminal
laws of the United States. Hence, this type of work is specifically designated by
the OPM regulation to be non-LEO work. Id. at 45-47.
The PD also indicates that the incumbent “initiates and conducts
investigations that extend more than one shift beyond the normal patrol shift on a
regular and recurring basis,” “is involved in the interrogation of suspects,” and
“identifies and arrests violators for crimes.” Id. at 45-46. We note that these
duties would constitute LEO duties if the offenses were against the “criminal laws
of the United States.” 4 See 5 C.F.R. § 842.802. However, beyond the statement

4
Crimes that a patrol officer might respond to, such as theft, vandalism, assault,
disorderly conduct, and threats against Federal employees, could be classified as
offenses against the criminal laws of the United States. See Lott v. General Services
Administration, 84 M.S.P.R. 324, ¶ 18 nn.11-15 (1999).
7

that investigations are conducted on a “regular and continuing basis,” the PD does
not contain any other indication that these LEO duties are “primary duties,” such
as a percentage of time spent on these duties. Id.; see 5 U.S.C.
§ 8401(17)(A)(i)-(ii); 5 C.F.R. § 842.802. Regarding rigorousness, the PD states
that the incumbent “must have the physical ability to safely operate motor
vehicles on public highways”; however, the first three pages of the PD—the only
portion supplied by the appellant and available for review—contain no other
mention of physical fitness requirements. 5 IAF, Tab 8 at 45-47. The available
pages also do not mention a maximum entry or retirement age. Id. Accordingly,
we find that the Police Officer position fails to qualify for LEO status based on
the available official documentation of the position.
The PD for the appellant’s GS-10 Supervisory Police Officer Position,
PD FM2490, lists approximately nine “major duties,” the majority of which
involve the assignment of work, review of work, and other managerial duties that
appear to be mostly sedentary. IAF, Tab 8 at 36-38. Although the last duty listed
under “major duties” states that the incumbent “may be assigned” other duties,
“including all police functions and responsibilities associated with the Police
Officer (FPO) position,” it is evident that the basic reason for the existence of the
position is to supervise such positions. Id. at 38. Moreover, as with the Police
Officer PD, it appears that the policing duties involve protecting life and property
and, therefore, are non-LEO duties. Id. at 37-38; see 5 C.F.R. § 842.802.
Furthermore, the PD states vaguely that the employee must meet “basic training
and in service training requirements and medical standards established” but does
not specify physical or age requirements. Id. at 40. We conclude that this PD
also does not describe a primary, rigorous LEO position.

5
The agency reports that this PD was submitted by the appellant to the agency as part
of his LEO retirement claim and that the agency was unable to locate the full PD, which
was over 20 years old. IAF, Tab 7 at 14 n.2, 38, Tab 8 at 45-47. The parties stipulated
that this PD applies. IAF, Tab 21 at 4.
8

Regarding the appellant’s “Inspector” position, the appellant held this
position at the GS-11 and GS-12 grade levels. 6 IAF, Tab 7 at 142-46, Tab 8
at 31-34, Tab 21 at 5. The PDs at both grade levels describe a variety of duties
related to the physical security of government-owned and -leased facilities
including conducting surveys, assessments, and inspections of worksites. IAF,
Tab 7 at 142-43, Tab 8 at 31-32. Based on a reading of the PDs as a whole, we
find that the basic reason for the position is “primary responsibility for the
physical security program” of the assigned building(s) and not the performance of
LEO duties. IAF, Tab 7 at 142, Tab 8 at 31; see 5 C.F.R. § 842.802.
The PDs state that the incumbent also performs duties as a police
officer/law enforcement official and lists a mix of LEO and non-LEO duties
under the description of “law enforcement work.” 7 IAF, Tab 7 at 143, Tab 8
at 32. The GS-12 PD further specifies that the law enforcement duties occur on a
“regular and occurring basis.” IAF, Tab 7 at 143. However, we do not find that
the LEO duties are primary based on this language alone. Regarding
rigorousness, the PDs state that the work “requires moderate to arduous physical
exertion in exercising police authorities such as that required to subdue, disarm
and arrest violent or potentially violent persons suspected of crimes. There may
also be exposure to occasional long periods of overtime, shift rotation and
participation in surveillance and undercover operations.” IAF, Tab 7 at 145,
Tab 8 at 34. However, the section titled, “Work Environment,” states that the
work is performed primarily in an office or classroom setting. IAF, Tab 7 at 146,

6
The appellant re-raises an argument on review that FPS intentionally misclassified him
in the Security Administration Series, GS-0080, for the purpose of denying him LEO
coverage. PFR File, Tab 1 at 5-6; IAF, Tab 7 at 61. As noted by the administrative
judge, the issue of the proper classification of a position is generally not within the
Board’s jurisdiction. ID at 9-10; see Pierce v. Merit Systems Protection Board,
242 F.3d 1373, 1375-76 (Fed. Cir. 2001). Thus, we will not consider this issue.
7
For example, “the protection of life, property and the rights of individual citizens” is
not an LEO duty; however, arresting offenders could be an LEO duty. IAF, Tab 7
at 143, Tab 8 at 32; see Watson, 262 F.3d at 1298; 5 C.F.R. § 842.802.
9

Tab 8 at 34. Thus, we conclude that, although these PDs reflect that the position
involves some LEO duties that are physically demanding, they do not reflect that
they are the “primary duties” of the position.
Lastly, the PD for the appellant’s Canine Handler position states that, “in
conjunction with law enforcement and security duties, incumbent of this position
also spends a significant portion of time (50%) working as a member of an
Explosive Detection Dog (EDD) team (handler and canine), searching for
explosive devices.” IAF, Tab 7 at 135. Thus, the PD clearly describes at least
50% non-LEO duties because searching for explosive devices is not an LEO duty.
Id.; see Koenig v. Department of the Navy, 91 M.S.P.R. 1, ¶ 14 (2001), aff’d,
315 F.3d 1378 (Fed. Cir. 2003). As with the Inspector PD, the “law enforcement
work” described is a mix of LEO and non-LEO duties, and the same physical
demands as the Inspector PD are listed. 8 IAF, Tab 7 at 136-38. However, as with
the Inspector PD, most of the PD is devoted to a description of security duties,
and the PD also states that the work is “performed primarily in an office or
classroom setting.” Id. at 136-39. We conclude that any rigorous LEO duties
performed make up only a portion (less than 50%) of the duties according to the
PD and thus are not “primary duties.” See 5 C.F.R. § 842.802.
Accordingly, based on the position description evidence alone, we do not
find that any of the four positions held by the appellant during his tenure qualify
for LEO coverage.

The appellant has not established entitlement to LEO coverage based on the
actual duties of his positions.
Consistent with our instruction by the Federal Circuit in Klipp, we turn
next to whether the appellant is entitled to LEO retirement coverage based solely
on the actual duties of these positions. See Klipp, 34 F.4th at 1333. Much of the

8
The Canine Handler PD further requires the ability to lift the weight of the canine,
typically 60 pounds, and carry the canine for approximately 25 feet. IAF, Tab 7 at 138.
Because this physical requirement is related to a non-LEO duty, i.e., explosives
detection, it is not evidence of a rigorous LEO duty.
10

initial decision as well as the testimony at the hearing was devoted to an analysis
of the appellant’s actual duties. ID at 10-23; IAF, Tab 25, August 1, 2022
Hearing Recording (HR-1); IAF, Tab 27, August 22, 2022 Hearing Recording
(HR-2). We find no error in the administrative judge’s factual findings regarding
the appellant’s actual duties. ID at 10-23. Nevertheless, according to the Federal
Circuit in Klipp, the questions of vigorousness and hazardousness should be
separately discussed. Klipp, 34 F.4th at 1333. The factors relevant to
vigorousness are—in order of importance—whether the position has (1) strenuous
physical fitness requirements, (2) age requirements—such as a mandatory
retirement age or a maximum entry age, and (3) a requirement that an employee
be on call 24-hours a day. Id. at 1332.
The appellant does not dispute the administrative judge’s factual findings
that there were no continued physical fitness requirements in any of his positions.
PFR File, Tab 1 at 7; ID at 10, 19. He argues, however, that this factor should be
irrelevant to the analysis of LEO coverage because officers at other law
enforcement agencies within DHS also do not have recurrent physical fitness
testing but receive LEO coverage. PFR File, Tab 1 at 7-8. Even if the factual
basis for the appellant’s argument is true, his argument is unavailing. Congress,
at 5 U.S.C. § 8401(17)(A)(ii), has restricted LEO retirement coverage to
“rigorous” positions, and we are bound by our reviewing court’s instruction to
consider strenuous physical fitness requirements as a factor. See Klipp, 34 F.4th
at 1332; Crowley, 398 F.3d at 1339; see also Watson, 262 F.3d at 1298 (stating
that eligibility for LEO retirement coverage must be strictly construed). In other
words, the appellant’s argument that other officers are improperly afforded LEO
coverage does not aid him in establishing his own entitlement under the law. We
find that he has not established this first—and most important—factor relevant to
physical vigorousness. Klipp, 34 F.4th at 1333.
Turning to the second factor relevant to physical vigorousness, i.e., age
requirements, the appellant did not present any evidence before the administrative
11

judge that there was a maximum age for entry or early mandatory retirement age
for any of his positions. In fact, he expressly denied on cross-examination that
there were such requirements. HR-1. For the first time on review, he argues that
he would have been exempt from a maximum entry age requirement because of
his veteran’s preference, PFR File, Tab 1 at 8-9, and he presents new evidence in
the form of DHS policies regarding maximum entry age requirements for certain
DHS positions including Customs and Border Protection Officers, Firefighters,
and Law Enforcement Officer positions, id. at 16-19. 9 We decline to consider
this new argument and evidence presented for the first time on review because the
appellant has not shown that it was unavailable before the record below. See
Chin v. Department of Defense, 2022 MSPB 34, ¶ 8; Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 34 n.10.
Regarding the third—and least important—factor related to the
vigorousness of the actual duties of a position, the appellant reasserts on review
that he was required to be on call 24 hours a day during at least a portion of his
career. 10 PFR File, Tab 1 at 10-11; IAF, Tab 19 at 8; see Klipp, 34 F.4th at 1332.
More specifically, he argues that the “Home-to-Work” program, which allowed
him to take home his police vehicle, required that he document his “call-outs” in
a monthly report. PFR File, Tab 1 at 11; IAF Tab 19 at 8. He asserts that he
documented approximately 30 callouts between late 2014 and early 2018, when
he held the position of Canine Handler. PFR File, Tab 1 at 11; IAF Tab 19 at 8.
In finding no on-call requirement, the administrative judge appeared to credit the
testimonies of the Regional Director for FPS Region 3 and the FPS Branch Chief
for Canine Operations. ID at 12, 19. We find the testimony of these witnesses

9
The agency contends that these policies did not apply to the positions held by the
appellant. PFR File, Tab 4 at 26-27.
10
The administrative judge stated that it was undisputed that there were no on-call work
requirements, ID at 21, which is not entirely consistent with the appellant’s pleadings or
arguments furthered on cross-examination, IAF, Tab 19 at 8; HR-2 (cross-examination
of the FPS Branch Chief for Canine Operations).
12

that the Home-to-Work vehicle program was voluntary, and that participants were
not restricted to particular locations or subject to disciplinary action for failure to
respond to calls from a dispatcher, to be persuasive evidence that the appellant
was not required by the obligations of his position to be on call 24 hours a day.
HR-2 (testimony of the Regional Director for FPS Region 3; testimony of the FPS
Branch Chief for Canine Operations).
The appellant attempts to impeach the testimony of these witnesses by
submitting, for the first time on review, documentation of the Home-to-Work
Transportation Program directive. PFR File, Tab 1 at 14, 20-28. This directive
states, in pertinent part, that the GS-0080, Certified Federal Law Enforcement
Security Officers / Inspectors “are required to provide a 24 hour response.” Id.
at 25. Again, the Board generally will not consider evidence submitted for the
first time with a petition for review absent a showing that it was unavailable
before the close of the record below despite the party’s due diligence, and we find
no such showing here. See Chin v. Department of Defense, 2022 MSPB 34, ¶ 8.
In addition, the Board will not grant a petition for review absent a showing that it
is of sufficient weight to warrant an outcome different from that of the initial
decision. See Spivey v. Department of Justice, 2022 MSPB 24, ¶ 15. Here, even
if the appellant proved a 24-hour on-call requirement, satisfaction of only the
24-hour on-call requirement will not satisfy the physical vigorousness factor. See
Crowley, 398 F.3d at 1339 n.8. This new evidence, therefore, does not warrant an
outcome different from that of the initial decision.
After considering the three subfactors, we conclude that the actual duties of
the appellant’s positions were not sufficiently vigorous to establish LEO status.
As hazardousness need only be addressed if the position is sufficiently vigorous,
we have not considered whether the appellant’s actual duties required frequent
and consistent contact with criminal suspects, as he argues on review, in our
decision in this case. PFR File, Tab 1 at 10-14; see Klipp, 34 F.4th at 1333
(citing Crowley, 398 F.3d at 1339).
13

Finally, the appellant alleges that the administrative judge improperly
continued the August 1, 2022 hearing to August 22, 2022, prejudicing him by
allowing the agency additional time to prepare. PFR File, Tab 1 at 3-4; IAF,
Tabs 22-23; HR-1; HR-2. The prehearing conference order reflects that the
hearing was scheduled to begin on August 1, 2022, and would continue on
August 22, 2022, and that the appellant, bearing the burden of proof in this case,
would present his case-in-chief first. IAF, Tab 21 at 8-9. The appellant did not
object to the hearing schedule at that time. The record further reflects that the
administrative judge permitted the appellant to use the full day on August 1, 2022
to present his case-in-chief, which necessitated the scheduled continuance for the
agency’s presentation of its witness. IAF, Tab 25, Tab 26 at 2-3. Administrative
judges have broad authority to govern the proceedings before them. 5 C.F.R.
§ 1201.41(b); see Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 12
(2015). Under the circumstances, we find that the appellant has not shown that
the administrative judge abused her discretion regarding the scheduling set forth
in the prehearing conference order.
The initial decision is affirmed as modified, consistent with the Federal
Circuit’s analysis in Klipp, 34 F.4th at 1332-33.

NOTICE OF APPEAL RIGHTS 11
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 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

11
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.
14

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).
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
15

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
16

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. 12 The court of appeals must receive your

12
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.
17

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
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/10838043. Public record. Not legal advice.