UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 70

Docket Nos. DE-0752-12-0039-I-3 

DE-0752-12-0040-I-3 

Kristi L. Putnam, 

Appellant, 

v.

Department of Homeland Security,

Agency.

August 27, 2014

Kevin L. Owen, Esquire, and Rosalind Herendeen, Silver Spring, 

Maryland, for the appellant.

Remy N. Savin, San Francisco, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

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

affirmed her indefinite suspension and dismissed her involuntary retirement 

appeal for lack of jurisdiction. Petition for Review (PFR) File, Tab 3; MSPB 

Docket No. DE-0752-12-0039-I-3 (0039), Initial Appeal File (IAF), Tab 6, Initial 
2

Decision (ID). 1 For the reasons that follow, the administrative judge’s initial 

decision affirming the appellant’s indefinite suspension is AFFIRMED AS 

MODIFIED by this Opinion and Order, and the administrative judge’s dismissal 

of the appellant’s involuntary retirement appeal is AFFIRMED. 

BACKGROUND

¶2 The following basic facts are not in dispute. The appellant served as the 

Assistant Federal Security Director at the Grand Junction Regional Airport in 

Grand Junction, Colorado. 0039, IAF, Tab 2 at 136. As a condition of her 

position, the appellant was required to maintain a security clearance. Id. at 122. 

On October 26, 2010, citing statements the appellant had made to local police, the 

agency placed the appellant on administrative leave. MSPB Docket No.

DE-0752-12-0040-I-3 (0040), IAF, Tab 3 at 49. Based upon the appellant’s

statements to the police, the agency suspended the appellant’s security clearance 

on January 26, 2011, id. at 66-67, and it thereafter proposed the appellant’s 

indefinite suspension on February 1, 2011, citing the suspension of her security 

clearance “based on allegations regarding [her] mental health and personal 

conduct” as outlined in the agency’s January 26, 2011 letter, id. at 78-79. In 

response to the appellant’s request for the information the agency relied on in 

proposing her suspension, the agency explained that it only relied on the notice it 

received from its Personnel Security Division that the appellant’s security 

clearance had been suspended. 0040, IAF, Tab 3 at 65. The deciding official 

 

1 As the administrative judge explained in his initial decision, some of the relevant 

submissions are filed in MSPB Docket No. DE-0752-12-0039-I-3, while others are filed

in MSPB Docket No. DE-0752-12-0040-I-3. At the time of their filing, the 

administrative judge treated MSPB Docket No. DE-0752-12-0039-I-1 as challenging the 

appellant’s indefinite suspension, and MSPB Docket No. DE-0752-12-0040-I-1 as 

challenging the appellant’s alleged involuntary retirement. We cite to the petition for 

review file in the lead docket number assigned to these joined matters, MSPB Docket 

No. DE-0752-12-0039-I-3. Because the underlying factual material is contained in both 

initial appeal files, we will cite to the respective initial appeal files where necessary. 
3

subsequently imposed the appellant’s indefinite suspension effective March 10, 

2011. 0039, IAF, Tab 2 at 55-57. 

¶3 The appellant amended a pending equal employment opportunity (EEO) 

complaint she had filed with the agency to include a challenge to her indefinite 

suspension, and after the passage of 120 days, she filed her appeal with the Board 

challenging both her indefinite suspension and her intervening decision to retire

after the agency revoked her security clearance in August 2011. See MSPB 

Docket No. DE-0752-13-0039-I-1, IAF, Tab 1. The appellant withdrew her 

request for a hearing, and based on the written record, the administrative judge 

affirmed the appellant’s indefinite suspension and dismissed her involuntary 

retirement appeal for lack of jurisdiction. ID at 7-16. In reaching his decision on 

the appellant’s indefinite suspension, the administrative judge applied the 

Board’s then-controlling case law, which held, inter alia, that an employee had a 

due process right to notice of the reasons for the suspension of her security 

clearance and to reply to a deciding official who had the authority to change the 

outcome of the proposed adverse action. See, e.g., McGriff v. Department of the 

Navy, 118 M.S.P.R. 89, ¶¶ 25, 33 (2012). Applying these standards, the 

administrative judge found that the agency afforded the appellant a meaningful 

opportunity to respond to the suspension of her security clearance, thus also

satisfying due process concerning her proposed indefinite suspension, and that 

the deciding official had the authority to change the outcome of her proposed 

indefinite suspension by reassigning her but that he elected not to exercise his

discretion under the facts of this case. ID at 12-14. The administrative judge 

further explained that he would not adjudicate the appellant’s disability 

discrimination claim challenging the agency’s decision not to reassign her 

because it was intertwined with the agency’s decision to suspend her clearance, 

ID at 9, and, applying the Board’s jurisdictional standard over a constructive 

adverse action, he found that the appellant failed to nonfrivolously allege that her
4

working conditions were so intolerable that she had no choice but to retire, ID

at 14-16. 

¶4 The appellant has filed a petition for review of the administrative judge’s 

initial decision. PFR File, Tab 3. After the agency filed a response to the 

petition for review, and the appellant filed a reply, PFR File, Tabs 6-7, the U.S. 

Court of Appeals for the Federal Circuit issued its decision in Gargiulo v. 

Department of Homeland Security, 727 F.3d 1181, 1185 (Fed. Cir. 2013), holding

that employees have “no due process rights with respect to the procedures used to 

determine whether to suspend or revoke [a] security clearance,” and also 

explaining that while employees have due process rights to contest indefinite 

suspensions as adverse actions, those rights “[do] not include the right to contest 

the merits of the decision to suspend [their] security clearance[s].” The agency 

moved to submit additional argument on petition for review concerning 

Gargiulo’s impact on this case, PFR File, Tab 8, and the Board granted the 

agency’s motion, giving both the agency and the appellant an opportunity to 

submit additional argument on this issue, PFR File, Tabs 17-18. 

¶5 As explained below, although we agree with the administrative judge’s 

ultimate conclusion sustaining the appellant’s indefinite suspension, the Federal 

Circuit’s decision in Gargiulo, and the Board’s recent decision in Buelna v. 

Department of Homeland Security, 121 M.S.P.R. 262 (2014), require a different 

analysis of the appellant’s appeal of her indefinite suspension. Applying the 

standards outlined in Gargiulo and Buelna, we AFFIRM AS MODIFIED the 

administrative judge’s initial decision sustaining the appellant’s indefinite 

suspension. Because these decisions do not affect the disposition of the 

appellant’s involuntary retirement appeal, and because we agree with the 

administrative judge’s jurisdictional dismissal of this claim, we AFFIRM the 

initial decision regarding the appellant’s allegation of an involuntary retirement, 

and we AFFIRM the administrative judge’s decision not to adjudicate the 
5

appellant’s disability discrimination affirmative defense because it is intertwined 

with the agency’s security clearance determination. 

ANALYSIS

Recent case law sets forth the analysis to be used when an adverse action is based 

on the suspension or revocation of a security clearance. 

¶6 In Buelna, the Board recently outlined the principles and standards 

applicable in chapter 75 appeals of adverse actions based on the suspension or 

revocation of a security clearance. See 121 M.S.P.R. 262, ¶¶ 13-15, 23-25, 

27-31. First, relying on the Federal Circuit’s decision in Gargiulo, the Board 

reaffirmed that employees have a due process right in connection with an 

indefinite suspension or removal based upon the suspension or revocation of a 

security clearance and that the Board also has the authority to review whether an 

agency provided an employee with due process in taking such an adverse action. 

See Buelna, 121 M.S.P.R. 262, ¶¶ 13-15 (citing, inter alia, Gargiulo, 727 F.3d 

at 1185). 

¶7 Second, pursuant to the Federal Circuit’s decision in Gargiulo, the Board 

explained that due process does not require that an employee have an opportunity 

to challenge the merits of the agency’s security clearance suspension or 

revocation. Buelna, 121 M.S.P.R. 262, ¶¶ 18 n.7, 24. In reaching this 

conclusion, the Board further explained that, in cases where the employee does

receive an opportunity to contest the clearance determination prior to the adverse 

action proceedings, that opportunity alone is insufficient to satisfy due process 

concerning the proposed adverse action because due process requires that the 

employee have a right to respond to a proposed adverse action, which is distinct 

from a security clearance determination. Id., ¶ 24 n.9. 

¶8 Next, the Board addressed an issue left open by the court in Gargiulo, see

727 F.3d at 1185 n.4, and it held that due process does not demand that the 

deciding official consider alternatives to the proposed adverse action that are 

prohibited, impracticable, or outside management’s purview. 
6

Buelna, 121 M.S.P.R. 262, ¶ 27. In reaching this conclusion, the Board explained 

that due process in connection with an adverse action based on the suspension or 

revocation of a security clearance is limited “to invok[ing] the discretion of a 

deciding official with authority to change the outcome of the proposed action to 

the extent that may have been feasible.” Id., ¶ 28. This standard differed from 

the Board’s earlier approach, which had held that due process required that the 

deciding official have the authority to change the outcome of the proposed 

adverse action by either reinstating the appellant’s access to classified 

information or by reassigning her to a position not requiring such access. See,

e.g., Diehl v. Department of the Army, 118 M.S.P.R. 344, ¶ 12 (2012). 

¶9 Lastly, the Board expounded upon the impact of the Ward/Stone 2 line of 

authority on adverse actions based upon the suspension or revocation of a 

security clearance. See Buelna, 121 M.S.P.R. 262, ¶¶ 30-31. The Board 

explained that the only information material to an agency’s charge involving the 

suspension or revocation of a clearance is whether the employee’s position 

required a security clearance and whether the clearance was suspended or 

revoked; the Board concluded that any additional information a deciding official 

may consider in connection with such a charge cannot be new and material

information under Ward/Stone. Id., ¶ 31. 

¶10 Regarding the deciding official’s penalty determination, however, the 

Board found that, under the Ward/Stone line of cases, an employee is entitled to 

advanced notice of all of the information a deciding official may rely on in 

considering the employee’s proposed suspension or removal, including 

information concerning the extent to which “the deciding official’s penalty 

determination [may be] influenced by the factual basis for the underlying security 

 

2 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). 
7

clearance determination.” Id. In the event that an appellant cannot establish a 

Ward/Stone violation concerning the deciding official’s penalty determination, as 

in all other instances involving alleged due process violations, the Board will

then conduct a harmful error analysis to determine if the agency erred in the 

application of its procedures, and, if so, whether such an error caused the agency 

to reach a conclusion different from the one it would have reached in the absence 

or cure of the error. Id., ¶ 33; see Bennett v. Department of Justice, 119 M.S.P.R. 

685, ¶ 12 (2013) (under Ward/Stone, if no due process violation is found, then a 

harmful error analysis must be conducted). 

The appellant’s indefinite suspension is AFFIRMED.

¶11 As explained above, the administrative judge did not have the benefit of 

our decision in Buelna, or the Federal Circuit’s decision in Gargiulo, when he 

issued his initial decision sustaining the appellant’s indefinite suspension. Thus, 

to the extent that the initial decision considered whether the appellant was 

afforded due process in connection with the agency’s security clearance 

determination, and to the extent that the administrative judge found that the 

process afforded the appellant in connection with the security clearance 

determination satisfied her due process rights as to the adverse action, see ID

at 8, 12, we MODIFY the initial decision and AFFIRM the charge underlying the

indefinite suspension based on the undisputed facts that the appellant was 

required to maintain a security clearance as a condition of her position of 

employment and that her clearance was suspended. See Buelna, 121 M.S.P.R. 

262, ¶¶ 23, 31; 0039, IAF, Tab 2 at 55-57, 78-79; see also Ulep v. Department of 

the Army, 120 M.S.P.R. 579, ¶ 4 (2014) (in an appeal based on the denial, 

revocation, or suspension of a security clearance, the Board’s authority is limited 

to determining if a position requires a clearance; whether the clearance was 

denied, revoked, or suspended; and whether the procedural protections 

of 5 U.S.C. § 7513 were followed). 
8

¶12 Citing the Board’s pre-Gargiulo decisions in McGriff, 118 M.S.P.R. 89,

and Diehl, 118 M.S.P.R. 344, the appellant argues on petition for review that her 

due process rights were violated because the deciding official did not have the 

authority to impose a penalty other than her proposed indefinite suspension. PFR 

File, Tab 3 at 13-16. Under our recent decision in Buelna, however, due process 

in the context of an adverse action based upon the suspension or revocation of a 

security clearance does not require that the deciding official have the unfettered 

discretion to take any action he or she believes is appropriate upon considering 

the proposed adverse action. See Buelna, 121 M.S.P.R. 262, ¶ 27 (due process 

does not demand that the deciding official consider alternatives that are 

prohibited, impracticable, or outside management’s purview). Thus, the 

appellant’s assertion of a due process violation based on the deciding official’s 

purported limited authority to select a penalty other than the appellant’s proposed 

suspension is no longer germane to the issues in this case. Id. 

¶13 We also find that the appellant’s assertion that the deciding official had 

limited authority to impose an alternative penalty is unsupported. Although the 

appellant argues that the deciding official had no authority to reassign her, the 

deciding official testified that he had the authority to consider reassigning the 

appellant to another position but that he exercised his discretion and elected not 

to reassign her under the facts of this case. 0040, IAF, Tab 3 at 73-74 (deposition 

of the deciding official). Although the appellant ascribes error to the deciding 

official’s decision, when a security clearance has been suspended or revoked, 

“the Board does not have the authority to review the feasibility of [] reassignment 

in the absence of an additional agency regulation or policy statement providing 

for such a transfer.” Biggers v. Department of the Navy, 745 F.3d 1360, 1362

n.1 (Fed. Cir. 2014); see Schnedar v. Department of the Air Force, 120 M.S.P.R. 

516, ¶ 7 n.1 (2014). Here, there is no evidence that the agency has a policy of 

compulsory reassignment before imposing an indefinite suspension. See ID at 15. 

Thus, under our due process standard articulated in Buelna, we find that the 
9

appellant had the opportunity to invoke the discretion of the deciding official, 

thereby satisfying the minimum requirements of due process as to her indefinite 

suspension. See Buelna, 121 M.S.P.R. 262, ¶ 28. 

¶14 The appellant also argues on petition for review that the deciding official 

improperly considered the underlying reasons supporting the suspension of her 

security clearance in making his penalty determination, thus violating her due 

process rights under Ward/Stone. PFR File, Tab 3 at 16-19; see 

Buelna, 121 M.S.P.R. 262, ¶ 31. We do not agree. 

¶15 The Board’s decisions under Ward/Stone recognize that not all ex parte 

communications rise to the level of due process violations; rather, only ex parte 

communications which introduce new and material information to the deciding 

official are constitutionally infirm. Lange v. Department of Justice, 119 M.S.P.R. 

625, ¶ 8 (2013). Here, based upon the language and scope of information cited in 

the agency’s notice of proposed indefinite suspension, we find that the deciding 

official did not consider new and material information in rendering his penalty 

analysis. The agency’s notice of proposed indefinite suspension explained that 

the appellant’s indefinite suspension was being proposed based upon the 

suspension of her security clearance and that the agency’s security office 

“suspended [her] security clearance based on allegations regarding [the 

appellant’s] mental health and personal conduct. The details of the basis for 

suspension of [the appellant’s] access to classified information are contained in 

the letter issued . . . [by the agency’s security office] on January 26, 2011.” 

0039, IAF, Tab 2 at 78. In response to her proposed indefinite suspension, 

moreover, the appellant, through counsel, specifically addressed, and contested, 

the underlying reasons cited by the agency in support of its interim security 

clearance determination, thus placing the underlying reasons for her security 

clearance suspension—i.e., her personal conduct—into controversy before the 

deciding official. 0040, IAF, Tab 2 at 61 (the appellant’s response to the 

deciding official arguing that the appellant is fit for duty and that she does not 
10

present a danger to herself or others). Thus, to the extent that the deciding 

official may have considered the reasons for the appellant’s security clearance 

suspension in rendering his penalty determination, we find this information 

did not constitute new and material information under Ward/Stone.

3

 See

Buelna, 121 M.S.P.R. 262, ¶ 32 (finding that the underlying reasons for the 

appellant’s security clearance suspension had already been cited in the proposal 

notice and did not violate Ward/Stone); Lange, 119 M.S.P.R. 625, ¶ 8 

(information is new and material when, inter alia, the employee did not know 

about the information and did not have a chance to respond to it). 

¶16 In response to the Board’s motion granting the parties an additional

opportunity to brief the effect of Gargiulo on this case, the appellant contends

that the agency committed harmful error in connection with her indefinite 

suspension when it took over 6 months to decide whether to reinstate or revoke 

her security clearance. PFR File, Tab 18 at 8. However, the appellant’s 

indefinite suspension was imposed in March 2011, and the decision to revoke her 

clearance was not issued until August 2011. 0039, IAF, Tab 2 at 48-53 

(revocation of her clearance), 55-57 (decision on the indefinite suspension). The 

decision to revoke the appellant’s clearance almost 5 months after her indefinite 

suspension went into effect could not constitute harmful error in connection with 

the decision to impose the indefinite suspension. See 5 C.F.R. § 1201.56(c)(3)

(defining harmful error as “[e]rror by the agency . . . that is 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”). 

 

3 We also find that, to the extent that the deciding official considered this information, 

his consideration does not constitute harmful error. 
11

The administrative judge properly found that the Board could not adjudicate the 

appellant’s disability discrimination claim.

¶17 The appellant also argues on petition for review that the administrative 

judge erred in concluding that the Board is precluded from reviewing allegations 

of discrimination in connection with an adverse action based upon the suspension 

or revocation of a security clearance. PFR File, Tab 3 at 19-23; ID at 9. The 

appellant argued below that the agency discriminated against her on the basis of a 

perceived mental disability when the deciding official declined to reassign her 

and instead imposed her indefinite suspension. 0040, IAF, Tab 3 at 36-46. For

the reasons that follow, we find that the administrative judge properly declined to 

adjudicate this affirmative defense. 

¶18 In Pangarova v. Department of the Army, 42 M.S.P.R. 319, 322-23 (1989), 

the Board found that it is precluded from reviewing allegations of prohibited 

discrimination and reprisal when such affirmative defenses relate to the 

revocation of a security clearance. Analyzing an appellant’s discrimination and 

reprisal claims in such cases would require the Board to focus on the validity of 

the agency’s legitimate, nondiscriminatory reason for taking the challenged 

action, i.e., the validity of the security clearance determination. Id. at 323. Thus, 

the Board is not permitted to adjudicate whether an agency’s adverse action, 

which is premised on the suspension or revocation of a security clearance,

constitutes impermissible discrimination or reprisal. See, e.g., Doe v. Department 

of Justice, 118 M.S.P.R. 434, ¶ 40 (2012); Hesse v. Department of 

State, 82 M.S.P.R. 489, ¶ 9 (1999), aff’d, 217 F.3d 1372 (Fed. Cir. 2000); 

Pangarova, 42 M.S.P.R. at 322-23. 

¶19 The appellant maintains on review that she has presented a colorable claim 

of disability-based discrimination in connection with the agency’s decision to 

indefinitely suspend her when it failed to reassign her to a nonsensitive position 

within the agency. PFR File, Tab 3 at 19-23. A cursory review of the elements 

of proof needed to prevail on such a claim demonstrates that it would require the 
12

Board to review the propriety of the agency’s security clearance determination. 

We find no reason to depart from the Board’s precedent finding that it has no 

authority to review allegations of prohibited discrimination or reprisal related to 

the revocation or suspension of a security clearance. See Doe, 118 M.S.P.R. 434, 

¶ 40; Hesse, 82 M.S.P.R. 489, ¶¶ 7, 9; Pangarova, 42 M.S.P.R. at 322-23. 4 

The administrative judge properly dismissed the appellant’s involuntary 

retirement claim for lack of jurisdiction. 

¶20 Finally, the appellant argues on review that the administrative judge 

wrongly dismissed her allegation of an involuntary retirement for lack of 

jurisdiction. PFR File, Tab 3 at 18-19. We find, however, that the administrative 

judge properly dismissed this claim. ID at 14-16. 

¶21 A retirement is presumed to be voluntary and outside of the Board’s 

jurisdiction. Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 16 

(2013). An involuntary retirement, however, is equivalent to a forced removal 

within the Board’s jurisdiction under chapter 75. Id. An appellant must make 

nonfrivolous allegations of jurisdiction to be entitled to a hearing, at which point 

she would be required to prove her claim by a preponderance of the evidence. Id. 

An appellant who claims that her retirement was involuntary may rebut the 

presumption of voluntariness in a variety of ways, including by showing that the 

retirement was the result of intolerable working conditions. Id., ¶ 17; see

Conforto v. Merit Systems Protection Board, 713 F.3d 1111, 1121 (Fed. Cir. 

2013). Here, the appellant argued that her retirement was the product of coercion 

 

4 In Helms v. Department of the Army, 114 M.S.P.R. 447, ¶ 9 n.* (2010), the Board 

assumed without deciding that an appellant could maintain a disparate treatment claim 

based upon an allegation that other employees outside of the appellant’s protected class 

were treated more favorably, i.e., reassigned to positions which did not require security 

clearances, as compared to the appellant, who was subjected to a more severe adverse 

action. Because the appellant makes no such allegation of disparate treatment in this 

case, we do not resolve the issue left open in Helms. 
13

based upon intolerable working conditions flowing from the suspension, and 

subsequent revocation, of her security clearance. ID at 15. The administrative 

judge found that the appellant failed to nonfrivolously allege that these 

circumstances left her no choice but to retire. Id. We agree. 

¶22 As the Federal Circuit recently observed, “[t]he doctrine of coercive 

involuntariness is a narrow one, requiring that the employee satisfy a demanding 

legal standard.” Conforto, 713 F.3d at 1121. “An employee’s dissatisfaction 

with the options that an agency has made available to him is not sufficient to 

render his decision to resign or retire involuntary.” Id. Accordingly, “coerced 

involuntariness does not apply if the employee resigns or retires because he 

does not like agency decisions such as a new assignment, a transfer, or other 

measures that the agency is authorized to adopt, even if those measures make 

continuation in the job so unpleasant . . . that he feels he has no realistic option 

but to leave.” Id. at 1121-22. Importantly, moreover, under this test for 

involuntariness, “the coercion must be the result of improper acts by the agency.” 

Id. at 1122. 

¶23 Here, the appellant argues that the decisions to suspend her clearance and 

to place her on indefinite suspension left her no realistic alternative but to retire 

from federal service. 0040, IAF, Tab 3 at 29-30. These allegations, however, fail 

to meet the “demanding legal standard” required to demonstrate coercion. See 

Conforto, 713 F.3d at 1121. As the administrative judge correctly explained, the 

agency had not yet reached a final decision to permanently revoke the appellant’s 

security clearance at the time of her retirement, and it remained possible that she 

would be reinstated to employment in the event her clearance was reinstated. ID

at 15. We do not agree that the suspension of a clearance alone rises to the level 

of coercion for the purposes of a constructive adverse action. The appellant’s 

choice to retire, rather than await the final disposition of her security clearance 

determination, was not the result of improper pressure, intimidation, or coercion. 

ID at 14-16. Additionally, because of the Board’s limited scope of review 
14

involving the suspension or revocation of a security clearance, we cannot 

consider whether the agency committed any improper acts in connection with its 

security clearance determination, see Gargiulo, 727 F.3d at 1185, and we have 

otherwise found no evidence of any improper act in the course of the agency’s 

decision to indefinitely suspend the appellant that could supply the jurisdictional

basis for an appeal of an involuntary retirement, see Schnedar, 120 M.S.P.R. 516, 

¶¶ 8, 12. 

ORDER

¶24 For the foregoing reasons, we AFFIRM AS MODIFIED the initial decision 

sustaining the appellant’s indefinite suspension, we AFFIRM the administrative 

judge’s decision not to adjudicate the appellant’s disability discrimination 

affirmative defense, and we AFFIRM the initial decision dismissing the 

appellant’s involuntary retirement appeal for lack of jurisdiction. This is the final 

decision of the Merit Systems Protection Board in this appeal. Title 5 of the 

Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

IN MSPB DOCKET NO. DE-0752-12-0039-I-3

You have the right to request further review of the final decision in MSPB 

Docket No. DE-0752-12-0039-I-3 regarding the indefinite suspension. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request 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
15

If you submit your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time. 

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. 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. § 2000e5(f) 

and 29 U.S.C. § 794a. 
16

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

IN MSPB DOCKET NO. DE-0752-12-0040-I-3

You have the right to request further review of the final decision in MSPB 

Docket No. DE-0752-12-0040-I-3 regarding the involuntary retirement. 

You have the right to request review of this final decision by the 

United States Court of Appeals for the Federal Circuit. You must submit your 

request to the court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the 

United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information 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, and 11. 

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 
17

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.