Keith J. Davis v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEITH J. DAVIS, DOCKET NUMBER

Appellant, PH-0752-12-0073-B-1

v.

DEPARTMENT OF THE NAVY, DATE: July 27, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Marshall J. Tinkle, Esquire, Portland, Maine, for the appellant.

Barbara M. Dale, Esquire, and Richard Dale, Esquire, Newport, Rhode

Island, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant and the agency both have filed petitions for review of the

remand initial decision, which found that the appellant did not establish his

affirmative defenses and mitigated the agency-imposed removal penalty to a

30-day suspension. For the reasons discussed below, we DENY the appellant’s

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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petition for review, GRANT the agency’s petition for review, and AFFIRM the

remand initial decision AS MODIFIED to reverse the mitigation and sustain the

removal penalty. Except as expressly MODIFIED by this Final Order, the remand

initial decision is the Board’s final decision.

¶2 The appellant, a GS-5 Police Officer, filed a formal equal employment

opportunity (EEO) complaint in 2008 based on perceived disability, Davis v.

Department of the Navy, MSPB Docket No. PH-0752-12-0073-I-1, Initial Appeal

File (IAF), Tab 28 at 34-38, and amended it eight times, id., Exhibits M-U. On

June 11, 2010, after some complaints about his on-the-job conduct, the agency

issued him a nondisciplinary Letter of Requirement which set forth its

expectations regarding his interactions with customers. IAF, Tab 5 at 120-22.

On October 18, 2010, the agency issued a decision suspending the appellant for

3 days based on five specifications of inappropriate behavior. Id. at 115-19. He

filed a grievance challenging the suspension. IAF, Tab 28, Exhibit FF. On

January 31, 2011, the agency issued the appellant a second 3-day suspension

based on four specifications of inappropriate conduct. IAF, Tab 5 at 109-12. He

filed a grievance challenging that suspension. IAF, Tab 28, Exhibit HH. On

April 18, 2012, the agency issued the appellant a 10-day suspension based on two

specifications of inappropriate conduct. IAF, Tab 5 at 97-98. He also filed a

grievance challenging that suspension. IAF, Tab 28, Exhibit NN. And, on

May 24, 2011, the agency issued the appellant a 14-day suspension based on two

specifications of inappropriate conduct. IAF, Tab 5 at 88-89. He filed a

grievance challenging the suspension. IAF, Tab 28, Exhibit RR.

¶3 Effective October 19, 2011, the agency removed the appellant based on two

specifications of inappropriate language and/or disrespectful comments towards

senior and/or supervisory police personnel and three specifications of refusing to

follow requests and/or orders given by senior and/or supervisory police

personnel. IAF, Tab 5 at 23, 36. In effecting the action, the agency considered

the appellant’s past record as described above. Id. On appeal, the appellant

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raised as affirmative defenses retaliation for engaging in protected EEO and

grievance activity, reprisal for whistleblowing, disability discrimination based on

perceived disability, and harmful error. IAF, Tabs 1, 28.

¶4 After convening the requested hearing, the administrative judge issued an

initial decision in which she did not sustain the first charge, IAF, Tab 32, Initial

Decision (ID) at 5-8, but did sustain the second charge based on the third

specification alone, ID at 8-12. The administrative judge also found that the

appellant did not establish any of his affirmative defenses, ID at 14-19, that the

agency established that there was a nexus between the sustained charge and the

efficiency of the service, ID at 19, but that removal exceeded the bounds of

reasonableness, ID at 19-21. Accordingly, she mitigated the penalty to a 30-day

suspension. ID at 21.

¶5 Previously, on the appellant’s petition for review and the agency’s cross

petition for review, the Board found that the administrative judge failed to

provide a reasoned explanation for mitigating the penalty, Davis v. Department of

the Navy, MSPB Docket No. PH-0752-12-0073-B-1, Remand Order at 5-6

(June 20, 2014) (Remand Order), and that she erred in her analysis of the

appellant’s claims that the agency’s action was in retaliation for his protected

EEO and grievance activity and in reprisal for his whistleblowing, id. at 8-14. As

such, the Board remanded the case for further adjudication. Id. at 14.

¶6 On remand, the administrative judge directed the parties to the above three

issues and established a briefing schedule. Remand Appeal File (RAF), Tab 2.

On receipt of the parties’ written submissions, RAF, Tabs 6-8, 11, she issued a

remand initial decision in which she again found that the appellant had failed to

establish his claims of retaliation and reprisal, RAF, Tab 14, Remand Initial

Decision (RID) at 2-16, and that, on consideration of the relevant factors, a

30-day suspension remained the appropriate penalty for the sustained charge, RID

at 16-19.

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¶7 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 5,

and the appellant has replied to that response, PFR File, Tab 7. The agency also

has filed a petition for review, PFR File, Tab 2, to which the appellant has

responded in opposition, PFR File, Tab 6.

The appellant’s petition for review

¶8 We first address the appellant’s claim that the administrative judge erred in

analyzing his retaliation claim based on protected EEO and grievance activity.

PFR File, Tab 1 at 9-18. To determine if the appellant met his burden of showing

retaliation, the Board directed the administrative judge to consider circumstantial

evidence, including evidence of suspicious timing, evidence that similarly

situated employees were treated better, and evidence that the employer’s stated

reason for its action was pretextual. Remand Order at 9. This general type of

evidence is sometimes said to comprise a “convincing mosaic” of retaliation.

Kohler v. Department of the Navy, 108 M.S.P.R. 510, ¶ 13 (2008). The Board

also directed the administrative judge to consider whether the deciding official, in

imposing removal, may have relied on information provided by other officials in

the prior disciplinary actions who may have had a retaliatory motive. And, the

Board directed the administrative judge to make credibility findings, as

appropriate, to address this claim. Remand Order at 9.

¶9 The administrative judge acknowledged that the timing of the prior

disciplinary actions was “somewhat suspicious” in that all four suspensions were

issued within a 7-month time span. RID at 9. She found, however, that the

appellant proffered no credible evidence that similarly situated employees were

treated better, RID at 6, or that the agency’s stated reasons for issuing the four

suspensions were pretextual, RID at 6-9.

¶10 On review, the appellant alleges that the administrative judge ignored

evidence that the agency treated him much more severely than similarly situated

employees for similar misconduct. PFR File, Tab 1 at 13. Specifically, the

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appellant alleges that the administrative judge ignored the “convincing

testimony” of his witness, a union steward who was involved in some of the

grievances that were filed to challenge the appellant’s prior suspensions. He

testified that, based on information he requested from the agency, he determined

that the appellant was disciplined more severely than other similarly situated

police officers. Hearing Transcript (HT) at 275, 277. Although the

administrative judge did not specifically refer to the union steward’s testimony,

her failure to mention all of the evidence of record does not mean that she did not

consider it in reaching her decision. See 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). The administrative judge mentioned the document upon which the

union steward’s testimony was based. That document was a list of thirty-five

alleged comparators who were disciplined for “inappropriate behavior,” as was

the appellant in his first 3-day suspension. IAF, Tab 28, Exhibit VVV. The

administrative judge found that only two of the thirty-five employees were Police

Officers, and that one was suspended for 3 days and that the other was suspended

for 14 days. The administrative judge, acknowledging that the document did not

provide the circumstances underlying the behavior that resulted in the discipline

imposed on the alleged comparators, nonetheless found that the evidence negated

the appellant’s assertion of disparate treatment. RID at 6. Beyond his mere

disagreement, the appellant has not shown error in the administrative judge’s

statement that he proffered no credible evidence that similarly situated employees

were treated better.

¶11 The appellant argues that the administrative judge erred in failing to find

that “overwhelming and unrebutted evidence” showed that none of the prior

suspensions was warranted. PFR File, Tab 1 at 13. The appellant’s grievances

set forth his challenges to the suspensions, and his hearing testimony was in

accord. In considering that testimony, and in finding that the appellant failed to

convincingly refute any of the prior actions, the administrative judge noted his

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credibility, specifically his demeanor. She found that his tone occasionally

evidenced resentment toward the agency and management, and that he came

across as inflexible, somewhat obstinate in his interpretation of agency rules and

regulations, as well as in his perception of how others treated him, and that his

blanket denials as to the misconduct with which he was charged was generally not

convincing. RID at 6-7. As to his challenge to the second 3-day suspension, the

administrative judge specifically found that the appellant’s testimony was

inconsistent, that he over-explained his interactions with the contractors in an

apparent attempt to justify his less than professional and courteous behavior, and

that his excessive explanations, coupled with his demeanor, significantly

diminished his credibility. RID at 7. The appellant argues that the administrative

judge’s credibility findings are suspect because she made no such findings in the

first initial decision and because, in purporting to make them now, 2 years later,

she fails to acknowledge that an employee, like the appellant, who has been

removed by the agency might well have a tone that “occasionally evidence[s]

resentment.” PFR File, Tab 1 at 13-14.

¶12 The Board must give deference to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on the observation of

the demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so. Haebe

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . The appellant

has not provided such reasons. We first note that the Board, in its Remand Order,

did not require the administrative judge to convene another hearing in order to

retake testimony or take additional testimony but rather allowed that, in her

discretion, she could hear additional testimony from those who testified or from

other witnesses who may have relevant evidence. Remand Order at 14.

Determining that additional testimony was not necessary, RAF, Tab 10, the

administrative judge based her decision on the appeal record, the hearing

transcript both in its paper and audio formats, her independent recollection of the

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testimony, and the parties’ briefs, RID at 2. Examination of the remand initial

decision reveals the administrative judge’s exhaustive review of the record

evidence and her numerous citations to hearing testimony. RID at 2-11. And, as

the Board directed her to do, Remand Order at 10, she made credibility

determinations, specifically demeanor-based credibility determinations, in order

to fully address the appellant’s allegation that the agency’s action was due to

retaliation for his having engaged in protected activity, see Mangano v.

Department of Veterans Affairs, 109 M.S.P.R. 658, ¶ 23 (2008). Beyond his mere

speculation that the administrative judge’s credibility determinations are suspect

and her related findings not well founded, the appellant has not shown that she

abused her discretion or otherwise exceeded her authority in adjudicating the

matter at issue, see 5 C.F.R. § 1201.41(a), (b), or that her findings are not

supported by the record.

¶13 The appellant also argues on review that the administrative judge’s analysis

reflects a misunderstanding of “cat’s paw liability.” PFR File, Tab 1 at 16-17.

The Supreme Court has adopted the term “cat’s paw” to describe events in a case

in which a particular management official, acting because of an improper animus,

influences an agency official who is unaware of the improper animus when

implementing a personnel action. See Staub v. Proctor Hospital, 131 S. Ct. 1186,

1190, 1193-94 (2011). The appellant argues that the administrative judge erred in

finding that there was no evidence that the deciding official had actual or

constructive knowledge of the appellant’s protected activity. The appellant

reasons that the deciding official, who never met the appellant, relied solely on

the notice of proposed removal along with the supporting documentation

compiled by the proposing official. PFR File, Tab 1 at 16-17. The administrative

judge acknowledged that the deciding official was aware of the four disciplinary

actions, and the record reflects that that is so, as evidenced by the Douglas factors

analysis worksheet he prepared, IAF, Tab 27 at 13-25; HT at 97, and the fact that

the appellant addressed his past record in his written reply to the proposal notice,

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IAF, Tab 5 at 46-48. The appellant has not shown that this knowledge by the

deciding official, in and of itself, reflects cat’s paw liability. The administrative

judge further found, however, that there was no circumstantial evidence that the

deciding official was unduly influenced by other management officials. RID

at 11. In this regard, the appellant argues that, since the management officials

responsible for the prior suspensions knew that he had challenged those actions,

the deciding official necessarily had constructive knowledge of the appellant’s

protected activity and was thereby influenced by those officials. The appellant

has not shown, however, that the management officials responsible for the prior

suspensions themselves acted because of an improper animus or that they

influenced the deciding official.

¶14 The appellant also argues on review that, in finding that he failed to

convincingly refute any of the prior disciplinary actions, the administrative judge

improperly drew an adverse inference from the appellant’s decision to call only

one of the witnesses he had listed who were approved to testify. PFR File, Tab 1

at 14-15. The appellant states that, in his view, the others would not have added

anything to the testimony of the one witness he did call. Id. at 14. We are not

persuaded that the administrative judge drew an adverse inference. Rather, she

merely noted that the appellant did not call, or even request, any witnesses to

refute the allegations contained in the prior disciplinary actions and that, even

though six of his seven requested witnesses were approved to testify on his

behalf, he opted to call only one. RID at 9; see, e.g., Boal v. Department of the

Army, 51 M.S.P.R. 134, 137 (1991).

¶15 We next address the appellant’s claim that the administrative judge erred in

analyzing his claim of reprisal for protected whistleblowing activity. PFR File,

Tab 1 at 18-23. To determine whether the appellant met his burden of showing

reprisal, the Board directed the administrative judge to consider that, under the

Whistleblower Protection Enhancement Act of 2012 (WPEA) and current

precedent, reporting misconduct by a wrongdoer to a wrongdoer is protected

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activity, Remand Order at 12, and the appellant’s reporting of the factual matters

underlying his grievances may be protected if he reported them outside the

grievance procedures, id. at 12-13; and to consider if the deciding official was

influenced by individuals with knowledge of the appellant’s protected

whistleblower activity, id. at 13-14.

¶16 The administrative judge considered six instances in which the appellant

alleged that he engaged in protected whistleblower activity. Applying the WPEA

and proper precedent, the administrative judge found that the appellant did not

show that the first four amounted to protected disclosures, RID at 12-14, and that,

although the last two, wherein the appellant contacted his Senator and filed one,

or perhaps two, whistleblower complaints with the Office of Special Counsel, did

constitute protected disclosures, he did not show that either was a contributing

factor in his removal. As to this latter finding, the administrative judge found

that, beyond the appellant’s unsubstantiated speculation, he failed to prove that

the three named management officials had actual knowledge of these disclosures

or that, acting out of an improper animus, they influenced the deciding official.

RID at 14-16.

¶17 In challenging these findings on review, the appellant argues that the

administrative judge erred by considering each act “in isolation.” PFR File,

Tab 1 at 19. The appellant has not shown, however, that the administrative

judge’s analysis was improper. When raising whistleblower reprisal as an

affirmative defense, the appellant must show by preponderant evidence that he

made a protected disclosure and that the disclosure was a contributing factor in

the agency’s personnel action. Gonzalez v. Department of Transportation,

109 M.S.P.R. 250, ¶ 16 (2008). The administrative judge considered the

appellant’s claimed acts of reprisal and found, based on the documentary and

testimonial evidence of record, that, as to some, he failed to prove that he made

protected disclosures. For example, the administrative judge found no showing

that a disinterested observer with knowledge of the essential facts known to and

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readily ascertainable by the appellant could reasonably conclude that an enlisted

personnel who may have nodded off for a second or two presented a substantial

and specific danger to public health or safety, RID at 12-13, and found no

protected disclosure when the appellant complained to a union official about a

suspension within the confines of the grievance arena, RID at 14. The

administrative judge further found that, as to other disclosures that were arguably

protected, the appellant failed to show that they were a contributing factor in his

removal. For example, the administrative judge found no contributing factor in

the absence of evidence that management officials had actual knowledge of the

appellant’s protected disclosures or that they otherwise, because of improper

animus, influenced the deciding official. RID at 15-16. Having considered the

appellant’s arguments on review regarding the administrative judge’s findings as

to the six disclosures, we discern no reason to reweigh the evidence or substitute

our assessment of the record evidence for that of the administrative judge. See

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (no reason to

disturb the administrative judge’s findings where she considered the evidence as a

whole, drew appropriate inferences, and made reasoned conclusions). 2

The agency’s petition for review

¶18 In its petition for review, the agency argues that the administrative judge

erred in mitigating the penalty. PFR File, Tab 2.

2

On review, the appellant argues that he made two additional protected disclosures that

the administrative judge failed to consider. PFR File, Tab 1 at 22. In addressing the

appellant’s whistleblower reprisal claim, the Board, in its Remand Order, found that the

appellant alleged below that he engaged in six protected disclosures or activity.

Remand Order at 11. The Board instructed the administrative judge to make specific

findings as to whether those disclosures were protected under current law, and, if so,

whether they were a contributing factor in the appellant’s removal. Id. at 11-14. On

remand, the administrative judge addressed those six instances and, as directed, made

findings as to each. RID at 12-16. In so doing, she properly followed the Board’s

remand instructions. See Mangano, 109 M.S.P.R. 658, ¶ 23. As a result, we disagree

with the appellant’s argument that the administrative judge should have considered

these two alleged additional protected disclosures.

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¶19 When the Board sustains fewer than all of the agency’s charges, it may

mitigate the agency’s penalty to the maximum reasonable penalty, so long as the

agency has not indicated in either its final decision or in proceedings before the

Board that it desires a lesser penalty be imposed on fewer charges. Hamilton v.

Department of Homeland Security, 117 M.S.P.R. 384, ¶ 9 (2012). However, as

set forth below, we find that the administrative judge’s decision to mitigate the

penalty to a 30-day suspension is not justified because the agency’s chosen

penalty, removal, is the maximum reasonable penalty for the sustained

misconduct under the circumstances of this case. See Simmons v. Department of

the Air Force, 99 M.S.P.R. 28, ¶ 37 (2005) (the Board may impose the same

penalty imposed by the agency based on a justification of that penalty as the

maximum reasonable penalty after balancing the mitigating factors), aff’d sub

nom. Gebhardt v. Department of the Air Force, 186 F. App’x 996 (Fed. Cir.

2006).

¶20 In considering the penalty issue, the administrative judge found that

mitigation was appropriate because the agency proved only one of five

specifications and only one of two charges and because the appellant showed a

potential for rehabilitation. RID at 18. The administrative judge also found that

the agency’s table of penalties provides for a range of reprimand to a 5-day

suspension for a first offense of “deliberate refusal to carry out any proper order

from any supervisor having responsibility for the work of the employee.” See

IAF, Tab 30, Exhibit ZZZ at 22. In this regard, the administrative judge

discounted the appellant’s prior suspensions because she found that they were

imposed for different offenses than the one at issue, failure to follow a request.

RID at 18.

¶21 The agency argues on review that the administrative judge improperly

discounted the appellant’s past record. PFR File, Tab 2 at 11-13. We agree. The

Board has held that prior discipline will not be discounted on the basis that it is

unrelated to the current disciplinary action. Taylor v. Department of Justice,

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60 M.S.P.R. 686, 699 (1994); Lewis v. Department of the Air Force, 51 M.S.P.R.

475, 484 (1991); see Villela v. Department of the Air Force, 727 F.2d 1574, 1577

(Fed. Cir. 1984) (removal for current offense of absence without leave reasonable

in light of prior offense of fighting and intoxication); Kehrier v. Department of

Justice, 27 M.S.P.R. 477, 480 n.1 (1985) (past disciplinary record was considered

in assessing the reasonableness of penalty despite the fact that it was unrelated to

current charge). Therefore, in assessing the reasonableness of the penalty, we

find that the administrative judge erred in not considering the appellant’s prior

four suspensions even though they were based on inappropriate behavior and

conduct. Consideration of those suspensions is significant because it renders the

removal the appellant’s fifth disciplinary action in only a 1-year period and thus

draws into question the administrative judge’s finding that he has shown a

potential for rehabilitation. See Alaniz v. U.S. Postal Service, 100 M.S.P.R. 105,

¶ 19 (2005).

¶22 Even though she mitigated the penalty, the administrative judge

acknowledged that the appellant’s refusal to follow a request, issued three

separate times by senior personnel, was serious, particularly in light of his law

enforcement position, and that, based on his own experience, he knew or should

have known that he was required to obey the directive first and then, if he

disagreed with the directive, to raise the issue in a grievance at a later time. She

also found that the appellant’s position required that he frequently interact with

the public, specifically contractors who regularly entered the shipyard, but that he

often displayed unprofessional and inappropriate behavior in his interactions, as

evidenced by his four prior suspensions. RID at 17. The administrative judge

also found that the appellant exhibited an inability to get along with fellow

workers. And, she found that he was clearly on notice that his inappropriate and

argumentative conduct violated agency rules and regulations, that his continued

inappropriate conduct unavoidably diminished his ability to satisfactorily perform

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his duties as well as his supervisors’ confidence in his ability to do so, and that he

offered no mitigating factors for his conduct. RID at 18.

¶23 Notwithstanding that only one specification of misconduct has been

sustained, we find, for all of these reasons, and based on the appellant’s

significant past disciplinary record, that removal is the maximum reasonable

penalty for the sustained misconduct in this case. See Alaniz, 100 M.S.P.R. 105,

¶ 16 (removal may be a reasonable penalty for relatively minor misconduct when

an employee has a record of prior discipline).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The remand initial decision, as supplemented by this Final Order,

constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You

have the right to request further review of this final decision. There are several

options for further review set forth in the paragraphs below. You may choose

only one of these options, and once you elect to pursue one of the avenues of

review set forth below, you may be precluded from pursuing any other avenue of

review.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination claims

by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the

United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit

your request 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 your request via commercial delivery or by a method requiring a

signature, it must be addressed to:

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Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. 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.

Other Claims: Judicial Review

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

claims of prohibited personnel practices described in 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

15

may request review of this final decision by the United States Court of Appeals

for the Federal Circuit or by any court of appeals of competent jurisdiction. The

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

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

you choose to file, be very careful to file on time.

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 information regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal

Circuit. The Merit Systems Protection Board neither endorses the services

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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.