How Five Steps Became Four At Social Security.

Social Security Administration has finalized the expedited sequential evaluation process, making Step 4 optional for the ALJ. The Social Security Administration has finalized its rules to expedite the five-step process for evaluating a disability claim by giving adjudicators the discretion to skip step 4 and proceed directly to the fifth step when the Administration has insufficient information about a claimant’s prior work history to make the findings required at step 4. However, if an adjudicator finds at step 5 that a claimant may not be able to adjust to other work existing in the national economy, the adjudicator will then return to step 4 to develop the work history and make a finding about whether the claimant can perform his or her past relevant work. According to the Administration, the purpose of these changes is to promote administrative efficiency since the time the Administration spends in obtaining the work history needed to make step 4 findings frequently delays the processing of claims and requires the Administration to divert its limited administrative resources from processing other claims.

 Background

At step 4 of the sequential evaluation process, the Administration determines whether a claimant can perform his or her past relevant work given his or her residual functional capacity (RFC). The Administration will look at the past fifteen years of a claimant’s work history for relevant information. To make a proper evaluation, the Administration needs information about each of the claimant’s jobs during that period, including information about job duties, tools or machinery used, the amount of physical exertion required in terms of the amount of walking, standing, lifting, and carrying during the workday, the length of time that a claimant worked each job, and the physical and mental demands of the job. With this information the Administration compares the claimant’s RFC to the physical and mental demands of these past relevant jobs to determine if the claimant can still perform any of them. If so, the claimant is found to be not disabled. However, if the claimant is currently unable to perform any past relevant work, the adjudicator will proceed to step 5.

 At step 5 the adjudicator determines whether a claimant’s impairments prevents him or her from doing any other work that exists in significant numbers in the national economy, considering his or her RFC and vocational factors such as age, education, and work experience. If the Administration finds that the claimant can adjust to other work, the claimant is found to be not disabled.

Why are changes being made?

 Because it can be time-consuming to gather all of the necessary information regarding the claimant’s work history during the fifteen-year period that precedes the alleged disability onset date, disability determinations are often delayed. By going directly to step 5, a determination can be expedited if it is determined that a claimant is not disabled under the criteria for step 5. At step 5 the adjudicator would consider if the claimant is disabled based on (1) The special medical-vocational profiles set forth at Reg. §404.1562; (2) the Medical-Vocational Guidelines (Appendix 2 to 20 CFR, Part 404, Subpart P), whether directly or as a framework, or (3) an inability to meet the mental demands of unskilled work. If application of the step 5 rules indicates that a claimant may be disabled or if the adjudicator has any doubt whether the claimant can perform other work existing in significant numbers in the economy, the adjudicator must return to step 4 since the Social Security Act requires the Administration to make a finding about a claimant’s ability to do past relevant work before a determination is made that a claimant is disabled at step 5. The expedited process is reflected primarily in Regs. §404.1520 and §416.920.

The Administration believes that this approach to evaluation could shorten some process times in some cases because there would be no need to collect unnecessary work history at step 4 for claims that can be appropriately denied at step 5 based solely on the claimant’s age, education, and RFC. This process has already been used for the past 12 years in ten “prototype” states. (These states are Alabama, Alaska, California (Los Angeles North and Los Angles West Branches), Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York, and Pennsylvania.) This expedited process will be used in all disability evaluations except for childhood disability claims under Title XVI, since those claims do not use vocational criteria.

Comments result in some minor changes.

 The regulations, as proposed on September 11, 2011, are adopted with a few minor changes.

The Administration agreed with a comment that adjudicators who do not make findings at step 4 of the sequential evaluation process using the expedited process must consider the potential application of the “special medical-vocational profiles” before proceeding to step 5. Those profiles are sent forth at Reg. §404.1562, SSR 82-63, and POMS DI §25010.001. If a claimant fits one of these profiles, a finding of disability will be made. The profiles include (a) persons not working at substantial gainful activity level who have worked for 35 years or more in arduous physical labor, can no longer perform this work due to an impediment, and have no more than a marginal education; (b) individuals 55 or older who have a severe impairment, no past relevant work, and have no more than a limited education; and (c) persons who are not working at SGA level, and have a lifetime commitment (30 years or more) to a field of work that is unskilled, or is skilled or semi-skilled but with no transferable skills, can no longer perform this past work because of a severe impairment(s), are closely approaching retirement age (age 60 or older), and have no more than a limited education. Accordingly, references to Reg. §404.1562 will be included in some of the regulations being amended, and a similar reminder will be inserted into an electronic tool used at the initial stages of the administrative review process.

Neck Pains That Might Pay Dividends.

Not all joint pains can be cured with a miracle healing.

If you have joint pains that will not go away, and no miracle healing has been able to cure, then you might be permanently disabled.

It is no secret that most people are likely to have “good days” and “bad days.”If your condition consists mostly of joint pains, there may be days when you feel that you can work. Your pain may fluctuate and may not always be present. You may be suffering from fibromyalgia.

Fibromyalgia is a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues. If your pain or other symptoms cause a limitation or restriction that has more than a minimal effect on your ability to perform basic work activities, you could qualify for disability benefits from the Social Security Administration.

The Social Security Administration has issued a comprehensive statement that provides guidance on how disability claims based on fibromyalgia should be evaluated. It is contained in Social Security Ruling (SSR) 12-2p.

Rulings are published under the authority of the Commissioner of Social Security and make available to the public a series of precedential decisions relating to Federal old-age, survivors, disability, supplemental security income (SSI), and black lung benefits programs. Social Security Rulings (SSR) may be based on case decisions made at all administrative levels of adjudication, Federal court decisions, Commissioner's decisions, opinions of the Office of the General Counsel, and other policy interpretations of the law and regulations.

 Rulings do not have the force and effect of the law or regulations, but they are binding on all components of the Social Security Administration (SSA), and are to be relied upon as precedents in adjudicating other cases.

 Social Security Ruling (SSR) 12-2p, provides guidance on how the Administration will develop evidence to establish that a person has a medically determinable impairment (MDI) of fibromyalgia, and how it will evaluate this condition in disability claims and in continuing disability reviews under both Titles II (SSDC) and XVI (SSI) of the Social Security Act. The ruling, which was effective upon publication, appears in the July 25, 2012, issue of the Federal Register (77 Fed. Reg. 43640).


 The new ruling relies on two alternative sets of guidelines for establishing the presence of fibromyalgia, the 1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria. Additionally, particular emphasis is given to longitudinal evidence and a recognition that one suffering from the condition is likely to have “good days” and “bad days.” This clearly increases the role played by a treating physician in establishing the presence of fibromyalgia. The detailed guidance provided by SSR 12-2p should also restrain adjudicators who might be predisposed to deny claims based on fibromyalgia when it is otherwise clearly established in accordance with the Ruling.

 How fibromyalgia is to be established

Fibromyalgia is a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least three months. Generally, an MDI of fibromyalgia can be established through evidence provided by “an acceptable medical source,” i.e., a physician or osteopath. However, the Administration will not rely on a diagnosis without evidence. The evidence must document that the physician reviewed the person’s medical history and conducted a physical examination.

 Based on both the 1990 ACR criteria and the 2010 ACR Preliminary Diagnostic Criteria, there are three components to the specific criteria that must be used to determine that a claimant has an MDI of fibromayalgia. Both sets of criteria agree on two of the points, but have different guidelines regarding current symptomatology (point 2, below):

(1) A history of widespread pain. This means pain in all quadrants of the body that has persisted for at least three months, although the pain may fluctuate and may not always be present.

(2) 1990 ACR criteria: At least 11 positive tender points out of a possible 18 tender point sites on physical examination. These points must be both bilateral and above and below the waste. The specific location of these tender point sites are identified with a diagram in the notice. When testing these tender-point sites, the physician should apply at least 9 pounds of pressure to the site; or,

2010 ACR Preliminary Diagnostic Criteria: Repeated manifestations of six or more fibromyalgia symptoms, signs or co-occuring conditions, especially manifestations of fatigue, cognitive or memory problems, waking unrefreshed, depression anxiety disorder, or irritable bowel syndrome. A complete list of symptoms appears in the notice.

 (3) Evidence that other disorders that could cause the symptoms or signs have been ruled out.

 The Administration will generally request documentation for the 12-month period that precedes the application date. Evidence may also be considered from medical sources who are not “acceptable medical sources” such as psychologists, as well as from nonmedical sources such as neighbors, friends, employers, rehab counselors, teachers, and Administration personnel who have interviewed the claimant. If the evidence is insufficient, the Administration may purchase a consultative examination; however, the Ruling notes that the consultative examiner should have access to longitudinal information about the claimant. However, it is not a necessary requirement.

Once an MDI is established, the Administration will then evaluate the intensity and persistence of the person's pain or any other symptoms and determine the extent to which the symptoms limit the person's capacity for work. If objective medical evidence does not substantiate the person's statements about the intensity, persistence, and functionally limiting effects of symptoms, all of the evidence in the case record will be considered, including the person's daily activities, medications or other treatments the person uses, or has used, to alleviate symptoms; the nature and frequency of the person's attempts to obtain medical treatment for symptoms; and statements by other people about the person's symptoms. Determination of disability after fibromyalgia is established Once an MDI of fibromyalgia is established, it will then be considered in the five-step sequential evaluation process. At step two, when determining severity, the ruling states, “If the person's pain or other symptoms cause a limitation or restriction that has more than a minimal effect on the ability to perform basic work activities, we will find that the person has a severe impairment(s).” Because fibromyalgia is not a listed impairment, the Administration at step three, will determine whether FM medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or whether it medically equals a listing in combination with at least one other medically determinable impairment.

When determining the residual functional capacity for an individual basing a claim on fibromyalgia, all relevant evidence in the record will be considered. However, the Administration specially notes that it will “consider a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have ‘bad days and good days.’” At steps four and five, the usual vocational considerations apply. However, the Administration states that “[w]idespread pain and other symptoms associated with FM, such as fatigue, may result in exertional limitations that prevent a person from doing the full range of unskilled work in one or more of the exertional categories in appendix 2 of subpart P of part 404 (appendix 2). … Adjudicators must be alert to the possibility that there may be exertional or nonexertional (for example, postural or environmental) limitations that erode a person's occupational base sufficiently to preclude the use of a rule in appendix 2 to direct a decision.”

If A Broken Clock Is Right Twice A Day, What About The MSPB?

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2012 MSPB 95 Docket No. CH-0752-09-0404-I-1 John Doe, Appellant, v. Department of Justice, Agency. August 9, 2012 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 that sustained his removal. For the reasons discussed below, we VACATE the initial decision and REMAND this appeal to the agency to apply its internal procedures for reviewing a decision to withdraw an employee’s eligibility for access to classified information. BACKGROUND ¶2 The appellant was an Assistant United States Attorney (AUSA) in a United States Attorney’s Office (USAO) until his January 16, 2009 removal. Initial Appeal File (IAF), Tab 14, Subtab 4C. The events leading up to his removal began in August 2008. On August 4, 2008, Supervisor 3 (the United States 2 Attorney) told the appellant that he was being reassigned from the Economic Crimes Unit to the Community Crimes Unit, i.e., the “Gun Unit.” Id., Tab 76, Ex. 10. On August 11, 2008, the appellant submitted a reasonable accommodation request asking not to be reassigned, asserting that it would exacerbate his anxiety disorder. Id., Ex. 50. In response to the agency’s request for medical documentation to support the request, the appellant submitted Doctor 1’s (his psychologist’s) August 29, 2008 letter. The last sentence of the letter stated: He [the appellant] is currently having obsessive thoughts that he will have suicidal or homicidal ideation if he is moved to the “guns unit.” I view this as evidence of his potential to decompensate into a depression with paranoid features. Id., Ex. 15 at 5. Based on the letter, Employee 1 (the Executive Office for U.S. Attorneys’ (EOUSA’s) Chief of Personnel Security Section) determined on September 9, 2008, that the appellant was no longer eligible to hold a Special-Sensitive Level 4 position and that his assignment as an AUSA posed an unnecessary and unacceptable operational security risk. IAF, Tab 14, Subtab 4G at 38. On September 11, 2008, the agency placed the appellant on administrative leave. Hearing Transcript (HT) at 283, 615. On September 18, 2008, the appellant filed a complaint with the Office of Special Counsel (OSC) concerning his reassignment and office move. IAF, Tab 76, Ex. 21 at 5, 12; HT at 647. He subsequently responded to OSC’s request for information, apparently identifying his public placement on administrative leave as another personnel action. Id., Ex. 22; HT at 648. ¶3 On October 10, 2008, Supervisor 3 proposed to remove the appellant based on charges of (1) “failure to maintain a qualification for your position,” and (2) “posing an operational security risk to the office.” IAF, Tab 14, Subtab 4G at 4. Under Charge 1, Supervisor 3 stated as follows: 3 In order to be qualified for an AUSA position, you must maintain eligibility to hold a Special-Sensitive, Level 4 position. On September 9, 2008, [Employee 1], Chief of the Personnel Security Section, EOUSA, determined that you were no longer eligible to hold a Special-Sensitive, Level 4 position. Therefore, you are no longer qualified for an AUSA position. Id. Under Charge 2, Supervisor 3 stated as follows: On September 9, 2008, [Employee 1], Chief of the Personnel Security Section, EOUSA, determined that your “continued assignment as an AUSA in the USAO poses an unnecessary and unacceptable operational security risk to the Department.” Id. Supervisor 3 also explained, inter alia, that the appellant’s AUSA position was designated as a Special-Sensitive, Level 4 position, which “involves the highest degree of trust; requires access, or affords ready opportunity to gain access, to Top Secret National Security Information (NSI) and material described in Executive Order 12356; and requires access to grand jury information.” IAF, Tab 14, Subtab 4G at 1. The appellant submitted a supplemental response to OSC, apparently identifying his proposed removal as another personnel action. Id., Tab 76, Ex. 23; HT at 648. OSC subsequently informed the appellant that it had closed its file and that he had the right to seek corrective action from the Board. Id., Tab 1. ¶4 Supervisor 4 (EOUSA Chief of Staff and Deputy Director) upheld the proposed removal based on the two charges identified in the proposal notice. IAF, Tab 14, Subtab 4D. He explained as follows: Based on Doctor 1’s note, USAO management spoke with the EOUSA security programs staff, including Employee 1. During the conversation, USAO management detailed the appellant’s history of aberrant behavior in the office. Id. at 1-2. Based on Doctor 1’s note and the conversation detailed in the notice of proposed removal, Employee 1 “determined that you were no longer eligible to hold a Special-Sensitive Level 4 position, which is a requirement to be an AUSA. In addition, [Employee 1] determined that you posed a security risk to the office. Based on [Employee 1’s] determinations [Supervisor 3] proposed your removal.” Id. at 2. 4 As previously noted, the agency removed the appellant effective January 16, 2009. IAF, Tab 14, Subtab 4C. ¶5 The appellant filed an appeal with the Board. IAF, Tab 1. The parties engaged in extensive prehearing activities, the appellant submitted voluminous records, and the administrative judge issued multiple orders. The administrative judge held a bifurcated hearing on August 25-27 and October 14, 2009. Initial Decision (ID) at 1. ¶6 The administrative judge found that the two charges brought against the appellant merged into one charge because they were both based on Employee 1’s September 9, 2008 determination and involved the same conduct. ID at 2. Based on regulations, delegations, and practice, he found that the agency officials who decided the appellant’s case properly exercised responsibilities within their authority. In that regard, he found that the Attorney General (AG) was not required to personally decide whether the appellant should be removed. He noted that the agency did not take the action under 5 U.S.C. § 7532 and the applicable agency regulation, which would require the AG to make the decision; rather, it took the action under 5 U.S.C. §§ 7511-13. He found that the appellant’s interpretation of 28 C.F.R. § 0.138(a) as requiring the AG to personally decide all personnel actions involving agency attorneys was unreasonable on its face. ID at 4-6. ¶7 The administrative judge found that the requirement that the appellant maintain eligibility to hold a Special-Sensitive, Level 4 position, was functionally equivalent to a security clearance determination because employees in those positions have ready access to obtaining security clearances on short notice. He found that all AUSAs occupy Special-Sensitive, Level 4 positions; that under 28 C.F.R. § 17.12(d), the EOUSA’s Security Programs Manager was authorized to withdraw access to classified information; and that Employee 1 had been delegated this authority in her position as Security Officer. ID at 6-7. He found that the appellant was not entitled to the procedures set forth at 28 C.F.R. 5 § 17.47, which provide for Access Review Committee (ARC) review of any decision denying access to classified information, because he did not have actual access to classified information due to his lack of a security clearance. He acknowledged the appellant’s argument that the agency’s failure to grant him ARC review denied him due process rights to an “internal appeal procedure” to which he could object to an adverse decision on “security clearance issues.” He found, though, that the appellant was afforded access to an “internal appeal procedure” that satisfied all due process requirements because the notice of proposed removal provided him with specific notice of the reasons for the proposed disciplinary action, allowing him to make an informed reply; Supervisor 4 considered his response before deciding to remove him; and Supervisor 4 specifically testified that he had authority to overturn Employee 1’s security determination. Id. at 7-8. ¶8 Because the administrative judge found that the requirement to maintain eligibility to hold a Special-Sensitive, Level 4 position was functionally equivalent to a security clearance determination, he applied the limited scope of Board review set forth in Department of the Navy v. Egan, 484 U.S. 518 (1988), in reviewing the appeal. ID at 8. Concerning the four factors set forth in Egan, he found as follows: (1) the appellant was required to maintain eligibility to occupy a Special-Sensitive, Level 4 position; (2) the appellant’s eligibility to occupy his position was withdrawn; (3) it was not feasible to transfer the appellant to a non-sensitive position; and (4) the agency followed the procedural requirements specified at 5 U.S.C. § 7513 in processing the removal action. Id. at 8-10. ¶9 The administrative judge addressed the appellant’s affirmative defense of whistleblowing, although noting that the agency strenuously argued that the defense cannot be heard under Egan. Citing Fellhoelter v. Department of Agriculture, 568 F.3d 965 (Fed. Cir. 2009), he found that, if the agency were able to establish by clear and convincing evidence that it would have removed the 6 appellant in any event, he was not required to examine the particulars of the whistleblowing defense. ID at 10. He rejected as unproven the appellant’s affirmative defense after finding as follows: (1) the strength of the agency’s evidence supporting its decision was strong, if not irrefutable because the agency’s determination was functionally equivalent to a security clearance determination and the appellant could not challenge the agency’s designation of his position as Special-Sensitive, Level 4 or the merits of its decision to revoke his eligibility to hold his position as part of a whistleblowing claim; (2) there was little evidence supporting the appellant’s supposition that the agency officials who took this action had a motive to remove him; and (3) there was no evidence that the agency engaged in disparate treatment of whistleblowers in comparison to non-whistleblowers. Id. at 10-12. ¶10 The administrative judge rejected as unproven the appellant’s affirmative defense of disability discrimination as follows: The Americans with Disabilities Act Amendments Act (ADAAA) of 2008 did not expressly change the meaning of reasonable accommodation. The appellant must articulate a reasonable accommodation under which he believes he could perform the essential duties of his position or of a vacant funded position to which he could be reassigned. The agency proved that the appellant was ineligible to hold his position, and the appellant did not show that there is any vacant funded position to which he could be reassigned. ID at 13. ¶11 The administrative judge also rejected as unproven the appellant’s affirmative defense of retaliation for filing equal employment opportunity (EEO) complaints. The administrative judge acknowledged that the appellant established that he engaged in a protected activity and that officials taking the action knew of the activity. He found, though, that the appellant had not shown that the intensity of the agency’s motive to retaliate overcame the reasonableness of the agency’s action because his failure to meet an essential eligibility requirement for his position was a compelling, if not irrefutable basis for the 7 agency’s disciplinary action; he had not proven the existence of a similarly-situated employee comparator; there was no evidence from which an inference of retaliatory intent might be drawn; and the evidence did not show that the agency’s action was pretextual in nature. ID at 13-15. ¶12 Concerning the appellant’s other defenses, the administrative judge rejected as unproven his argument that the agency did not give him the information on which it relied in proposing his removal. ID at 15. He found that the appellant failed to show harmful procedural error warranting reversal in the agency’s reliance on disciplinary actions that allegedly should have been removed from the record. In that regard, the administrative judge found that the appellant cannot challenge the merits of the agency’s action finding him ineligible to hold a Special-Sensitive, Level 4 position, and that, because consideration of the appellant’s past disciplinary record and the underlying reasons for that record goes to the merits of the agency’s decision, he could not show harmful error warranting reversal of the agency’s action. Id. at 15-16. The administrative judge acknowledged the appellant’s contention that the agency was obligated by regulation to obtain independent medical verification of his condition and that it distorted the medical evidence relied on in its action, but similarly found that the appellant’s argument addressed the merits of the agency’s security determination, a matter beyond the Board’s scope of review. He further acknowledged the appellant’s allegation that, in failing to secure independent medical verification of his condition, the agency violated adjudicative guidelines under Exec. Order No. 12,968. He found, though, that Exec. Order No. 12,968 does not create any right to administrative or judicial review or any other right or benefit, citing Romero v. Department of the Defense, 527 F.3d 1324, 1330 n.1 (Fed. Cir. 2008). ID at 16. ¶13 The administrative judge concluded that the Board must uphold the appellant’s removal. He found that the agency had supported its charges by the 8 requisite burden of proof and that the appellant had not established any affirmative defense warranting reversal of the agency’s action. ID at 16. ¶14 The appellant filed a petition for review. Petition for Review (PFR) File, Tab 4. The agency filed a response opposing the petition for review.1 Id., Tab 5. ANALYSIS Merger of Charges ¶15 The appellant asserts that the administrative judge erred in merging the two charges, contending that one need not have security clearance eligibility to pose an operational security risk, that one does not have to be an operational security risk to have a clearance eligibility revoked, and that Charge 2 was not a national security determination precluded from examination under Egan. He further asserts that the agency did not prove Charge 2. PFR at 7, 18 n.44, 23 n.57, 31-33. ¶16 We need not determine whether the administrative judge correctly merged the charges because, as discussed below, the limited scope of Board review set forth in Egan applies at least to Charge 1. As also discussed below, proof of that charge is sufficient to warrant removal even absent consideration of the second charge. See, e.g., Luciano v. Department of the Treasury, 88 M.S.P.R. 335, ¶ 10 (2001), aff’d, 30 F. App’x 973 (Fed. Cir. 2002). Thus, whether the administrative judge erred in merging the charges does not affect the analysis or outcome of this appeal. 1 The Board denied the appellant’s motion for leave to file a reply brief and request for oral argument. PFR File, Tabs 6-9. We have considered the appellant’s January 19, 2011 supplemental filing to the extent that it discusses the effect of the subsequently-issued Conyers v. Department of Defense, 115 M.S.P.R. 572 (2010) and Northover v. Department of Defense, 115 M.S.P.R. 451 (2010), on his appeal. PFR File, Tab 11. We thus DENY in PART the agency’s motion to strike that supplemental filing. Id., Tab 12. 9 Designation of Position/Scope of Board Review ¶17 We agree with the administrative judge that the appellant’s position was designated Special-Sensitive, Level 4. Although the appellant protests that he did not learn that he was required to maintain “a Level 4 clearance eligibility” until after his eligibility was revoked and he learned that he was to be terminated, PFR at 16, he has not contested the administrative judge’s finding. In that regard, the administrative judge cited agency documentation providing that all AUSA positions “are designated Level 4.” ID at 8; IAF, Tab 58 at 34. He also cited testimony from Employee 3 (EOUSA Acting Chief Operating Officer and Acting Administrative Officer) that all AUSAs occupy Special-Sensitive, Level 4 positions. ID at 6; HT at 20. Further, he stated that, as he previously advised the parties, “the appellant cannot challenge the decision of the agency to classify his position as Special-Sensitive, Level 4.” ID at 11. As the administrative judge found, the Board lacks authority to determine whether the agency properly designated the position. Skees v. Department of the Navy, 864 F.2d 1576, 1578 (Fed. Cir. 1989); Brady v. Department of the Navy, 50 M.S.P.R. 133, 138 (1991). ¶18 In his supplemental filing, the appellant asserts that, regardless of his position’s designation, the limited scope of review set forth in Egan does not apply in his case, citing Conyers v. Department of Defense, 115 M.S.P.R. 572 (2010), and Northover v. Department of Defense, 115 M.S.P.R. 451 (2010). He contends that the Board held in those decisions that Egan’s limited scope of review does not apply to adverse actions taken against federal employees “who do not actually have a security clearance,” PFR File, Tab 11 at 4, and states that the agency conceded that he did not have a security clearance, id. at 6. ¶19 The appellant’s supplemental filing misinterprets Conyers and Northover. In those cases, the agencies stipulated that the appellants’ positions did not require them to have security clearances or access to classified information. E.g., Conyers, 115 M.S.P.R. 572, ¶ 13. Under those circumstances, the Board concluded that Egan did not limit its statutory review authority. Id. The Board 10 further concluded, however, that Egan limits the Board’s review of an otherwise appealable adverse action “if that action is based upon a denial, revocation or suspension of a ‘security clearance,’ i.e., involves a denial of access to classified information or eligibility for such access.” Id. (emphasis added). Thus, the Board defined “security clearance” to mean “eligibility for access to, or access to, classified information.” Conyers, 115 M.S.P.R. 572, ¶ 17. ¶20 We find that the limited scope of review set forth in Egan applies in adjudicating the charge. The administrative judge correctly found that Employee 3 explained that the agency limits the number of actual security clearances it issues but that employees occupying Special-Sensitive, Level 4 positions “have ready access to security clearances should the need to secure one on short notice become necessary.” ID at 4 n.1; HT at 26-27. The administrative judge also correctly found that Employee 3 further stated that “only employees who actually hold a security clearance have authority to review classified material.” ID at 4 n.1; HT at 27. In its response, citing Exec. Order No. 12,968, the agency noted that AUSAs do not ordinarily maintain active security clearances because of government policy requiring that such clearances be limited, but explained that all AUSAs are subjected to the same background check as individuals with security clearances and must be able to be quickly authorized to handle classified information, thus making activation of security clearances “simply an administrative matter.” PFR File, Tab 5, Agency Resp. at 5 n.5; see also HT at 25-27. The appellant has cited nothing to contest this representation. Thus, we find that the appellant’s position required eligibility for access to classified information, and the limited scope of review set forth in Egan applies. ¶21 The appellant appears to be arguing that the agency was required to remove him under 5 U.S.C. § 7532 because it based his removal on a national security determination, and, thus, that the AG was required to decide his appeal and he was entitled to the procedures set forth in that statutory provision. In that regard, he apparently believes that 5 U.S.C. § 7511-13 governs only “suitability” 11 proceedings. He contends that the agency similarly erred in not designating the officials involved in his removal proceedings consistent with that provision and its applicable regulations and in citing superseded regulations, and that the AG was required to decide his appeal, in any event. PFR at 10-11. As the administrative judge found, the agency proceeded under 5 U.S.C. § 7511-13, not 5 U.S.C. § 7532. ID at 4 n.2; IAF, Tab 14, Subtab 4G. Further, it was not required to act under 5 U.S.C. § 7532, and if it had chosen to act under that authority, his removal would still not be subject to Board review. Egan, 484 U.S. at 522 n.4. Moreover, to the extent that the appellant argues that Exec. Order No. 12,968 provides him with some appeal rights, it does not, at least not outside of the Department of Justice. Romero, 527 F.3d at 1330. The appellant’s assertion that the administrative judge’s finding in that regard did not absolve the agency, because the agency was required to adhere to its own separate regulations in processing his removal, PFR at 14, is addressed below. Application of Egan Scope of Review ¶22 Under Egan, the agency must prove only that the appellant was required to maintain eligibility to occupy a Special-Sensitive, Level 4 position; his eligibility was withdrawn; transfer to a position that did not require this eligibility was not feasible; and he was provided with the procedural requirements of 5 U.S.C. § 7513. ID at 8; Egan, 484 U.S. at 530-31; see also Hesse v. Department of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000). The record shows that the agency met this burden of proof. ¶23 Specifically, the unrebutted documentary evidence as well as testimony from at least four knowledgeable employees showed that the appellant’s position required eligibility for Special-Sensitive, Level 4 status. ID at 8-9; see also IAF, Tab 58 at 34. Moreover, it is undisputed that the agency revoked the appellant’s eligibility for Special-Sensitive, Level 4 status. Further, Employee 3 provided unrebutted testimony that the agency did not have a regulation that gave the appellant the right to be considered for vacant, non-sensitive positions. The 12 Board does not have authority to review the feasibility of reassigning the appellant to a vacant non-sensitive position, absent an enforceable right to such consideration. Griffin v. Defense Mapping Agency, 864 F.2d 1579, 1580 (Fed. Cir. 1989). In any event, the record reflects that all AUSA positions require Special-Sensitive, Level 4 eligibility, and therefore, that it was not feasible to assign the appellant to another AUSA position. ID at 9; see also HT at 90. The administrative judge found it undisputed that the agency followed the procedural requirements of 5 U.S.C. § 7513 by providing the appellant with advance written notice of the charges and a reasonable amount of time to make an informed reply, by considering the appellant’s response before issuing its decision, and by providing the reasons for that decision. ID at 10; see also IAF, Tab 14, Subtabs 4D-4G. Therefore, we find that, contrary to the appellant’s assertion, PFR at 4, the agency complied with the minimum due process requirements set forth in Egan in removing him. Violation of Agency Regulations/Harmful Error ¶24 The appellant also argues in this appeal that the administrative judge erred, under Romero, 527 F.3d at 1329, in finding that the agency’s action was analogous to a security clearance revocation, while concomitantly declining to enforce agency compliance with its own regulatory procedures for such revocations. In connection with this, he asserts that the agency erred in relying on Department of Justice Order 2610.2A, which gave authority to the EOUSA’s “self-professed security expert” (Employee 1) to revoke his eligibility, and on Exec. Order No. 12,356. He contends that an agency Inspector General report recommended revising the order, that the order and Exec. Order No. 12,356 were superseded by Exec. Order No. 12,968, and that the order did not survive the promulgation of 28 C.F.R. part 17. He asserts that under 28 C.F.R. § 17.15(a), he was entitled to the ARC review procedures afforded employees whose security clearances were revoked. He contends that the administrative judge impermissibly equated the deciding official on his removal with ARC review of 13 an internal appeal in finding that he received the required procedures. He further contends that the errors were harmful because they caused the agency to reach a conclusion different than it would have reached absent the errors. PFR at 5-18. ¶25 In Romero, 527 F.3d at 1329, the court acknowledged that the Board may not review the substance of a security clearance revocation decision and found that the Board did not err in finding that the agency had complied with 5 U.S.C. § 7513 in removing Romero after it revoked his security clearance. The court vacated the Board’s decision and remanded the matter, however, because the Board did not address whether Romero had shown that the agency committed harmful error in failing to follow its own procedures when revoking his Secret security clearance. Id. at 1325-26, 1329-30. The court found that Egan and other decisions did not preclude the Board from reviewing whether the agency complied with its own regulations and procedures in revoking Romero’s security clearance. Id. at 1329. The statutory basis for such review is 5 U.S.C. § 7701(c)(2)(A), which provides that the Board may not sustain an action on appeal if the appellant “shows harmful error in the application of the agency’s procedures in arriving at [its] decision.” Id. at 1328.2 ¶26 We agree with the appellant that he had the right to ARC review of EOUSA’s decision to withdraw his eligibility for access to classified information. Our analysis begins with a statute enacted in 1994, which charged the President with establishing standards for access to classified information that would bind all executive branch agencies, and also with establishing -- uniform minimum standards to ensure that employees in the executive branch of Government whose access to classified information is being denied or terminated under this subchapter are appropriately advised of the reasons for such denial or termination 2 In its subsequent decision, the court found that Romero failed to establish that the agency erred. Therefore, the court did not reach the issue of whether Romero established that any error was harmful. See Romero v. Department of Defense, 658 F.3d 1372, 1373, 1380 (Fed. Cir. 2011). 14 and are provided an adequate opportunity to respond to all adverse information which forms the basis for such denial or termination before final action by the department or agency concerned. 50 U.S.C. § 435(a)(5). Pursuant to this statute, on August 2, 1995, President Clinton issued Exec. Order No. 12,968, which provides in relevant part as follows: § 1.2. Access to Classified Information. (a) No employee shall be granted access to classified information unless that employee has been determined to be eligible in accordance with this order and to possess a need-to-know. * * * § 2.1. Eligibility Determinations. (a) Determinations of eligibility for access to classified information shall be based on criteria established under this order. * * * § 3.1. Standards. (a) No employee shall be deemed to be eligible for access to classified information merely by reason of Federal service or contracting, licensee, certificate holder, or grantee status, or as a matter of right or privilege, or as a result of any particular title, rank, position, or affiliation. (b) Except as provided in sections 2.6 and 3.3 of this order, eligibility for access to classified information shall be granted only to employees who are United States citizens for whom an appropriate investigation has been completed and whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information. A determination of eligibility for access to such information is a discretionary security decision based on judgments by appropriately trained adjudicative personnel. Eligibility shall be granted only where facts and circumstances indicate access to classified information is clearly consistent with the national security interests of the United States, and any doubt shall be resolved in favor of the national security. * * * 15 § 5.2. Review Proceedings for Denials or Revocations of Eligibility for Access. (a) Applicants and employees who are determined to not meet the standards for access to classified information established in section 3.1 of this order shall be: (1) provided as comprehensive and detailed a written explanation of the basis for that conclusion as the national security interests of the United States and other applicable law permit; (2) provided within 30 days, upon request and to the extent the documents would be provided if requested under the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act (3 U.S.C. 552a), as applicable, any documents, records, and reports upon which a denial or revocation is based; (3) informed of their right to be represented by counsel or other representative at their own expense; to request any documents, records, and reports as described in section 5.2(a)(2) upon which a denial or revocation is based; and to request the entire investigative file, as permitted by the national security and other applicable law, which, if requested, shall be promptly provided prior to the time set for a written reply; (4) provided a reasonable opportunity to reply in writing to, and to request a review of, the determination; (5) provided written notice of and reasons for the results of the review, the identity of the deciding authority, and written notice of the right to appeal; (6) provided an opportunity to appeal in writing to a high level panel, appointed by the agency head, which shall be comprised of at least three members, two of whom shall be selected from outside the security field. Decisions of the panel shall be in writing, and final except as provided in subsection (b) of this section; and (7) provided an opportunity to appear personally and to present relevant documents, materials, and information at some point in the process before an adjudicative or other authority, other than the investigating entity, as determined by the agency head. A written summary or recording of such appearance shall be made part of the applicant’s or employee’s security record, unless such appearance occurs in the presence of the appeals panel described in subsection (a)(6) of this section. * * * 16 (f)(2) Nothing in this section shall require that an agency provide the procedures prescribed in subsection (a) of this section to an applicant where a conditional offer of employment is withdrawn for reasons of suitability or any other reason other than denial of eligibility for access to classified information. (3) A suitability determination shall not be used for the purpose of denying an applicant or employee the review proceedings of this section where there has been a denial or revocation of eligibility for access to classified information. Finally, section 5.2(c) of the executive order provides that agency heads “shall promulgate regulations to implement this section.” ¶27 In 1997, the Attorney General issued implementing regulations at 28 C.F.R. part 17, which provide in relevant part as follows: § 17.2. Scope. (a) All employees, contractors, grantees, and others granted access to classified information by the Department are governed by this part, and by the standards in Executive Order 12958, Executive Order 12968, and directives promulgated under those Executive Orders. If any portion of this part conflicts with any portion of Executive Order 12958, Executive Order 12968, or any successor Executive Order, the Executive Order shall apply. This part supersedes the former rule and any Department internal operating policy or directive that conflicts with any portion of this part. * * * § 17.15. Access Review Committee. (a) The Access Review Committee (ARC) is hereby established to review all appeals from denials or revocations of eligibility for access to classified information under Executive Order 12968. Unless the Attorney General requests recommendations from the ARC and personally exercises appeal authority, the ARC's decisions shall be final. (b) The ARC shall consist of the Deputy Attorney General or a designee, the Assistant Attorney General for National Security or a designee, and the Assistant Attorney General for Administration or a designee. Designations must be approved by the Attorney General. * * * § 17.47. Denial or revocation of eligibility for access to classified information. (a) Applicants and employees who are determined to 17 not meet the standards for access to classified information established in section 3.1 of Executive order 12968 shall be: (1) Provided with a comprehensive and detailed written explanation of the basis for that decision as the national security interests of the United States and other applicable law permit and informed of their right to be represented by counsel or other representative at their own expense; (2) Permitted 30 days from the date of the written explanation to request any documents, records, or reports including the entire investigative file upon which a denial or revocation is based; and (3) Provided copies of documents requested pursuant to this paragraph (a) within 30 days of the request to the extent such documents would be provided if requested under the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), and as the national security interests and other applicable law permit. (b) An applicant or employee may file a written reply and request for review of the determination within 30 days after written notification of the determination or receipt of the copies of the documents requested pursuant to this subpart, whichever is later. (c) An applicant or employee shall be provided with a written notice of and reasons for the results of the review, the identity of the deciding authority, and written notice of the right to appeal. (d) Within 30 days of receipt of a determination under paragraph (c) of this section, the applicant or employee may appeal that determination in writing to the ARC, established under §17.15. The applicant or employee may request an opportunity to appear personally before the ARC and to present relevant documents, materials, and information. (e) An applicant or employee may be represented in any such appeal by an attorney or other representative of his or her choice, at his or her expense. Nothing in this section shall be construed as requiring the Department to grant such attorney or other representative eligibility for access to classified information, or to disclose to such attorney or representative, or permit the applicant or employee to disclose to such attorney or representative, classified information. (f) A determination of eligibility for access to classified information by the ARC is a discretionary security decision. Decisions of the ARC shall be in writing and shall be made as expeditiously as possible. Access shall be granted only where facts and circumstances 18 indicate that access to classified information is clearly consistent with the national security interest of the United States, and any doubt shall be resolved in favor of the national security. * * * (i) . . . Suitability determinations shall not be used for the purpose of denying an applicant or employee the review proceedings of this section where there has been a denial or revocation of eligibility for access to classified information. ¶28 From the foregoing, it is clear that departmental-level ARC review procedures mandated by Exec. Order No. 12,968 were intended to apply to termination of eligibility for access to classified information. The agency’s argument that ARC review is available only for employees who have actually been granted access to classified information is based on 28 C.F.R. § 17.2(a), which describes the coverage of part 17 as “[a]ll employees, contractors, grantees, and others granted access to classified information.” However, the regulations at part 17 must be read as a whole, not selectively. Lezama-Garcia v. Holder, 666 F.3d 518, 532 (9th Cir. 2011); Benitez-Pons v. Comm. of Puerto Rico, 136 F.3d 54, 63 (1st Cir. 1998). Section 17.15(a) states that the ARC “is hereby established to review all appeals from denials or revocations of eligibility for access to classified information under Executive Order 12968” (emphasis supplied). Likewise, section 17.47 indicates that ARC review is available to an employee whose “eligibility for access to classified information” is being terminated; indeed, section 17.47(a) expressly references section 3.1 of Exec. Order No. 12,968, which deals with “eligibility for access to classified information.” Furthermore, section 17.47(a) expressly contemplates a right of ARC review for “applicants,” yet it is hard to imagine the agency giving an applicant for employment access to classified information; contrary to the agency’s suggested reading of part 17, this provision would have meaning only if it were applied when an applicant sought ARC review of a denial of eligibility for access to classified information. Additionally, subsection (i) of section 17.47 unmistakably indicates that the right to ARC review is triggered when “there has 19 been a denial or revocation of eligibility for access to classified information.” It is also noteworthy that a June 3, 2011 opinion of the Department of Justice Office of Legal Counsel entitled Applicability of the Foreign Intelligence Surveillance Act’s Notification Provision to Security Clearance Adjudications by the Department of Justice Access Review Committee states that the ARC review process under 28 C.F.R. part 17 is triggered when a “component determines that [an] employee is not eligible for access to classified information.” 3 ¶29 We conclude that where, as here, a component of the Department of Justice terminates an employee’s eligibility for access to classified information, the Department’s own rules provide for a right of review before the ARC. Absent an express grant of authority, a component of a department may not provide employees with lesser rights than are granted under a policy issued at the departmental level. Black v. Department of Transportation, 116 M.S.P.R. 87, ¶¶ 13-15 (2011). Here, EOUSA does not claim that it has authority to vary from 28 C.F.R. part 17. ¶30 Moreover, 28 C.F.R. § 17.2(a) indicates (as the law would imply anyway) that if there is a conflict between 28 C.F.R. part 17 and Exec. Order No. 12,968, the Executive Order governs. Both the title of section 5.2 of Exec. Order No. 12,968 and the language of subsections (f)(2) and (3) of that section leave no doubt that an employee has a right to departmental-level (or agency-level, as the case may be) review when his eligibility for access to classified information is withdrawn. Because we find that the appellant had a right to ARC review under a plain reading of Exec. Order No. 12,968 and 28 C.F.R. part 17, we do not credit the testimony Employee 3, who opined that the appellant had no such right. Cf. Connolly v. Department of Homeland Security, 99 M.S.P.R. 422, ¶ 15 (2005) (an agency’s interpretation of its own regulation is ordinarily entitled to deference, 3 The opinion is available at: www.justice.gov/olc/2011/security-clearance -provisions.pdf. 20 but no deference is due when that interpretation is “plainly erroneous or inconsistent with the regulation” itself). We do not accept the agency’s argument that this career-ending revocation was also exempt from the intra-department review procedures mandated by Exec. Order No. 12,968 and 28 C.F.R. part 17. ¶31 Notwithstanding the foregoing, an agency’s procedural error does not warrant reversal of an employee’s removal unless the employee has shown that the error was harmful under 5 U.S.C. § 7701(c)(2)(A). When an agency commits a procedural error in the course of an adverse action, the Board may not assume that the employee was harmed. Handy v. U.S. Postal Service, 754 F.2d 335, 337-38 (Fed. Cir. 1985); Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681 (1991). Rather, the appellant bears the burden of proving harm. 5 C.F.R. § 1201.56(b)(1); Ward v. U.S. Postal Service, 634 F.3d 1274, 1281-82 (Fed. Cir. 2011); Helms v. Department of the Army, 114 M.S.P.R. 447, ¶ 6 (2010). A procedural error is harmful where the record shows 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. § 1201.56(c)(3); Stephen, 47 M.S.P.R. at 685. ¶32 While the Board lacks authority to review the merits of the revocation decision, and thus, cannot ultimately determine whether the agency’s compliance with its own procedures would have resulted in a decision not to revoke the appellant’s clearance, our reviewing court in Romero unequivocally directed that the Board review whether an agency’s failure to comply with its own regulations and procedures in revoking a security clearance is harmful error. Romero, 527 F.3d at 1325-26, 1329-30. Where, as here, the agency failed to afford the appellant any access to its internal process, the Board does not have any record upon which to conduct the review mandated by Romero. ¶33 In other circumstances, when the Board must defer to a decision that is within the sole discretion of the agency, the U.S. Court of Appeals for the Federal Circuit has indicated that the Board may opt to remand the matter back to the 21 agency to make a redetermination on the matter. See LaChance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999) (when the Board reverses some of the charges, it may remand the appeal to the agency for a redetermination of the penalty, if there is an indication that the agency would have imposed a lesser penalty for the misconduct sustained by the Board). Although Devall concerned the deference that the Board must afford an agency’s penalty determination, we find that it is applicable in this situation because it establishes a mechanism for the Board to resolve an appeal without intruding into a matter within the agency’s sole discretion. Accordingly, we find that it is necessary to remand the appellant’s removal to the agency for a determination in compliance with 28 C.F.R. part 17.4 Medical Evidence ¶34 The appellant argues at length that the agency and the administrative judge did not properly handle or evaluate the medical evidence. He contends that the agency violated 5 C.F.R. §§ 752.404(c)(3) and .404(f). He also contends that he rebutted the agency’s reasons for finding him ineligible for the position and an operational security risk by presenting testimony from his doctors. He cites several decisions as supporting his assertions that the agency violated Board precedent by using statements made to a private mental health professional as grounds to revoke his eligibility and terminate him and that the Board must independently consider the medical evidence. He asserts that the administrative judge erred in not mentioning his and his doctors’ testimony and did not address Supervisor 4’s alleged bias against, or ignorance of, mental health issues. PFR at 3, 7, 19-25. ¶35 The appellant has failed to show any harmful or prejudicial error. He has not explained how 5 C.F.R. § 752.404(c)(3) applies to his situation because the record does not indicate that the agency prevented him from submitting medical 4 We have considered the appellant’s “3rd Supplemental Filing” and conclude that it does not affect the analysis or outcome. 22 evidence before he was removed, and, as stated above, he did so. Moreover, 5 C.F.R. § 752.404(f) states only that an agency may offer an examination. In any event, as the administrative judge essentially found, the Board lacks the authority to review whether the agency properly considered the medical evidence because it lacks the authority under Egan to review the reasons underlying the ineligibility determination. ID at 16. The decisions the appellant cites do not involve the limited scope of Board review under Egan. Whistleblowing/Retaliation ¶36 The appellant asserts that the administrative judge erred in declining to accept the evidence he submitted at approximately 10 p.m. on September 30, 2009, on the basis that it was untimely, while accepting agency documents submitted after 5 p.m. on that date, and in finding that he did not prove his affirmative defense of whistleblowing. He apparently contends that the administrative judge erred in precluding him from presenting rebuttal evidence and evidence of motive to retaliate and in limiting the second hearing to Employee 1’s testimony. PFR at 5, 7-8, 33-44. ¶37 In an August 31, 2009 Notice, the administrative judge informed the appellant that, one week before an October 1, 2009 prehearing conference, the appellant must provide a list of each whistleblowing disclosure as well as the date and to whom the disclosure was made, and that any additional exhibits and a list of witnesses with their expected testimony must be received one day in advance of the conference. IAF, Tab 79. On September 30, 2009, the appellant submitted a motion for leave to file his list of disclosures late, stating only that he believed that he had previously provided the information. Id., Tab 82. The exhibits, which the appellant submitted at approximately 10:00 p.m. on that date, consisted of seven volumes of documents. Id., Tab 85.5 The agency objected to the 5 The appellant later attempted to submit additional exhibits, which the administrative judge rejected. IAF, Tabs 92-93; ID at 11 n.6. 23 motion, id., Tab 83, and the administrative judge sustained the objection, finding that the appellant did not establish good cause for his failure to comply with the clear instructions provided in the August 31, 2009 Notice. Id., Tab 86. The administrative judge also rejected the exhibits, noting the time of submission; the number of exhibits, and therefore the impossibility of reviewing them in the October 1, 2009 conference; and the agency’s objection. He indicated that, given his finding that the agency proved by clear and convincing evidence that it would have removed him even absent any protected disclosures, it was unnecessary to consider them. Id., Tabs 86, 92; ID at 11 n.6. ¶38 We find that the appellant has failed to show that the administrative judge abused his discretion in rejecting the appellant’s lists and exhibits or committed any prejudicial error in connection with his whistleblowing allegation. An administrative judge has wide discretion to control the proceedings, including holding prehearing conferences for the simplification of issues and ruling on exhibits and witnesses. See, e.g., Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R. § 1201.41. The Board will not overturn the administrative judge’s rulings absent a showing of an abuse of discretion. See, e.g., Sanders, 114 M.S.P.R. 487, ¶ 10. Here, we find that the appellant has failed to show that the administrative judge abused his discretion in rejecting seven volumes of exhibits submitted overnight before the date of the scheduled prehearing conference. ¶39 In any event, the appellant has not shown how any adjudicatory error prejudiced his substantive rights. The Board lacks jurisdiction to hear the appellant’s whistleblowing affirmative defense, given the finding that this case is analogous to a security clearance determination and that the limited scope of Board review set forth in Egan applies. See, e.g., Hesse, 217 F.3d at 1380; Roach v. Department of the Army, 82 M.S.P.R. 464, ¶¶ 48-54 (1999) (the Board found that the authority to review the merits of security clearance determinations under Egan must be specifically granted by statute and that Congress has not 24 specifically authorized the review such determinations as personnel actions under the Whistleblower Protection Act). Therefore, the appellant has provided no basis for reversing the initial decision on the ground that the administrative judge erred in declining to accept his exhibits. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).6 Disability Discrimination ¶40 The appellant apparently asserts that the agency regarded him as disabled as evidenced by its previously granting him a limited accommodation and that it erred in not offering him reassignment as an accommodation. PFR at 47-48. The Board generally cannot decide a claim of discrimination in an appeal from an action that was based on suspension or revocation of access to classified material because deciding the discrimination allegation would involve an inquiry into the validity of the agency's reasons for deciding to revoke the appellant's access to classified information. Helms, 114 M.S.P.R. 447, ¶ 9; Hesse v. Department of State, 82 M.S.P.R. 489, ¶ 9 (1999), aff'd, 217 F.3d 1372 (Fed. Cir. 2000). The Board may not engage in such an inquiry under Egan, 484 U.S. at 530-31. Thus, in this appeal, the Board lacks jurisdiction over the appellant's disability discrimination claim and cannot address it on the merits. See Helms, 114 M.S.P.R. 447, ¶ 9 and cases cited therein. Penalty ¶41 The appellant asserts that the administrative judge erred in refusing to order disclosure of documentation supporting the prior discipline taken against him and in not mitigating the penalty. PFR at 44, 49. Mitigation, however, is not appropriate in this type of case. See, e.g., Robinson v. Department of Homeland 6 We have considered the appellant’s July 28, 2012 filing, in which he cites the recent precedent of Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012). We find that Whitmore does not alter our analysis of the appellant’s whistleblower retaliation claim. 25 Security, 498 F.3d 1361, 1365 (Fed. Cir. 2007) (in an adverse employment action, such as removal, based on failure to maintain the security clearance required by the job description, the absence of a properly authorized security clearance is fatal to the job entitlement). Therefore, any error in this regard did not prejudice the appellant’s substantive rights and provides no basis for reversing the initial decision. See Panter, 22 M.S.P.R. at 282. ORDER ¶42 Accordingly, we VACATE the initial decision and REMAND the appellant’s removal to the agency to apply its internal procedures for reviewing a decision to withdraw an employee’s eligibility for access to classified information under 28 C.F.R. part 17. The agency is ORDERED to initiate this review within 30 days of the Board’s order and to complete it within a reasonable period of time. The appellant is ORDERED to cooperate with this review. ¶43 We further ORDER the agency to tell the appellant promptly in writing when it believes that it has fully complied with the Board’s order and to describe the actions it took to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181. ¶44 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant may file a new petition for appeal before the Chicago Regional Office. The appellant may renew all of issues raised in this appeal, and the administrative judge shall issue a new initial decision. However, except for the remanded issue of harmful procedural error, the 26 administrative judge may incorporate by reference his findings in the October 27, 2009 initial decision and the findings in this Opinion and Order. FOR THE BOARD: ______________________________ William D. Spencer Clerk of the Board Washington, D.

When Permanent And Continuous Does Not Mean Forever.

Court Rejects Law Professor's Assertion That 'Tenure' Means Continuous Employment A federal appellate court has sided with a private law school in a case brought by a professor who contends she was wrongly fired, and both sides say the ruling is important for how it defines the concept of tenure. The decision, issued on Monday 6 August by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, upholds a lower court's ruling that the termination of Lynn. S. Branham, former associate dean and professor at Thomas M. Cooley Law School, was not improper. Ms. Branham had held a one-year teaching contract with the Michigan law school and was dismissed in December 2006, the final month of her contract year. A U.S. District Court decided the case in the law school's favor. On appeal, Ms. Branham had argued, among other things, that the lower court had erred in concluding "that the tenure granted under her contract does not afford her rights beyond those specified in her employment contract." She pointed to a law-school policy and to a guideline from the American Bar Association to support her assertion that, under her contract, "tenure means a lifetime appointment or a guarantee of continuous employment." The Sixth Circuit panel rejected her arguments. Its opinion states that her contract referred to "the concept of tenure" but did not define tenure as a right to continuous employment or "create an obligation" of such. Ms. Branham's attorney, Alan F. Blakley, said the ruling sets a dangerous precedent. "This is a horrible, horrible decision for anybody who teaches," Mr. Blakley said. "Any college or university who wants to abuse faculty can hang their hat on this. They can change the definition of tenure to mean pretty much nothing." Ms. Branham had primarily taught criminal-law courses since arriving at Cooley in 1983. In the spring of 2006, she was assigned to teach constitutional-law courses and did so—even after telling the dean she didn't want to and alerting him to health concerns that she said made it difficult for her to do so. Ms. Branham, who suffers from seizures, took a leave of absence during the summer of 2006. When assigned to teach constitutional-law after her return, she refused to do so. She asked to be assigned to criminal-law classes, citing her experience in that area. Instead, administrators at the law school fired her that December. Administrators at Cooley, in a written statement, said the appeals court ruling was a "total vindication" of the school's decision to terminate Ms. Branham for refusing to do her job. The court's decision "is very important to institutions of higher learning because it confirms that 'tenure' is a contractual concept which takes its meaning only from the language of the particular employment contract and from nothing else," said James Robb, associate dean for development and alumni relations and senior counsel for the law school. "The word "tenure' itself adds no gloss," despite what Ms. Branham urged the court to consider, the statement said. Ms. Branham is now a visiting professor at St. Louis University School of Law. (Audrey Williams June)

MSPB is a RubberStamp.

United States Court of Appeals for the Federal Circuit __________________________ RODNEY JONES, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. __________________________ 2012-3085 __________________________ Petition for review of the Merit Systems Protection Board in case no. CH4324101024-I-1. __________________________ Decided: July 24, 2012 __________________________ RODNEY JONES, Waterloo, Iowa, pro se. SARA B. REARDEN, Attorney, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. With her on the brief were JAMES M. EISENMANN, General Counsel, and KEISHA DAWN BELL, Deputy General Counsel. __________________________ JONES v. MSPB 2 Before NEWMAN, PROST, and REYNA, Circuit Judges. PER CURIAM. Rodney Jones appeals from a final order of the Merit Systems Protection Board (“Board”), dismissing his petition for review as untimely filed. For the reasons set forth below, we affirm. I. BACKGROUND Mr. Jones began work as a letter carrier for the United States Postal Service (“USPS”) in Des Moines, Iowa, on February 18, 1995. On September 26, 1999, Mr. Jones entered active military duty with the Army Active Guard Reserve (“AGR”). Mr. Jones served continuously with the AGR until his military retirement effective June 30, 2007. After his military retirement, Mr. Jones filed a complaint under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) with the Department of Labor (“DOL”) concerning USPS’s failure to reemploy him as a letter carrier. On October 2, 2008, the DOL notified Mr. Jones that he was not eligible for USERRA reemployment rights. On September 18, 2010, Mr. Jones filed an appeal of the DOL’s decision with the Board. In an initial decision dated April 5, 2011, an administrative judge denied his appeal. Jones v. U.S. Postal Serv., CH4324101024-I-1 (M.S.P.B. Apr. 5, 2011). In that same initial decision, the administrative judge notified Mr. Jones that the initial decision would become final on May 10, 2011, unless he filed a petition for further review by or before said date. Id., slip op. at 8. 3 JONES v. MSPB Mr. Jones petitioned the Board to review the adminis-trative judge’s initial decision on August 12, 2011, several months after the decision had become final. While Mr. Jones conceded that he was aware of the May 10, 2011 deadline, he asserted that he had made attempts to meet that date. He claimed that he contacted the administrative judge’s clerk about obtaining a Form SF8, which he had not received from USPS, and that she advised him to contact USPS’s representative. Mr. Jones further claimed that he left a message with the USPS’s representative but that he never received a reply. The Board was ultimately not persuaded by Mr. Jones’s argument and on December 20, 2011, issued a final order dismissing Mr. Jones’s petition for review as untimely filed. Jones v. U.S. Postal Serv., CH4324101024-I-1 (M.S.P.B. Dec. 20, 2011). Specifically, the Board noted that Mr. Jones could have asked for an extension from the Board if he was indeed waiting to receive a Form SF8. And even if his inability to access the Form SF8 was beyond his control, the Board found that Mr. Jones did not explain how the said form related to the merits of his USERRA claim. Thus, the Board found that Mr. Jones failed to show good cause for his filing delay. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II. DISCUSSION Our review of the Board’s decisions is narrow and limited by statute. Under 5 U.S.C. § 7703(c), we may only set aside the Board’s decision if it is “(1) arbitrary, capri-cious, an abuse of discretion, or otherwise not in accor-dance with law; (2) obtained without procedures required JONES v. MSPB 4 by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Con-sol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). The waiver of a regulatory time limit based on a showing of good cause “is a matter committed to the Board’s discretion and this court will not substitute its own judgment for that of the Board.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). The petitioner bears the burden in demonstrating an excusable delay by showing an exercise of due dili-gence or ordinary prudence under the circumstances. Id. When evaluating whether the petitioner’s burden is met, several factors are considered including “the length of the delay, whether the appellant was notified of the time limit, the existence of circumstances beyond the appel-lant’s control that affected his ability to comply with the deadline, the appellant’s negligence, if any, and any unavoidable casualty or misfortune that may have pre-vented timely filing.” Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003). The Board also consid-ers whether a petitioner is proceeding pro se. See Marti-nez v. Broad. Bd. of Governors, 115 M.S.P.R. 44, 49 (Sept. 10, 2010). Having considered his arguments, we conclude that Mr. Jones has not carried the heavy burden of establish-ing that the Board abused its discretion in finding that he failed to show good cause for the delay in filing his peti-tion for review. Although Mr. Jones is a pro se petitioner, he never claimed that he did not understand the clear direction provided in the initial decision as to when a petition for review was due. Yet his petition for review was filed more than three months after the deadline. JONES v. MSPB 5 Moreover, Mr. Jones has not presented evidence of circumstances beyond his control that prevented him from filing a timely petition for review. To be sure, Mr. Jones asserts that he was late in filing a timely petition because he was waiting for a Form FS8. He also asserts that he did not know that asking the Board for additional time was an option. Mr. Jones, however, fails to explain why he believed instead that delay was an acceptable option. Even more to the point, Mr. Jones does not explain how the Form SF8 is related to the merits of his USERRA claim. Thus, the Board’s determination that the evidence weighed against excusing Mr. Jones’s delay is supported by substantial evidence. Because the Board acted within its discretion in finding that Mr. Jones failed to show good cause for his delay and dismissing his appeal as untimely, we affirm. COSTS Each party shall bear its own costs. AFFIRMED