Opinion

Roderick Elliott v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Apr 1, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 39.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RODERICK O. ELLIOTT, DOCKET NUMBER

Appellant, SF-114M-23-0364-Y-2

DEPARTMENT OF HOMELAND DATE: April 1, 2026

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Wilbert D. Sonnier and Edward Blum , Los Angeles, California,

for the appellant.

Eileen Dizon Calaguas , San Francisco, California, for the agency.

George D. Johnson , Springfield, Virginia, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his indefinite suspension from the Federal service. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

The appellant is a Supervisory Transportation Security Officer for the

agency’s Transportation Security Administration (TSA). Elliott v. Department of

Homeland Security, MSPB Docket No. SF-114M-23-0364-Y-1, Initial Appeal

File (IAF), Tab 1 at 7; Elliott v. Department of Homeland Security, MSPB Docket

No. SF-114M-23-0364-Y-2, Appeal File (Y-2 AF), Tab 6, Initial Decision (ID)

at 2. On February 28, 2023, he was arrested and charged with violent felonies.

IAF, Tab 5 at 31.

On March 23, 2023, several additional things happened that are particularly

relevant to the instant appeal. First, the agency’s Personnel Security Chief issued

a notice to the appellant, suspending his national security eligibility, i.e., his

access to classified information and eligibility to hold a sensitive position. 2 ID

at 2; IAF, Tab 5 at 31-32. The notice cited the appellant’s arrest for felony

criminal charges as the basis for the action. ID at 2; IAF, Tab 5 at 31-32.

Although the appellant has disagreed, the agency indicated that the appellant’s

position is a Critical Sensitive position requiring a Secret level security clearance. ID

at 2; IAF, Tab 5 at 47.

Second, the Personnel Security Chief notified the Federal Security Director of the

suspended national security eligibility in a letter that did not include any

information about the appellant’s arrest and criminal charges. ID at 3-4; IAF,

Tab 5 at 30. Third, the Deputy Assistant Federal Security Director proposed the

appellant’s indefinite suspension, citing the suspension of the appellant’s national

security eligibility. ID at 4; IAF, Tab 5 at 26-29. The proposal to indefinitely

suspend the appellant from service did not describe the reason behind the

appellant’s suspended national security eligibility but did note that the

aforementioned letter from the Personnel Security Chief to the appellant included

the reason. The proposal to indefinitely suspend the appellant from service also

listed one of the aforementioned notices from the Personnel Security Chief as

among the materials relied upon. ID at 4-5; IAF, Tab 5 at 26. Fourth, the Federal

Security Director placed the appellant on administrative leave, citing only the

proposed indefinite suspension as the underlying reason for the status change. ID

at 3; IAF, Tab 5 at 33.

Despite having the opportunity to do so, the appellant did not respond to

his proposed indefinite suspension. ID at 5. On April 7, 2023, the deciding

official sustained the action. Id.; IAF, Tab 5 at 20-25.

The appellant filed the instant appeal to challenge his indefinite

suspension. IAF, Tab 1. He presented affirmative defenses of a due process

violation and harmful procedural error. ID at 6. The administrative judge

developed the record and held the requested hearing before sustaining the

agency’s action.

The administrative judge first explained the agency’s burden in a case such

as this, involving an indefinite suspension from service based on a suspension of

national security eligibility and access to classified information. ID at 7-10. The

administrative judge next explained the burdens regarding any alleged due

process violation or harmful procedural error. ID at 10-11.

Turning to his fact findings, the administrative judge concluded that the

appellant’s position required national security eligibility and access to classified

information, and the appellant’s arguments to the contrary were not persuasive.

ID at 11-12. He also found no merit to the appellant’s due process claim. ID

at 12-15. The administrative judge similarly found no merit to the harmful

procedural error claim. ID at 15-17. Lastly, he concluded that the agency proved

the requisite nexus and the reasonableness of its penalty. ID at 17-19.

The appellant has filed a petition for review. Elliott v. Department of

Homeland Security, MSPB Docket No. SF-114M-23-0364-Y-2, Petition for

Review (PFR) File, Tab 3. The agency has filed a response, and the appellant has

replied. PFR File, Tabs 5-6.

DISCUSSION OF ARGUMENTS ON REVIEW

In his petition, the appellant presents several arguments that we will

address in turn. PFR File, Tab 3 at 5-6. He argues that (1) the agency denied him

due process by denying him a meaningful opportunity to be heard and invoke the

discretion of the deciding official, id. at 6-15; (2) the agency denied him due

process because the deciding official engaged in ex parte communications with

the Federal Security Director, id. at 15-20; (3) the agency denied him due process

because the deciding official considered evidence not provided to the appellant,

id. at 20-26; (4) the administrative judge erroneously applied 5 U.S.C. § 7313, id.

at 26-27; (5) the administrative judge violated his right to a fair and impartial

hearing, id. at 27-32; and (6) the agency did not prove that his position required

national security eligibility or access to classified information, id. at 33.

The appellant has not shown that he was denied a meaningful opportunity to be

heard and invoke the discretion of the deciding official.

Due process requires, at a minimum, that an employee being deprived of

his property interest in continued employment be given “the opportunity to be

heard ‘at a meaningful time and in a meaningful manner.’” See Mathews v.

Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545,

552, (1965)). As the U.S. Supreme Court explained in Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 542-46 (1985), the opportunity to respond

to a proposed adverse action is important for two reasons. First, an adverse

action will often involve factual disputes and consideration of the employee’s

response may clarify such disputes. Id. at 543; see Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). Second, “[e]ven

where the facts are clear, the appropriateness or necessity of the [penalty] may

not be,” and in such cases the employee must receive a “meaningful opportunity

to invoke the discretion of the decision maker.” Loudermill, 470 U.S. at 543; see

Stone, 179 F.3d at 1376. Thus, “the employee’s response is essential not only to

the issue of whether the allegations are true, but also with regard to whether the

level of penalty to be imposed is appropriate.” Stone, 179 F.3d at 1376; see

Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶¶ 2, 22 (2014)

(finding that the considerations described in Loudermill were present in

determining whether an agency provided due process to an employee who was

indefinitely suspended based on the suspension of his security clearance).

To recall, the agency offered the appellant an opportunity to respond to his

proposed indefinite suspension, but he chose not to do so. In any event, he now

argues that he lacked a meaningful opportunity to be heard because the deciding

official indicated that he had no choice but to impose the indefinite suspension.

PFR File, Tab 3 at 12-15. We are not persuaded.

During the hearing, the deciding official provided some inconsistent

testimony on this point. On the one hand, he indicated that agency policy

required that an employee be placed on indefinite suspension if their national

security eligibility is suspended. 3 Y-2 AF, Tab 7 at 21-22. On the other hand, he

The appellant has, himself, acknowledged agency policy affords discretion on the

matter. PFR File, Tab 3 at 12; IAF, Tab 5 at 78. That policy, including the language

indicating that there is discretion regarding whether to impose an indefinite suspension,

is also explicitly recognized in the proposal to indefinitely suspend the appellant. IAF,

alluded to the indefinite suspension being a choice he made as the deciding

official, rather than something required of him. He noted that it would be

“completely irresponsible of [him] to continue to pay” the appellant by leaving

him in an administrative leave status. Id. at 20. When asked, the deciding

official also stated that he made the decision to sustain the indefinite suspension

and was not told how to rule on the matter. Id. at 22. The deciding official later

stated again that agency policy required an indefinite suspension under the

circumstances. Id. at 60. But he simultaneously testified that he believed he had

the authority to not impose the indefinite suspension. Id. at 59-60. The deciding

official further explained that he considered leaving the appellant on

administrative leave pending completion of his national security eligibility

suspension but chose not to do so under the circumstances. Id. at 61-62. The

decision letter, itself, similarly states that the deciding official considered leaving

the appellant in an administrative leave status but chose not to, reasoning that

doing so would not promote the efficiency of the service. IAF, Tab 5 at 21.

We acknowledge that the deciding official’s testimony was not a model of

clarity. However, considering that testimony in full, along with the proposal and

decision letters, we do not find that the appellant lacked a meaningful opportunity

to invoke the discretion of the deciding official.

The appellant has not shown that the deciding official violated his right to due

process by engaging in ex parte communication with another official.

The appellant’s next arguments also implicate his right to due process. He

argues that the agency violated his rights because the deciding official engaged in

ex parte communications with the Federal Security Director. PFR File, Tab 3

at 15-20. We find that he has not proven this claim.

Pursuant to the U.S. Court of Appeals for the Federal Circuit’s decisions in

Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone,

179 F.3d at 1376-77, a deciding official violates an employee’s due process rights

Tab 5 at 27.

when he relies upon new and material ex parte information as a basis for his

decisions on the merits of a proposed charge or the penalty to be imposed.

Mathis v. Department of State, 122 M.S.P.R. 507, ¶ 6 (2015). The Board has held

that an employee’s due process right to notice extends to both ex parte

information provided to a deciding official and information known personally to

the deciding official, if the information was considered in reaching the decision

and not previously disclosed to the appellant. Id. Ward, Stone, and their progeny

recognize, however, that not all ex parte communications rise to the level of due

process violations; rather, only ex parte communications that introduce new and

material information to the deciding official are constitutionally infirm. Id.

In Stone, the Federal Circuit identified the following factors to be used to

determine if ex parte information is new and material: (1) whether the ex parte

information introduced cumulative, as opposed to new, information; (2) whether

the employee knew of the information and had an opportunity to respond; and

(3) whether the communication was of the type likely to result in undue pressure

on the deciding official to rule in a particular manner. Stone, 179 F.3d at 1377.

Ultimately, we must determine whether the ex parte communication is so

substantial and so likely to cause prejudice that no employee can fairly be

required to be subjected to a deprivation of property under such circumstances.

Id.

The appellant repeatedly points us to language from the letter sustaining his

indefinite suspension which states, “the basis for the suspension of your national

security eligibility were detailed in a letter to you from PerSec dated March the

23, 2023. The PerSec letter was sent to your TSA and/or personal email.” E.g.,

PFR File, Tab 3 at 15-17 (referencing, e.g., IAF, Tab 5 at 20). The appellant

argues that the deciding official “conceded,” during his hearing testimony, that he

used the aforementioned language in the decision letter because he had engaged

in ex parte communication with the Personnel Security Chief about the

underlying suspension of national security eligibility. But that quoted language is

provided, verbatim, in the proposal to indefinitely suspend the appellant. IAF,

Tab 5 at 26. So, while the appellant has suggested that the decision letter

language and associated testimony reflects something nefarious or improper, in

terms of communication between the deciding official and the Personnel Security

Chief, we find nothing of the sort.

The appellant’s broader point seems to be that the deciding official’s

testimony could be construed as indicating that he considered the March 23, 2023

notice from the Personnel Security Chief to the appellant, which did discuss the

appellant’s alleged crimes but was not attached to the proposed indefinite

suspension, rather than the similarly dated notice from the Personnel Security

Chief to the Federal Security Director, which did not discuss the appellant’s

alleged crimes but was attached to the proposed indefinite suspension. Id.

at 30-32. However, as the administrative judge explained, questions to and

answers from the deciding official during the hearing were at best confusing as to

which of the March 23, 2023 notices the deciding official considered. The

deciding official seemed to provide conflicting testimony on the point, which the

administrative judge described as possibly stemming from the appellant’s

counsel’s unclear questions and the deciding official not understanding which of

the various March 23, 2023 notices he was being asked about. ID at 12-13; see,

e.g., IAF, Tab 5 at 30-32; Y-2 AF, Tab 7 at 18-19, 26-28, 43-47. In any event,

the administrative judge found both notices were either attached to or referenced

in the proposed indefinite suspension and that the appellant had each in his

possession. ID at 12-13. He further found that the deciding official credibly

testified that he based his decision solely on the appellant’s loss of national

security eligibility. ID at 13.

Under these circumstances, we do not find that the appellant has proven

that the deciding official engaged in ex parte communication with the Federal

Security Director, much less the kind of ex parte communication that rises to the

level of a due process violation.

The appellant has not shown that the deciding official violated his right to due

process by considering evidence beyond that which was provided to the appellant.

The appellant’s next arguments, about impermissible consideration of

evidence not provided to the appellant, concerns the agency’s table of penalties,

PFR File, Tab 3 at 21-24, a typographical error the deciding official described

during his hearing testimony regarding whether the appellant’s position was

“Critical Sensitive,” id. at 24-26, and the March 23, 2023 notice informing the

appellant that his national security eligibility had been suspended, id. at 26. Once

again, we are not persuaded.

Regarding the table of penalties, the deciding official issued a brief letter to

the “LAX Human Resources Department,” which stated that he had decided to

uphold the appellant’s proposed indefinite suspension. IAF, Tab 13 at 37. The

letter states as follows: “Based on the relevant facts presented, I find that there

were no mitigating circumstances to consider for a lesser penalty. This decision

falls within the TSA Table of Offenses and Penalties.” Id. The deciding official

testified, however, that the letter’s reference to the table of penalties was

inadvertent and should not have been included in the letter because it was not

something that he considered. Y-2 AF, Tab 7 at 53-54.

On review, the appellant argues that the deciding official’s testimony on

this point was not credible and that the consideration of a table of penalties

without notifying the appellant of the same amounts to a due process violation.

PFR File, Tab 3 at 21-24. While the administrative judge did not explicitly rule

on the credibility of that portion of the deciding official’s testimony, he did

describe the deciding official as a credible witness in other regards. ID

at 12-13, 16. After carefully reviewing the record after, we discern no reason to

find the deciding official’s testimony about the table of penalties not credible.

The letter at issue appears to be little more than the deciding official

informing Human Resources that he considered the proposed indefinite

suspension, that the appellant did not respond to the proposal, and that he had

decided to sustain the action in part due to the absence of mitigating

circumstances to support a lesser penalty. IAF, Tab 13 at 37. It is both plausible

and probable, given the deciding official’s testimony, that the reference to the

table of penalties was inadvertent. Moreover, even if he had considered the table

of penalties, we have no reason to believe that the deciding official considered

the table as an aggravating factor. See Bryant v. Department of Veterans Affairs,

2024 MSPB 16, ¶¶ 12, 18-22 (recognizing that if an employee has not been given

notice of an aggravating factor supporting an enhanced penalty, a constitutional

due process violation may have occurred, and finding that to have occurred where

the agency relied on a table of penalties as an aggravating factor).

The appellant’s next allegation is similarly unavailing. The proposed

indefinite suspension charged the appellant with having his national security

eligibility suspended. IAF, Tab 5 at 26. To elaborate, the proposal stated that the

appellant’s position required that he obtain and maintain eligibility to access

classified information and hold a sensitive position. Id. The proposal further

referred to an attached Job Analysis Tool (JAT) as indicating that it designates

the appellant’s position as sensitive and requiring a security clearance. Id.

Finally, and most importantly to the appellant’s argument, it alluded to that JAT

as checking boxes for “Non-Critical Sensitive” and “Security Clearance

Required.” Id.

In fact, on the attached JAT boxes were checked for “Critical Sensitive,”

not “Non-Critical Sensitive.” Id. at 47. As the appellant acknowledges, the

deciding official testified that the proposal’s reference to “Non-Critical

Sensitive” was a typographical error, and he considered the position to be Critical

Sensitive. PFR File, Tab 3 at 25; Y-2 AF, Tab 7 at 42. However, the appellant

asserts that the deciding official’s failure to inform the appellant of his belief that

this was a typographical error amounted to new information for which he was

entitled notice and an opportunity to respond before the deciding official issued

his decision. PFR File, Tab 3 at 24-26. We disagree.

The proposal to indefinitely suspend the appellant from service

unambiguously described the action as based upon the suspension of the

appellant’s national security eligibility, which was required of his position. At

worst, the proposal and the attached materials contained inconsistent information

as to whether his position, which required national security eligibility, was a

“Non-Critical Sensitive” position or a “Critical Sensitive” position. Thus, the

appellant had the opportunity to present a response about that issue before the

deciding official issued his decision and simply chose not to do so. He was not

denied the opportunity to provide a response about the nature of his position.

The appellant’s final due process argument is related to one discussed

above. PFR File, Tab 3 at 26. He argues that the proposal to indefinitely suspend

him from the Federal service referenced the March 23, 2023 notice from the

Personnel Security Chief to the appellant, suspending his national security

eligibility, but the proposal did not include that letter as one of the materials that

the deciding official would rely upon even though he did rely on that letter. Id.;

see IAF, Tab 5 at 26 (proposal to indefinitely suspend the appellant from service)

31-32 (letter suspending his national security eligibility). Again, the

administrative judge found that there seemed to be confusion by the deciding

official during the hearing as it pertained to the March 23, 2023 notice from the

Personnel Security Chief to the appellant and the similarly dated notice from the

Personnel Security Chief to the Federal Security Director, largely due to the

confusing questions from the appellant’s counsel. ID at 12-13. In any event, the

administrative judge concluded that, even if the deciding official considered the

one to the appellant, which was not attached to the proposal, it was referenced in

the proposal and it was in the appellant’s possession. Id. The appellant has not

shown otherwise, and he has not proven any associated violation of his right to

due process.

The appellant’s remaining arguments are unavailing.

The appellant’s other arguments presented on review are also not

persuasive. This includes arguments that the administrative judge erroneously

applied 5 U.S.C. § 7313, PFR File, Tab 3 at 26-27, that the administrative judge

violated his right to a fair and impartial hearing, id. at 27-32, and that the agency

did not prove that his position required national security eligibility or access to

classified information, id. at 33.

Regarding the first of those arguments, the administrative judge recognized

in both a prehearing conference summary and the initial decision that the Board

has jurisdiction over this appeal pursuant to a memorandum of agreement with the

TSA. IAF, Tab 17 at 4; ID at 1; see Buelna, 121 M.S.P.R. 262, ¶ 13 (considering

an indefinite suspension based on the loss of access to classified information and

recognizing that the matter was governed by the TSA’s personnel management

system). He also explained the Board’s standards for adjudicating indefinite

suspensions, including those related to an individual’s access to classified

information. IAF, Tab 17 at 5-6; ID at 7-9. However, in doing so, the prehearing

conference summary referenced the procedural protections of 5 U.S.C. § 7313,

while the initial decision referenced the procedural protections of 5 U.S.C.

§ 7513. IAF, Tab 17 at 5; ID at 7, 9, 18. Section 7313 is a provision titled “Riots

and civil disorders.” 5 U.S.C. § 7313. It is apparent that the administrative judge

referenced that provision by accident when he intended to refer to section 7513.

Though not mentioned in the appellant’s petition for review, the administrative

judge acknowledged as much and corrected this typographical error in a

subsequent order. IAF, Tab 22 at 1.

On review, the appellant points out the mistaken reference to section 7313,

and he also argues that this appeal is governed by the agency’s policies, rather

than statute. PFR File, Tab 3 at 26-27. He has not, however, argued that the

agency’s policies or the mistaken reference to section 7313 dictate a different

conclusion than that which was reached by the administrative judge. In the

absence of such an argument, we discern no basis for reaching a different

conclusion ourselves.

Regarding the next argument, pertaining to a fair and impartial hearing, the

appellant asserts that the administrative judge erred by limiting his ability to

establish a harmful procedural error in two ways: denying the appellant’s request

to call the proposing official as a witness, id. at 27-30, and limiting the

appellant’s cross-examination of the deciding official, id. at 31-32.

The appellant requested the proposing official as a witness, generically

alluding to his testimony being relevant for purposes of establishing that the

agency did not follow established procedures. IAF, Tab 16 at 9-10. The

administrative judge denied the request, indicating that the proposal spoke for

itself and there was no substantive dispute about its contents or attachments.

IAF, Tab 17 at 3. Having been given the opportunity to renew his request, the

appellant did so, IAF, Tab 21 at 4-7, but the administrative judge once again

denied the proposing official as a witness for the same reasons, IAF, Tab 22

at 1-2. Notably, we found no instance of the appellant explaining what

procedural protections the proposing official might testify about, why the

appellant might suspect that the agency did not provide those procedural

protections, or why any such error might have been harmful. See generally

Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991)

(holding that an agency’s procedural error is harmful only where the record

shows that it was likely to have caused the agency to reach a conclusion different

from the one it would have reached in the absence or cure of the error). On

review, the appellant suggests that the proposing official’s testimony may have

been relevant for purposes of determining whether he considered alternative

sanctions. PFR File, Tab 3 at 29. However, this explanation is not timely, and it

does not persuade us that the administrative judge abused his wide discretion.

See Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985) (recognizing that

an administrative judge has wide discretion to exclude witnesses where it has not

been shown that their testimony would be relevant, material, and nonrepetitious).

The appellant’s argument about the administrative judge limiting his

cross-examination of the deciding official is unavailing for similar reasons.

Although the appellant has directed us to a few instances of the administrative

judge ruling in the agency’s favor regarding objections to certain questions, he

has not established that this amounted to an abuse of the administrative judge’s

wide discretion on such matters. Parker v. Department of Veterans Affairs,

122 M.S.P.R. 353, ¶ 21 (2015) (recognizing that the administrative judge’s wide

discretion includes the authority to exclude testimony that would be irrelevant,

immaterial, or unduly repetitious).

Regarding the last of the appellant’s arguments, that the agency did not

prove that his position required national security eligibility or access to classified

information, PFR File, Tab 3 at 33, we are similarly unmoved. The

administrative judge considered the matter below and found that the agency met

its burden—it proved that the appellant’s position required national security

eligibility and access to classified information. ID at 11-12. He reached this

conclusion based upon documentation about the appellant’s position and hearing

testimony, which the administrative judge found credible. Id.; see, e.g., IAF,

Tab 5 at 47. To the extent that the appellant presented contrary testimony, the

administrative judge found that testimony inherently improbable, inconsistent

with the relevant documentation, and not credible. ID at 12. On review, the

appellant renews this argument, summarily, without further explanation. Doing

so does not, however, warrant our disturbing the well-reasoned findings of the

administrative judge. Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002) (the Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so).

In sum, the matter before us is not especially complicated. The appellant’s

position required that he maintain national security eligibility, but that eligibility

was suspended. The agency proposed and then imposed an indefinite suspension

from service based upon the same. While the appellant has identified a few

instances of ambiguity, confusion, and typographical errors, he has not persuaded

us that the administrative judge erred in finding that the agency met its burden of

proof regarding the indefinite suspension, nor has he met his own burden of

proving any affirmative defense.

NOTICE OF APPEAL RIGHTS 4

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.

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.

(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

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. 5 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

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.