The opinion
United States Court of Appeals
for the Federal Circuit
______________________
AMY J. MITCHELL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3056
______________________
Petition for review of the Merit Systems Protection
Board in No. DA0752110601-I-1.
______________________
Decided: January 15, 2014
______________________
KRISTINA CAGGIANO, Duane Morris LLP, of Washing-
ton, DC, argued for petitioner. With her on the brief was
MATTHEW C. MOUSLEY, of Philadelphia, Pennsylvania.
MICHAEL A. CARNEY, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With him on the brief was
BRYAN G. POLISUK, General Counsel.
______________________
Before PROST, REYNA, and TARANTO, Circuit Judges.
2 MITCHELL v. MSPB
Opinion for the court filed by Circuit Judge TARANTO.
Dissenting opinion filed by Circuit Judge PROST.
TARANTO, Circuit Judge.
This case involves a jurisdictional limit on the author-
ity of the Merit Systems Protection Board to review an
agency’s removal of a worker from her job. In late 2008,
the Department of Justice hired Amy Mitchell as an
Assistant United States Attorney. She began working
while the required background investigation took place.
When the investigation concluded about seven months
later, the Department issued Ms. Mitchell a form stating
that her appointment was subject to a two-year trial
period beginning August 2, 2009. The Department fired
her effective July 29, 2011, a few days before the two-year
period ended. She appealed her removal to the Board.
The Board may hear Ms. Mitchell’s appeal only if she
was an “employee” as an Assistant United States Attor-
ney. The statute defines “employee” as someone “who has
completed 2 years of current continuous service in the
same or similar positions in an Executive agency under
other than a temporary appointment limited to 2 years or
less.” 5 U.S.C. § 7511(a)(1)(C)(ii). Ms. Mitchell was an
employee under that definition if the time during which
her background check was pending counted toward the
required “2 years of current continuous service.” The
Board concluded that it did not, on the ground that Ms.
Mitchell’s service as an Assistant United States Attorney
before August 2, 2009, was under a “temporary appoint-
ment,” not “under other than a temporary appointment.”
The Board dismissed the appeal. We reverse and remand
for further proceedings.
BACKGROUND
Ms. Mitchell began working as a government attorney
in 1998, when she became a lawyer for the Social Security
Administration. In 2006, the Department of Justice
MITCHELL v. MSPB 3
appointed her as a Special Assistant United States Attor-
ney for the Northern District of Texas—a one-year ap-
pointment during which she remained an employee of,
and continued to be paid by, the Social Security Admin-
istration. The Department twice extended that appoint-
ment, and she served for just over two years in the Special
Assistant position.
Effective December 21, 2008, the Department hired
Ms. Mitchell as an Assistant United States Attorney in
the same office. It issued a Standard Form 50-B (Notifi-
cation of Personnel Action) documenting the appointment.
As authority for the appointment, the form invoked 28
U.S.C. § 542, which authorizes Assistant United States
Attorney appointments generally. The form also stated
that the appointment was not to exceed 18 months, was
“temporary” because of the pending background investi-
gation, and was “subject to” the successful completion of
that investigation. The background check concluded in
late July 2009. In early August 2009, the Department
provided Ms. Mitchell another Standard Form 50-B, again
citing 28 U.S.C. § 542 as legal authority for the personnel
action. This time, the “Remarks” section stated that Ms.
Mitchell was subject to a two-year trial period beginning
August 2, 2009, during which she could be removed
without cause or appeal rights. The Department fired Ms.
Mitchell effective July 29, 2011, days before the two-year
period was to end, without notice or an opportunity to
respond.
Ms. Mitchell promptly filed an appeal at the MSPB.
In February 2012, the administrative judge dismissed the
appeal for lack of jurisdiction, concluding that Ms. Mitch-
ell was not an “employee” within the meaning of 5 U.S.C.
§ 7511(a) and therefore did not have the right to appeal.
Ms. Mitchell filed a petition for review to the full Board,
which denied her relief. She now appeals to this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5
U.S.C. § 7703(b)(1).
4 MITCHELL v. MSPB
DISCUSSION
There is no dispute that very nearly two years’ worth
of Ms. Mitchell’s service as an Assistant United States
Attorney—from August 2, 2009, to July 29, 2011—was
“under other than a temporary appointment limited to 2
years or less.” 5 U.S.C. § 7511(a)(1)(C)(ii). We must
decide whether she held a “temporary appointment lim-
ited to 2 years or less” during the pendency of her back-
ground check in the months before August 2009. If she
did, then those seven-plus months do not count toward
the required “2 years of current continuous service,”
leaving her just a few days shy of the two-year threshold.
If she did not, then she worked for more than two years in
the same or similar positions and she comes within the
statutory definition of an “employee” who may appeal to
the Board. Making that “legal determination” de novo,
Roy v. Merit Systems Protection Board, 672 F.3d 1378,
1380 (Fed. Cir. 2012), we conclude that the second view is
the better one. 1
A
Title 5 limits the Board’s jurisdiction over federal
workers’ appeals based on both the nature of the person-
nel action being contested and the employment status of
the individual complainant. This case is about the latter.
1 The Board insists on de novo review of its statuto-
ry ruling, rejecting any deference under Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). Any Chevron deference would be to regula-
tions of the Office of Personnel Management. See 5
U.S.C. § 7514; Wilder v. Merit Sys. Prot. Bd., 675 F.3d
1319, 1322 (Fed. Cir. 2012). Those regulations produce
the same result as de novo review, which, as indicated
infra, looks to those regulations. Accordingly, we need not
decide whether to give Chevron deference in this case.
MITCHELL v. MSPB 5
An “employee” has the right to appeal certain adverse
actions to the Board. 5 U.S.C. §§ 7701(a), 7512, 7513(d).
Section 7511 defines what “employee” means for such
purposes. Id. § 7511(a). (That definition modifies, for
adverse actions, the general definition of a federal civil-
service “employee” set out in 5 U.S.C. § 2105.) It is un-
disputed that, for Ms. Mitchell, as a person in the “except-
ed service” not eligible for a preference, qualification as an
“employee” depends on whether, upon her July 2011
firing, she had “completed 2 years of current continuous
service in the same or similar positions in an Executive
agency under other than a temporary appointment lim-
ited to 2 years or less.” Id. § 7511(a)(1)(C)(ii); Van Wersch
v. Dep’t of Health & Human Servs., 197 F.3d 1144, 1149-
50 (Fed. Cir. 1999) (discussing 1990 addition of provision).
To calculate the length of Ms. Mitchell’s “current continu-
ous service,” we must ask whether she was in a “tempo-
rary appointment limited to 2 years or less” during her
first seven-plus months as an Assistant United States
Attorney, starting in December 2008.
Our answer starts with the text, where our task is to
“give effect, if possible, to every clause and word of [the]
statute, avoiding, if it may be, any construction which
implies that the legislature was ignorant of the meaning
of the language it employed.” Inhabitants of Montclair
Twp. v. Ramsdell, 107 U.S. 147, 152 (1883). That princi-
ple counsels against reading “temporary” to have no
meaning beyond “limited in time” or “for a limited period.”
Such a reading would effectively erase the term from the
provision: the result would be the same as if the statute
referred simply to “other than a[n] appointment limited to
2 years or less.” The word “temporary” should be given
independent meaning, if possible.
Several sources might provide such meaning, but the
first and most natural place to look is in regulations of the
agency charged with implementing the statute, OPM. See
5 U.S.C. § 7514. It makes sense for Congress to include
6 MITCHELL v. MSPB
the word “temporary” and allow its definition to depend,
at least in part, on OPM determinations. In fact, the
predominant and longstanding use of the word “tempo-
rary” in the context of federal appointments is to refer to
appointments of one year or less.
An OPM excepted-service regulation states:
[W]hen agencies elect to make temporary, inter-
mittent, or seasonal appointments in Schedule A,
B, C, or D, those terms have the following mean-
ing: (1) Temporary appointments, unless other-
wise specified in a particular Schedule A, B, C, or
D exception, are made for a specified period not to
exceed 1 year and are subject to the time limits in
paragraph (b) of this section. Time-limited ap-
pointments made for more than 1 year are not
considered to be temporary appointments, and are
not subject to these time limits.
5 C.F.R. § 213.104(a). When OPM promulgated the
regulation, it made clear that it was newly making uni-
form a one-year standard for “temporary” appointments
that already appeared in OPM regulations. The first
sentence of the “Summary” announced that OPM was
“revising its regulations governing use of temporary
appointments (i.e., appointments limited to 1 year or less)
to set a uniform service limit for such appointments in
both the competitive and the excepted service at 1 year
with no more than one 1-year extension (24 months total
service).” 59 Fed. Reg. 46,895-01 (Sept. 13, 1994) (empha-
sis added); see Stern v. Dep’t of the Army, 699 F.2d 1312,
1313 (Fed. Cir. 1983) (“It was a temporary appointment
(i.e., one year or less, 5 C.F.R. § 316.401 (1982)) . . . .”)
(emphasis added). This understanding has persisted.
See, e.g., 63 Fed. Reg. 63,781, 63,783 (Nov. 17, 1998)
(“Excepted appointments not-to-exceed 1 year are defined
in 5 CFR 213.104(a)(1) as temporary and are subject to
the maximum time limits [of] 5 CFR 213.104(b)(1).”).
MITCHELL v. MSPB 7
OPM has long distinguished “temporary” appoint-
ments from others—given labels like “term” and “time-
limited”—made for different but still limited periods. For
example, when adding the last sentence of 5 C.F.R.
§ 213.104(a), which refers to “[t]ime-limited appoint-
ments,” the agency explained both that “[t]he existing
regulations provide that if the appointments are for 1
year or less, by definition, they are temporary appoint-
ments” and, in addition, “that agencies continue to have
the ability to make appointments with time limits of more
than 1 year[ and that t]hese time-limited appointments
are not subject to the restrictions for temporary appoint-
ments.” 62 Fed. Reg. 18,505 (Apr. 16, 1997). These
distinctions existed long before the relevant provision of 5
U.S.C. § 7511(a) was added to the statute in 1990. In
1968, for instance, OPM regulations provided that “[a]n
agency may make a temporary limited appointment only
for a definite period of 1 year or less,” 33 Fed. Reg. 12,402,
12,423 (Sept. 4, 1968) (5 C.F.R. § 316.401), and that “[t]he
Commission may authorize an agency to make a term
appointment for a period of more than 1 year on request
of the agency and after determination . . . that the em-
ployment need is for a limited period of 4 years or less,”
id. (5 C.F.R. § 316.301). See also Stern, 699 F.2d at 1313
(discussing 1982 regulation); 45 Fed. Reg. 8,541, 8,544
(Feb. 8, 1980) (“time limited” appointments in the Senior
Executive Service).
If we were to rely entirely on the longstanding regula-
tory meaning of “temporary,” the conclusion would be that
Ms. Mitchell never held a “temporary” appointment,
because (as is undisputed) her appointment as an Assis-
tant United States Attorney was never limited to a period
of one year or less. Even the December 2008 Standard
Form 50-B stated that her appointment, subject to a
background investigation, was not to exceed 18 months,
not one year. But we need not rely entirely on the regula-
8 MITCHELL v. MSPB
tory treatment, because the conclusion is further support-
ed by two additional considerations.
First, nothing indicates that the Department of Jus-
tice ever contemplated that the job it was giving Ms.
Mitchell, even in December 2008, was a short-term job.
Rather, it invoked the same legal authority, 28 U.S.C.
§ 542, for Ms. Mitchell’s appointment as an Assistant
United States Attorney throughout her tenure in that
position, from December 2008 onward. The reason for the
time limit in the December 2008 Standard Form 50-B was
not any “expectation” that the need for Ms. Mitchell’s
service in the job would come to an end. See H.R. Rep.
No. 101-328, at 4 (1989) (focusing on “expectation of
continuing employment”). It simply reflected the fact
that, operating under its waiver of the “preappointment
investigative requirement,” the Department had only “a
limited period” to complete the background investigation
when appointing Ms. Mitchell. 5 C.F.R. § 732.202(a)(1)
(emphasis added); see also Dep’t of Justice, Oversight of
Background Investigations by the Security and Emergency
Planning Staff, Report No. I-97-06, at App. II (July 1997).
Those circumstances are quite different from her ap-
pointments as a Special Assistant United States Attorney
under 28 U.S.C. § 543, one-year appointments that were
made to fill short-term needs.
Second, determining that Ms. Mitchell did not hold a
“temporary” appointment after December 2008 serves the
statute’s purpose. The reason for the two-year trial
period in § 7511(a)(1)(C)(ii) is to “‘ensure that the agency
can fully judge an employee’s performance and yet vest
these employees with important job protections.’” Van
Wersch, 197 F.3d at 1149. Here, the parties stipulated
that Ms. Mitchell held the “same or similar” positions
from December 2008 through her termination, indicating
that nothing meaningful about her job duties changed
once the background investigation was completed. There
is thus no reason to think that the Department lacked the
MITCHELL v. MSPB 9
contemplated amount of time for judging Ms. Mitchell’s
performance within the two-year period starting on
December 21, 2008.
In sum, the statute and regulations, and the particu-
lars of Ms. Mitchell’s tenure as an Assistant United
States Attorney, lead us to conclude that she spent no
part of that tenure in a “temporary” appointment as that
term is used in § 7511(a).
B
The Board’s arguments in support of its contrary con-
clusion are unpersuasive. The Board has relied on certain
statements from our precedents. But it has given the
statements unduly broad effect by taking them out of
context.
In at least two instances, we have said that a com-
plainant fell outside § 7511(a)(1)(C)(ii) because that
person had not spent two continuous years in a “perma-
nent” position. See Roy, 672 F.3d at 1382; Forest v. Merit
Sys. Prot. Bd., 47 F.3d 409, 411-12 (Fed. Cir. 1995).
Those decisions, however, cannot be taken to establish
that time spent in a “permanent” position is the only time
that qualifies under § 7511(a)(1)(C)(ii). There are various
types of federal appointments—some without end dates,
like permanent, seasonal, or intermittent, and some with
end dates, like temporary, term, or time-limited. See, e.g.,
5 C.F.R. § 213.104(a). The statute excludes only those
which are “temporary,” which is not the only alternative
to “permanent.” None of our precedents had occasion to
address these distinctions, as none actually involved a
dispute about whether the appointment at issue was or
was not “temporary,” or considered the meaning of “tem-
porary” in § 7511(a) alongside 5 C.F.R. § 213.104 and
other OPM regulations. See Roy, 672 F.3d at 1382; Car-
row v. Merit Sys. Prot. Bd., 626 F.3d 1348, 1352 (Fed. Cir.
2010); Forest, 47 F.3d at 411-12. (Weidel v. Department of
Justice, 230 F.3d 1380 (Fed. Cir. 2000) (table), involved a
10 MITCHELL v. MSPB
similar issue, but the decision is non-precedential, and
the court recognized that the arguments were not fully
developed.) Precedent thus does not establish a conclu-
sion different from the one we reach here.
The Board urges us to discount the significance of 5
C.F.R. § 213.104 on the ground that OPM did not invoke
§ 7511(a) in promulgating it. That is not a sufficient
reason to eschew reliance on the regulation in interpret-
ing and applying “temporary” in the statute. The alterna-
tive interpretation on offer would run afoul of the general
rule against nullifying words in the statute, and the
regulation embodies an interpretation deeply embedded
in federal personnel law and a policy promoting a uniform
application of that interpretation. At least where other
considerations support the same conclusion, it makes good
sense to construe the statute in accordance with this
regulation. Cf. Pauley v. BethEnergy Mines, Inc., 501 U.S.
680, 706 (1991) (adopting interpretation that harmonizes
statute with regulations).
The Board highlights the fact that the December 2008
Standard Form 50-B (SF-50) used the term “temporary”
to refer to Ms. Mitchell’s appointment “pending adjudica-
tion of a full-field background check.” But we have held
that “the SF-50 is not a legally operative document con-
trolling on its face an employee’s status and rights.”
Grigsby v. U.S. Dep’t of Commerce, 729 F.2d 772, 776
(Fed. Cir. 1984). And we think that, as between the label
“temporary” and the actual stated term of 18 months for
the particular job of Assistant United States Attorney, the
latter must control. We need not go any further, or offer
an affirmative view of the correct label to apply to the pre-
August 2009 portion of Ms. Mitchell’s tenure as an Assis-
tant United States Attorney. Cf. Weidel, 230 F.3d 1380
(expressing “doubt as to the source of authority for [a
‘temporary’] appointment” as an Assistant United States
Attorney).
MITCHELL v. MSPB 11
Finally, the Board observes that Ms. Mitchell served
for only seven-plus months while her background check
was pending, suggesting that even if “temporary” ap-
pointments are appointments for one year or less, that
standard makes no difference here because seven-plus
months is still less than a year. But the regulatory and
statutory scheme requires that the nature of Ms. Mitch-
ell’s appointment be judged at the outset, without regard
to service ultimately completed.
OPM regulations, for example, define a temporary
appointment based on the time limit imposed when the
appointment is “made.” 5 C.F.R. § 213.104(a)(1). This
makes good sense. Allowing a federal appointment to
change character over time based on time served—if, say,
a permanent appointment became seasonal or temporary
when an employee lasts only a few months—would con-
flict with § 7511(a)’s express provision for so-called “tack-
ing” of time in consecutive jobs. Section 7511(a) permits
employees to combine time spent in “the same or similar”
jobs, if one immediately follows the other, in order to get
to the requisite two years of “current continuous service.”
But under the Board’s suggestion, someone who spends
twenty years in one permanent position and then ten
months in a “similar,” permanent position before being
terminated, see, e.g., Mathis v. United States Postal
Service, 865 F.2d 232 (Fed. Cir. 1988), would be a “tempo-
rary” employee based on the final ten months of service,
and would be stripped of all appeal rights. That cannot be
how the statute is supposed to work. Cf. Grigsby, 729
F.2d at 775 n.9 (counseling against “reduc[ing] an em-
ployee’s appointment to a form manipulable at any time
by the agency”). The length of time that Ms. Mitchell
actually served before the background investigation was
completed, therefore, does not alter our analysis of
whether she held a “temporary” appointment at the time.
In so concluding, we do not depart from “the doctrine
of harmless error.” Dissent at 2. That doctrine does not
12 MITCHELL v. MSPB
apply to the only question we must answer, namely, the
character of the Department’s appointment action, which
determines whether Ms. Mitchell was an “employee” and
hence whether the Board erred in its jurisdictional ruling.
There is no doubt that, if Ms. Mitchell was an “employee,”
the Board’s jurisdictional ruling was a harmful error, as it
deprived Ms. Mitchell of a hearing on her rights regarding
her removal. But on the threshold assessment of the
Department’s appointment, “harmless error” has no role.
As all of the cases cited by the dissent confirm, the
subject of the harmless-error doctrine, and of 5 U.S.C.
§ 7701(c)(2), is “error” in the specific sense of a violation of
legal requirements. In that event, the court must inquire,
under proper standards, into whether the bottom-line
result would have been different had the requirements
been met. But there has been no suggestion here, by
anyone, that the Department’s December 2008 appoint-
ment committed any violation of legal requirements. It
simply made a choice about the terms of the appointment.
Although the Department may now wish that it had made
a different choice, our jurisdictional analysis must ask
about the character of the appointment actually made—
specifically, whether it was a “temporary” appointment.
There being no legal violation, there is no basis for us to
ask what result would have occurred in the absence of
such a violation. “Harmless “error” analysis is thus a
mismatch for the issue currently before us. Of course, to
the extent that Ms. Mitchell’s claim on the merits before
the Board concerns an alleged Department failure to
follow procedures required when an employee is removed,
a harmless error analysis may be appropriate, but that is
for the Board to consider on remand.
CONCLUSION
We conclude that Ms. Mitchell did not hold a “tempo-
rary appointment limited to 2 years or less” during her
roughly two-and-a-half years as an Assistant United
MITCHELL v. MSPB 13
States Attorney. Accordingly, she was an “employee”
under § 7511(a) and had the right to contest her removal
at the Board. We therefore reverse and remand for fur-
ther proceedings.
REVERSED AND REMANDED
United States Court of Appeals
for the Federal Circuit
______________________
AMY J. MITCHELL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3056
______________________
Petition for review of the Merit Systems Protection
Board in No. DA0752110601-I-1.
______________________
PROST, Circuit Judge, dissenting.
I respectfully dissent from the majority’s opinion re-
versing the Merit Systems Protection Board’s (“Board’s”)
decision on Ms. Mitchell’s appeal rights. The majority
concludes that since Ms. Mitchell’s eighteen month ap-
pointment exceeded the twelve month limit set forth in 5
C.F.R. § 213.104(a)(1), her initial appointment cannot be
classified as temporary. Even accepting the majority’s
view that 5 C.F.R. § 213.104(a)(1) applies to 5 U.S.C.
§ 7511(a)(1)(C)(ii), the fact remains that Ms. Mitchell only
served less than eight months of her initial eighteen
month appointment, making the Department of Justice’s
(“DOJ’s”) alleged error in granting Ms. Mitchell a tempo-
rary eighteen month appointment harmless. Therefore, I
conclude that Ms. Mitchell’s eight months served pending
2 MITCHELL v. MSPB
the successful completion of her background check should
not be tacked on to her time served in a permanent posi-
tion for purposes of determining appeal rights.
The majority insists that “the regulatory and statuto-
ry scheme requires that the nature of Ms. Mitchell’s
appointment be judged at the outset, without regard to
service ultimately completed.” Majority Op. at 11. Thus,
the majority fails to recognize that the government should
benefit from the doctrine of harmless error. This court
routinely requires employees to not only show that the
agency erred but also to show that the error was harmful.
See, e.g., Ward v. U.S. Postal Serv., 634 F.3d 1274, 1281-
82 (Fed. Cir. 2011) (requiring plaintiff to show harmful
error in an agency’s procedure in order to establish re-
versible procedural error); Diaz v. Dep’t of the Air Force,
63 F.3d 1107, 1109 (Fed. Cir. 1995) (“[W]e have previously
held that an employee challenging an agency action has
the burden to prove that a violation of a statutory proce-
dure was harmful.”); Handy v. U.S. Postal Serv., 754 F.2d
335, 337–38 (Fed. Cir. 1985) (“It is insufficient simply to
show that a statutory procedure was not followed at the
agency level. Harmful error must be shown.”). And in
this case Ms. Mitchell has failed to show that the DOJ’s
error in using an eighteen month temporary appointment
rather than a twelve month appointment was harmful to
her, given that she served less than eight months under
the initial temporary appointment. The DOJ’s alleged
error is rendered even more inconsequential by the fact
that 5 C.F.R. § 213.104(b)(1) authorizes agencies to ex-
tend temporary appointments for an additional twelve
months, for a total period that exceeds the eighteen
month temporary appointment at issue here. Thus, I
conclude that Ms. Mitchell has failed to show that the
DOJ’s error was harmful.
The majority further relies on other “considerations”
surrounding the nature of Ms. Mitchell’s position to
support its conclusion, stating that “nothing indicates
MITCHELL v. MSPB 3
that the [DOJ] ever contemplated that the job it was
giving Ms. Mitchell, even in December 2008, was a short-
term job.” Majority Op. at 8. The majority also concludes
that determining that Ms. Mitchell did not hold a “tempo-
rary” appointment after December 2008 serves the stat-
ute’s purpose to “ensure that the agency can fully judge
an employee’s performance and yet vest these employees
with important job protections.” Id. (citing Van Wersch v.
Dep’t of Health & Human Servs., 197 F.3d 1144, 1149
(Fed. Cir. 1999)).
However, I do not find these considerations persua-
sive. The DOJ’s alleged intent of continuing Ms. Mitch-
ell’s employment is diminished by the fact that the agency
noted in both the SF-50 and SF-52 forms that it consid-
ered her initial appointment to be temporary. Further,
while the legislative history does indicate that it was
Congress’s intent to give employees in similar positions
appeal rights after two years of service, if Congress had
intended to count temporary service in that calculation, it
would not have clearly excluded such service in 5 U.S.C.
§ 7511(a)(1)(C)(ii).
For the foregoing reasons, I conclude that Ms. Mitch-
ell’s time served pending the completion of her back-
ground check was time served in a temporary position.
Since Ms. Mitchell has failed to show that, prior to her
termination, she completed two years in an excepted
service position that was not temporary, I would not grant
appeal rights under 5 U.S.C. § 7511(a)(1)(C)(ii). There-
fore, I would affirm the final order of the Board.