NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

PETER PAUL MITRANO,

Petitioner

v.

DEPARTMENT OF THE AIR FORCE,

Respondent

______________________ 

2017-2572

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-0752-17-0086-I-1.

______________________ 

Decided: April 6, 2018 

______________________ 

 PETER PAUL MITRANO, Fairfax, VA, pro se.

 NATHANAEL YALE, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ELIZABETH 

M. HOSFORD. 

______________________ 

Before LOURIE, DYK, and TARANTO, Circuit Judges.
2 MITRANO v. AIR FORCE

PER CURIAM. 

The Department of the Air Force removed Peter Mitrano from his position as a Civil Engineer in 341st Civil 

Engineering Squadron at Malmstrom Air Force Base. As 

relevant here, there were two grounds for Mr. Mitrano’s

removal: (1) inability to perform assigned duties because 

he was disqualified from being given access to the Base 

under a national-security-based policy; and (2) refusal to 

comply with proper instructions. The Merit Systems 

Protection Board, on Mr. Mitrano’s appeal of his removal,

affirmed the two grounds and the penalty of removal. 

Mitrano v. Dep’t of the Air Force, DE-0752-17-0086-I-1 

(M.S.P.B. June 16, 2017) (Decision). We affirm. 

I 

The Air Force appointed Mr. Mitrano to a position as 

a Civil Engineer on January 11, 2016. In order to perform 

the duties associated with this position, Mr. Mitrano 

needed to obtain a secret security clearance and have 

access to the Base—a facility whose “mission involv[es] 

nuclear weaponry.” Decision at 5 n.4; see also id. at 2. On 

January 15, 2016, as part of the process for obtaining the 

necessary security clearance, the Air Force sent an email 

to Mr. Mitrano (at the email address he used during the 

hiring process), instructing him to submit the required 

Standard Form 86 (SF-86). Six days later Mr. Mitrano 

submitted an SF-86 form, which, among other things,

listed as his email address the address the Air Force had 

used on January 15. 

The Air Force reacted to the submission in two ways. 

First, it quickly decided to reject the SF-86 as deficient, 

and in a January 26 email addressed to Mr. Mitrano at 

the same email address, it so stated and directed him to 

resubmit his SF-86, this time filled out fully and accurately. The day before, Mr. Mitrano was told the same thing 

orally by Joe Bradley, the Chief of Project Management 

for the 341st Civil Engineering Squadron, according to 
MITRANO v. AIR FORCE 3

Mr. Bradley’s testimony here (which Mr. Mitrano disputed but the Board credited).

Second, based on the information contained in the incomplete SF-86 that Mr. Mitrano had submitted, the Air 

Force determined that he had been imprisoned for over 

twelve months. On that basis, it determined that not only 

would he likely be denied the required security clearance 

but, what is key here, that he was disqualified from being 

given access to the Base under the rules set out in the 

Integrated Defense Plan for the Base. Late in the afternoon on January 25, 2016, Mr. Mitrano was given a

memorandum placing him on administrative leave indefinitely and providing him the opportunity to respond to 

the initial determination to deny him access to the Base. 

After Mr. Mitrano responded, the Air Force made its 

denial of access final on April 25, 2016.

The Air Force then proposed to remove Mr. Mitrano

from his position. The operative July 2016 proposal 

stated two grounds of relevance here: (1) inability to 

perform assigned duties given the denial of Base access; 

and (2) refusal to comply with proper orders, namely, the 

orders to resubmit the SF-86 in completed form.1 Mr. 

Mitrano replied several times in August 2016. In late 

August, the Air Force’s deciding official, having received 

additional information, supplied the information to Mr. 

Mitrano and invited him to respond, which he did. On 

October 21, 2016, after a further communication from the 

deciding official and a further response from Mr. Mitrano, 

the deciding official sustained the grounds for removal 

and decided that removal was the appropriate penalty, 

effective a few days later. 

 

1 The proposal stated one other ground for removal, 

but the Air Force dropped that ground in the proceedings 

before the Board. It is not further mentioned here.
4 MITRANO v. AIR FORCE

Mr. Mitrano appealed the decision to the Board. The 

assigned Administrative Judge rendered a decision upholding the removal on June 16, 2017. Decision at 1. 

When Mr. Mitrano did not seek full Board review in the 

allowed time, the Decision became the Board’s decision. 

Accordingly, we use “Board” in describing the Decision. 

The Board upheld the ground of inability to perform 

assigned duties because Mr. Mitrano lacked access to the 

Base, a necessary condition of the job. It observed that it 

was undisputed both that Mr. Mitrano had been denied 

access to the Base and that his duties required him to 

have access to the Base. Decision at 8, 10. As to the 

access denial, all that the Board could review was whether Mr. Mitrano “was afforded minimum due process in 

being barred from the base (i.e., he was told of the reason 

for being barred and given an opportunity to respond)” 

and whether there were “substantive rules” that the Air 

Force “did not follow in barring” him from the Base. Id.

at 9. The Board concluded that Mr. Mitrano had been 

afforded due process and that the Air Force followed its 

substantive rules—specifically, the Integrated Defense 

Plan—in denying him access to the Base. Id. at 11. 

Although Mr. Mitrano contended that the Air Force erred 

in refusing to credit his argument about the wrongfulness 

of the criminal conviction and imprisonment that gave 

rise to the access denial, the Board concluded that it had 

no authority to question the conviction and sentence, 

which had been affirmed on appeal to the First Circuit. 

Id. (citing United States v. Mitrano, 658 F.3d 117 (1st Cir. 

2011)).

The Board also upheld the ground of Mr. Mitrano’s 

failure to follow instructions to resubmit the SF-86 to 

address various deficiencies. Mr. Mitrano presented 

essentially a factual dispute over whether he had been so 

instructed, contending that he never received any such 

instruction, because he did not receive the January 26, 

2016 email and he never had the January 25, 2016 con-
MITRANO v. AIR FORCE 5

versation with Mr. Bradley. The Board found that the Air 

Force had proven otherwise by a preponderance of the 

evidence. Id. at 12. The Board explained that the Air 

Force sent the January 26, 2016 email to the email address at which Mr. Mitrano received the original request 

to complete the SF-86 (and he then submitted his initial 

SF-86) and that he “consistently used before.” Id. It also

found that, whereas a subsequent email was returned as 

not delivered, the January 26 email was not. Id. at 12–

13. And the Board credited Mr. Bradley’s testimony that 

he instructed Mr. Mitrano to resubmit the SF-86 on 

January 25, 2016. Id. at 13–14. 

The Board went on to reject Mr. Mitrano’s affirmative 

defenses as unproven. Id. at 14–16. And it concluded by 

finding the required connection between the sustained 

charges and the removal. Id. at 16 (finding “there is no 

doubt that [a] nexus exists between the sustained charges 

and imposing discipline. This is so because: 1) since the 

appellant cannot enter the [Base], he cannot accomplish 

his duties: and 2) there is an obvious government interest 

in disciplining an employee who fails to follow an instruction.”). The Board found that the Air Force considered 

mitigating factors and acted “clearly within the tolerable 

limits of reasonableness” in removing Mr. Mitrano. Id. 

The Board’s Initial Decision became final on July 21, 

2017. Decision at 17. Mr. Mitrano timely sought review 

in this court. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(9).

II

This court must affirm the decision of the Board unless it was “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law”; “obtained without procedures required by law, rule, or regulation having 

been followed”; or “unsupported by substantial evidence.” 

See 5 U.S.C. § 7703(c). When we review factual challenges, we do not “re-weigh conflicting evidence,” but ask only 
6 MITRANO v. AIR FORCE

if the Board’s findings are supported by substantial 

evidence. Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 

(Fed. Cir. 2002).

Mr. Mitrano asserts that he was entitled to a hearing 

under 5 U.S.C. § 7532(c)(3) and a decision by the head of 

the relevant agency before he was removed from his 

position. Pet’r Br. 5. But Section 7532, which provides 

for removal without Board review, is not the only provision under which an employee may be removed for reasons relating in some way to national security. An agency 

may follow the normal removal path under 5 U.S.C. 

§ 7513 instead, with its different mix of benefits and 

burdens, including Board review, in which case Section 

7532 is inapplicable. See Biggers v. Dep’t of the Navy, 745 

F.3d 1360, 1363 (Fed. Cir. 2014); see also Dep’t of the Navy 

v. Egan, 484 U.S. 518, 522–26, 532–34 (1988). Here, the 

Air Force followed the Section 7513 path. Mr. Mitrano 

therefore has no basis for invoking Section 7532.2

To the extent that Mr. Mitrano challenges the denial 

of Base access as the premise for the Board’s finding that 

he was unable to perform assigned duties, there is no 

merit to his challenge. As a substantive matter, the Air 

Force decision straightforwardly followed a provision of 

the Integrated Defense Plan stating that access to the 

Base will be denied to a person who has been “incarcerated for 12 months or longer within the past 10 years, 

regardless of offense/violation, unless released on proof of 

innocence.” Resp. Appx 39–40. That provision fits Mr. 

Mitrano’s situation, and he has not identified any substantive rule that the Air Force violated in denying him 

access. He also received notice and an opportunity to 

respond to the proposed denial of access. In these circum-

 

2 Department of Defense Personnel Security Program Regulation DoD 5200.2-R, invoked by Mr. Mitrano, 

is inapplicable to the removal decision here.
MITRANO v. AIR FORCE 7

stances, the Board properly left undisturbed the denial of 

Base access on which the first ground of removal rested. 

Decision at 8–9; see also Egan, 484 U.S. at 527–31 (limiting bases for Board review of Executive Branch securityclearance decisions, even when job status hinges on such 

decisions); Kaplan v. Conyers, 733 F.3d 1148, 1151, 1155, 

1160 (Fed. Cir. 2013) (en banc) (applying Egan to a determination of eligibility of employee to hold a “sensitive” 

position).

In this court, as before the Board, Mr. Mitrano provides no basis to question the premise that access to the 

Base was an essential requirement of his job. He does, as 

he did before the Board, challenge the soundness of his 

criminal conviction (with resulting imprisonment of more 

than 12 months), which was the premise for applying the 

Integrated Defense Plan’s provision for denying access to 

the Base. Pet’r Br. 16, 20 (“The issue for this Court to 

decide is whether or not Mitrano’s conviction is void as a 

matter of law.”). But a sufficient answer is that nothing 

in any grant of jurisdiction to this court gives us, any 

more than any grant to the Board gives it, authority to 

question the conviction and sentence entered by a United 

States District Court in New Hampshire and affirmed by 

the First Circuit. See 28 U.S.C. § 1295 (principal grants 

of jurisdiction to this court).3

Mr. Mitrano’s challenge to the Board’s upholding of 

the other ground for his removal—failure to follow orders—likewise lacks merit. He asserts that the Board 

erred in crediting Mr. Bradley’s testimony about the 

 

3 In a related vein, Mr. Mitrano asserts that this 

court should review the disbarment decision of the District of Columbia Court of Appeals, In re Mitrano, 952 

A.2d 901 (D.C. 2008). Pet’r Br. 15–16; Reply Br. 2–6. 

That decision has no apparent bearing on the removal at 

issue here. Moreover, we lack any authority to review it. 
8 MITRANO v. AIR FORCE

existence and content of a conversation with Mr. Mitrano 

on January 25, 2016. He argues specifically that, while 

Mr. Bradley said in this matter (in March 2017) that the 

conversation occurred between 8 AM and 12 PM, Mr. 

Bradley said in an unemployment-compensation proceeding (in May 2017) that the conversation occurred around 8 

AM. Pet’r Br. 4, 27–29. But this asserted disparity, 

which is not even a facial inconsistency, is not remotely 

enough to undermine the Board’s finding that Mr. Bradley was credible or the Board’s decision to credit his 

testimony, specifically as to the instructions about resubmitting the SF-86. Decision at 13–14. Mr. Mitrano has 

not supplied a basis for overcoming our broad deference to 

credibility determinations by fact finders who have seen 

witnesses firsthand. See Pope v. United States Postal 

Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997); see also 

Bieber, 287 F.3d at 1364.

In any event, the Board also found that the same instruction to resubmit the SF-86 was received by Mr. 

Mitrano in the email sent to him on January 26, 2016. 

Decision at 12–13. That finding is sufficiently supported 

by the evidence recited by the Board, which we noted 

above. The finding about the email supports this ground 

of removal independently of the January 25, 2016 conversation between Mr. Bradley and Mr. Mitrano. 

In his reply brief in this court, Mr. Mitrano makes 

several additional arguments regarding the Board decision in this matter. They come too late. A reply brief may 

not introduce new contentions. In any event, we see no 

merit in these contentions as grounds for disturbing the 

Board’s decision here.

Finally, Mr. Mitrano presents several contentions not 

particularly tied to the Board decision in this case. We 

find no merit to these contentions either. We see no due 

process violation in applying our own standard rules 

setting length limits on the briefs Mr. Mitrano could file. 
MITRANO v. AIR FORCE 9

See, e.g., May v. Shinseki, 544 F. App’x 1002, 1005 (Fed. 

Cir. 2013). There is no statutory violation in the absence 

of a quorum at the Board and no basis in the absence of a 

quorum for this court to conduct de novo review in this 

matter: the statutory standard of review in 5 U.S.C. 

§ 7703(c), does not change where, as here, an Administrative Judge’s decision becomes the final Board’s decision 

under the governing regulations, 5 C.F.R. § 1201.113. 

And Mr. Mitrano has not identified any violation by the 

Board of its regulations regarding the provision of transcripts when requested, 5 C.F.R. § 1201.53. 

III

For the foregoing reasons, we affirm the Board’s decision. 

No costs. 

AFFIRMED