Filed: May 12, 2016
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LEONARD ENGLISH, JR., DOCKET NUMBER Appellant, DE-1221-15-0090-B-1 v. SMALL BUSINESS DATE: May 12, 2016 ADMINISTRATION, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Leonard English, Jr., Aurora, Colorado, pro se. Sherrie Abramowitz, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the remand initial decision, which denied his requ
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LEONARD ENGLISH, JR., DOCKET NUMBER Appellant, DE-1221-15-0090-B-1 v. SMALL BUSINESS DATE: May 12, 2016 ADMINISTRATION, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Leonard English, Jr., Aurora, Colorado, pro se. Sherrie Abramowitz, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the remand initial decision, which denied his reque..
More
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEONARD ENGLISH, JR., DOCKET NUMBER
Appellant, DE-1221-15-0090-B-1
v.
SMALL BUSINESS DATE: May 12, 2016
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leonard English, Jr., Aurora, Colorado, pro se.
Sherrie Abramowitz, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which denied his request for corrective action. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. See title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the remand initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant filed an individual right of action (IRA) appeal alleging that
the agency issued him a letter of reprimand and negative performance evaluation
in retaliation for his protected disclosures. MSPB Docket No. DE-1221-15-0090-
W-1, Initial Appeal File (IAF), Tab 1. The appellant alleged that he disclosed
that: (1) a coworker, R.G., had revealed to the appellant that the coworker had
violent tendencies; and (2) he observed the same coworker’s arrival and departure
times, which showed that the coworker was not working a complete 8‑hour shift
each day. Id.
¶3 The administrative judge issued a jurisdictional order informing the
appellant of his burden to establish jurisdiction over his IRA appeal. IAF, Tab 3.
Based on the appellant’s responses, the administrative judge found the appellant’s
repeating the conversation that he had with R.G. about his self-reported violent
tendencies had not revealed a substantial and specific danger to public health and
safety. IAF, Tab 18, Initial Decision at 4. The administrative judge also found
that the appellant’s observations of R.G.’s arrival and departure times did not
constitute an allegation of time and attendance fraud, i.e., a violation of law,
3
because the disclosures were too vague and imprecise to meet the requirement to
be specific and detailed for purposes of making a protected disclosure. Id.
¶4 In his petition for review, the appellant disagreed with the administrative
judge, arguing that, given the instances of workplace violence in the news, his
disclosure that a coworker revealed that he had violent tendencies disclosed
danger. MSPB Docket No. DE-1221-15-0090-W-1, Petition for Review File,
Tab 1. He also asserted that Federal employees should work their full shifts and
that revealing that an employee is not doing so discloses a violation of law. Id.
¶5 The Board found that the administrative judge correctly found that the
appellant’s statement about a coworker’s purported violent tendencies failed to
constitute a nonfrivolous allegation of a substantial and specific danger to public
health and safety. English v. Small Business Administration, MSPB Docket
No. DE-1221-15-0090-W-1, Final Order, ¶ 9 (Apr. 8, 2015). However, as to the
appellant’s disclosure of R.G.’s alleged time and attendance violations, the Board
determined, contrary to the administrative judge’s findings, that the appellant
made specific allegations of time and attendance abuse sufficient to constitute a
nonfrivolous allegation of a violation of law, rule, or regulation and that the
appellant met the reasonable belief element of the jurisdictional analysis in an
IRA appeal. Id., ¶ 11-13. Further, the Board found that the appellant met his
burden to raise a nonfrivolous allegation that the fact or content of the protected
disclosure was one factor that tended to affect the issuance of the letter of
warning and his Fiscal Year (FY) 2014 performance appraisal. Id., ¶ 16.
¶6 In sum, the Board found that the appellant established jurisdiction over his
IRA appeal regarding his allegation that his coworker engaged in time and
attendance fraud. The Board remanded the case to the field office for further
adjudication, including a hearing. Id., ¶ 17.
¶7 On remand, the administrative judge found that the appellant established by
preponderant evidence that his disclosure about time and attendance fraud was
protected. MSPB Docket No. DE-1221-15-0090-B-1, Remand File (RF), Tab 32,
4
Remand Initial Decision (RID) at 2-3. The administrative judge also found that
the appellant established that his protected disclosure was a contributing factor to
the agency’s August 15, 2014 letter of reprimand and FY 2014 performance
appraisal. RID at 5-7. Further, he found that the agency had shown by clear and
convincing evidence that it would have taken the same actions absent the
appellant’s disclosure of a purported time and attendance violation. RID
at 17-18.
¶8 In his petition for review of the remand initial decision, the appellant
contends that the administrative judge erred in finding that the agency met its
clear and convincing evidence burden. Remand Petition for Review (RPFR) File,
Tab 1. 2 The agency has responded to the appellant’s petition for review, and the
appellant has replied to that response. RPFR File, Tabs 3‑4.
ANALYSIS AND FINDINGS
¶9 After establishing the Board’s jurisdiction in an IRA appeal, as the
appellant did in this case, an appellant must establish a prima facie case of
whistleblower retaliation by proving by preponderant evidence that he made a
protected disclosure that was a contributing factor in a personnel action taken
2
In his petition for review, the appellant asserts that the administrative judge erred
when he did not allow key witnesses to testify. In the Order and Summary of
Telephonic Prehearing Conference, the administrative judge denied the appellant’s
witnesses B.W. and L.L. because, after hearing a proffer of their expected testimony, he
found that they would not have offered relevant evidence. RF, Tab 27 at 3. The
administrative judge also denied Division Director F.L. and Lead Labor Attorney R.P.
because the proffers of their expected testimony did not identify any relevant, legally
admissible testimony that they would provide. Id. The appellant’s vague assertion on
review that the administrative judge erred in disallowing most of his witnesses does not
show error in the administrative judge’s ruling and does not show that the excluded
testimony would have been relevant, material, or not repetitious. RPFR File, Tab 1
at 2. Therefore, the appellant has not shown that the administrative judge abused his
discretion in disallowing these witnesses. See, e.g., Franco v. U.S. Postal Service,
27 M.S.P.R. 322, 325 (1985) (stating that an administrative judge has wide discretion to
exclude witnesses when it has not been shown that their testimony would be relevant,
material, and nonrepetitious).
5
against him. 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland
Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant makes out a prima facie
case, then the agency is given an opportunity to prove, by clear and convincing
evidence, that it would have taken the same personnel action in the absence of the
protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.
¶10 Congress amended 5 U.S.C. § 1221(e)(2) to provide that corrective action
cannot be ordered if, “after a finding that a protected disclosure was a
contributing factor,” the agency demonstrates by clear and convincing evidence
that it would have taken the same personnel action in the absence of such
disclosure. Whistleblower Protection Enhancement Act of 2012,
Pub. L. No. 112-199, § 114(b), 126 Stat. 1465, 1472. Under this amendment, the
Board may not proceed to the clear and convincing evidence test unless it first
has made a finding that the appellant established his prima facie case. See
S. Rep. No. 112‑743, at 24 (2012); cf. Kahn v. Department of Justice, 618 F.3d
1306, 1316 (Fed. Cir. 2010) (declining the appellant’s invitation to consider
whether the agency met its burden on clear and convincing evidence because the
court agreed with the Board that the appellant failed to establish his prima facie
case; however, the court stated in dicta that, in an IRA appeal, even when the
Board finds a contested merits issue dispositive, it should nevertheless resolve the
remaining issues to expedite resolution of the case on appeal).
The appellant established his prima facie case of reprisal for whistleblowing.
¶11 Here, to find that the appellant established by preponderant evidence that he
had a reasonable belief that he had disclosed a violation of time and attendance
law, the administrative judge relied on the same evidence that the Board relied on
to find that the appellant made a prima facie case that he had a reasonable belief
that he had disclosed a violation of law. RID at 2-3. Under some circumstances,
the same evidence can satisfy both the nonfrivolous allegation requirement and
the preponderant evidence standard of a reasonable belief given the liberal
6
standard set forth in the statute for determining whether the appellant had a
reasonable belief that he was disclosing a violation of law, rule, or regulation.
We find that this is such a case.
¶12 As the administrative judge found on remand, the appellant made specific
allegations of time and attendance abuse sufficient to meet the preponderant
evidence standard. RID at 5-6. In an email to an agency manager, J.V., he stated
that, when R.G came to work for the agency, he arrived late, took extended
lunches, and left early. IAF, Tab 5 at 40-41. Because the date that R.G. began
with the agency is a matter of record, we find that the appellant was specific as to
some of the dates of R.G.’s alleged time and attendance violations. Further,
although the appellant does not identify the time of the coworker’s arrival, how
long he took for lunch, and the time of his departure, the appellant’s allegations,
based on his personal observations, that his coworker was being paid for hours
that he did not work, constitutes preponderant evidence of a reasonable belief of
time and attendance abuse. Further, the agency presented no evidence that would
provide a basis to find that the appellant’s belief based on his observations
was not reasonable.
¶13 The administrative judge, applying the knowledge/timing test, properly
found that the appellant established by preponderant evidence that his April 18,
2014 protected disclosure of time and attendance abuse was a contributing factor
in the agency’s August 15, 2014 letter of reprimand and FY 2014 performance
appraisal. RID at 5-6; see Wadhwa v. Department of Veterans
Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009) (stating
that one way to establish contributing factor is the knowledge/timing test, under
which an employee submits evidence showing that the official taking the
personnel action knew of the disclosure and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure was a contributing factor in the personnel action). The administrative
judge found that both J.V., who issued the letter of reprimand on August 15,
7
2014, and was the rater on the appellant’s FY 2014 performance appraisal, and
P.G., who was the reviewing official on the performance appraisal, were aware of
the appellant’s disclosure of alleged time and attendance abuse and took these
personnel actions within a period of time that a reasonable person could conclude
that the disclosure was a contributing factor to the personnel actions. RID at 6;
see Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013)
(stating that personnel actions alleged to have begun within 1 year of the time
that an employee engaged in a protected activity satisfied the timing prong of the
knowledge/timing test). Thus, the administrative judge properly found that the
appellant made a prima facie case and properly proceeded to the clear and
convincing evidence test.
The agency proved by clear and convincing evidence that it would have issued
the letter of reprimand in the absence of the appellant’s protected disclosure.
¶14 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of a
protected disclosure, the Board generally considers: (1) the strength of the
agency’s evidence in support of its action; (2) the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The Board does not view the Carr factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but will weigh the factors
together to determine whether the evidence is clear and convincing as a whole.
McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594,
¶ 44 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). Additionally, in considering
the Carr factors, the Board must weigh the appellant’s evidence with that
submitted by the agency. Evidence only clearly and convincingly supports a
conclusion when it does so in the aggregate considering all the pertinent evidence
8
in the record, and despite the evidence that fairly detracts from that conclusion.
See Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶15 Before discussing the Carr factors, we note that overarching the
administrative judge’s Carr analysis was his finding that both J.V. and P.G. were
credible witnesses. RID at 8, 11. The appellant’s assertions in his petition for
review that the administrative judge’s credibility determinations are in error is
unavailing. He asserts that the administrative judge’s credibility findings are not
supported because they were based on his observation of the demeanor of J.V.
and P.G. as they testified during the hearing in this case. RPFR File, Tab 1 at 8.
The Board must give deference to an administrative judge’s credibility
determinations when they are based on the observation of the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . We find no error in the
administrative judge’s explicitly demeanor-based credibility determinations
regarding the testimony of J.V. and P.G.
¶16 The administrative judge weighed the Carr factors as to each of the
personnel actions that the appellant alleged was retaliatory. Regarding the letter
of reprimand, which charged the appellant with two specifications of
“unprofessional correspondence to your supervisor,” IAF, Tab 1 at 94-96, the
administrative judge found that the strength of the agency’s evidence in support
of the action (Carr factor (1)), was strong, RID at 9. In making this finding, the
administrative judge weighed the agency’s evidence against the appellant’s
evidence as to whether he had sent similar correspondence earlier without
receiving a letter of reprimand. RID at 10. The administrative judge found,
however, that the appellant’s previous correspondence was not as offensive as the
two emails that his supervisor relied on to issue the reprimand. RID at 10.
¶17 The administrative judge found that the motive to retaliate on the part of the
agency officials (Carr factor (2)) was “extremely slight, if it existed at all.” RID
9
at 11. He found that the appellant’s observations of the comings and goings of
his coworker that formed the basis of his disclosure had occurred before J.V. had
begun to work for the agency and were contrary to her observations. Id. He also
found that, although P.G. was the appellant’s and his coworker’s supervisor at the
time of the coworker’s alleged time and attendance abuse, the appellant did not
disclose the alleged abuse to P.G. at the time of the appellant’s observations, and
so P.G. considered the disclosure a nonissue. Id. The administrative judge found
further that there was no evidence that J.V. or P.G. or anyone else was
embarrassed, implicated, or more than slightly inconvenienced by the appellant’s
disclosure. Id. The administrative judge reiterated his finding that J.V. and P.G.
were credible witnesses regarding their testimony that they had no retaliatory
motive because of the disclosure. Id. The administrative judge also considered
the appellant’s evidence that J.V and P.G. failed to investigate R.G.’s alleged
time and attendance abuse. Id. However, he correctly found that the Board’s role
was to determine retaliatory motive, not whether an investigation should have
been undertaken. 3 Id.
¶18 The administrative judge found that Carr factor (3), whether the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated, was neutral. RID at 12. He found that neither party
presented evidence of any other employee who sent emails to J.V. that were of the
3
In his petition for review, the appellant asserts that the administrative judge’s finding
that J.V.’s and P.G.’s motive to retaliate was weak contradicts the administrative
judge’s finding that the appellant established that his disclosure was a contributing
factor to the personnel actions taken against him. As noted, the administrative judge
determined that the appellant established contributing factor using the
knowledge/timing test, which does not consider other evidence, such as that pertaining
to the strength or weakness of the agency’s reasons for taking the personnel action,
whether the protected activity was personally directed at the proposing or deciding
officials, and whether those individuals had a motive to retaliate against the appellant.
See Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 26 (2013). We discern no
error in the administrative judge’s finding, which was based on his assessment of all the
evidence, including the hearing testimony, that the agency officials had little or no
motive to retaliate.
10
same nature as the appellant’s emails. Id. In sum, as to the letter of reprimand,
the administrative judge found that the agency presented strong evidence in
support of its action, that the evidence of retaliatory motive was slight at best,
and that there was no evidence of whether the agency took similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
RID at 9-12. Thus, the administrative judge found that the agency met its burden
to show by clear and convincing evidence that it would have issued the appellant
a letter of reprimand in the absence of the protected disclosure. Id.
¶19 We discern no basis for disturbing these findings on review. While agency
officials lacked a strong retaliatory motive, the agency had a strong basis for
issuing the appellant a letter of reprimand. Thus, weighing the three Carr factors
against one another, we find the agency met its burden of establishing by clear
and convincing evidence that it would have taken this personnel action
notwithstanding the appellant’s protected whistleblowing. See
McCarthy, 116 M.S.P.R. 594, ¶ 66.
The agency proved by clear and convincing evidence that it would have given the
appellant the same performance rating in the absence of the appellant’s
protected disclosure.
¶20 Regarding the appellant’s FY 2014 performance appraisal, the
administrative judge considered the strength of the agency’s evidence in support
of its action (Carr factor (1)), as to each of the five elements of the appellant’s
appraisal. RID at 12-18. As explained below, the administrative judge found that
the strength of the agency’s evidence for the rating that it gave the appellant
was strong.
¶21 As to element one, Administrative Functions, the administrative judge
found that J.V. supported her rating of a level three, instead of a possibly higher
rating of a level four or five, through her testimony that the appellant did not
demonstrate initiative or independence because he never volunteered to prepare
the monthly fee report, routinely needed reminders to get the mail, and routinely
11
needed supervisory correction. RID at 13-14. The administrative judge noted
that he considered the appellant’s point that J.V. failed to mention any of the
appellant’s failures that prevented a rating higher than a level three in the
appraisal document itself. RID at 14. However, he found that he could not hold
J.V.’s brevity in the appraisal document against her in evaluating her
credibility. 4 Id.
¶22 As to element two, Application Processing, the agency conceded that the
appellant’s average processing rate was good, but J.V. testified that the
appellant’s applications were frequently delayed past the 4.5‑day average
processing deadline, which at most made him eligible for a level three rating.
RID at 15. The administrative judge noted the appellant’s testimony that the
surety bond system was broken during FY 2014, and thus J.V. had to estimate his
average processing time. Id. However, the administrative judge found credible
J.V.’s testimony that she monitored the system every day and that this monitoring
gave her accurate information to estimate employees’ application processing
times. Id. The administrative judge credited J.V.’s testimony that she did not
fabricate an untrue estimate of the appellant’s application processing time. Id.
¶23 As to element three, Bond Guarantee Activity, the administrative judge
found that J.V. testified credibly that the entire office received a level three rating
for this element because the element measures the unit’s ability to increase its
issuance of bid and performance guarantees. RID at 16. The administrative
judge noted that the appellant argues that this metric is unfair, but the
administrative judge found that, even if unfair, this would not necessarily mean it
was retaliatory and he found no evidence that uniformly rating all staff members
at the three level constituted retaliation for the appellant’s disclosure. Id. In his
4
We discern no error in the administrative judge’s finding and note that performance
appraisals at the satisfactory level and above often focus on an employee’s
accomplishments and not the shortcomings that prevented the employee from achieving
a higher rating.
12
remand petition for review, the appellant contends that at least one employee was
rated at the five level overall and to be rated at that level an employee cannot
have been rated at the three level on any element. He contends, based on this
assertion, that J.V.’s testimony regarding rating all employees at the three level
on this element must not be credible. RPFR File, Tab 1. However, the appellant
failed to support his assertion with any evidence that an employee received a
level five overall rating or that the agency had a hard and fast rule that, to be
rated at the five level overall, an employee cannot have any element rated at the
three level. Thus, we find that the appellant failed to show error in the
administrative judge’s determination that J.V. testified credibly that she rated all
employees at level three on element three of their performance appraisals.
¶24 Regarding element four, Customer Satisfaction, the administrative judge
credited J.V.’s testimony that she rated the appellant a three because of his delays
in processing customer requests and unprofessional actions, such as referring an
agent to J.V. rather than handling the matter himself and copying an outside agent
on an internal email in which he expressed frustration about an internal agency
matter. RID at 16. As to element five, Written Materials, the administrative
judge found credible J.V.’s testimony that the appellant used the “reply all” email
function frequently in an inappropriate manner and failed to capitalize her name
in an online page that can be viewed by agents, and that J.V. perceived the
appellant as being disrespectful. RID at 17. He also considered a rude email that
the appellant sent to J.V. and on which he included an outside agent. He found
the appellant’s testimony regarding element five as evasive and incredible. Id.
He considered the appellant’s assertion that it was unfair or invalid for J.V. to
cite the same sort of incidents under both elements four and five, and found that it
detracts only minimally from the strength of the agency’s evidence because he
found credible J.V.’s and P.G.’s testimony that this sort of overlap was
permissible in evaluating employees. RID at 18.
13
¶25 In sum, as to the FY 2014 performance appraisal, the administrative judge
found that the agency’s evidence in support of its action was strong. RID
at 13-18. He also found that the evidence of the agency’s motive to retaliate
weighed “very lightly” in the appellant’s favor. RID at 18. Additionally, he
found that there was no evidence of whether the agency takes similar actions
against other employees who are not whistleblowers but are otherwise similarly
situated. Id. Thus, the administrative judge found that the agency met its burden
to show by clear and convincing evidence that it would have rated the appellant at
the three level in his FY 2014 performance appraisal in the absence of the
protected disclosure. Id.
¶26 We find that, in assessing whether the agency has met` its burden by
clear and convincing evidence, the administrative judge considered all the
pertinent evidence in the record and did not exclude or ignore countervailing
evidence by only looking at the evidence that supported the agency’s position.
Thus, the remand initial decision comports with the requirements of Whitmore,
680 F.3d at 1367‑70. The appellant’s assertion to the contrary in the remand
petition for review is unavailing. We have considered all of the appellant’s
arguments on review, but find that they present no reason to disturb the
administrative judge’s well-reasoned findings. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings where she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); see also Broughton
v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit.
14
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
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 about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional
15
information about other courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The 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.
