Safa G Alamir v. Department of Justice ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAFA G. ALAMIR, DOCKET NUMBER
Appellant, DE-0752-20-0003-I-1
v.
DEPARTMENT OF JUSTICE, DATE: September 18, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alan Lescht , Esquire, and Katherine Lease , Esquire, Washington, D.C., for
the appellant.
Lesley Sotolongo , Esquire, and Karey Hart , Esquire, Falls Church,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal based on a charge of absence without leave (AWOL) and a
charge of failure to follow instructions. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 (1) clarify the credibility findings; (2) vacate the administrative
judge’s finding regarding specification 5 of the AWOL charge; and (3) clarify the
findings regarding specification 4 of the failure to follow instructions charge, we
AFFIRM the initial decision.
BACKGROUND
The appellant was hired by the agency as a Supervisory Legal
Administrative Specialist at the Phoenix Immigration Court, effective
April 28, 2019. Initial Appeal File (IAF), Tab 8 at 49. On July 9, 2019, the
appellant did not report to duty, and she never returned to duty thereafter.
See IAF, Tab 7 at 28-35, 37-44. By a letter dated August 8, 2019, the agency
proposed the appellant’s removal based on a charge of AWOL with
13 specifications, based on her absences for the period from July 22, 2019,
through August 8, 2019, and a charge of failure to follow instructions with four
specifications. Id. at 37-44. The first three specifications of the failure to follow
instructions charge related to the appellant’s failure to respond to requests
for documentation and information on July 15, 2019, July 25, 2019, and
July 30, 2010, pertaining to her absence from work, and the fourth specification
3
related to her failure to return to duty on August 5, 2019, as instructed. Id. at 41.
By a letter dated September 11, 2019, the deciding official sustained all
13 specifications of the AWOL charge and all four specifications of the failure to
follow instructions charge, and sustained the appellant’s removal, effective
immediately. Id. at 28, 30-34.
The appellant timely filed an appeal of the agency’s removal decision and
requested a hearing. IAF, Tab 1. After the appellant subsequently withdrew her
hearing request, see IAF, Tabs 36-37, the administrative judge issued an initial
decision based on the written record sustaining both charges and the removal
penalty, IAF, Tab 44, Initial Decision (ID) at 2, 19. Specifically, the
administrative made the following findings: (1) she sustained all 13 specifications
of the AWOL charge; (2) she sustained specifications one and three of the failure
to follow instructions charge, relating to the instructions the appellant received on
July 15, 2019 and July 30, 2019 requesting documentation and information about
her absence; (3) she did not sustain specification 2 of the failure to follow
instructions charge, relating to the July 25, 2019 instruction for the appellant to
provide information regarding her absence; and (4) she concluded that the fourth
specification of the failure to follow instructions charge, ordering the appellant on
July 30, 2019, to return to duty by August 5, 2019, was based on the same facts
underlying specifications 10 through 13 of the AWOL charge, and consequently,
the specification merged with those specifications of AWOL. ID at 9-15.
Because this specification merged with the AWOL specifications, the
administrative judge concluded, the fourth specification of the failure to follow
instructions charge was proven “by virtue of the agency’s proof of AWOL,”
and therefore was also sustained. ID at 15. The administrative judge also
concluded that the agency established a nexus for both charges, that the deciding
official appropriately considered the factors identified in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 306 (1981) in making her penalty determination,
4
and that the penalty of removal was within the bounds of reasonableness, so she
sustained the removal penalty, affirming the agency removal action. ID at 16-19.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response in opposition to
the petition for review, and the appellant has not filed a reply. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge erred by
concluding that the agency’s decision denying her request for leave without pay
(LWOP) in lieu of AWOL was reasonable. PFR File, Tab 1 at 11-14. She also
argues that the administrative judge erred by concluding that the agency met its
burden of proving the three specifications of failure to follow instructions.
Id. At 15-18. Specifically, for the first specification, concerning the July 15,
2019 request for information and documentation related to her absences, the
appellant restates her arguments that she did not receive the instruction, that the
instruction was vague or unclear, and that the short deadline for compliance was
unreasonable. Id. at 15-16; see IAF, Tab 7 at 46. Regarding specification 3,
which concerned the appellant’s failure to respond to four specific questions in a
return to duty letter dated July 30, 2019, the appellant argues that the
administrative judge ignored evidence that she complied with the instruction to
the extent she could, based on the information and documentation she had at the
time, and for the portions of the instruction she didn’t comply with, she did not
have information to provide beyond what she disclosed to her supervisor at the
time, so she was unable to comply. PFR File, Tab 1 at 16-18; see IAF, Tab 7
at 65-68. Regarding specification 4 of the charge, the appellant argues that
although the administrative judge merged this specification with the AWOL
specifications for the period from August 5 through August 8, 2019, she
nevertheless erroneously held that specification against the appellant by
separately sustaining it. PFR File, Tab 1 at 18.
5
Finally, the appellant argues that the administrative judge erred in
sustaining the removal penalty. Id. at 18-23. She argues that the agency failed to
adequately consider mitigating factors, including the fact that she was only absent
from duty because she was involved in an emotionally tumultuous custody
dispute, which the administrative judge dismissed as merely a “difficult
situation.” Id. at 20-21. She also asserts that the agency failed to properly weigh
the nature and seriousness of the failure to follow charge, noting that the
appellant was charged with missing “arbitrary deadline[s] for providing
information,” and asserts that the agency failed to consider the appellant’s
positive work history as mitigating, failed to consider her potential for
rehabilitation, and failed to practice progressive discipline or consider alternative
sanctions other than removal. Id. at 21-23.
The administrative judge failed to make specific credibility findings, but we cure
that error by making required credibility findings on the remaining contested
factual issue.
As a preliminary matter, we note that on petition for review, the appellant
argues that the administrative judge “plainly ignored” evidence demonstrating
that she provided information and documents to the extent she could, and cites
excerpts from the appellant’s deposition testimony. PFR File, Tab 1 at 16-17;
see id. at 4-24 (citing IAF, Tab 39 at 42-85). In essence, the appellant is arguing
that the administrative judge failed to make explicit credibility determinations.
We agree, and we supplement the record by making the required credibility
findings. In Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), the
Board set forth the factors administrative judges should consider to resolve
issues of credibility, including: (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its
consistency with other evidence; (6) the inherent improbability of the witness’s
6
version of events; and (7) the witness’s demeanor. Id. Because there was no
hearing in this appeal, and therefore no direct or cross-examination, impeachment
testimony, or other opportunities to observe witness demeanor, the administrative
judge had limited credibility evidence to consider. Nevertheless, it remains
incumbent upon the Board to resolve issues of credibility as they pertain to
disputes of material fact, and it is possible to adapt the Hillen factors to the
situation at hand. See Goode v. Defense Logistics Agency, 45 M.S.P.R. 671, 674
n.2 (1990) (finding that the principles of resolving credibility issues are properly
applied in cases where there is no hearing); Hillen, 35 M.S.P.R. at 453. Where,
as here, an administrative judge’s findings are not based on the observation of
witnesses’ demeanor, the Board is free to re-weigh the evidence and substitute its
own judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d
1288, 1302 (Fed. Cir. 2002); Hendricks v. Office of Personnel Management,
109 M.S.P.R. 179, ¶ 8 (2008).
In addition to the documentary evidence in the record, the agency
submitted sworn declarations from the proposing and deciding officials for the
appellant’s removal, and a supplementary declaration from the proposing official.
IAF, Tab 38 at 29-47; Tab 40 at 11. Additionally, the appellant provided selected
excerpts from her deposition testimony for this case. IAF, Tab 39 at 42-85;
Tab 41 at 15-22. Based on our review of the entire record, including the provided
declarations and selected deposition testimony, we conclude that the only issue
the parties materially disagree on with respect to the provided testimonial
evidence concerns whether the appellant and her supervisor had a phone
conversation on or around July 11, 2019, during which the appellant states that
she informed her supervisor that she had been detained, provided additional
details regarding her ongoing custody dispute, and requested and received verbal
approval for LWOP through September 15 or September 24, 2019. See IAF,
Tab 38 at 30-33; Tab 39 at 10-11, 51-53; Tab 40 at 11; Tab 41 at 5, 20. While the
appellant alleges that all of these topics were discussed during this purported
7
conversation, the appellant’s supervisor denies any such conversation ever
occurred. Compare IAF, Tab 39 at 51-53, with Tab 40 at 11. Accordingly, we
limit our credibility findings to resolution of this factual dispute.
Of the Hillen factors identified above, the relevant factors where no
hearing was held include: (1) the witness’s opportunity and capacity to observe
the event or act in question; (2) the witness’s character; (3) any prior inconsistent
statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its
consistency with other evidence; and (6) the inherent improbability of the
witness’s version of events. Hillen, 35 M.S.P.R. at 458. As an initial matter, we
note that neither party produced phone record call logs, which may have been
helpful for resolving whether the contested phone conversation occurred on or
around July 11, 2019. Both the appellant and her supervisor would have been
equally capable of observing any phone conversation that occurred, so that factor
favors neither party. Hillen, 35 M.S.P.R. at 458.
Regarding witness bias, we first acknowledge that the Board has held that
while witness bias is a factor in resolving credibility issues, the Board does not
discount testimony merely because it is self-serving or the witness has an interest
in the outcome. Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586,
¶ 23 (2009); see Bennett v. Department of the Air Force, 84 M.S.P.R. 132,
¶¶ 10-11 (1999). Instead, self-serving testimony must be evaluated for credibility
in the same manner as all other testimony presented by the parties.
Baldwin, 111 M.S.P.R. 586, ¶ 23; Hillen, 35 M.S.P.R. at 458. Nevertheless, we
conclude that the appellant stood to benefit by her assertion that the purported
conversation occurred in the manner she described because it would undermine
the agency’s assertion that she failed to follow several of the instructions for
which she was charged and would support her claim that she had been granted the
requested LWOP. Conversely, there is no evidence to suggest that the appellant’s
supervisor exhibited any bias or motive to fabricate testimony based on his
8
provided declaration, so we conclude that this factor slightly favors the
appellant’s supervisor’s denial that a phone conversation occurred in the manner
described by the appellant.
With respect to any contradiction or consistency between each witness’s
version of events and other evidence in the record, although the appellant
equivocally asserted that the phone call occurred “sometime around July 11,” she
was never able to specifically identify the date on which the conversation
purportedly occurred. 2 IAF, Tab 39 at 51-52. The appellant’s supervisor, by
contrast, denied receiving a phone call from the appellant on July 11, 2019, and
provided a detailed accounting of his text and phone conversations with the
appellant during the period from July 9 through July 25, 2019. IAF, Tab 38 at
30-37. Additionally, although the appellant maintains that she provided answers
to the questions contained in the July 30, 2019 return to duty letter during her
July 11, 2019 conversation with her supervisor, the record clearly reflects that her
supervisor continued to seek answers to several of the questions she purportedly
answered (including whether not she had been arrested) well after their July 11,
2019 conversation, undermining the appellant’s assertion that the conversation
occurred in the manner she described. See IAF, Tab 7 at 61, 65-68. Regarding
the appellant’s claim that she requested and received approval for LWOP for the
period through September 15 or September 24, 2019, an email dated July 17,
2019, reflects that the appellant made a request for LWOP for the period from
July 15 through July 19, 2019 only, and subsequently entered her request into
WebTA (the agency’s time and attendance program) on July 18, 2019. IAF,
Tab 7 at 49-50; see IAF, Tab 38 at 70-73. It defies logic that the appellant would
receive verbal approval for LWOP for a longer period of time, only to turn around
2
With her petition for review, the appellant has provided a supplementary declaration
reasserting that she told her supervisor that she was “detained when [she] refused to
give up [her] son,” and that she shared with her supervisor “all the information” she had
regarding her “arrest and detainment,” but she still fails to identify when and how she
disclosed this information. PFR File, Tab 1 at 26.
9
and make a request in WebTA a week later for a shorter period of time than she
states she was verbally granted. By contrast, in his sworn declaration, the
appellant’s supervisor unequivocally denies that the appellant ever informed him
that she had been arrested or detained, and denies that he verbally approved any
LWOP requested on any date. IAF, Tab 40 at 11. We conclude that this factor
strongly favors the appellant’s supervisor’s assertion that the July 11, 2019 phone
call did not occur in the manner described by the appellant.
Finally, regarding the inherent improbability of a witness’s version of
events, in his declaration, the appellant’s supervisor noted that he transcribed his
text messages and the events that occurred during the period from July 9 through
July 15, 2019, and emailed a transcription of the events to himself on
July 15, 2019, in order to preserve the record of his communications with the
appellant. See IAF, Tab 38 at 61-62. Although the log of events includes a
record of the phone call he received from the appellant on July 9, 2019, and from
the appellant’s mother on July 10, 2019, it does not have any record of a phone
call from the appellant during the period from July 11 through July 15, 2019.
IAF, Tab 38 at 30-32; see id. at 61-62. Given the supervisor’s meticulous
recordkeeping, we conclude that it is inherently improbable that any such call, if
it had occurred, would not be reflected in the supervisor’s record log.
Accordingly, we conclude that this factor also favors a finding that the
conversation did not occur in the manner described by the appellant.
Consequently, we supplement the initial decision to find that the appellant’s
assertion that a phone call occurred on or around July 11, 2019, regarding the
topics addressed above is less credible than her supervisor’s denial that any such
phone call occurred, and we do not credit her claim. See Hillen, 35 M.S.P.R.
at 458.
10
The agency proved specifications 1 through 4 and 6 through 13 of the AWOL
charge.
We agree with the administrative judge’s finding sustaining
specifications 1 through 4 and 6 through 13 of the AWOL charge.
As the administrative judge correctly noted, to prove a charge of AWOL
the agency must show that the appellant was absent from duty on the dates in
question and that her absences were not authorized or that a request for leave was
properly denied. Boscoe v. Department of Agriculture, 54 M.S.P.R. 315, 325
(1992); see ID at 9. Additionally, while it is well settled that the decision to
grant LWOP is within an agency’s discretion, where disciplinary action results
because LWOP is denied and the employee is placed on AWOL, the Board will
review the circumstances to determine if the denial was reasonable. Joyner v.
Department of the Navy, 57 M.S.P.R. 154, 159 (1993); see Sambrano v.
Department of Defense, 116 M.S.P.R. 449, ¶ 4 (2011).
In the initial decision, the administrative judge concluded that there was no
dispute that the appellant was absent from duty during the period from
July 22, 2019, through August 8, 2019 (encompassing specifications 1 through
13), and that her absences were not authorized. See ID at 9-12. The
administrative judge also considered the appellant’s argument that the agency’s
decision denying her request for LWOP in lieu of AWOL was unreasonable, but
concluded that the agency permissibly denied her LWOP request. See ID at 10-
12. Specifically, the administrative judge noted that despite the appellant’s
assertion that the agency was required to grant her LWOP request due to her
obligations related to her custody dispute, the Board has held that agencies are
not obligated to grant LWOP requests in comparable circumstances. See ID at 11
(citing Hawkins v. Department of Navy, 49 M.S.P.R. 501, 505 (1991)).
Alternatively, the administrative judge considered the appellant’s argument that
confidentiality laws or other reasons prevented her from providing information to
justify her LWOP request, but determined that nothing in the record supported
this assertion, noting that the appellant had, in fact, provided some information
11
regarding her custody dispute to the agency, and that obligating the agency to
approve the appellant’s absences based on her court or child custody obligations
would unduly burden the agency by forcing other employees to take on the
appellant’s workload without a foreseeable end. See ID at 11-12.
On review, the appellant restates her argument raised below that the
agency’s decision denying her request for LWOP was unreasonable, citing the
initial decision Cromwell v. Social Security Administration, MSPB Docket
No. AT-0752-06-0406-I-1, Initial Decision at 6 (July 7, 2016), to support her
assertion. PFR File, Tab 1 at 12-13. With respect to the specifications identified
above, we find no error in the administrative judge’s determination and find no
reason to disturb it on review. As an initial matter, Cromwell is an initial
decision, and therefore is not binding precedent on the Board. Additionally, the
decision is distinguishable on its facts. The appellant in that case was summoned
to appear before the court on threat of criminal contempt or arrest, and the
administrative judge only declined to sustain one day of AWOL—the day of the
appellant’s actual hearing—and sustained the remaining 8 days of AWOL
charged. Cromwell, MSPB Docket No. AT-0752-06-0406-I-1, Initial Decision
at 6 (July 7, 2016). Here, aside from a hearing scheduled for August 7, 2019
(encompassing the period identified in specification 12), the appellant has not
alleged that she had a hearing on any other date. 3
We also agree with the administrative judge’s conclusion that the agency’s
decision denying her request for LWOP in lieu of AWOL was not unreasonable.
ID at 9-10. In finding that the agency permissibly denied the appellant’s LWOP
request, the administrative judge properly examined the record as a whole to
determine whether the denial of LWOP was reasonable under the circumstances.
See Joyner v. Department of the Navy, 57 M.S.P.R. 154, 159 (1993); ID at 9-12.
She credited the agency’s assertion that the appellant’s lengthy unauthorized
3
In the appellant’s deposition testimony, she acknowledged that the hearing scheduled
for August 7, 2019, was ultimately canceled. See IAF, Tab 39 at 61.
12
absences created a significant burden on the agency by requiring her workload to
be handled by other Supervisory Legal Administrative Specialists and the rest of
the management team, and concluded that the appellant’s repeated unwillingness
to commit to a date by which she would return established that there was no
foreseeable end in sight to her absences. See ID at 10-11. The administrative
judge also determined that the appellant had not established that she was
suffering from medical issues or incapacitation, or that her circumstances met any
of the other exceptions to the general rule that the decision to deny a request for
LWOP is within an agency’s discretion. ID at 9-10; see Savage v. Department of
the Army, 122 M.S.P.R. 612, ¶ 29 (2015), overruled in part on other grounds by
Pridgen v. Office of Management and Budget, 2022 MSPB 31; Thomas v.
Department of Army, 23 M.S.P.R 483, 484 (1984). The appellant’s mere
disagreement with these findings does not, without more, establish a basis for
review. See Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1988) (observing that mere reargument of factual issues already raised
and properly resolved by the administrative judge below does not establish a basis
for review). We find, therefore, that she has not shown that the administrative
judge erred in sustaining specifications 1 through 4 and 6 through 13 of the
charge of AWOL.
We vacate the administrative judge’s finding sustaining specification
5 of the AWOL charge, but we still sustain the charge.
Although not raised on review, we take this opportunity to address the
administrative judge’s finding with respect to specification 5 of the AWOL
charge, which alleged that the appellant was absent without leave on July 26,
2019. See IAF, Tab 7 at 40; ID at 9. In the initial decision, the administrative
judge concluded that the agency met its burden of proving this specification of
the charge. ID at 9, 12. However, in the agency’s close of record brief it
withdrew this specification from consideration. IAF, Tab 38 at 4. The Board is
required to review the agency’s decision on an adverse action solely on the
13
grounds invoked by the agency; the Board may not substitute what it considers to
be a more adequate or proper basis. Fargnoli v. Department of Commerce,
123 M.S.P.R. 330, ¶ 7 (2016). Consequently, we conclude that the administrative
judge erred when she sustained specification 5 of the charge of AWOL despite the
agency’s decision to withdraw that specification from consideration, and we
vacate the administrative judge’s finding sustaining that specification. See ID at
9, 12. Nevertheless, the Board has regularly held that “proof of one or more, but
not all, of the supporting specifications [of a charge] is sufficient to sustain the
charge.” Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
1990); Greenough v. Department of the Army, 73 M.S.P.R. 648, 657 (1997). For
the reasons previously discussed, we ultimately agree with the administrative
judge’s conclusion that the agency proved the remaining 12 specifications of the
AWOL charge, and thus, proved the charge as a whole.
The agency proved the charge of failure to follow instructions. 4
The administrative judge correctly concluded that the agency proved
specification 1 of the failure to follow instructions charge.
On review, the appellant also challenges the administrative judge’s findings
concerning the specifications of the failure to follow instructions charge.
PFR File, Tab 1 at 15-18. Specification 1 of the charge alleged that the appellant
failed to respond to a July 15, 2019 request from her first-line supervisor for
documentation to support her ongoing absences by noon the following day.
IAF, Tab 7 at 41, 46.
In the initial decision, the administrative judge determined that the agency
proved the charge by showing that the instruction was “an understandable
directive (provide information by noon on July 16),” and that the appellant failed
to follow that directive. See ID at 12. Regarding the appellant’s argument that
the directive set an “arbitrary deadline” that she later met, the administrative
4
Neither party has challenged the administrative judge’s decision not to sustain
specification 2 of the failure to follow instructions charge, so we have not addressed it
here. See ID at 13.
14
judge determined that there was nothing objectively unreasonable about the
timeframe set by the agency and that nothing prohibited the agency from
imposing an arbitrary deadline to respond, so the appellant’s argument was
without merit. ID at 12-13. The administrative judge consequently sustained the
specification. ID at 13.
On review, the appellant restates her argument raised below that the
agency’s request for “some type of documentation” was vague or unclear, and
that the appellant’s supervisor never specified what sort of documentation he
needed from the appellant. PFR File, Tab 1 at 15. The appellant also reasserts
that she never received the email message conveying the instruction because it
was sent to her government email address, that she does not recall when she
received the text message reproducing the instruction, and that she provided the
information as soon as she practicably could, on the morning of July 17, 2019.
Id. at 15. In the response she ultimately provided, the appellant asserts that she
provided the information she had and that her supervisor appeared satisfied with
her response, and so the specification should not be sustained. Id. at 15-16.
Regarding the dispute concerning whether and when the appellant received
the instruction, the record reflects that at 5:15 P.M. on the evening of
July 15, 2019, the appellant’s first-line supervisor sent an email to the appellant’s
government email address informing her that he had been told that he needed
“some type of documentation” from her regarding her absence, and stated that it
would be helpful if he knew “a little bit more about what you are going through.”
IAF, Tab 38 at 79; see id. at 32. The message requested that the appellant
“[p]lease respond to this email by noon tomorrow.” Id. at 79. The supervisor
also averred that after sending the email, he sent the appellant a text message
alerting her to the fact that he had sent an email to her government email address,
and requested that she respond to his email. Id. at 32; see id. at 80. The
supervisor declared that in response to his text message, the appellant sent him a
text stating that she did not have access to “go to mail,” (presumably referring to
15
her government email), and that she didn’t have a link to log on to WebTA. See
id. at 32, 80. The supervisor stated that he responded to the appellant’s text
message by copying the message he sent to her government email address into a
text message and sent it to her that same evening. Id. at 33, 80.
On the morning of Wednesday, July 17, 2019, the appellant’s supervisor
sent an email to the appellant’s personal email address stating that he had not
received any documentation from the appellant by the noon, July 16th deadline.
Id. at 82-83. At 7:43 a.m. that day, the appellant responded by email stating that
she had a family emergency, and provided some additional details regarding her
absence, including that she was out of the state due to an ongoing custody dispute
over her son involving the father of her child, but she did not provide any
documentation at that time. Id. at 82. In an email response, the appellant’s
supervisor thanked her for the email and requested that as soon as she got any
documentation, she email it to him. Id.Based on our review of the entire record, we agree with the administrative
judge’s conclusion that the agency proved this specification of the charge. As the
administrative judge correctly noted, an agency may prove a charge of failure to
follow instructions by establishing that (1) the employee was given a proper
instruction and (2) the employee failed to follow the instructions, without regard
to whether the failure was intentional or unintentional. Archerda v. Department
of Defense, 121 M.S.P.R. 314, ¶ 16 (2014); Hamilton v U.S. Postal Service,
71 M.S.P.R. 547, 555 (1996); see ID at 12. Here, although the appellant indicates
that she does not recall when she received the instruction, she does not directly
dispute her supervisor’s assertion that he sent the instruction to her government
email on the evening of July 15, 2019, and that he reproduced the instruction in a
16
text message that he sent to the appellant that same evening. 5 IAF, Tab 38 at 32-
33.
Additionally, although the appellant asserts that the instruction was vague
or unclear and that she was unsure about what sort of documentation she was
expected to provide, she does not dispute the fact that she failed to provide any
response whatsoever—even an incomplete response lacking any sort of
documentation—until the morning of July 17, 2019, well after the deadline
established by the agency for a response. PFR File, Tab 1 at 15-16; see
Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶¶ 16, 18, aff’d,
343 F. App’x 605 (Fed. Cir. 2009) (concluding that even when an employee may
have substantial reason to believe that an order is improper, absent unusual
circumstances (such as when obedience would cause her irreparable harm or place
her in a clearly dangerous situation), an employee must first comply with the
instruction and then, if she disagrees with it, register her complaint or grievance
later); Larson v. Department of the Army, 91 M.S.P.R. 511, ¶ 21 (2002). Further,
as the agency correctly observed below, any potential vagueness in the
supervisor’s instruction was due to the fact that the appellant had provided
inadequate explanations for the reason for her absences up to that point, so it was
unclear to her supervisor whether the appellant or one of her family members
were sick, in which case she would have needed to produce supporting medical
documentation to support her absences. See IAF, Tab 38 at 31 (“I believed the
Appellant was sick [as of July 11, 2019]”; “At this point [on July 14, 2019],
I thought either the Appellant or her son was gravely ill, possibly with a diagnosis
such as cancer.”).
5
The conclusion that the supervisor did, in fact, send the instruction to the appellant’s
government email address and by text message, is bolstered by the fact that in his
subsequent email on the morning of July 17, 2019, noting that the appellant had failed
to follow his instruction, the appellant’s supervisor referred to the “last text/email ” he
had sent to the appellant requesting documentation for her absences by noon the
previous day, indicating that he had sent the instruction both by text and by email on
July 15, 2019. See IAF, Tab 1 at 28-29 (emphasis added).
17
Finally, we similarly find no merit to the appellant’s argument that the
timeline the agency set for her to respond to the instruction was unreasonable.
PFR File, Tab 1 at 15-16. As the administrative judge noted, there was nothing
inherently unreasonable about the deadline set by the appellant’s supervisor,
particularly given that the appellant and her supervisor had been in regular
contact when he sent her the instruction, and he had previously sent several
similar messages asking for information and updates from the appellant about her
status and about why she had been absent from work for the previous 4 days,
which the appellant had, up to that point, failed to satisfactorily answer. See IAF,
Tab 38 at 31-32, 61-62. Accordingly, we conclude that the administrative judge
properly sustained specification 1 of the failure to follow instructions charge.
The administrative judge correctly concluded that the agency proved
specification 3 of the charge.
Specification 3 of the charge alleged that the appellant failed to follow her
supervisor’s instruction on July 30, 2019, directing her to provide information
that supported her absences dating back to July 9, 2019, and instructing her to
provide answers to each of the following questions: (1) whether she was arrested
in connection with her extended absence, and if she was arrested, what she was
arrested for; (2) when her scheduled court dates were, and the reasons for each
court date; (3) a firm date by which she intended to return to duty; and (4) an
explanation for why she failed to return to duty at the Phoenix immigration court
as of that date. IAF, Tab 7 at 41, 65-68. In the initial decision, the
administrative judge concluded that the agency met its burden of proving this
specification of the charge. ID at 14-15. Specifically, the administrative judge
considered the appellant’s assertion that she had provided “numerous emails and
documents” establishing the basis for her ongoing court case and the reason she
had to remain in California, but concluded that the only relevant communication
was the one on August 5, 2019. ID at 14. Reviewing the August 5, 2019
communication, the administrative judge determined that it was not fully
18
responsive to the agency’s questions, noting that the appellant failed to address
whether she had been arrested, failed to explain the reasons for three upcoming
court dates, and failed to provide an explanation for why she had not reported to
duty. ID at 14. The administrative judge determined that, although the appellant
had provided some information that was responsive to the agency’s questions
(that is, the fact that she had upcoming court dates and scheduled visitations with
her child), when balanced against the portions of the instruction the appellant
failed to follow, the agency met its burden of proving as much of the specification
as was necessary to prove the charge. ID at 14-15 (citing Otero v U.S. Postal
Service, 73 M.S.P.R. 198, 204 (1997)).
On review, the appellant argues that the administrative judge ignored the
fact that she had provided the information requested in the July 30, 2019 letter to
the extent that she was able to, based on the information and documentation she
had at the time. PFR File, Tab 1 at 16. Specifically, the appellant states that she
provided documentation regarding the reasons for her pending court dates and the
fact that they pertained to her custody dispute, as well as an explanation that she
could not return to duty due to her legal obligations related to her custody
dispute. PFR File, Tab 1 at 16. Regarding the information concerning her arrest,
the appellant states that she did not have any information about her arrest at the
time the agency requested it beyond the information she states she previously
disclosed to her supervisor about being detained. Id. at 17; see IAF, Tab 39 at 52.
The appellant also states that she has new and material evidence regarding her
arrest in the form of a notice she received on June 22, 2020 informing her that the
arraignment for her July 2019 arrest was scheduled for September 2020, and she
provides a copy of this notice. PFR File, Tab 1 at 17, 26-32. She asserts that this
June 22, 2020 notice was the first time she became aware of the specific reason
she was arrested on July 9, 2019, and that if she had had this document when she
received the July 30, 2019 instruction, she would have provided it. Id. at 17. She
argues that because she provided all of the information that she had at the time,
19
the administrative judge erred in sustaining specification 3 of the failure to follow
instructions charge and the charge should be reversed. Id. at 17-18.
As an initial matter, we agree with the administrative judge’s finding that
the only communication from the appellant relevant to this specification is her
email on August 5, 2019, responding to the July 30, 2019 return to duty letter
issued by her supervisor. ID at 14; see IAF, Tab 7 at 73-78. As the
administrative judge noted, the fact that the appellant’s supervisor continued to
pose the four questions identified in the July 30, 2019 return to duty letter made
clear that he found any previous responses from the appellant on these subjects
insufficient. See ID at 14. Reviewing the appellant’s August 5, 2019 email, she
identifies the fact that she had a previous court date scheduled for July 11, 2019,
that was postponed until July 15, 2019, and that she had upcoming hearings
scheduled for August 7, 2019, August 15, 2019, and September 4, 2019. IAF,
Tab 7 at 73. She also arguably provides an explanation as to why she had been
absent for at least a portion of the previous 4 weeks, noting that she had frequent
court-ordered visits, classes, and meetings with her counselor related to her
custody dispute. Id. Finally, she provides a copy of a notice for the
July 12, 2019 scheduled custody hearing, and a weekly visitation schedule with
her child. Id. at 75-76. Nevertheless, the appellant’s August 5, 2019 reply does
not provide any response to the following questions: (1) whether she had been
arrested in connection with her extended absences; (2) what she had been arrested
for; (3) the reasons for some of her court dates; and (4) a firm date by which she
intended to return to duty. See IAF, Tab 7 at 67.
Although the appellant continues to assert that she did not become aware of
what she was arrested for until she received the summons on June 22, 2020, she
has never disputed the fact that she was aware of the fact that she was arrested,
when she was arrested and held overnight on July 9, 2019. 6 See IAF, Tab 39
6
As the appellant’s supervisor identified in his declaration, this instruction was
particularly important since agency policy requires supervisors to instruct employees
who are arrested to self-report their arrests to the agency’s security office, which the
20
at 57. Further, the appellant has not disputed that at the time she provided her
August 5, 2019 response, she was aware of the fact that her hearing scheduled for
August 7, 2019, was related to her arrest. See IAF, 39 at 61. An agency is
required to prove only the essence of its charge, and the Board will examine the
structure and language of the proposal and decision, as well as the accompanying
specifications and circumstances. See Cole v. Department of the Air Force,
120 M.S.P.R. 640, ¶ 8 (2014); George v. Department of the Army, 104 M.S.P.R.
596, ¶ 7 (2007), aff’d, 263 F. App’x 889 (Fed. Cir. 2008). The July 30, 2019
return to duty letter specifically required the appellant to provide a response to
each of the four questions identified above, which she failed to do. See IAF,
Tab 7 at 67. Consequently, we agree with the administrative judge’s conclusion
that the agency met its burden of proving that the appellant failed to follow the
instruction contained in the July 30, 2019 return to duty letter, and we sustain
specification 3 of the charge. 7
Because specification 4 of the failure to follow instructions charge
merged into specifications 10 through 13 of the AWOL charge, the
administrative judge erred by separately sustaining specification 4 of
the failure to follow instructions charge.
On review, the appellant also argues that, despite merging specification 4
of the failure to follow instructions charge into specifications 10 through 13 of
appellant’s supervisor told her attorney in a July 23, 2019 email. See IAF, Tab 7
at 54-55; Tab 40 at 11.
7
With respect to the June 22, 2020 letter scheduling the arraignment for the appellant’s
July 9, 2019 arrest and the copy of the online docket information for her criminal case
that the appellant provides for the first time on review, we have not considered this
information. See PFR File, Tab 1 at 27-31. The Board will not consider evidence
submitted for the first time with a petition for review absent a showing that it is both
new and material. Okello v. Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10
(2009); see 5 C.F.R. § 1201.115(d). Although the arraignment letter and the online
docket information are dated after the date the initial decision was issued, and therefore
are “new,” because they have no bearing on the issue whether the appellant was aware
of the fact that she was arrested at the time she responded to the July 30, 2019 email,
they do not change the outcome of this case, and so they are not material.
Consequently, we have not considered either document.
21
the AWOL charge, the administrative judge still held that specification of the
failure to follow instructions charge against her by sustaining it “separate and
apart from” the AWOL charge. PFR File, Tab 1 at 18. We agree. In the initial
decision, the administrative judge concluded that the July 30, 2019 instruction
ordering the appellant to return to duty was “based on the same facts that
underlie” AWOL specifications 10 through 13, and as a result, they merged.
ID at 15 (citing Jones v. Department of Justice, 98 M.S.P.R. 86, ¶ 16 (2004)). As
a consequence, the administrative judge reasoned, specification 4 of the failure to
follow instructions charge was also “proven by virtue of the agency’s proof of
AWOL,” and she sustained that specification of the failure to follow instructions
charge. ID at 15 (citing Mann v. Department of Health & Human Services,
78 M.S.P.R. 1, 6 (1998)).
However, the Board has held that where two charges are based on the same
incident and involve the same misconduct, they “merge into a single charge.”
Bross v. Department of Commerce, 94 M.S.P.R. 662, 664 n.1 (2003), aff'd,
389 F.3d 1212 (Fed. Cir. 2004). Although it is true that the practical consequence
of merging duplicative charges into a single charge is that the facts that underlie
both charges are proven, the Board has also held that it “need not consider [the
un-merged charge] further,” except to say that it is proven. Powell v. U.S. Postal
Service, 122 M.S.P.R. 60, ¶ 10 (2014); Jones v. Department of Justice,
98 M.S.P.R. 86, ¶ 16 (2004); see Westmoreland v. Department of Veterans
Affairs, 83 M.S.P.R. 625, ¶ 6 (1999) (merging charges of failure to follow leave-
requesting procedures into the charge of AWOL when the charge of AWOL was
based solely on the appellant’s failure to follow the leave requesting procedures),
aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds as
recognized in Pickett v. Department of Agriculture, 116 M.S.P.R. 439, ¶ 11
(2011). Consequently, it was unnecessary for the administrative judge to
separately sustain specification 4 of the failure to follow instructions charge, and
we vacate her finding in that regard. In any event, because we agree with the
22
administrative judge’s conclusion that the agency met its burden of proving
specifications 1 and 3 of the failure to follow instructions charge, we conclude
that the agency has met its burden of proving the failure to follow instructions
charge as a whole. See Burroughs, 918 F.2d at 172; Greenough, 73 M.S.P.R.
at 657.
The administrative judge correctly concluded that the penalty of removal was
reasonable.
Finally, on review the appellant argues that the administrative judge erred
in sustaining the removal penalty. PFR File, Tab 1 at 18-23. Specifically, she
asserts that the agency did not consider mitigating factors, including the fact that
she was only absent from duty because she was involved in an emotionally
tumultuous custody dispute, and that the administrative judge improperly weighed
this factor by dismissing the appellant’s circumstance as merely a “difficult
situation.” Id. at 20-21. The appellant also argues that the agency failed to
properly consider the nature and seriousness of the failure to follow instructions
charge, noting that she was charged with missing “arbitrary deadline[s].” Id.
at 21. She also argues that the agency failed to consider her positive work history
as mitigating, failed to consider her potential for rehabilitation, and failed to
practice progressive discipline or consider alternative sanctions other than
removal. Id. at 21-23.
When, as here, the Board sustains the agency’s charges, but not all of the
specifications of those charges, it will review the agency-imposed penalty to
determine whether it is within the parameters of reasonableness. Dunn v.
Department of the Air Force, 96 M.S.P.R. 166, ¶ 10 (2004). The Board’s
function is not to displace management’s responsibility or to decide what penalty
it would impose, but to assure that management’s judgment has been properly
exercised and that the penalty selected by the agency does not exceed the
maximum limits of reasonableness. Stuhlmacher v. U.S. Postal Service,
89 M.S.P.R. 272, ¶ 20 (2001); Douglas, 5 M.S.P.R. at 306. Thus, the Board will
23
modify a penalty only when it finds that the agency failed to weigh the relevant
factors or that the penalty the agency imposed clearly exceeds the bounds of
reasonableness. Stuhlmacher, 89 M.S.P.R. 272, ¶ 20.
Here, despite the appellant’s assertion otherwise, the record clearly reflects
that the deciding official considered all of the relevant Douglas factors in
reaching her decision to sustain the removal action. IAF, Tab 7 at 33-34;
see generally Douglas, 5 M.S.P.R. at 305-06 (providing a nonexhaustive list of
factors that are relevant to determine the appropriate penalty). As the
administrative judge noted, in her penalty determination, the deciding official
considered as mitigating factors that the appellant had previously carried out her
duties professionally prior to her extended period of AWOL, that she had no
record of prior discipline with the agency, that she was experiencing “personal
issues” with regard to her custody dispute, that she accepted a degree of
responsibility for her misconduct, and the appellant’s 11 years of total service.
IAF, Tab 7 at 33; see ID at 18.
Despite these mitigating factors, the deciding official concluded that those
factors were outweighed by the fact that the appellant had accrued significant
AWOL and failed to follow instructions related to those absences, which were
serious offenses, that the appellant was a supervisor and was held to a higher
standard, that her long-term and unpredictable absence had an adverse impact on
the agency’s ability to carry out its mission, that given the severity of the
appellant’s misconduct, there was no potential for rehabilitation, and that no
alternative penalty other than removal was appropriate. IAF, Tab 7 at 33-34;
see Bowman v. Small Business Administration, 122 M.S.P.R. 217, 12 (2015)
(finding that the appellant’s absence without leave and failure to follow leave
requesting procedures were serious offenses and his status as a supervisor was
significant to the penalty determination because, as a supervisor, he was held to a
higher standard); Maddux v. Department of the Air Force, 68 M.S.P.R. 644,
645-46 (1995) (upholding the appellant’s removal for 21 consecutive calendar
24
days of AWOL, despite 20 years of Federal service); Hawkins v. Department of
the Navy, 49 M.S.P.R. 501, 503, 507 (1991) (finding that the penalty of removal
was reasonable for 16 days of AWOL for an appellant with no prior discipline
and 6 years of service); Young v. U.S. Postal Service, 14 M.S.P.R. 549, 551
(1983) (upholding the appellant’s removal for 40.75 hours of AWOL over an
approximately 6-week period, despite 17 years of Federal service). Additionally,
in her sworn declaration, the deciding official restated these findings, and
emphasized that she still would have determined that removal was the appropriate
penalty based on 12 specifications (108 hours) of AWOL alone. IAF, Tab 38
at 46. Accordingly, we agree with the administrative judge’s conclusion that the
agency appropriately considered the relevant Douglas factors, and that the
penalty of removal is reasonable. 8 For the foregoing reasons, we affirm the initial
decision sustaining the agency removal action, as modified by this final order.
NOTICE OF APPEAL RIGHTS 9
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
8
We note that the administrative judge incorrectly implied that a charge “must” be
sustained where “some, but not all, specifications supporting a charge are sustained.”
ID at 15 (citing Greenough v. Department of the Army, 73 M.S.P.R. 648, 657 (1997)).
Nevertheless, the administrative judge also correctly quoted the decision from the
U.S. Court of Appeals for the Federal Circuit in Burroughs v. Department of the Army,
918 F.2d at 170, making clear that “[w]here more than one event or factual specification
is set out to support a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge.” ID at 15 (emphasis added). Because
we ultimately agree with the administrative judge’s finding that the agency’s chosen
penalty was reasonable, this misstatement was harmless and did not affect the outcome
of the decision in any way. See Panter v. Department of the Air Force, 22 M.S.P.R.
281, 282 (1984) (finding that an adjudicatory error that was not prejudicial to a party’s
substantive rights provided no basis for reversal of an initial decision).
9
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.
25
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.
(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.
26
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
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (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 respective
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 Employment
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
27
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:
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. 10 The court of appeals must receive your petition for
10
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
28
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
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.
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.
29
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.