# Roderick Elliott v. Department of Homeland Security

> Merit Systems Protection Board · April 1, 2026

URL: https://www.frixlaw.com/law-library/cases/11299201

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 1, 2026
- **Precedential status:** Unpublished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

RODERICK O. ELLIOTT, DOCKET NUMBER
Appellant, SF-114M-23-0364-Y-2

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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.

2
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.
3

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.
4

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.
5

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

3
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,
6

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.
7

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
8

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.
9

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
10

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.
11

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.
12

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
13

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
14

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).
15

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.

4
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.
16

(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
17

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:
18

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

5
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.
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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/11299201. Public record. Not legal advice.