Opinion

Sean A Brisbane v. Department of the Army

Court: Merit Systems Protection Board
Filed: Aug 6, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SEAN A. BRISBANE, DOCKET NUMBER

Appellant, DE-0752-20-0072-I-1

DEPARTMENT OF THE ARMY, DATE: August 6, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Janice L. Jackson , Leavenworth, Kansas, for the appellant.

Stephen D. Kort , Esquire, Kansas City, Missouri, for the appellant.

Kristine Hale Bell , Fort Leavenworth, Kansas, 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

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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

incorporate the appropriate standards for the appellant’s claims of disability

discrimination and reprisal for equal employment opportunity (EEO) activity, we

AFFIRM the initial decision.

The following facts, as further detailed in the initial decision, are not

disputed. The appellant most recently held the position of Management and

Program Analyst. Initial Appeal File (IAF), Tab 53, Initial Decision (ID) at 2.

He had a tumultuous relationship with his supervisor, which became especially

problematic around October 2018. ID at 2-6. Ultimately, the agency initiated an

Army Regulation (AR) 15-6 investigation about the appellant’s conduct. IAF,

Tab 4 at 135-38. The agency completed that investigation in December 2018. ID

at 6-7; IAF, Tab 4 at 119-32.

In May 2019, the agency proposed the appellant’s removal. ID at 8; IAF,

Tab 4 at 88-104. After the appellant responded, the deciding official removed

him, effective October 2019. ID at 8; IAF, Tab 4 at 36, 48-54.

The appellant filed the instant appeal to challenge his removal. IAF, Tab 1.

The administrative judge developed the record and held a 4-day hearing before

issuing a decision that upheld the removal action. For the agency’s first charge,

behavior that caused anxiety in the workplace, the administrative judge sustained

specifications 2, 3, 4, 7, 9, 10, and 13, but not specifications 1, 5, 6, 8, 11, and

14. 2 ID at 9-31. For the second charge, inappropriate behavior, the

administrative judge sustained specifications 3, 6, 7, 8, 9, and 11, but not

specifications 1, 2, 4, 5, 10, and 12. ID at 31-45. For the third and final charge,

refusal to testify or cooperate in an investigation, the administrative judge

sustained the only specification. ID at 45-49.

The administrative judge also considered but rejected the appellant’s

affirmative defenses, which included harmful procedural error, ID at 49-56,

disability discrimination, ID at 56-64, reprisal for EEO activity, ID at 64-68, and

reprisal for whistleblowing, ID at 68-77. Finally, the administrative judge found

that the agency established the requisite nexus and reasonableness of its penalty.

ID at 77-80.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. He challenges the administrative judge’s findings regarding each

charge and each affirmative defense. Id. However, the appellant does not

challenge the administrative judge’s findings regarding nexus or the

reasonableness of the penalty. The agency has filed a response to the appellant’s

petition. PFR File, Tab 3.

The administrative judge properly sustained the agency’s charges.

The administrative judge did not sustain all underlying specifications, but

she did sustain all of the agency’s charges. ID at 9-49; see Greenough v.

Department of the Army, 73 M.S.P.R. 648, 657 (1997) (recognizing that proof of

one or more of the supporting specifications is sufficient to sustain a charge).

The appellant has presented arguments on review regarding each charge, so we

will address them in turn.

Charge 1 – Behavior that caused anxiety in the workplace

The administrative judge sustained specifications 2, 3, 4, 7, 9, 10, and 13 of

this charge, which are fully recounted in the proposal notice and the initial

The deciding official did not sustain specification 12, so the administrative judge did

not consider that specification. IAF, Tab 4 at 48.

decision. ID at 9-31; IAF, Tab 4 at 95-96. Broadly speaking, the administrative

judge made well-reasoned and detailed explanations for why she was persuaded

by documentary evidence and other witness testimony for these specifications,

and why she did not find the appellant’s denials credible. E.g., ID at 11-16. For

example, the administrative judge explained how the appellant provided

testimony contrary to clear and unambiguous documentary evidence, ID at 11-12,

how he provided testimony that was internally inconsistent, ID at 13-14, and how

he displayed inappropriate behavior during the hearing that was more consistent

with the agency’s allegations than the appellant’s denials of the same, ID

at 19-20.

On review, the appellant has described a few facts that seem to implicate

this charge as he argues that the administrative judge did not adequately discuss

or account for them in her initial decision. PFR File, Tab 1 at 5-7. For example,

the appellant argues that his supervisor has posttraumatic stress disorder (PTSD),

but that this was not accounted for when considering her interpretation of the

appellant’s behaviors. PFR File, Tab 1 at 6. Although we have considered these

arguments, we do not find them persuasive. The administrative judge’s failure to

mention all the evidence of record does not mean that she did not consider it in

reaching her decision. Marques v. Department of Health & Human Services ,

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

Moreover, the appellant is effectively asking that we overturn the administrative

judge’s credibility findings for the sustained specifications, but he has not

presented sufficiently sound reasons for us to do so. See Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining that the Board must

defer to an administrative judge’s credibility determinations when they are based,

explicitly or implicitly, on observing the demeanor of witnesses testifying at a

hearing and may overturn such determinations only when it has “sufficiently

sound” reasons for doing so).

The appellant’s next argument regarding the first charge is that the

administrative judge erred by refusing to apply the elements of a threat charge.

PFR File, Tab 1 at 8-11; ID at 10 n.2. We decline to look past the language of the

charge and accompanying specifications, which do not reference any “threat.” To

the extent that the appellant seeks that we consider the language of the AR 15-6

report that preceded his proposed removal, which did include the word “threat,”

PFR File, Tab 1 at 10; compare IAF, Tab 4 at 94-96 (charging the appellant with

“behavior that caused anxiety in the workplace”), with id. at 119-32 (AR 15-6

report, describing the agency’s “threat assessment” of the appellant), we will not

do so.

An agency is required to prove the charge as it is set out in the notice of

proposed removal, not some other offense that might be sustainable by the facts

of the case. Parbs v. U.S. Postal Service, 107 M.S.P.R. 559, ¶ 8 (2007), aff’d

301 F. App’x 923 (Fed. Cir. 2008). Accordingly, the agency was not required to

prove the elements of a threat charge because it did not charge him with making a

threat. See Gray v. Government Printing Office, 111 M.S.P.R. 184, ¶ 11 (2009)

(explaining that an agency need not prove the elements of a threat charge when it

brings a charge such as making statements that caused anxiety and disruption in

the workplace); Sands v. Department of Labor, 88 M.S.P.R. 281, ¶ 13 (2001)

(recognizing that a charge of “threatening conduct” and a charge of making

“statements that resulted in anxiety and disruption in the workplace” are distinct

and only the threat charge requires proof of intent).

Charge 2 – Inappropriate behavior

For the agency’s second charge, the administrative judge sustained

specifications 3, 6, 7, 8, 9, and 11. ID at 31-45. On review, the appellant’s

argument about this charge mirrors the argument he presented for the first charge.

According to the appellant, the agency’s charge of inappropriate behavior should

be interpreted as a threat charge and should require proof of his intent. PFR File,

Tab 1 at 12-13. This argument fails for the same reasons discussed above. The

agency labeled its charge “inappropriate behavior,” and the underlying

specifications describe the same; none allege that he made a threat. IAF, Tab 4 at

96-98. Accordingly, the agency was not required to prove the elements of a

threat charge. See Canada v. Department of Homeland Security , 113 M.S.P.R.

509, ¶ 9 (explaining that a charge of conduct unbecoming or improper conduct

has no specific elements of proof, but is established by proving that the employee

committed the acts alleged in support of the broad label).

Charge 3 – Refusal to testify or cooperate in an investigation

For the agency’s third and final charge, the administrative judge sustained

the only specification, which described how the appellant repeatedly refused to be

interviewed in concert with the agency’s investigation. ID at 45-49. Among

other things, she relied on contemporaneous memos about the events surrounding

the appellant’s refusal to cooperate as the agency repeatedly tried to interview

him for its investigation. IAF, Tab 4 at 168-77.

On review, the appellant does not argue that he cooperated in the

investigation. He instead argues that the agency’s charge must fail because,

according to the appellant, the agency failed to comply with AR 15-6 guidelines

regarding the location of the investigatory interview and notice that he was the

subject of the investigation. 3 PFR File, Tab 1 at 12 (referencing IAF, Tab 18

at 26-27). The administrative judge discussed these matters as she sustained the

charge. Among other things, she described evidence showing that the

investigator accommodated the appellant’s various objections, including ones

about the location of the interview and the presence of a note taker. ID at 46-48;

e.g., IAF, Tab 4 at 168-77. The administrative judge also described how the

information provided by the investigator, along with other surrounding

circumstances, satisfied the requirements of AR 15-6, which merely provides that

The appellant has attempted to frame this argument as one regarding the agency’s

burden of proving the charge, rather than his burden of proving a harmful procedural

error. Either way, the argument is unavailing.

the investigating officer will ordinarily inform witnesses of the nature of the

investigation. ID at 48; e.g., IAF, Tab 16 at 36. Although the appellant has

summarily asserted that the agency acted improperly as it attempted to question

him for its investigation, he has not presented persuasive argument or evidence of

the same and he has not shown that the administrative judge erred in sustaining

this charge.

The appellant failed to prove his affirmative defenses.

The administrative judge found that the appellant failed to prove his

affirmative defenses of harmful procedural error, ID at 49-56, disability

discrimination, ID at 56-64, reprisal for equal employment opportunity (EEO)

activity, ID at 64-68, and reprisal for whistleblowing, ID at 68-77. As further

detailed below, the appellant’s petition for review presents no basis for us to

reach a contrary conclusion.

Harmful procedural error

Harmful error is a procedural error by the agency in the application of its

procedures that is likely to have caused the agency to reach a conclusion different

from the one it would have reached in the absence or cure of the error. 5 C.F.R.

§ 1201.4(r). The burden is on the appellant to show that that the agency

committed the error, but also that the error was harmful, i.e., that it caused

substantial harm or prejudice to his rights. Id.; 5 C.F.R. § 1201.56(c)(1).

Harmful error cannot be presumed; an agency error is harmful only when the

record shows that the procedural error was likely to have caused the agency to

reach a conclusion different from the one it would have reached in the absence or

cure of the error. Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681,

685 (1991).

The administrative judge considered and rejected several claims of harmful

procedural error, including a claim that the agency erred by relying on some

misconduct that was years old by the time of his proposed removal. ID at 49-50.

She also considered claims that the agency violated internal policies regarding the

appointment of an appropriate investigating officer, ID at 50-52, conflicts of

interest, ID at 52-53, protection of the interview process, ID at 53, the

appointment memorandum for the investigation, ID at 54, the agency’s lack of a

local workplace violence policy, ID at 54-55, and the agency’s treatment of the

appellant’s employment after its investigation but before his proposed removal,

ID at 55-56.

For the most part, the administrative judge found that the appellant failed

to prove the errors he alleged. ID at 49-54. However, for his last harmful error

claims, regarding the lack of local workplace violence policy and his employment

status in the period leading up to his proposed removal, the administrative judge

simply found that even if the agency erred, the appellant failed to prove that the

error was harmful. ID at 54-56.

On review, the appellant reasserts several of his harmful error claims. PFR

File, Tab 1 at 12-17. For example, he once again contends that the agency erred

by relying in part on misconduct that was years old by the time of his proposed

removal. Id. at 13. Yet the appellant has not directed us to any associated policy

or other prohibition. He has instead directed us to Board precedent that is

inapplicable. Id. (referencing, e.g., Metz v. Department of the Treasury, 780 F.2d

1001, 1004 (Fed. Cir. 1986)). In another example, the appellant directs us to the

agency’s policy regarding the appointment of an appropriate investigating officer,

including a provision indicating that the agency should appoint “the best qualified

person.” PFR File, Tab 1 at 14-15 (referencing IAF, Tab 18 at 22). According to

the appellant, the agency violated that provision because it appointed someone as

investigating officer who had only recently been promoted to the GS-13 level and

had not ever conducted a similar investigation. PFR File, Tab 1 at 15. However,

the appellant has not presented any explanation of how this was harmful, even if

we were to find that the agency erred.

We have considered each of the appellant’s other arguments pertaining to

his harmful procedural error claims but find that they fail for similar reasons.

Therefore, we agree with the administrative judge’s conclusion that the appellant

failed to meet his burden of proving any harmful procedural error.

Disability discrimination

The administrative judge construed the appellant’s arguments pertaining to

disability discrimination as consisting of a disparate treatment claim and a

failure-to-accommodate claim. ID at 57. She found that the appellant failed to

prove either. ID at 57-64. As further detailed below, we modify the initial

decision to recognize the proper standard for the disparate treatment claim, while

reaching the same conclusions.

Regarding the appellant’s allegation of disparate treatment, the

administrative judge relied on the standards provided in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973) and Southerland v. Department of

Defense, 119 M.S.P.R. 566, ¶ 21 (2013). ID at 60-61. However, during the

period that followed the initial decision in this appeal, the Board has clarified that

those cases do not provide the appropriate analytical framework. Haas v.

Department of Homeland Security, 2022 MSPB 36, ¶ 31; Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶ 42.

Under the appropriate standard, the Board first determines whether the

appellant has shown by preponderant evidence that the prohibited consideration

was a motivating factor in the contested personnel action, and if so, whether the

agency has shown by preponderant evidence that it would have taken the

contested action in the absence of the discriminatory motive. Pridgen, 2022

MSPB 31, ¶ 42. We agree with the administrative judge that the appellant failed

to prove that his disability—PTSD and a traumatic brain injury—was a

motivating factor in the removal action, thereby making findings that are

dispositive under the correct standard. 4 ID at 61. Among other things, the

administrative judge rejected the appellant’s arguments about some of his

misconduct being a manifestation of his disability as well as his arguments that

coworkers perceived his conduct through stereotypes about his disability. ID at

61-64.

Regarding the failure-to-accommodate claim, the administrative judge

properly recognized that an agency has certain obligations regarding reasonable

accommodations. ID at 58. She also recognized that the facts of this case

included the appellant requesting a reasonable accommodation in late 2018 and

the agency granting an accommodation in early 2019, but never working under

those accommodations before his removal because he was on administrative

leave. ID at 58-59. While the appellant argued that the agency was obligated to

take him off administrative leave and allow him to work under the new

accommodations in the period leading up to his removal, the administrative judge

disagreed. ID at 59.

On review, the appellant has presented several challenges to the

administrative judge’s findings regarding disability discrimination. PFR File,

Tab 1 at 17-20. However, these largely consist of the appellant expressing

disagreement with the administrative judge’s findings, but doing so without

identifying any evidentiary or legal support. To illustrate, the appellant simply

reasserts that the agency discriminated by failing to return him to a duty status

during the period between its approval of a reasonable accommodation and his

removal. Id. at 17. He also summarily states that a judge from the Equal

Employment Opportunity Commission once ruled in his favor, so the

administrative judge should have found that the appellant proved discrimination

in this appeal. Id. at 18. These arguments are not persuasive, and they do not

meet the Board’s requirements for further review. See 5 C.F.R. § 1201.114(b)

Because we find that the appellant failed to prove that his disability was a motivating

factor in his removal, we need not reach the question as to whether it was a but-for

cause. Pridgen. 2022 MSPB 31, ¶ 42.

(providing that a petition for review must state a party’s objections to the initial

decision, including all of the party’s legal and factual arguments, and must be

supported by specific references to the record and any applicable laws or

regulations); see also Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133

(1980) (determining that, before the Board will undertake a complete review of

the record, a petitioning party must explain why the challenged factual

determination is incorrect and identify the specific evidence in the record that

demonstrates the error).

Aside from the initial decision, the only thing the appellant has directed us

to in his arguments about disability discrimination is a few documents from the

record below. PFR File, Tab 1 at 19-20 (citing IAF, Tab 4 at 94, 131, 195, 210,

Tab 5 at 46-48). These include portions of the proposal to remove him, IAF,

Tab 4 at 94, and the AR 15-6 investigatory report, id. at 131, along with a couple

of sworn statements from coworkers indicating that the appellant had a

tumultuous relationship with a particular agency official, id. at 193-94, 209-10,

and an email chain in which the appellant presented a variety of complaints about

the agency, IAF, Tab 5 at 46-48. Although we have reviewed each of these

documents, we find no basis for concluding that they meaningfully contribute to

the appellant’s burden. Therefore, we agree with the administrative judge’s

conclusion that the appellant has not proven that his disability was a motivating

factor in his removal or that the agency failed to meet its obligations concerning

reasonable accommodation.

EEO reprisal

During the period that followed the initial decision in this appeal, the

Board also clarified the proper standard for claims of EEO reprisal, noting that

the standard differs depending on whether the claim arises under Title VII or the

Rehabilitation Act. Reprisal claims arising under Title VII are subject to the

burden shifting scheme previously discussed. Pridgen, 2022 MSPB 31, ¶ 33.

However, in a reprisal claim arising under the Rehabilitation Act, there is no

burden shifting; the appellant must prove but-for causation in the first instance.

Id., ¶ 47.

The administrative judge applied the standard that applies to reprisal claims

arising under Title VII. ID at 64-66. She should have instead applied the more

stringent standard since the appellant’s EEO activity arose under the

Rehabilitation Act. See, e.g., IAF, Tab 4 at 39, 43, Tab 12 at 85. Nevertheless,

because the administrative judge found that the appellant failed to meet the lesser

motivating factor standard, and we agree, the appellant necessarily failed to meet

the more stringent but-for standard.

The administrative judge acknowledged that numerous agency officials had

knowledge of the appellant’s EEO complaints, including the proposing and

deciding officials. ID at 66. She also acknowledged that one agency official had

acted inappropriately by discussing one of the appellant’s prior EEO complaints

with another employee. ID at 67. However, she found that there was little else to

support the appellant’s burden of proof and the record instead supported a

conclusion that the EEO complaint and removal were unrelated. ID at 66-68.

The administrative judge provided several reasons for this, with one being the

fact that the appellant’s supervisor issued a counseling letter about the appellant’s

behavior months before his EEO complaint. ID at 67; see IAF, Tab 4

at 43, 178-79.

On review, the appellant argues that the administrative judge’s finding

about the timing of the counseling memo and EEO complaint is “totally false.”

PFR File, Tab 1 at 20-21. However, he then describes other things that reportedly

occurred prior to the counseling memo or his EEO complaint, including the

agency subjecting him to prior investigations. Id. at 21. It seems that the

appellant is insinuating that the appellant’s supervisor knew about these prior

matters and that somehow supports his EEO reprisal claim. We disagree. The

appellant’s arguments on review disagree with the administrative judge’s

findings, but they do not support a conclusion that his EEO activity was either a

motivating factor in or a but-for cause of his removal.

Whistleblower reprisal

In an adverse action appeal such as this, an appellant’s claim of

whistleblower reprisal is treated as an affirmative defense. Campbell v.

Department of the Army, 123 M.S.P.R. 674, ¶ 11 (2016). In such instances, once

the agency proves its adverse action case by a preponderance of the evidence, the

appellant must show by preponderant evidence that he made a disclosure

protected by 5 U.S.C. § 2302(b)(8) or engaged in activity protected by 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D) and that the disclosure or activity was a

contributing factor in his removal. Id. (explaining this burden for disclosures

protected under section 2302(b)(8)); see Alarid v. Department of the Army,

122 M.S.P.R. 600, ¶ 12 (2015) (recognizing that the same standard applies to

certain activities protected under section 2302(b)(9)).

If an appellant meets his burden, the burden shifts to the agency to prove

by clear and convincing evidence that it would have taken the same action in the

absence of the protected disclosures or activities. Campbell, 123 M.S.P.R. 674,

¶ 12. In determining whether the agency has met this burden, the Board will

consider the following factors: (1) the strength of the agency’s evidence in

support of its action; (2) the existence and strength of any motive to retaliate on

the part of the agency officials 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. Id. (citing Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)). The Board does not view

these factors as discrete elements, each of which the agency must prove by clear

and convincing evidence; rather, the Board will weigh the factors together to

determine whether the evidence is clear and convincing as a whole. Id. Further,

the U.S. Court of Appeals for the Federal Circuit has added that “[e]vidence only

clearly and convincingly supports a conclusion when it does so in the aggregate

considering all the pertinent evidence in the record, and despite the evidence that

fairly detracts from that conclusion.” Whitmore v. Department of Labor,

680 F.3d 1353, 1368 (Fed. Cir. 2012).

Below, the administrative judge relied on this standard and found that the

appellant met his burden of proof regarding one disclosure—a June 2018 email

containing a litany of accusatory questions about many topics, ranging from

appraisal awards and nepotism to enforcement of leave policies and illegal

parking. ID at 67-72; see IAF, Tab 5 at 46-47. Although the appellant argued

that he made other protected disclosures and engaged in other protected activities,

the administrative judge disagreed. ID at 69-72. The administrative judge then

shifted the burden to the agency and found that it proved that the agency would

have taken the same removal action in the absence of the appellant’s June 2018

email. ID at 73-77.

On review, the appellant first argues that he met his burden of proof

regarding another disclosure contained in a series of correspondence between

union and management officials in and around May 2018. PFR File, Tab 1

at 22-23 (referencing IAF, Tab 15 at 5-19). The administrative judge recognized

that the correspondence contained a protected disclosure by the union official, but

she found no proof that the appellant made the disclosure or was perceived to

have done so. ID at 70. In his petition, the appellant seems to argue that the May

2018 correspondence between a union official and management contained similar

concerns as his June 2018 disclosure, so management officials must have

perceived him as the whistleblower behind both, even though he was not the

signatory to the May 2018 correspondence. PFR File, Tab 1 at 22. We are not

persuaded. The appellant has not identified any evidentiary support for this

theory, and the two sets of correspondence are not particularly similar. Compare

IAF, Tab 5 at 46-48 (June disclosure by the appellant), with IAF, Tab 15 at 5-19

(May disclosure by a union official).

The appellant’s next argument on review implicates the agency’s burden of

proving that it would have taken the same removal action in the absence of his

protected disclosure. PFR File, Tab 1 at 23-24. However, he has once again

presented little more than conclusory disagreement with the administrative

judge’s findings. For example, the appellant alludes to the first Carr factor, the

strength of the agency’s evidence in support of its action, arguing that there was

no evidence to support his removal and the administrative judge abused her

authority to find otherwise. Id. at 23. He made these assertions without

identifying any evidence, precedent, or other support. They are, therefore,

unavailing.

In conclusion, the appellant has failed to present any basis for us to reach a

conclusion different than the initial decision, which sustained his removal.

NOTICE OF APPEAL RIGHTS 5

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.

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.

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.

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

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. 6 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).

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.

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