Scott Snyder v. Department of the Army ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT SNYDER, DOCKET NUMBER
Appellant, DC-0752-14-0964-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 28, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher D. Vaughn, Esquire, Decatur, Georgia, for the appellant.
Therese M. Novell, Esquire, Warren, Michigan, 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 initial decision, which
affirmed the agency’s removal 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 regulation
or the erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, and based on the following points and authorities, 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. Except as
expressly MODIFIED by this Final Order to address the mitigating factors in the
penalty determination, we AFFIRM the initial decision.
¶2 Prior to his removal, the appellant was a Small Arms Repairer, WG-6610-
08, at the U.S. Army Tank-Automotive and Armaments Command (TACOM) at
Fort Lee, Virginia. Initial Appeal File (IAF), Tab 6 at 24. The agency proposed
his removal based on four charges: (1) failing to follow supervisory instructions;
(2) unauthorized entry by use of force into the TACOM Fleet Management
Expansion (FMX) small arms room; (3) lack of candor; and (4) being unable to
perform the essential functions of his position as a result of being banned from
the on-site small arms rooms. Id. at 26, 40. The charges originally arose from an
incident on April 1, 2013, wherein a coworker witnessed the appellant taking
pictures with his cell phone inside the 23rd Quartermaster Brigade small arms
room. Id. at 40 & n.1. On April 8, 2013, he was barred from unaccompanied
access to the TACOM FMX small arms room, which is a restricted area, and his
key to that room was taken. Id. at 40; IAF, Tab 11 at 11. On May 16, 2013,
however, the appellant, unaccompanied, entered the TACOM FMX small arms
room after forcibly shaking the gate leading to the room. IAF, Tab 6 at 40-41.
He later made misleading statements to management regarding his entry to the
room. Id. at 41. The agency found that, because he was banned from accessing
3
on-site small arms rooms, he could no longer perform the essential duties of his
position. Id. at 41-43.
¶3 After the appellant responded to the proposed removal, the deciding official
sustained the charges and found that removal was the appropriate penalty. Id.
at 26-34. The appellant then filed this adverse action appeal, asserting that the
agency retaliated against him for whistleblowing and violated his due process
rights. IAF, Tabs 1, 21-22. He waived his right to a hearing. IAF, Tab 18 at 4.
Based on the written record, which included several declarations made under
penalty of perjury, IAF, Tab 29 at 38-64, the administrative judge sustained all
charges, IAF, Tab 37, Initial Decision (ID) at 2-22. The administrative judge
rejected the appellant’s due process argument and found that he failed to prove
that his disclosure played any role in the personnel action, specifically that he
failed to present evidence of knowledge on the part of the accused management
officials sufficient to conclude that his alleged disclosure contributed in any way
to the personnel action. ID at 10, 29. The administrative judge further found that
the penalty of removal was reasonable and supported the efficiency of the service.
ID at 29-32.
The appellant has not shown that the agency violated his due process rights.
¶4 On review, the appellant argues that the agency failed to give him a copy of
the April 8, 2013 memorandum upon which the deciding official relied in
deciding to remove him, thus violating his due process rights. Petition for
Review (PFR) File, Tab 1 at 7-10; see Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (finding that procedural due
process guarantees are not met if the employee has notice of only certain charges
or portions of the evidence and the deciding official considers new and material
information; therefore, it is constitutionally impermissible to allow a deciding
official to receive additional material information that may undermine the
objectivity required to protect the fairness of the process). The April 8, 2013
memo authorized the appellant for “accompanied access to the Weapons Vault
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located in BLDG 6298 Rear Access Rd Ft. Lee, VA.” IAF, Tab 11 at 11
(emphasis added). The appellant argues that he first saw the memo when it was
submitted with the agency file. PFR File, Tab 1 at 8; IAF, Tab 6 at 26-27. He
asserts that the deciding official’s consideration of the memo was both substantial
and prejudicial to his case. PFR File, Tab 1 at 9. He also asserts that the memo
itself does not reveal the “entire story” in his case; namely, that his access was
revoked and later restored orally, and he received nothing in writing revoking his
access again. Id. The administrative judge, however, rejected his claim that
consideration of the memo violated his due process rights. ID at 10. The
administrative judge found that the information in the memo was provided in the
proposal notice and, even if the deciding official had considered the memo, the
appellant failed to establish that the information therein was new and
material. Id.
¶5 In determining if an ex parte communication introduces new and material
information, the Board considers, among other factors, whether: (1) the ex parte
communication merely introduces cumulative information or new information;
(2) the employee knew of the error and had a chance to respond to it; and (3) the
ex parte communication was of the type likely to result in undue pressure upon
the deciding official to rule in a particular manner. Stone, 179 F.3d at 1377.
Ultimately, the inquiry is whether the deciding official’s consideration of the
additional material was so substantial and so likely to cause prejudice that no
employee could fairly be required to be subjected to a deprivation of property
absent an opportunity to respond. Id.
¶6 The administrative judge decided this issue correctly. The appellant offered
nothing to support his assertion that he failed to receive the April 8, 2013 memo,
whereas the agency submitted proof that it had provided him with the memo
during the advance notice period. Such proof included a sworn statement from
5
the deciding official. 2 PFR File, Tab 3 at 25-26. The deciding official explained
and included proof that the appellant received the April 8, 2013 memo with a
package of other relevant documents on May 28, 2014. Id. at 25-27, 32. The
appellant acknowledged receipt of those materials and, in fact, he has referenced
other documents in the same package, thus establishing that he had an opportunity
to respond to the memo. Id. at 26, 41-42, 44-78. In any event, the appellant also
failed to show that the memo provided any information not already included in
the notice of proposed removal. See, e.g., Buelna v. Department of Homeland
Security, 121 M.S.P.R. 262, ¶ 32 (2014).
The appellant has not shown that the agency retaliated against him for
whistleblowing.
¶7 The appellant argues that the administrative judge erred in concluding that
he failed to prove by preponderant evidence that the agency took action against
him in retaliation for protected whistleblowing activity. PFR File, Tab 1 at
10-15. The appellant’s alleged protected disclosures pertained to the removal of
“unauthorized controlled weapons parts not acquired in accordance with Army
regulations” by his work leader, S.W., from secure areas in the facility. IAF,
Tab 23 at 30. The appellant alleged that, during March 2013, he informed his
first-, second-, and third-level supervisors about S.W.’s removal of weapons parts
from secure storage areas. Id. He alleged that shortly thereafter, on April 1,
2013, S.W. accused him of taking photographs inside the 23rd Quartermaster
Brigade small arms room after a member of the military staff reported that he had
seen the appellant doing so. Id. at 31. S.W. took the appellant’s keys to the 23rd
Quartermaster Brigade small arms room on April 2, 2013. Id. On April 8, 2013,
2
Although the sworn statements in support of the agency’s argument post-date the close
of the record below, PFR File, Tab 3 at 25-26, 44-45, 63-64, the Board will consider
those statements. Based on the administrative judge’s rulings, IAF, Tab 21 at 1,
Tab 22, it would have been reasonable for the agency to conclude that he did not intend
to consider the due process issue and thus declined to submit evidence that the appellant
received the memo.
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the appellant alleged, he was counseled in writing and informed that he was
restricted from working in the 23rd Quartermaster Brigade small arms room. Id.
at 31-32. The appellant alleged that on May 15, 2013, he reported in writing that
the claim that he was taking photos was false and made in retaliation for
whistleblowing activities. 3 Id. at 32.
¶8 The administrative judge considered sworn statements made by the
proposing and deciding officials, as well as sworn statements from S.W. and two
persons to whom the appellant asserted he had made protected disclosures.
ID at 24-29. The administrative judge found that the record evidence showed that
no one other than the appellant remembered anything about his alleged
disclosures. ID at 28-29. The administrative judge noted that some supervisors
and managers remembered that the appellant identified a different problem, which
was related to the failure of some repairers to use trigger weights but was not the
disclosure he claimed to have made. ID at 29. The administrative judge further
noted that, even if the appellant could show that he made a disclosure regarding
the improper removal of small arms parts from secure storage areas, S.W.
successfully explained why the appellant had not reported any violation of a
regulation or policy. Id.; IAF, Tab 29 at 252-53. S.W. further explained that he
was unaware that the appellant had told anyone he had improperly acquired and
stored parts. Id. The record thus does not support the appellant’s contention that
he made a protected disclosure regarding S.W.’s acquisition and storage of parts.
¶9 The appellant also argues that the alleged disclosures contributed to his
removal by way of indirect improper influence. PFR File, Tab 1 at 12-15. The
U.S. Supreme Court adopted the term “cat’s paw” to describe such influence.
Under the “cat’s paw” theory, an agency official acting from improper animus
3
The record includes a May 15, 2013 memo from the appellant’s supervisor, J.C.,
which states that the appellant articulated his intention to submit a statement asserting
that he had not committed any violation of physical security. IAF, Tab 24 at 115. We
were unable to locate such a statement in the record.
7
influences another agency official who is unaware of the improper animus while
that official is implementing a personnel action. Aquino v. Department of
Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014) (citing Staub v. Proctor
Hospital, 562 U.S. 411, 415-16 (2011)). The appellant explains that the deciding
official met with him only one time and subsequently relied upon statements
given by S.W. and his immediate supervisor J.C. PFR File, Tab 1 at 14. Thus,
appellant asserts, S.W. and J.C. were the de facto decisionmakers in his
removal. Id. The appellant asserts that J.C. failed to correct S.W.’s wrongful
acquisition and storage of the parts and thus was “motivated to collude with
[S.W.] to retaliate against” him because J.C. knew his disclosures would
detrimentally affect both men. Id. Their collusive activities, the appellant
asserts, included making an unsubstantiated allegation that he was taking pictures
inside of the 23rd Quartermaster Brigade small arms room. Id. at 14-15.
According to the appellant, J.C. and S.W. thus set him up for loss of
unaccompanied access to the small arms rooms and for eventual removal. Id.
¶10 The administrative judge, however, fully considered the record evidence
and properly concluded that the appellant presented no evidence that the deciding
or proposing official had any knowledge of his claimed disclosures or were
influenced by any person with such knowledge. ID at 29. The appellant’s
allegations are thus speculative, and further, he missed the opportunity to
cross-examine the agency officials to whom he allegedly made disclosures or who
purportedly retaliated against him by withdrawing his hearing request.
The appellant has not shown that the findings of fact are incorrect.
¶11 The appellant asserts that the administrative judge reached incorrect
findings of fact. Regarding the first charge, failing to follow supervisory
instructions, the appellant asserts that he was never informed that his
unaccompanied access to the TACOM FMX small arms room had been
terminated. PFR File, Tab 1 at 16-17; IAF, Tab 6 at 40; ID at 3-11. He asserts
that the April 8, 2013 memo regarding the revocation of his access may have been
8
“drafted for purposes of this appeal only,” and that he was never told of the
access restrictions during a counseling meeting held on April 8, 2013. PFR File
Tab 1 at 15; IAF, Tab 11 at 11, Tab 30 at 7. He further asserts that the agency
confused the April 8 meeting with another meeting during which his
unaccompanied access to a separate secure facility, the 23rd Quartermaster
Brigade small arms room, was revoked. PFR File, Tab 1 at 17. He explains that
his keys to the 23rd Quartermaster Brigade small arms room were taken on
April 1, 2013, when the agency generally limited unaccompanied access to the
room by collecting the keys from several individuals. Id. The record, however,
includes two sworn statements, an investigative report, and a contemporaneous
memorandum establishing that the appellant’s unaccompanied access to the
TACOM FMX small arms room was revoked on April 8, 2013. IAF, Tab 6 at 76,
Tab 29 at 73-74, 251, Tab 30 at 7.
¶12 Regarding both the first charge and the second charge, unauthorized entry
to the TACOM FMX small arms room by force, the appellant argues that no
eyewitness saw his alleged breach of the security gate leading to the room. PFR
File, Tab 1 at 18; IAF, Tab 6 at 40-41; ID at 11-12. The appellant argues that
witness T.F.’s back was turned and he did not see him open the security gate
leading to the room. Instead, T.F. saw only the bent rod that the appellant
allegedly used to force the lock lying on the floor by the gate. PFR File, Tab 1
at 18-19. He asserts that the only “witness” to his entry to the room, the StarPin
security system zone report, “only confirms whether the front door was shut down
properly.” Id. at 19. The appellant, however, admitted entering the room, both in
the sworn declaration that he submitted for the record and in his response to the
agency’s request for admissions. IAF, Tab 23 at 32-33, Tab 29 at 187.
Additionally, a significant body of circumstantial evidence supports the finding
that he entered the room, including the StarPin security system zone report, which
shows that he secured the room. IAF, Tab 7 at 22, Tab 11 at 6, Tab 25 at 25,
Tab 28 at 39.
9
¶13 Concerning the third charge, lack of candor, the appellant asserts that his
agency manager, J.C., lacked credibility when he stated that the appellant initially
denied entering the TACOM FMX small arms room on May 16, 2013. PFR File,
Tab 1 at 20-21; IAF, Tab 6 at 41; ID at 16-18. The appellant argues that he never
denied entering the room or tried to hide his actions from his managers or
colleagues. PFR File, Tab 1 at 21. As the administrative judge noted, however,
the agency need not prove intent to deceive for a lack of candor charge to be
sustained. ID at 17; see Rhee v. Department of the Treasury, 117 M.S.P.R. 640,
¶ 10 (2012), overruled in part on other grounds by Savage v. Department of the
Army, 2015 MSPB 51. In his sworn statement, J.C. said that the appellant denied
going into the TACOM FMX small arms room when J.C. questioned him on May
17, 2013. IAF, Tab 30 at 9. J.C.’s sworn statement is consistent with his
contemporaneous account of the events of May 16, 2013. IAF, Tab 28 at 49. The
appellant also failed to present any evidence supporting his assertion that he had
not denied entering the room. In any event, he declined the opportunity to
cross-examine J.C. when he waived his right to a hearing. IAF, Tab 18 at 4.
¶14 As for the fourth charge, inability to perform the essential functions of his
position, the appellant asserts that the agency has advanced a circular argument
and engaged in “charge building” intended to justify his removal. PFR File,
Tab 1 at 22; IAF, Tab 6 at 41-43; ID at 18-21. To the contrary, the record shows
that the appellant lost access to the small arms rooms on post because agency
managers and military personnel believed that his actions had posed a physical
threat to the security of those facilities, thus raising concerns about his reliability
as an employee. See, e.g., IAF, Tab 6 at 48 (“Mr. Snyder’s behavior has raised
significant doubt as to his reliability and trustworthiness and has destroyed any
reasonable assurance that he can be trusted with continued access to the [small
arms rooms].”); id. at 49 (“Mr. Scott E. Snyder is no longer able to perform his
duties because of physical security violations.”); see also IAF, Tab 7 at 20
10
(banning the appellant from the 23rd Quartermaster Brigade small arms room for
physical security violations).
¶15 The appellant also argues that he could perform the duties of his position
without unescorted access to a small arms room. PFR File, Tab 1 at 22-23. The
agency, however, submitted a sworn statement from T.B., the appellant’s
second-tier supervisor, explaining that, although he might be able to perform
some work outside of the small arms rooms, his inability to access those rooms
independently to obtain weapons and parts would impose difficulties, especially
during emergencies or when other team members were unavailable to assist him.
IAF, Tab 29 at 52-53. T.B. noted that the ban included the 23rd Quartermaster
Brigade small arms room and the appellant’s management lacked the independent
authority to restore his access to that room. Id. at 53. The administrative judge
thus reasonably concluded that the appellant’s situation was comparable to that of
an employee who had lost a credential necessary for performing the essential
functions of his position. ID at 21; cf., e.g., Robinson v. Department of Homeland
Security, 498 F.3d 1361, 1365 (Fed. Cir. 2007) (loss of security clearance);
Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 12 (2014) (loss of
eligibility for a non-critical sensitive position); Benally v. Department of the
Interior, 71 M.S.P.R. 537, 539-40, 542 (1996) (revocation of a valid state driver’s
license, which was required for the position).
The penalty of removal is sustained.
¶16 The appellant asserts that the agency failed to give proper consideration to
the penalty factors set forth in Douglas v. Veterans Administration. PFR File,
Tab 1 at 22-24; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
(1981). He asserts that the deciding official failed to address which of the
mitigating factors he had considered. PFR File, Tab 1 at 23. He argues that his
11
misconduct was not serious, 4 he had no prior discipline, and he produced
excellent work. Id. at 23-24. He also asserts that the offense was not notable and
had no public impact upon the agency. Id. at 24. The appellant raised these
matters before the administrative judge, but they were not discussed in the initial
decision. 5 IAF, Tab 23 at 24-25.
¶17 The Board will review an agency-imposed penalty only to determine if the
agency considered all the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. The
record shows that the deciding official weighed some of the Douglas factors,
giving specific attention to the seriousness of the misconduct, the type of position
the appellant held, the negative effect of the offenses upon his ability to perform
the essential functions of his position and his supervisor’s loss of confidence in
him, his apparent lack of remorse and unwillingness to accept responsibility for
his actions, and the inadequacy of alternative sanctions. IAF, Tab 29 at 44; see
Douglas, 5 M.S.P.R. at 305-06. The deciding official gave greatest weight to the
seriousness of the offense and the fact that the appellant’s actions caused
management to lose trust in his ability to do his job. IAF, Tab 29 at 44-45; IAF,
Tab 6 at 28-29. The appellant correctly observes that neither the deciding official
4
The appellant also asserts here that his removal would not promote the efficiency of
the service because he acted in response to an emergency. PFR File, Tab 1 at 20. He
argues that the room had not been properly secured, and he entered only to shut off a
silent alarm, as he had been instructed to do earlier in his employment. Id. There was,
however, no need for the appellant to enter the room. The record does not show that
any threat existed to persons or property as a result of the alarm, and he already had
requested the assistance of other persons who would have handled the matter. He had
called a supervisor, who was off-post at the time, but explained to the appellant that he
would return to the facility. IAF, Tab 25 at 25. The appellant also had notified the
Provost Marshall’s office about the alarm. Id.; IAF, Tab 6 at 77.
5
Cf. Yeschick v. Department of Transportation, 801 F.2d 383, 385 (Fed. Cir. 1986)
(finding that the administrative judge need not contemplate mitigating factors not
identified by the appellant as significant).
12
nor the administrative judge discussed any mitigating factors, including those that
he now reasserts on review. PFR File, Tab 1 at 23-24; ID at 30-32.
¶18 An agency’s determination of an appropriate penalty is not entitled to
deference when the deciding official did not consider any of the relevant
mitigating circumstances. Bivens v. Tennessee Valley Authority, 8 M.S.P.R. 458,
461 (1981). After reviewing the mitigating factors, however, the Board still may
find that the penalty falls within the tolerable limits of reasonableness for the
sustained charges. See, e.g., Daniels v. U.S. Postal Service, 57 M.S.P.R. 272,
284-87 (1993). Here, we make such a finding, modifying the initial decision by
considering the mitigating factors that the appellant identified. ID at 29-32; PFR
File, Tab 1 at 23-24. Although the appellant had a clean disciplinary record and a
solid performance history, IAF, Tab 28 at 57-58, we do not agree with his
assertion that his offense was nominal or nonexistent. We likewise find that he
does not show excellent potential for rehabilitation. PFR File, Tab 1 at 23; IAF,
Tab 23 at 25. To the contrary, the agency has shown that the appellant committed
serious misconduct by breaching a secure facility where sensitive and dangerous
weapons are stored after he had been ordered not to access that facility without an
escort. IAF, Tab 29 at 43-45. His conduct raises significant doubts as to his
future reliability. Id. at 44. His lack of remorse and unwillingness to accept
responsibility for his actions militates against his potential for rehabilitation. Id.
Accordingly, we find that the penalty of removal falls within the tolerable limits
of reasonableness for the sustained charges.
The administrative judge did not err when he declined to admit the appellant’s
compact discs into evidence.
¶19 Finally, the appellant argues that the administrative judge erred by not
admitting into evidence two of the compact discs (CDs) he submitted. 6 PFR File,
6
The petition for review includes several attachments. PFR File, Tab 1, Attachments
1-10. The attached documents are already in the record and thus are not new evidence
under the Board’s definition. See Meier v. Department of the Interior, 3 M.S.P.R. 247,
13
Tab 1 at 14. These CDs, he asserts, prove that his access to the TACOM FMX
small arms room was orally revoked and then orally restored prior to May 16,
2013. PFR File, Tab 1 at 9-10; IAF, Tab 31 at 4-5. The agency argued that the
CDs should not be admitted because the appellant did not produce them during
discovery and he first disclosed their existence in his close of the record brief.
IAF, Tab 31 at 4-5, 9-10. The agency first received the CDs 6 days after the
close of the record. Id. at 10.
¶20 Evidentiary issues fall within the sound discretion of the Board and its
officials. See Curtin v. Office of Personnel Management, 846 F.2d 1373, 1378-79
(Fed. Cir. 1988) (citing Spezzaferro v. Federal Aviation Administration, 807 F.2d
169, 173 (Fed. Cir. 1986); 5 C.F.R. § 1201.41(a), (b)). Such matters will not be
overturned “unless an abuse of discretion is clear and is harmful.” Id. The
administrative judge explained that he did not admit the CDs because they had
not been authenticated and they lacked “even any accompanying description to
establish any factual basis for the recording.” ID at 9 n.3. The administrative
judge noted that the appellant also failed to explain why the records had not been
produced in discovery. Id. The appellant argues that authentication was
unnecessary. PFR File, Tab 1 at 16.
¶21 In light of the circumstances, however, we find no abuse of discretion. The
CDs are of limited value. The agency found the sound quality to be poor, even
unintelligible in places, and the appellant did not provide a transcript. IAF,
Tab 31 at 4-6. Additionally, the appellant averred during discovery that he had
produced all verbal conversations. IAF, Tab 29 at 175. His last-minute
production of the CDs denied the agency the opportunity to proffer rebuttal
evidence. For all of these reasons, we affirm the initial decision as modified.
256 (1980) (determining that evidence that is already a part of the record is not new);
5 C.F.R. § 1201.115(d) (to constitute new evidence, the information contained in the
documents, not just the documents themselves, must have been unavailable despite due
diligence when the record closed).
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
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 United States 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 United States 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
15
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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 information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
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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.