Andrew Mays v. Department of Homeland Security ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW S. MAYS, DOCKET NUMBER
Appellant, PH-0752-14-0630-I-2
v.
DEPARTMENT OF HOMELAND DATE: February 28, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.
Lorna J. Jerome, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 contra st, 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
or 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. 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. Except as expressly MODIFIED to
apply the correct legal standard to the agency’s charge of medical inability to
perform, we AFFIRM the initial decision.
BACKGROUND
¶2 Effective March 7, 2014, the agency removed the appellant from his
Electronics Mechanic position based upon his medical inability to perform the
duties of his position. Mays v. Department of Homeland Security, MSPB Docket
No. PH-0752-14-0630-I-1, Initial Appeal File (IAF), Tab 7 at 17-18. The
appellant filed the instant appeal challenging his removal. IAF, Tab 1. The
administrative judge dismissed the appeal without prejudice to refiling. IAF,
Tab 13, Initial Decision. The appellant subsequently requested that the appeal be
reopened. Mays v. Department of Homeland Security, MSPB Docket No. PH-
0752-14-0630-I-2, Appeal File (I-2 AF), Tab 1. After holding the appellant’s
requested hearing, the administrative judge issued an initial decision sustaining
his removal. I-2 AF, Tab 32, Initial Decision (I-2 ID).
3
¶3 The appellant has filed a petition for review. Mays v. Department of
Homeland Security, MSPB Docket No. PH-0752-14-0630-I-2, Petition for Review
(PFR) File, Tab 1. 2 The agency has not responded.
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge’s conclusion that the agency proved that
the appellant was medically unable to perform the duties of his position;
however, we modify the initial decision to apply the correct legal standard.
¶4 The appellant asserts that the agency failed to prove that he was medically
unable to perform the duties of his position because a physician and a physical
therapist supported the fact that his condition was improving to the point that he
would be able to perform his duties. PFR File, Tab 1 at 14-15. He also asserts
that there was no evidence that his condition would recur and that it did not pose
a reasonable probability of substantial harm. Id. at 16.
¶5 In her initial decision, the administrative judge stated that, to prove its
charge of physical inability to perform, the agency was required to show the
following: (1) the appellant’s disabling condition itself was disqualifying; (2) its
recurrence could not be ruled out; and (3) the duties of the appellant’s position
were such that a recurrence would pose a reasonable probability of substantial
harm. I-2 ID at 5 (citing Sanders v. Department of Homeland Security,
122 M.S.P.R. 144, ¶ 11, aff’d, 625 F. App’x 549 (Fed. Cir. 2015)); see 5 C.F.R.
§ 339.206. 3 Following the issuance of the initial decision, however, the Board
determined that this standard applies only when an employee who occupies a
2
The appellant has not challenged the administrative judge’s finding that he failed to
prove his claim of disability discrimination, and we find no reason to disturb this
finding on review. PFR File, Tab 1; see Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987).
3
Subsequent to the appellant’s removal, the Office of Personnel Management amended
5 C.F.R. § 339.206 as to the degree of risk required. Medical Qualification
Determinations, 82 Fed. Reg. 5340-01, 5346-47, 5352 (Jan. 18, 2017) (Final Rule).
However, given our findings herein, this amendment is not material to the outcome of
this appeal; thus, we need not address whether the regulatory changes apply
retroactively. See Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 11 n.2.
4
position with medical standards is removed based solely on medical history, i.e.,
when the only basis for concluding that the employee was medically unable to
perform the core duties of his position was the fact that his medical records
reflected that, at some time in the past, he was classified as having, was examined
for, or was treated for the medical condition or impairment in question. Haas v.
Department of Homeland Security, 2022 MSPB 36, ¶¶ 10-15. The Board
explained that in cases, as here, involving a current medical condition, the agency
must prove either a nexus between the employee’s medical condition and
observed deficiencies in his performance or conduct, or a high probability, given
the nature of the work involved, that his condition may result in injury to himself
or others. Id., ¶ 15. The Board has otherwise described this standard as requiring
that the agency establish that the appellant’s medical condition prevents him from
being able to safely and efficiently perform the core duties of his position. Id.
¶6 Here, although the administrative judge both enumerated and applied the
standard set forth in 5 C.F.R. § 339.206, remand is unnecessary because the
record is fully developed on the relevant issues. See id., ¶ 20. To this end, the
administrative judge also concluded, and the appellant does not chal lenge, that his
painful disc disease and painful lumbar facet syndrome rendered him unable to
safely and efficiently perform his core duties. I-2 ID at 5, 7 n.7; see Haas,
2022 MSPB 36, ¶ 15. We agree with this finding. Indeed, as set forth in the
initial decision, the appellant’s position contained several physical requirements,
including frequent lifting of up to 40 pounds, I-2 ID at 5; IAF, Tab 8 at 24, and
the appellant’s treating physician opined that he was “not physically capable of
meeting the demands of [his] position,” I-2 ID at 5-6; IAF, Tab 8 at 16-17.
Moreover, the appellant sent an email to his supervisor acknowledging t hat
certain aspects of his condition caused him concern for his own safety in the
course of his duties. IAF, Tab 8 at 31.
¶7 On review, the appellant avers that his condition was “improving
dramatically.” PFR File, Tab 1 at 15. To this end, he contends that the
5
administrative judge improperly discounted the testimony of a physician who
opined that, based on the appellant’s ability to work as a lobster fisherman shortly
before the hearing, he was healthy enough to return to work. Id. at 15 n.7. He
also contends that his physical therapist testified that his conditions were
improving. Id. at 15. We find these contentions unavailing. Indeed, we discern
no basis to disturb the administrative judge’s finding that the appellant’s ability
to work as a lobster fisherman was not particularly probative; the appellant had
previously worked as such during the same timeframe that his treating physician
stated that the appellant was physically unable to perform the duties of his
position with the agency. I-2 ID at 8. Similarly, although a physical therapist
testified that he had assigned the appellant a series of exercises that were
reportedly helping, the physical therapist acknowledged that he was not a doctor
and did not make medical diagnoses. I-2 ID at 6 n.6. Moreover, the appellant’s
treating physician opined, and the appellant himself acknowledged, that his
conditions were incurable and would only worsen with time. IAF, Tab 8 at 17,
31. Considering the appellant’s 10-month absence with no end in sight, we find
that the agency established a nexus between the appellant’s medical conditions
and a deficiency in his attendance.
The administrative judge correctly found that the agency provided the appellant
with due process.
¶8 The appellant next challenges the administrative judge’s finding that the
agency provided him with due process. PFR File, Tab 1 at 7-12. The
administrative judge addressed the appellant’s assertions that the deciding official
improperly considered a telephone conversation between the human resources
specialist and his physician; a meeting among the appellant, the proposing
official, and the human resources specialist; and a Douglas 4 factors worksheet
4
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981), the Board
articulated a nonexhaustive list of 12 factors to be considered when evaluating the
penalty to be imposed for certain acts of misconduct, hereinafter the Douglas factors.
6
that had been presented to the deciding official for completion . I-2 ID at 17. We
agree that these considerations did not constitute due process violations. 5
¶9 In Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377
(Fed. Cir. 1999), the U.S. Court of Appeals for the Federal Circuit held that, if
the deciding official receives ex parte new and material evidence, this constitutes
a violation of the employee’s due process rights. 6 To determine whether the
information constituted new and material evidence, the Board will consider the
following: (1) whether the ex parte information merely introduces “cumulative
information” or new information; (2) whether the employee knew of the error and
had a chance to respond to it; and (3) whether the ex parte information was of the
type likely to result in undue pressure upon the deciding official to rule in a
particular manner. Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (Fed. Cir.
2011); Stone, 179 F.3d at 1377.
¶10 Regarding the phone conversation, the administrative judge found that the
human resources specialist merely clarified with the appellant’s physician that the
appellant was undergoing physical therapy and might be able to return to work at
some point, and thus, this information was virtually identical to that which was
contained in the doctor’s letter. I-2 ID at 17-18; IAF, Tab 7 at 17. We agree that
the deciding official did not violate the appellant’s due process rights in this
5
We also have considered whether the deciding official’s consideration of the
conversation, the meeting, and the Douglas factors worksheet constituted harmful error.
However, we do not find harmful error in this respect because we find that the deciding
official’s consideration was not likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of any alleged error.
Forte v. Department of the Navy, 123 M.S.P.R. 124, ¶ 19 (2016); 5 C.F.R. §§ 1201.4(r),
1201.56(c)(1).
6
The Federal Circuit’s reasoning rests on the decision of the U.S. Supreme Court in
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39, 546-48 (1985),
which held that a tenured public employee has a constitutionally protected property
interest in ongoing public employment and that an agency may not deprive such an
employee of his property interest without providing him with due process of law,
including the right to advance notice of the charges against him, an explanation of the
agency’s evidence, and an opportunity to respond.
7
respect because the conversation did not convey any new information to the
deciding official. See Blank v. Department of the Army, 247 F.3d 1225, 1229
(Fed. Cir. 2001).
¶11 The administrative judge also found that the deciding official did not
violate the appellant’s due process rights by citing the meeting among the
appellant, the human resources specialist, and the proposing official in which they
discussed the need for additional medical documentation. I -2 ID at 18; IAF,
Tab 7 at 17. She found, and we agree, that this information was confirming and
clarifying, rather than new. Specifically, the conversation at this meeting merely
confirmed that the agency informed the appellant that he needed to provide
additional medical evidence before he could return to duty. I-2 ID at 18; see
Blank, 247 F.3d at 1229. We also agree with the administrative judge that the
appellant was given an opportunity to respond by submitting medical
documentation after the meeting. I-2 ID at 18. Further, we agree that this
information in no way appears to be the type likely to result in undue pressure on
the deciding official. Id.¶12 The appellant next asserts that the deciding official considered a Douglas
factors worksheet that was presented to him for completion, which he asserts
constituted new and material evidence. PFR File, Tab 1 at 9-10; I-2 AF, Tab 11
at 7-9. He also asserts that it was clear that this evidence resulted in undue
pressure on the deciding official because he actually considered it. PFR File,
Tab 1 at 11-12. As the administrative judge stated, a deciding official’s
knowledge of information only raises due process or procedural concerns whe n
that knowledge is a basis for the deciding official’s determinations on either the
merits of the underlying charge or the penalty to be imposed. Bennett v.
Department of Justice, 119 M.S.P.R. 685, ¶ 10 (2013). The administrative judge
found that the deciding official credibly testified that he did not actually consider
8
the factors listed in the worksheet. 7 I-2 ID at 19. We will defer to this
determination, which is implicitly based upon the deciding official’s demeanor.
See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
Accordingly, we agree with the administrative judge that the agency did not
violate the appellant’s due process rights.
The appellant has not provided a reason to disturb the finding that the agency
proved by clear and convincing evidence that it would have removed him absent
his protected disclosure. 8
¶13 On or about March 6, 2014, the appellant informed a local newspaper, the
Mount Desert Islander, that agency investigators had seized the global positioning
system from his boat, causing significant damage in the process. I-2 AF, Tab 10
at 8-9; I-2 ID at 9. The newspaper printed this story, in which the appellant was
highly critical of the agency’s conduct and motive. I-2 AF, Tab 10 at 8-9. The
administrative judge found that this disclosure was protected and was a
contributing factor in the appellant’s removal, but that the agency proved by clear
and convincing evidence that it would have removed him notwithstanding the
disclosure. I-2 ID at 10-16.
¶14 On petition for review, the appellant contests the administrative judge’s
clear and convincing evidence analysis. PFR File, Tab 1 at 13-14. In
determining whether an agency has met its burden of proving that it would have
imposed the penalty absent the appellant’s protected disclosure, the Board will
consider all of the relevant factors, including the following: (1) the strength of
the agency’s evidence in support of its action; (2) the existence and strength of
7
The Board has held that the Douglas factors generally do not apply when, as here, the
removal is based upon a nondisciplinary reason. See Munoz v. Department of
Homeland Security, 121 M.S.P.R. 483 (2014). Accordingly, even if the deciding
official considered this information, it would not constitute the type of information that
would cause undue pressure on the deciding official because it is largely irrelevant to
the penalty determination.
8
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
9
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.
Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v.
Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 9
¶15 The appellant argues that the agency did not have strong evidence to
support the removal action given that he had started to receive new treatments
and therapies during the reply period and that he received a favorable report from
his physician. PFR File, Tab 1 at 14. To the contrary, as the administrative judge
properly found, evidence from both the appellant and his providers detailed the
nature of his conditions and how those conditions prevented him from performing
his duties while the other evidence demonstrated that the appellant might b e able
to return to work at an unspecified point. I-2 ID at 15. Thus, we agree that the
agency had strong evidence in support of its action at the time of the removal.
¶16 Regarding the second Carr factor, the administrative judge found that the
proposing official did not have a motive to retaliate because the removal had been
proposed prior to the appellant’s disclosure to the newspap er. I-2 ID at 15. She
found that the deciding official had some motive to retaliate because the
appellant’s disclosure portrayed the agency in a negative light, see Chavez v.
Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 32 (2013), but that this
retaliatory motive was not particularly strong because the disclosure was not
directed at the deciding official personally or at anyone in the deciding official’ s
chain of command, I-2 ID at 15. On petition for review, the appellant argues that
9
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
10
there was evidence of a strong retaliatory motive because the deciding official
mentioned the newspaper article when he handed the appellant the removal
decision. 10 PFR File, Tab 1 at 14. However, the deciding official testified that
the newspaper article played no role in his decision, and record shows that he had
already drafted the removal decision before he learned of the article. Hearing
Recording at 23:10, 24:20 (testimony of the deciding official). For the reasons
explained in the initial decision, we agree that there was not a strong motive to
retaliate in this case. See Runstrom v. Department of Veterans Affairs,
123 M.S.P.R. 169, ¶ 15 (2016).
¶17 The appellant next states that the agency did not put forth any evidence
regarding nonwhistleblowers. PFR File, Tab 1 at 14. The agency is not required
to produce evidence regarding each Carr factor and “the absence of any evidence
relating to Carr factor three can effectively remove that factor from the analysis.”
Whitmore v. Department of Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012).
Nevertheless, the failure to produce such evidence if it exists “may be at the
agency’s peril,” and may cause the agency to fail to meet its clear and convincing
burden. Id. Moreover, because it is the agency’s burden of proof, when the
agency fails to introduce relevant comparator evidence, the third Carr factor
cannot weigh in favor of the agency. Smith v. General Services Administration,
930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency,
908 F.3d 1291, 1299 (Fed. Cir. 2018). Although this factor adds little to our
analysis, we find that the agency has failed to introduce comparator evidence;
therefore, Carr factor 3 does not weigh in the agency’s favor. However,
considering the strong evidence in support of the agency’s action and the lack of
a strong motive to retaliate, we agree with the administrative judge that the
10
The record does not appear to reflect how this topic came up or what the deciding
official said about it.
11
agency has shown by clear and convincing evidence that it would have removed
the appellant absent his protected disclosure. 11
NOTICE OF APPEAL RIGHTS 12
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
11
The appellant asserts that, because his appeal was pending before the Board for more
than 1 year after his removal became effective, he did not have the choice of filing a
petition for review or applying for disability retirement within the 1 year time period
prescribed by statute. PFR File, Tab 1 at 4 n.1; see 5 U.S.C. § 8453; 5 C.F.R.
§ 844.201(a)(1). We find that this argument does not provide a basis for disturbing the
initial decision.
12
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
13
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
14
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
13
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
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, 10, and 11.
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.