Robert M. Miller v. Federal Deposit Insurance Corporation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 83

Docket No. SF-1221-13-0574-W-2

Robert M. Miller,

Appellant,

v.

Federal Deposit Insurance Corporation,

Agency.

November 6, 2014

Robert M. Miller, San Francisco, California, pro se.

Thomas J. Sarisky, Arlington, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of an initial decision that

dismissed his individual right of action (IRA) appeal for lack of jurisdiction

because, among other things, his claim of reprisal for disclosing information

during an internal grievance process was not a matter that could be adjudicated in

this IRA appeal, regardless of whether the pertinent provisions of the

Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No.

112-199, 126 Stat. 1465, applied retroactively. For the following reasons, we

2

DENY the petition for review, AFFIRM the initial decision as modified, and

DISMISS this appeal for lack of jurisdiction.

BACKGROUND

¶2 In Miller v. Federal Deposit Insurance Corporation, MSPB Docket

No. SF-3443-12-0301-I-1, Final Order (June 26, 2013), the Board forwarded the

appellant’s petition for review to the Western Regional Office for docketing as an

IRA appeal, and this appeal followed. See Miller v. Federal Deposit Insurance

Corporation, MSPB Docket No. SF-1221-13-0574-W-1, Initial Appeal File (W-1

IAF), Tab 1. As explained in more detail below, all of the material events in this

matter occurred before the relevant provisions of the WPEA took effect on

December 27, 2012. See WPEA § 202. An IRA appeal is authorized by statute

only in certain reprisal cases as designated in 5 U.S.C. § 1221(a). Prior to the

WPEA, an eligible individual’s entitlement to seek corrective action from the

Board in an IRA appeal was limited to covered personnel actions taken or

proposed to be taken as a result of a prohibited personnel practice (PPP)

described in 5 U.S.C. § 2302(b)(8), i.e., retaliation for whistleblowing.

See 5 U.S.C. § 1221(a) (2011); see also 5 C.F.R. § 1209.4(b) (defining

“whistleblowing”). The WPEA extended the IRA appeal right in section 1221(a)

to include not only PPPs described in 5 U.S.C. § 2302(b)(8) but also PPPs

described in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D), as amended by the

WPEA. WPEA § 101(b)(1)(A). The administrative judge dismissed this appeal

without prejudice to refiling pending the Board’s decision in Hooker v.

Department of Veterans Affairs, 120 M.S.P.R. 629 (2014), regarding whether the

expanded IRA appeal provisions in the WPEA should be applied retroactively.

See W-1 IAF, Tab 8, Initial Decision.

¶3 After this appeal was refiled, the administrative judge issued an order to

show cause explaining that, in Hooker, 120 M.S.P.R. 629, ¶¶ 8-15, the Board

3

determined that the new IRA appeal right in section 101(b)(1)(A) of the WPEA

pertaining to the PPPs described in 5 U.S.C. § 2302(b)(9)(B) did not apply

retroactively to a Board appeal that was pending when the WPEA was enacted. 1

Miller v. Federal Deposit Insurance Corporation, MSPB Docket No. SF-1221-

13-0574-W-2, Initial Appeal File (W-2 IAF), Tab 3. The administrative judge

noted that the analysis in Hooker “appears equally applicable” to a claim based

on the PPPs described in 5 U.S.C. § 2302(b)(9)(A). Id. at 3 n.2. The

administrative judge therefore ordered the appellant to show cause why his appeal

should not be dismissed for lack of jurisdiction. Id. at 4.

¶4 After the appellant responded to the order, W-2 IAF, Tab 4, the

administrative judge issued an initial decision that dismissed the IRA appeal for

lack of jurisdiction, W-2 IAF, Tab 6, Initial Decision (ID). The administrative

judge found that, under long-standing precedent of the Board and the U.S. Court

of Appeals for the Federal Circuit, the alleged reprisal for the appellant’s

grievance activity and for disclosing information as a part of that process could

be a PPP as described in 5 U.S.C. § 2302(b)(9) but not as described in 5 U.S.C.

§ 2302(b)(8). See ID at 6. The administrative judge further found that all the

material events in this case occurred prior to the effective date of the WPEA and

that, following Hooker, the extension of IRA appeal rights in the WPEA was not

to be given retroactive effect to reprisal claims based on certain activity described

in 5 U.S.C. § 2302(b)(9). See ID at 6-8. The administrative judge further

concluded that, even if these WPEA provisions applied retroactively, the

1

As amended by the WPEA, 5 U.S.C. § 2302(b)(9)(B) states that it is a PPP to take or

fail to take, or threaten to take or fail to take, any personnel action against any

employee because of “testifying for or otherwise lawfully assisting any individual in the

exercise of any right referred to in subparagraph (A)(i) or (ii).” Subparagraphs (A)(i)

and (ii) refer to the exercise of any appeal, complaint, or grievance right granted by any

law, rule, or regulation—(i) with regard to remedying a violation of paragraph (8), or

(ii) other than with regard to remedying a violation of paragraph (8).

4

appellant’s claims would be covered under 5 U.S.C. § 2302(b)(9)(A)(ii), as

amended by the WPEA, and as such would still not be among the enumerated

grounds for an IRA appeal. See ID at 8 (citing Mudd v. Department of Veterans

Affairs, 120 M.S.P.R. 365, ¶ 7 (2013)). 2 The administrative judge also found

that, to the extent that the appellant was raising allegations of reprisal for

separate whistleblowing disclosures that occurred outside of the context of the

internal grievance process, the appellant failed to prove that he had exhausted his

administrative remedy with the Office of Special Counsel (OSC) regarding such

claims and thus, by law, they could not be a basis for Board jurisdiction over this

IRA appeal. ID at 4-5.

¶5 The appellant has filed a petition for review, the agency has filed a

response, and the appellant has filed a reply. See Petition for Review (PFR) File,

Tabs 1, 3-4. On review, the appellant challenges the administrative judge’s

jurisdictional analysis. PFR File, Tab 1 at 8-14. He further argues that the

administrative judge improperly denied his motion to compel discovery and his

motion to strike certain information from the record. Id. at 8, 14. He also

includes an agency draft anti-harassment policy that may have been disseminated

to employees after the close of the record below. See id. at 11-12, 17-26.

2

As an additional basis for finding a lack of jurisdiction over the appellant’s (b)(9)

claims, the administrative judge found that, under pre-WPEA law, the appellant was an

employee of a government corporation rather than an “agency” as defined at 5 U.S.C.

§ 2302(a)(2)(C)(i) (2011), and thus was excluded from coverage under 5 U.S.C. § 2302

except for a claim arising under subsection (b)(8), ID at 6 & n.8 (citing Snead v.

Pension Benefit Guaranty Corporation, 74 M.S.P.R. 501, 502-03 (1997); Dockery v.

Federal Deposit Insurance Corporation, 64 M.S.P.R. 458, 460-62 (1994)). The WPEA

amended 5 U.S.C. § 2302(a)(2)(C)(i) to add language regarding section

2302(b)(9)(A)(i), (B), (C), and (D). See WPEA § 101(b)(1)(B). Because we find that

the Board lacks jurisdiction for the reasons set forth in this Opinion and Order, we do

not reach the administrative judge’s alternative analysis.

5

ANALYSIS

The administrative judge properly concluded that the appellant exhausted his

remedies with OSC regarding claims of reprisal for his grievance activities, but

he did not seek corrective action from OSC regarding his claims of reprisal for

disclosures or activities outside of the grievance process.

¶6 The first element of Board jurisdiction over an IRA appeal is exhaustion by

the appellant of his administrative remedies before OSC. See 5 U.S.C.

§§ 1214(a)(3), 1221(a); see also Yunus v. Department of Veterans

Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Carney v. Department of Veterans

Affairs, 121 M.S.P.R. 446, ¶ 4 (2014). Specifically, under 5 U.S.C. § 1214(a)(3),

an employee is required to “seek corrective action from [OSC] before seeking

corrective action from the Board” through an IRA appeal. To satisfy this

requirement, an appellant must articulate to OSC the basis for his request for

corrective action “with reasonable clarity and precision.” Ellison v. Merit

Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993); see Ward v. Merit

Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). Although an

appellant may add further detail to his claims before the Board, see Briley v.

National Archives & Records Administration, 236 F.3d 1373, 1378 (Fed. Cir.

2001), the appellant must first make a reasonably clear and precise claim with

OSC, see, e.g., Mintzmyer v. Department of the Interior, 84 F.3d 419, 422 (Fed.

Cir. 1996).

¶7 The administrative judge found that the appellant exhausted his

administrative remedies with OSC regarding his claims of reprisal for disclosures

made during steps 1, 2, and 3 of the grievance process. ID at 5. The record fully

supports this finding. See W-1 IAF, Tab 5 at 64-76 (OSC complaint), 13-21

(step 1 grievance dated May 29, 2011), 22-40 (step 2 grievance dated July 22,

6

2011), 41-57 (step 3 grievance dated September 8, 2011). 3 For instance, the

appellant’s OSC complaint specifically identifies these three grievances as the

alleged disclosures at issue. Id. at 68, 70-72. Further, he repeatedly made

narrative assertions on his OSC complaint form that he made his disclosures in

his grievances. See id. at 67 (“On May 29 th , I filed a grievance with the FDIC for

violations of law, regulation, EEOC guidance, FDIC policies, and the collective

bargaining agreement.”), 73 (“I filed a grievance for violation of law, regulation,

guidance, and the collective bargaining agreement.”), 74 (“In the grievance, I

accused [my first-line supervisor] and the FDIC generally of violating the law

and my rights.”). Thus, we find that the appellant satisfied the exhaustion

requirement of 5 U.S.C. § 1214(a)(3) regarding his allegations concerning

reprisal for his grievance activity and disclosures of information in that context.

¶8 In briefing the jurisdictional issue before the administrative judge, the

appellant claimed that he also suffered reprisal for making certain disclosures

outside of the grievance process. Specifically, he referenced his May 26, 2011

email to the agency Ombudsman, W-2 IAF, Tab 4 at 10, 18-19, and his emails to

the agency Acting Chairman and/or his Chief of Staff beginning on February 7,

2012, concerning “FDIC Values, Cultural Change, [and] Merit Systems

Principles,” W-1 IAF, Tab 5 at 8, 11, 58-63; W-2 IAF, Tab 4 at 10, 20-28. There

is no evidence that the appellant informed OSC of these communications with the

3

Although the appellant’s OSC complaint misstated the date of his step 3 grievance as

July 22, 2011, see W-1 IAF, Tab 5 at 72, it is clear from context that he was referring to

disclosures made during his step 3 grievance, see id. at 72-73, which was filed on

September 8, 2011, id. at 41, and was the subject of a hearing before a Deputy Director

on September 21, 2011, id. at 8, 68. Although the appellant’s OSC complaint did not

explicitly refer to either of these September dates, we find that his complaint was clear

enough to inform OSC that he was seeking corrective action for disclosures made in his

written step 3 grievance and during the hearing in that matter on September 21, 2011.

We modify the initial decision to the extent that the administrative judge found

otherwise. See ID at 5 n.7.

7

agency Ombudsman, Chairman, or Chief of Staff, and these communications are

not mentioned in his OSC complaint. See W-1 IAF, Tab 5 at 64-76. In contrast,

his OSC complaint described in detail his grievance activity, which was the core

of the complaint. See supra ¶ 7.

¶9 On review, the appellant does not argue that he raised with OSC his

communications with the Ombudsman, Chairman, or Chief of Staff. Instead, he

asserts that he generally “made reasonable attempts” to exhaust with OSC and

that “[i]t simply does not matter whether [he] notified the OSC that he had also

made disclosures outside the grievance process” because OSC had already

determined that it would terminate an investigation into his allegations. PFR

File, Tab 1 at 14. He further speculates that, if OSC had chosen to interview him,

it could have determined whether there were disclosures outside of the grievance

process, other types of personnel actions, or other covered disclosures. PFR File,

Tab 4 at 12-13. We find these arguments unavailing.

¶10 Seeking corrective action with OSC is an important statutory prerequisite

to an IRA appeal before the Board. See 5 U.S.C. § 1214(a)(3); see also Serrao v.

Merit Systems Protection Board, 95 F.3d 1569, 1578 (Fed. Cir. 1996); Ward,

981 F.2d at 526. The appellant’s allegations regarding alleged disclosures

outside the grievance process are not merely a more detailed account of the

claims he presented to OSC; rather, they are new allegations of protected activity

separate from the grievance activity that was the core of the retaliation claim

described in his submissions to OSC. See supra ¶ 7; cf. Briley, 236 F.3d at 1378.

As such, he has not proven that he sought corrective action with OSC regarding

these claims, and the Board lacks jurisdiction to review them in this IRA appeal.

See Serrao, 95 F.3d at 1575-78 (finding that the Board did not have jurisdiction

over a potential claim of reprisal as a result of a PPP described in 5 U.S.C.

§ 2302(b)(8) because the employee did not articulate such a claim with

reasonable clarity and precision when seeking corrective action from OSC for

8

reprisal for the exercise of grievance rights); see also Mintzmyer, 84 F.3d at 422

(finding that an appellant’s allegation in her OSC complaint that she was

“subjected to constructive discharge by harassing and retaliatory behavior” was

not sufficiently clear or precise to constitute exhaustion of her administrative

remedies regarding four alleged retaliatory actions that she specified for the first

time to the Board in her IRA appeal).

The appellant’s allegations of reprisal for grievance activity are properly

considered as allegations of PPPs under 5 U.S.C. § 2302(b)(9), rather than

subsection (b)(8).

¶11 It is well-settled that reprisal for filing a grievance is protected by 5 U.S.C.

§ 2302(b)(9), not section 2302(b)(8). Serrao, 95 F.3d at 1574-76; Mason v.

Department of Homeland Security, 116 M.S.P.R. 135, ¶ 22 n.6 (2011); Fisher v.

Department of Defense, 47 M.S.P.R. 585, 587-88 (1991). The U.S. Court of

Appeals for the Federal Circuit has emphasized that the Board must avoid

blurring the deliberate and substantive distinction established by Congress

between whistleblowing disclosures protected under subsection (b)(8) and the

exercise of grievance rights protected under subsection (b)(9)(A). Serrao,

95 F.3d at 1576 (citing Ellison, 7 F.3d at 1035). Thus, the court has held that an

appellant cannot meet the jurisdictional requirements in an IRA appeal merely by

inserting section 2302(b)(8) allegations into an agency grievance. Id.

¶12 Notwithstanding this clear precedent, the appellant cites Bump v.

Department of the Interior, 64 M.S.P.R. 326 (1994), for the proposition that “it

simply does not matter that the protected disclosures were made within the

grievance process when they otherwise establish the type of fraud, waste or abuse

that the WPA was intended to reach.” PFR File, Tab 4 at 12; accord PFR File,

Tab 1 at 12-13. This is a misinterpretation of Bump and the relevant law. In

Bump, the Board recognized that an employee may make a number of related

disclosures based upon the same operative facts. Bump, 64 M.S.P.R. at 332.

Mr. Bump had made certain disclosures to OSC that could qualify as protected

9

disclosures under 5 U.S.C. § 2302(b)(8). Id. at 331. The Board found that he

was not disqualified from pursing an IRA appeal based on reprisal for making

those disclosures to OSC merely because he also may have raised them as part of

a grievance. Id. at 331-32. That is not the situation here. As set forth above, the

issue in this appeal is limited to alleged reprisal only as a result of the appellant’s

grievance activity and disclosures of information in that context. Thus, Bump is

distinguishable, see Serrao, 95 F.3d at 1576 n.6, and the appellant’s exhausted

claims are properly considered as allegations of PPPs under 5 U.S.C.

§ 2302(b)(9), see, e.g., Serrao, 95 F.3d at 1574-76; Mason, 116 M.S.P.R. 135,

¶ 22 n.6; Fisher, 47 M.S.P.R. at 587-88.

The provisions of the WPEA authorizing an IRA appeal based on an allegation of

reprisal as a result of a PPP under 5 U.S.C. § 2302(b)(9)(A)(i) do not apply to

this case.

¶13 Under the law in effect at the time of the events at issue in this appeal, an

eligible individual’s entitlement to seek corrective action from the Board in an

IRA appeal was limited to covered personnel actions taken or proposed to be

taken as a result of a PPP described in 5 U.S.C. § 2302(b)(8), i.e., retaliation for

whistleblowing. See 5 U.S.C. § 1221(a) (2011). Because the appellant only

sought corrective action from OSC regarding allegations of reprisal as a result of

PPPs as described in 5 U.S.C. § 2302(b)(9), the Board lacks IRA jurisdiction over

those claims under the law in effect at the time of the events at issue. See Serrao,

95 F.3d at 1574-76.

¶14 We now turn to the impact of the WPEA, if any, on the appellant’s appeal.

The WPEA was signed into law on November 27, 2012, and it had an effective

date of December 27, 2012. King v. Department of the Air Force, 119 M.S.P.R.

663, ¶ 3 (2013). With exceptions not applicable here, under 5 U.S.C. § 1221(a),

as amended by section 101(b)(1)(A) of the WPEA, an employee may seek

corrective action from the Board concerning any personnel action taken, or

proposed to be taken, against him as a result of a PPP described in section

10

2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 4 Amended section

2302(b)(9)(A) provides that any employee who has authority to take, direct others

to take, recommend, or approve any personnel action shall not, with respect to

such authority, take or fail to take, or threaten to take or fail to take, any

personnel action against any employee because of:

(A) the exercise of any appeal, complaint, or grievance right granted

by any law, rule, or regulation—

(i) with regard to remedying a violation of paragraph (8); or

(ii) other than with regard to remedying a violation of paragraph

(8).

Under 5 U.S.C. § 1221(e)(1), as amended by the WPEA, and subject to the

provisions of section 1221(e)(2), in any case involving an alleged PPP as

described under 5 U.S.C. § 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or

(D), “the Board shall order such corrective action as the Board considers

appropriate if the employee . . . has demonstrated that a disclosure or protected

activity described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C),

or (D) was a contributing factor in the personnel action which was taken or is to

be taken.”

¶15 In Hooker, 120 M.S.P.R. 629, ¶¶ 11-15, the Board used the analytical

framework set forth in Landsgraf v. USI Film Products, 511 U.S. 244 (1994), to

determine that the retroactive application of the new IRA appeal right in section

101(b)(1)(A) of the WPEA, as it pertains to the personnel actions taken as a result

of a PPP, as set forth at 5 U.S.C. § 2302(b)(9)(B), would be impermissible

because it would increase a party’s liability for past conduct as compared to

4

Section 2302(b)(9)(C) involves cooperating with or disclosing information to the

Inspector General of an agency, or the Special Counsel, in accordance with applicable

provisions of law. Section 2302(b)(9)(D) involves refusing to obey an order that would

require the individual to violate a law. Neither of these subsections is implicated in this

matter.

11

pre-WPEA liability. The same rationale is applicable here. Indeed, as in Hooker,

the WPEA created a new Board appeal right in IRA appeals for employees who

allege that a personnel action has been taken as a result of a PPP described in

section 2302(b)(9)(A)(i), and it includes a new provision directing the Board to

order such corrective action as the Board considers appropriate when such

protected activity is a contributing factor in a personnel action. See

Hooker, 120 M.S.P.R. 629, ¶ 15. Therefore, consistent with Hooker, we decline

to apply in this case the new IRA appeal right in section 101(b)(1)(A) of the

WPEA as it pertains to the PPPs described at 5 U.S.C. § 2302(b)(9)(A)(i) because

doing so would increase a party’s liability for past conduct as compared to pre-

WPEA liability. 5 Thus, even assuming that the appellant made a nonfrivolous

allegation that he engaged in activity that would now be considered protected

under 5 U.S.C. § 2302(b)(9)(A)(i), the appellant cannot bring an IRA appeal on

that basis regarding events that occurred before the effective date of the WPEA. 6

We discern no error with the administrative judge’s decision to deny the

appellant’s motion to compel discovery and motion to strike certain information

from the record.

¶16 The appellant asks the Board to overturn the administrative judge’s

decision on his request to “have information that was prejudicial to this case

5

The Board appeal in Hooker was pending when the WPEA was enacted. See Hooker,

120 M.S.P.R. 629, ¶ 10. Here, however, the relevant events occurred before the WPEA

was enacted and its effective date, but the appeal was docketed after the effective date

of the WPEA. See, e.g., W-1 IAF, Tab 5 at 13-21 (May 29, 2011 step 1 grievance),

22-40 (July 22, 2011 step 2 grievance), 41-57 (September 8, 2011 step 3 grievance),

64-76 (the appellant’s March 2012 OSC complaint), 77-78 (OSC’s correspondence to

the appellant). This difference in chronology does not warrant a different disposition.

See Hooker, 120 M.S.P.R. 629, ¶ 11 (citing Landsgraf, 511 U.S. at 280).

6

In light of this finding, we need not reach the issue of whether the appellant’s claim

should be considered as a claim covered by 5 U.S.C. § 2302(b)(9)(A)(ii) rather than

subsection (b)(9)(A)(i).

12

removed from the record,” and he states that he did not have a sufficient

opportunity to conduct discovery. PFR File, Tab 1 at 14. Although unclear, it

appears that the appellant is challenging the administrative judge’s June 6, 2014

order that denied his: (1) motion for reconsideration of the order denying his

motion to compel in his prior Board appeal, Miller v. Federal Deposit Insurance

Corporation, MSPB Docket No. SF-3443-12-0301-I-1; and (2) objection to the

order to show cause that made reference to his grieving his letter of warning

(LOW). See W-2 IAF, Tab 5 at 1-2 (June 6, 2014 order); see also W-2 IAF,

Tab 4 at 4-6 (the appellant objected to any further reference to a “LOW

grievance”), 14-15 (the appellant requested reconsideration of the decision to

deny his motion to compel in his prior Board appeal).

¶17 We discern no error with the administrative judge’s decisions in this

regard. As the administrative judge noted, the Board found in its final order in

the prior Board appeal that the administrative judge did not abuse his discretion

in denying the appellant’s motions to compel. See W-1 IAF, Tab 1 at 4.

Moreover, we agree with the administrative judge that the appellant’s May 29,

2011 grievance “[w]ithout question” referenced the LOW. W-2 IAF, Tab 5 at 2;

see W-1 IAF, Tab 5 at 18, 21. Accordingly, we see no basis upon which to strike

the administrative judge’s reference to the appellant’s grieving the LOW in the

show cause order.

The appellant’s “new” evidence on review does not warrant a different outcome.

¶18 We have considered the draft anti-harassment policy that the appellant

includes with his petition for review. See PFR File, Tab 1 at 17-26. We find,

even if we viewed the draft policy as “new” evidence, it is not of sufficient

weight to warrant an outcome different from that of the initial decision because it

does not change our determination that the Board lacks jurisdiction over the

appeal for the reasons set forth above. See Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980).

13

ORDER

¶19 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit.

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request the United States Court of Appeals for the Federal Circuit or any

court of appeals of competent jurisdiction to review this final decision. The court

of appeals must receive your petition for review within 60 days after the date of

this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you

choose to file, be very careful to file on time. You may choose to request review

of the Board’s decision in the United States Court of Appeals for the Federal

Circuit or any other court of appeals of competent jurisdiction, but not both.

Once you choose to seek review in one court of appeals, you may be precluded

from seeking review in any other court.

14

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.

Additional information about the United States Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court's Rules of Practice, and Forms 5, 6, and 11.

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed

through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to

the United States Court of Appeals for the Federal Circuit, you may visit our

website at http://www.mspb.gov/probono for a list of attorneys who have

expressed interest in providing pro bono representation for Merit Systems

Protection Board appellants before the Federal Circuit. The Merit Systems

15

Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.