Opinion

Wade Cox v. Department of the Navy

Court: Merit Systems Protection Board
Filed: May 12, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.6%

explaining that the Board is required to review whether the agency has complied with its own procedures regarding a security clearance determination when the determination forms the basis of an adverse action as part of the harmful procedural error analysis

How later courts described this case

explaining that the Board is required to review whether the agency has complied with its own procedures regarding a security clearance determination when the determination forms the basis of an adverse action as part of the harmful procedural error analysis

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WADE TREVOR COX, DOCKET NUMBER

Appellant, SF-0752-24-0058-I-1

DEPARTMENT OF THE NAVY, DATE: May 12, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeffrey Glenn Letts , Esquire, Ruther Glen, Virginia, for the appellant.

Kenneth J. Bacso , Esquire, and Mona C. Williams , Esquire,

Silverdale, Washington, for the agency.

David A. Thayer , Esquire, Bremerton, Washington, 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 based on a suspension of access to classified

information. Generally, we grant petitions such as this one only in the following

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 concerning the condition subsequent

that ended the appellant’s indefinite suspension, the procedural protections

required by 5 U.S.C. § 7513, and the appellant’s affirmative defenses of due

process violations and harmful procedural error, we AFFIRM the initial decision.

We DENY the appellant’s motion for leave to file an additional pleading.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant background information, as set forth in the initial decision, is

not in material dispute. The appellant was employed at the agency’s Trident Refit

Facility Bangor (TRFB) in Washington as a GS-13 Supervisory Logistic

Management Specialist, which was a noncritical sensitive position that required

access to classified information and a security clearance. Cox v. Department of

the Navy, MSPB Docket No. SF-0752-24-0058-I-1, Initial Appeal File (IAF),

Tab 19, Initial Decision (ID) at 3-4. On October 18, 2021, the Commanding

Officer (CO) of the base proposed the appellant’s suspension of access to

classified information following reports made to the TRFB Security Office on

October 15, 2021, about the appellant’s disruptive conduct. ID at 4. He was

escorted from the base and placed on administrative leave. ID at 4-6; see also

IAF, Tab 3 at 18. On December 13, 2021, the CO made a final determination to

suspend the appellant’s access to classified information and assignment to a

sensitive position. ID at 5. The suspension of access letter stated that the matter

would be forwarded to the Department of Defense Consolidated Adjudications

Facility (DOD CAF), later known as the Defense and Security Agency’s

Consolidated Adjudication Service (DCAS), which would make a final

determination of the appellant’s continued eligibility for a security clearance and

assignment to sensitive duties. Id. After referring the matter to DCAS, the CO

had no authority to reinstate the appellant’s access to classified information. ID

at 5-6. The appellant never received notice from this adjudicative entity about

anything related to his security clearance. ID at 6.

Meanwhile, the disruptive conduct that resulted in the appellant being

escorted from the base on October 18, 2021, also led to the agency’s proposal to

remove the appellant from Federal service in November 2021. ID at 6. The

appellant was removed from his position in January 2022, but was reinstated

following the Board’s Final Order dated August 23, 2023, reversing the agency’s

removal action. Id. Although the agency restored the appellant to its rolls, it

determined that it could not return the appellant to the base to perform his duties

because his suspension of access to classified information was still in effect. ID

at 7. For this reason, the agency proposed to indefinitely suspend the appellant,

on September 25, 2023. Id. The appellant responded in writing, and, on

October 24, 2023, the agency decided to suspend the appellant indefinitely from

duty and pay, effective November 1, 2023, because the appellant had no access to

classified information unless and until DCAS reinstated access. Id.

The current matter is the appellant’s timely appeal of that indefinite

suspension. IAF, Tab 1. The agency removed the appellant a second time, on

January 31, 2024, based on the appellant’s alleged conduct, which is the subject

of a separate Board appeal. Cox v. Department of the Navy, MSPB Docket No.

SF-0752-24-0325-I-1, Initial Appeal File (0325 IAF), Tab 3 at 14-17. Following

a hearing, the administrative judge issued an initial decision sustaining the

indefinite suspension. ID. The administrative judge found that the Board had

limited authority to review the agency’s action because it involved an underlying

security determination. ID at 2. She found that the agency proved that the

appellant’s position required access to classified information and that his access

to classified information was suspended, which was not in dispute, and that the

appellant was provided with the procedural protections specified in 5 U.S.C.

§ 7513. ID. She further found that the agency provided the appellant with

minimum due process in taking the indefinite suspension action and that the

appellant did not prove harmful procedural error. ID.

The appellant has filed a timely petition for review. Petition for Review

(PFR) File, Tab 1. The agency has filed a response opposing the petition,

PFR File, Tab 4, and the appellant has replied to the agency’s response, PFR File,

Tab 5. The appellant has also filed a motion for leave to file an additional

pleading. PFR File, Tab 7.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved that its indefinite suspension action was valid based on a

pending security clearance determination.

As an initial matter, the administrative judge properly found that the Board

has jurisdiction over this chapter 75 appeal of an indefinite suspension lasting

more than 14 days. ID at 2-3; 5 U.S.C. §§ 7513(d), 7512(2). She also found that

the agency’s decision to indefinitely suspend the appellant because he lacked

access to classified information, including access to the workplace, clearly

comported with the requirements for an indefinite suspension under the Office of

Personnel Management’s regulation at 5 C.F.R. § 752.402. ID at 10-11. The

regulation defines “indefinite suspension” as follows:

Indefinite suspension means the placing of an employee in a

temporary status without duties and pay pending investigation,

inquiry, or further agency action. The indefinite suspension

continues for an indeterminate period of time and ends with the

occurrence of the pending conditions set forth in the notice of action

which may include the completion of any subsequent administrative

action.

5 C.F.R. § 752.402.

On review, the appellant reraises his argument that this regulatory

definition is inconsistent with the statutory definition, which provides that an

indefinite suspension may only be taken “for disciplinary reasons . . . .” 5 U.S.C.

§§ 7501(2), 7511(a)(2); PFR File, Tab 19-21. His argument is incorrect. Our

reviewing court has examined the legislative history of the relevant provisions of

the Civil Service Reform Act of 1978 and noted Congress’s statement that it

intended to enact the definition of a “suspension” previously adopted by the Civil

Service Commission in its policy issuances. Thomas v. General Services

Administration, 756 F.2d 86, 88 (Fed. Cir. 1985). That definition included “an

action placing an employee in a temporary non-duty and non-pay status for

disciplinary reasons or for other reasons pending inquiry.” Id. (citing Martin v.

Department of the Treasury, 12 M.S.P.R. 12, 17 (1982) (emphasis in original)

(quoting the former Federal Personnel Manual Supp. 752-1, S1-6(a)), aff’d in

part, rev’d in part on other grounds sub nom. Brown v. Department of Justice ,

715 F.2d 662 (D.C. Cir. 1983), and aff’d sub nom. Otherson v. Department of

Justice, 728 F.2d 1513 (D.C. Cir. 1984); Martin modified on other grounds by

Barresi v. U.S. Postal Service, 65 M.S.P.R. 656, 663 n.5 (1994)). Furthermore, it

is well-settled that the pendency of a security clearance investigation following a

termination of access to classified information is a proper basis for an indefinite

suspension without pay. See King v. Alston, 75 F.3d 657, 659, 663 (Fed. Cir.

1996); Jones v. Department of the Navy, 978 F.2d 1223, 1226 (Fed. Cir. 1992);

Palafox v. Department of the Navy, 124 M.S.P.R. 54, ¶ 8 (2016); Rogers v.

Department of Defense, 122 M.S.P.R. 671, ¶ 5 (2015).

Next, the appellant reargues that the agency has not produced any evidence

that there was a pending investigation or inquiry by DCAS supporting its

indefinite suspension action. PFR File, Tab 1 at 14. 20-21. We recognize that, if

an action is to meet the statutory definition of “suspension,” the most essential

criterion is that it be “temporary.” Martin, 12 M.S.P.R. at 17; see also Rawls v.

U.S. Postal Service, 98 M.S.P.R. 98, ¶ 6 (2004). Accordingly, while the exact

duration of an indefinite suspension may not be ascertainable, such an action

must have a condition subsequent such as the completion of a trial or

investigation which will terminate the suspension. Martin, 12 M.S.P.R. at 17.

We find that the agency has met its burden of proving the criterion of

temporariness by preponderant evidence. 5 U.S.C. § 7701(c)(1)(B); see Farris v.

Department of the Air Force, 29 M.S.P.R. 518, 520 (1985). We affirm the

administrative judge’s finding that the agency properly referred the security

matter to DCAS following the CO’s suspension of the appellant’s access to

classified information in 2021. ID at 5 n.5, 13; see IAF, Tab 10 at 20, Tab 17-3

(testimony of the Personnel Security Team Lead). However, the initial decision

erroneously states that the suspension action ended when the appellant was

removed from Federal service, effective January 15, 2022. ID at 11. We vacate

this finding because the action currently at issue is the appellant’s indefinite

suspension, effective November 1, 2023. IAF, Tab 1 at 2. Nevertheless, the

agency subsequently removed the appellant for misconduct, on January 31, 2024,

which effectively ended the indefinite suspension. 0325 IAF, Tab 3 at 14-17; see

IAF, Tab 3 at 16. 2 To the extent that the appellant challenges the duration of the

security clearance investigation—over 2 years had passed since the agency’s

referral of the security matter to DCAS, in December 2021, until the end of his

indefinite suspension, in January 2024—our reviewing court has recognized that

agencies have “broad discretion” in determining how much time is required to

evaluate whether the revocation of a suspended clearance is appropriate. Ryan v.

Department of Homeland Security, 793 F.3d 1368, 1374 (Fed. Cir. 2015).

The agency’s notice to the appellant of his indefinite suspension stated that it would

remain in effect until the occurrence of any of the following terminating conditions: the

appellant voluntarily resigned; the appellant was removed from Federal service; or

DCAS issued a decision on his security clearance.

Furthermore, we note the Security Officer’s testimony that DCAS loses

jurisdiction and ceases an investigation upon an individual’s separation from

Federal service and does not resume its investigation until it is notified that an

individual is reinstated. IAF, Tab 17-2 (testimony of the Security Officer). 3 As

the appellant was separated from Federal service in January 2022 until he was

restored following the Board’s order in August 2023, DCAS would have been

without jurisdiction during the majority of this 2-year period. ID at 6. Thus, we

do not find any evidence that DCAS delayed its investigation. See Ryan,

793 F.3d at 1374 n.4 (observing that security clearance investigations “often take

up to a year”). In any event, as the current indefinite suspension action lasted for

only 2 months and 30 days, we find that it met the statutory criterion of

temporariness.

The administrative judge correctly determined that the framework in Palafox

applies.

In a case where an agency indefinitely suspends an appellant when his

access to classified information has been suspended, the Board retains the

authority to review whether: (1) the appellant’s position required access to

classified information; (2) the appellant’s access to classified information was

suspended; and (3) the appellant was provided with the procedural protections

specified in 5 U.S.C. § 7513. Palafox, 124 M.S.P.R. 54, ¶ 8. In addition, the

Board has the authority under 5 U.S.C. § 7701(c)(2)(A) to review whether the

agency provided the procedural protections required under its own regulations.

Id. Finally, because a tenured Federal employee has a property interest in

continued employment, the Board also may consider whether the agency provided

minimum due process in taking the indefinite suspension action. Id.

On review, the appellant reraises his argument that the Board, in Palafox,

124 M.S.P.R. 54, ¶ 8, improperly expanded precedent that an indefinite

The Security Officer’s testimony appears to be consistent with the Department of

Defense Manual 5200.02 9.3.c. (located in the record at IAF, Tab 11 at 21, 29).

suspension can be taken pending a security clearance investigation by sustaining

an indefinite suspension based merely on a local agency official’s decision to

deny access to classified information. PFR File, Tab 1 at 15; IAF, Tab 13 at 4-6.

Re-examining the precedent on which Palafox was based, we find that the Board

correctly stated that an agency’s authority to indefinitely suspend an appellant in

such circumstances is well-settled. Palafox, 124 M.S.P.R. 54, ¶ 8 (citing Rogers,

122 M.S.P.R. 671, ¶ 5 (relying on Jones v. Department of the Navy, 48 M.S.P.R.

680, aff'd as modified on recons., 51 M.S.P.R. 607 (1991), aff’d, 978 F.2d 1223));

see also Alston, 75 F.3d 657. 4 We further find that the Board correctly explained

its authority on review of such cases. Palafox, 124 M.S.P.R. 54, ¶ 8.

Here, the administrative judge correctly found that agency proved the first

two elements of its action, i.e. that the appellant’s position required access to

classified information, and that the appellant’s access to classified information

was suspended. ID at 8; see Palafox, 124 M.S.P.R. 54, ¶ 8. The appellant does

not appear to dispute these findings. He argues, however, that the agency’s

“charge” was fatally flawed: he avers that the notices for his indefinite

suspension indicate that both his access to classified information and assignment

to a sensitive position had been suspended, whereas DCAS did not make a

determination revoking his security clearance. IAF, Tab 10 at 16; PFR File,

Tab 1 at 11, 21. We are unpersuaded. We find that the proposal notice

accurately reflects the facts of his case. IAF, Tab 3 at 21-22. To the extent that

the decision notice suggests that his security clearance had been suspended by

DCAS, the deciding official testified that this was an error and that he did not

believe that the appellant’s security clearance had been suspended when he

sustained the indefinite suspension. IAF, Tab 3 at 15-16, Tab 17-1 (testimony of

The appellant recognized that the indefinite suspension at issue in Alston, 75 F.3d

at 658-59, “involved exactly the same situation the appellant faced in this case.”

PFR File, Tab 1 at 6. Yet the U.S. Court of Appeals for the Federal Circuit, in that

case, upheld the indefinite suspension. Alston, 75 F.3d at 663.

the deciding official). Accordingly, we find no error concerning the agency’s

reason for its indefinite suspension action.

We modify the administrative judge’s finding concerning the procedural

protections required by 5 U.S.C. § 7513.

Concerning the third element, where an agency indefinitely suspends an

employee under chapter 75 based on the suspension of access to classified

information, 5 U.S.C. § 7513(b) requires that the appellant be provided sufficient

information to make an informed reply before being placed on enforced leave,

including a statement of the reasons for the suspension of access. See Gargiulo v.

Department of Homeland Security, 727 F.3d 1181, 1186 (Fed. Cir. 2013); Alston,

75 F.3d at 661-62; Buelna v. Department of Homeland Security, 121 M.S.P.R.

262, ¶ 34 (2014). We vacate the administrative judge’s finding that the

procedural protections required by section 7513 do not include notice of the

reasons for the underlying suspension of access, and her alternative finding that,

even if they did, the CO’s notice of proposed suspension of access to classified

information was sufficient. ID at 9-10 & n.9.

The notice of proposed suspension of access to classified information,

dated October 18, 2021, stated that, “[o]n 15 October 2021, the Security Office

received several notifications regarding a pattern of abusive and disruptive

behavior over the last several years, dating back to August 2014.” IAF, Tab 3

at 28. It stated that the Security Office received documentation regarding

“outbursts at work to include inappropriate language, and notification of

unprofessional and combative phone calls.” Id. The notice provided details

regarding only one incident from over 6 years earlier—in May 2015. Id. We

agree with the appellant that this notice lacked the minimal information regarding

his allegedly inappropriate outbursts necessary to allow him to meaningfully

respond to the agency’s allegations, such as the what, where, and when of his

alleged inappropriate outbursts. IAF, Tab 3 at 28; PFR File, Tab 1 at 7-9; cf.

Cheney v. Department of Justice, 479 F.3d 1343, 1352-53 (Fed. Cir. 2007).

Nevertheless, the appellant was subsequently provided detailed notice of

his alleged outburst on October 14, 2021, along with several instances of past,

similar workplace misconduct, during the agency’s 2022 removal action and the

appellant’s subsequent Board appeal. See Cox v. Department of the Navy,

MSPB Docket No. SF-0752-22-0180-I-1, Initial Appeal File, Tab 6 at 29-31,

Tab 10 at 6, Tab 12 at 16. Thus, we find that the appellant was aware of the basis

for his security clearance suspension by the time of the agency’s proposed

indefinite suspension, on September 25, 2023. We modify the initial decision to

find that the appellant received sufficient notice under section 7513(b) for this

reason. Cf. Buelna, 121 M.S.P.R. 262, ¶ 34 (finding that the notice suspending

the appellant’s security clearance, coupled with the notice proposing his

indefinite suspension, informed the appellant of the basis for the suspension of

his security clearance and was sufficient to allow for an informed response to the

notice of proposed suspension).

We affirm as modified the administrative judge’s findings that the appellant did

not prove his affirmative defenses.

Due process

The administrative judge found that, for purposes of due process, it was

sufficient for the agency to inform the appellant that his position required access

to classified information, and that he could no longer perform his duties without

the required access. ID at 10. We clarify that, while such notice is sufficient for

purposes of responding to the agency’s charge, an appellant is also entitled to due

process concerning the penalty. See Buelna, 121 M.S.P.R. 262, ¶¶ 25, 31.

Therefore, to the extent that the deciding official’s penalty determination was

influenced by the factual basis for the underlying security clearance

determination, the appellant was entitled to notice of the information on which he

relied. Id., ¶ 31; see also Putnam v. Department of Homeland Security,

121 M.S.P.R. 532, ¶¶ 9-10, 14-16 (2014). We need not examine this issue further

because the appellant has not alleged a due process violation or harmful

procedural error on this basis. 5 See IAF, Tab 10 at 14-15; PFR File, Tab 1

at 9-11.

Rather, the appellant argues that he was denied due process in the agency’s

suspension action because the deciding official did not have the authority to

change the outcome of the adverse action. IAF, Tab 10 at 14-15; PFR File, Tab 1

at 9. We supplement the initial decision to further address this argument. While

the appellant contends that due process required an opportunity to respond to the

only entity that could restore his access to classified information, i.e., DCAS, he

mistakenly relies on an earlier approach by the Board that has since been

clarified. IAF, Tab 10 at 14-15; PFR File, Tab 1 at 10-11 (citing McGriff v.

Department of the Navy, 118 M.S.P.R. 89, ¶¶ 33-35 (2012)). Implementing the

U.S. Court of Appeals for the Federal Circuit’s decision in Gargiulo, 727 F.3d

1181, the Board has made clear that due process does not require an opportunity

to contest the merits of the underlying security determination. Buelna,

121 M.S.P.R. 262, ¶¶ 18, 23-24 & n.7. Due process does, however, provide a

right to invoke the discretion of a decision official with authority to select viable

alternatives to suspension without pay, e.g., placement on administrative leave, to

the extent they may have existed. Id., ¶ 28. Here, the deciding official testified

The Board may address due process errors sua sponte if necessary to present manifest

injustice. Powers v. Department of the Treasury, 86 M.S.P.R. 256, 262 n.3 (2000).

Here, we recognize that the deciding official had personal knowledge of the appellant’s

alleged outbursts, but we find no due process violation under the factors set forth in

Ward/Stone. Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011); Stone v.

Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999); IAF, Tab 17-1

(testimony of the deciding official). The deciding official testified that the only

information that he found to be material—or what he described as the “key factor”—

was that the appellant’s duties required access to secure information and access to the

facility, that his access had been suspended, and that the appellant suggested no

alternative penalties in his oral reply. IAF, Tab 17-1 (testimony of the deciding

official). Considering the ex parte information objectively, as required by Ward/Stone,

we do not believe that the deciding official’s knowledge of the appellant’s alleged

outbursts is the type of information likely to cause prejudice under the circumstances of

this case for the same reasons explained by the deciding official. See Stone, 179 F.3d

at 1377; see also Lange v. Department of Justice, 119 M.S.P.R. 625, ¶¶ 8-11 (2013).

that the agency normally handles suspension of access cases by issuing indefinite

suspensions, and that the appellant’s response to the proposal of the indefinite

suspension did not present any alternative penalties. IAF, Tab 17-1 (testimony of

the deciding official). The appellant avers that a “theoretical option” to place him

on administrative leave was not a “realistic option” because it is not used unless it

is required. PFR File, Tab 1 at 10-11. He has not, however, argued that the

deciding official lacked the authority to select viable alternatives to suspension to

the extent they existed, and we find no indication that such was the case. See

Buelna, 121 M.S.P.R. 262, ¶ 28. Accordingly, we affirm the administrative

judge’s finding that the appellant has not proven a due process violation.

Harmful procedural error

Under 5 U.S.C. § 7701(c)(2)(A), the Board cannot sustain an agency’s

decision in any case if the employee “shows harmful error in the application of

the agency’s procedures in arriving at such decision.” Stephen v. Department of

the Air Force, 47 M.S.P.R. 672, 681, 685 (1991); 5 C.F.R. § 1201.56(c)(1). An

agency error is harmful where the record shows that the procedural error 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. 5 C.F.R. § 1201.4(r).

The burden is upon the appellant to show that the error was harmful, i.e., that it

caused substantial harm or prejudice to his rights. Id. The administrative judge

identified that the appellant raised the following harmful procedural error

arguments: (1) the Security Office did not refer the suspension of access to

DCAS as required by DoD Manual 5200.02, section 9.4.(c); and (2) DCAS did

not make an initial determination on his security clearance within 15 days of the

local determination as required by DoD Manual 5200.02, Section 9.4.a.(1). ID

at 12-14; see DoD Manual 5200.02, sections 9.4.(c), 9.4.a.(1) (located in the

record at IAF, Tab 11 at 21, 29).

First, we find no error in the administrative judge’s finding that the agency

initially referred the matter to DCAS as required under section 9.4.(c) of the

manual. ID at 5 n.5, 13. We vacate the administrative judge’s alternative finding

that, even if the agency had violated the provision in the manual requiring referral

to DCAS, the appellant did not establish that it would have led the agency to

reach a different conclusion concerning the indefinite suspension. ID at 13. In

that event, the indefinite suspension may have lacked a valid condition

subsequent because there would have been no ongoing investigation. See Martin,

12 M.S.P.R. at 17; infra, ¶ 8.

Second, the administrative judge made a factual finding that DCAS did not

make an initial determination within 15 days as required by DoD Manual

5200.02, section 9.4(a)(1), which we see no reason to disturb. ID at 13. She

concluded, however, that this was not harmful procedural error because the

deciding official did not err in applying the agency’s procedures in arriving at his

decision. ID at 13-14 (emphasis added). To the extent that the initial decision

suggests that any procedural error at DCAS is outside the Board’s scope of

review, we note that the Board has held otherwise. See Romero v. Department of

Defense, 527 F.3d 1324, 1329-30 (Fed. Cir. 2008) (explaining that the Board is

required to review whether the agency has complied with its own procedures

regarding a security clearance determination when the determination forms the

basis of an adverse action as part of the harmful procedural error analysis). In

any event, the appellant’s specific argument in this case is not within our

authority to review. To prove a claim of harmful procedural error, an appellant is

required to prove that the error 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. 5 C.F.R. § 1201.4(r). Thus, the appellant was required to prove that

DCAS would have made a favorable initial determination in his case and restored

his access to classified information. See IAF, Tab 11 at 29. The Board does not

have the expertise nor the authority to make a determination on the issue of his

security clearance. See Department of Navy v. Egan, 484 U.S. 518, 528 (1988).

Accordingly, we find that the appellant cannot prevail on this claim. 6

We deny the appellant’s motion for leave to submit an additional pleading.

The appellant has submitted a motion for leave to file an additional

pleading, stating that he would like to cite the Board’s decision in Litton v.

Department of Justice, MSPB Docket Nos. DC-0752-14-0353-C-1, DC-0752-14-

1110-C-1, Final Order (Sept. 30, 2024), which was issued after his reply to the

agency’s response to his petition for review. PFR File, Tab 7. The Board’s

regulations provide that no pleading other than a petition for review, a cross

petition for review, and a reply to a response to a petition for review is permitted.

5 C.F.R. § 1201.114(a)(1)-(4) (2024). For the Board to consider an additional

pleading, the party must have described the nature of and need for the pleading.

5 C.F.R. § 1201.114(a)(5) (2024). Here, the appellant offered no explanation for

why he intended to rely on the Board’s nonprecedential decision in Litton.

Moreover, we have reviewed our decision in Litton, which concerned a

compliance matter, and find that it does not affect our analysis of any material

issue in this case. Thus, there is no need for this additional pleading.

Accordingly, we affirm the initial decision as modified.

NOTICE OF APPEAL RIGHTS 7

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

We need not determine whether a failure to comply with the 15-day timeframe

prescribed in section 9.4(a)(1) of DoD Manual 5200.02 could constitute harmful

procedural error under other circumstances.

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.

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

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

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

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

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

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

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

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

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

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

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