The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY REID, DOCKET NUMBER
Appellant, CH-0752-14-0849-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: April 5, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bobby Devadoss, Esquire, and Stephanie Bernstein, Esquire, Dallas, Texas,
for the appellant.
Loren H. Duffy, Esquire, Scott Air Force Base, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which affirmed the agency’s removal
action. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we DENY the
petition for review and the cross petition for review. We AFFIRM the initial
decision.
¶2 Effective September 19, 2014, the agency removed the appellant from her
GS‑13 Supervisory Air Transportation Specialist position based on a single
charge of inappropriate conduct and behavior unbecoming of a Federal
supervisor. Initial Appeal File (IAF), Tab 5, Part A at 8‑9, 19‑20. The agency’s
charge contained seven specifications, (a) through (g), alleging that the appellant
made inappropriate comments of a sexual or sex‑based nature and touched an
employee inappropriately on various occasions between October 2011 and
April 2014. IAF, Tab 5, Part D at 24, Tab 7 at 6.
¶3 The appellant filed an appeal with the Board regarding the removal action.
IAF, Tab 1. She argued that she did not commit any of the misconduct alleged
and that her removal did not promote the efficiency of the service. Id. at 6. She
also alleged that the agency violated her due process rights by failing to give her
all of the information it relied upon in reaching its decision. IAF, Tab 18 at 1,
Tab 21 at 2. She requested a hearing, but subsequently withdrew that request.
IAF, Tab 1 at 2, Tab 17.
¶4 The administrative judge issued an initial decision, based on the written
record, affirming the removal action. IAF, Tab 27, Initial Decision (ID). She
found that the agency proved specifications (a), (b), (f), and (g) by preponderant
3
evidence and that, therefore, its charge could be sustained. ID at 4‑7, 12‑15.
She did not sustain specifications (c), (d), and (e). ID at 8‑12. She found that the
agency established a nexus between the sustained misconduct and the appellant’s
duties and that the penalty of removal was reasonable. ID at 15‑16, 18‑20. She
also found that no due process violation or harmful error occurred. ID at 16‑17.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. She argues that the administrative judge erred in sustaining
specifications (a), (b), (f), and (g) and that, therefore, the penalty of removal
should be reversed or mitigated. 2 Id. The agency filed a response in opposition
to the petition for review, to which the appellant did not reply. PFR File, Tab 3
at 6‑15. The agency also filed a cross petition for review, arguing that the
administrative judge should have sustained specification (d) of the charge. Id.
at 4‑6. The appellant did not respond to the agency’s cross petition.
The agency proved its charge by preponderant evidence.
¶6 The administrative judge sustained specifications (a), (b), (f), and (g) and
thus found that the agency proved its charge by preponderant evidence. See
Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990)
(holding that where more than one event or factual specification supports a single
charge, proof of one or more, but not all, of the supporting specifications is
2
The appellant also contends that statements the agency collected as part of its
investigation of her alleged misconduct, IAF, Tab 5, were improperly obtained because
she was not permitted to have an attorney present during her interview, whereas her
accusers were allowed to have attorneys present, in violation of agency guidance,
PFR File, Tab 1 at 17. She argues that, because of these violations, the administrative
judge should not have relied upon these statements. Id. Although the appellant raised
this argument before the agency, IAF, Tab 5, Part B at 7, she did not object to the
admission of this evidence before the administrative judge. She thus is precluded from
raising this objection now. See Hill v. Department of Health & Human Services,
28 M.S.P.R. 91, 92‑93 (1985) (finding that the appellant’s failure to object to the
admission of allegedly irrelevant evidence below precluded her from doing so on
review).
4
sufficient to sustain the charge). For the reasons set forth below, we agree with
her findings. 3
Specification (a)
¶7 Specification (a) alleged that in February 2012, the appellant approached an
employee, R.W., who was bent over in a cubicle, touched her buttocks and said,
“Gross, you don’t have panties on.” IAF, Tab 5, Part D at 24. R.W. declared
under penalty of perjury that, while she was bent over helping another employee,
K.S., in K.S.’ cubicle, the appellant approached her from behind, rubbed her
buttocks, and said, “Gross you don’t have any panties on.” IAF, Tab 5, Part G
at 11. K.S. declared under penalty of perjury that she witnessed the incident
when it occurred in her cubicle. Id. at 22.
¶8 Before filing the instant appeal, the appellant declared under penalty of
perjury that she did not “really recall” this incident but that she “may have
slapped [R.W.] on the rear end.” IAF, Tab 5, Part H at 4. She stated that she
“may have said” to R.W., “You don’t wear underwear,” because it is common
knowledge that R.W. does not wear underwear. Id.; see IAF, Tab 5, Part B at 24
(the appellant admitting that during her interview with a criminal investigator,
she stated, “I probably did say gross, no panties.”). She also “admit[ted] it is
possible” that she touched R.W.’s buttocks in February 2012. Id. at 21. Yet, in
affidavits created after she filed the instant Board appeal, she claimed that this
incident “never took place” and “den[ied] ever saying such a vulgar,
unprofessional comment.” IAF, Tab 23 at 17, Tab 25 at 6. She also stated that if
she did touch R.W.’s buttocks, “it was a knee jerk reaction to move her out of the
way.” IAF, Tab 23 at 17.
¶9 Presented with an issue of credibility as to whether the February 2012
incident occurred as alleged, the administrative judge concluded that R.W. and
3
Neither party challenges the administrative judge’s findings as to specifications (c)
and (e), and so we will not disturb them.
5
K.S. were more credible than was the appellant. ID at 5‑6. She considered that
the appellant’s statement submitted in support of her Board appeal was
inconsistent with her previous statements wherein she did not expressly deny the
misconduct and admitted that it may have occurred in some form. 4 ID at 6. She
also found that R.W. and K.S. were disinterested witnesses and was not persuaded
by the appellant’s claim that they were biased against her, possibly based on
money or jealousy. Id.
¶10 On review, the appellant challenges the administrative judge’s credibility
finding. She argues that the administrative judge did not give proper weight to a
large number of affidavits from employees stating that they did not witness this
incident and do not believe the appellant would engage in such conduct.
PFR File, Tab 1 at 9‑11. We disagree. The appellant did present affidavits from
several current and former agency employees who are of the opinion that she
would not engage in inappropriate conduct. IAF, Tab 23 at 23‑50. 5 However,
the appellant herself has admitted to engaging in inappropriate conduct similar to
that alleged in this specification. See, e.g., IAF, Tab 5, Part B at 21 (“In the past,
all the girls in the office would tap/slap each other on the buttocks.”), 22
(admitting to showing R.W. and another employee the results of her breast
reconstruction surgery and stating that she “should not have done this” and
regrets doing so), Part H at 4 (“I may have given a pat on the butt, but that was
just office horse play. . . . The girls in the office always play around.”), 7
4
In making her credibility findings, the administrative judge improperly considered the
appellant’s testimony to be self-serving. ID at 6. Although it was error to reject the
appellant’s testimony for this reason, the administrative judge’s credibility findings
were otherwise consistent with Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
(1987) (listing those factors to be considered in making credibility determinations), and
therefore are sustained for the reasons discussed below. See Doe v. U.S. Postal Service,
95 M.S.P.R. 493, ¶ 10 (2004) (sustaining credibility findings under similar
circumstances).
5
The appellant does not cite to the record or identify by name the witnesses to whom
she is referring. Thus, we can only assume she is referring to these witness statements.
6
(“[R.W.] would talk about things that would not be appropriate for the office and
we all got wrapped up in it”), 8 (the appellant stating that R.W. skinny dipped at
the appellant’s house “with all the girls”). Thus, the appellant’s witnesses’ belief
that she would never engage in such conduct is in conflict with the appellant’s
own statements. We therefore discern no basis to conclude that the
administrative judge should have given their statements more weight. See Hillen
v. Department of the Army, 35 M.S.P.R. 453, 460 (1987) (contradictory evidence
is a factor to be considered in assessing witness credibility).
¶11 The appellant also argues that the administrative judge improperly ignored
the statement of a criminal investigator, S.T., who questioned R.W.’s credibility
based on his observation of her while investigating the matter as a sexual assault.
PFR File, Tab 1 at 10; IAF, Tab 5, Part I at 10. Again, we disagree. The
administrative judge did not accord S.T.’s statement any weight because it is
unsigned. 6 ID at 10. The appellant has not shown any error with this
determination and we discern no basis to disturb it. S.T.’s unsigned statement is
not entitled to more weight than R.W.’s and K.S.’ sworn statements. See Social
Security Administration v. Whittlesey, 59 M.S.P.R. 684, 692 (1993) (explaining
that a sworn statement carries greater weight than one that is unsworn), aff’d,
39 F.3d 1197 (Fed. Cir. 1994) (Table). Further, S.T.’s statement is not specific to
the February 2012 incident and expresses no opinion as to whether that particular
incident occurred.
6
The administrative judge stated that she could not accord S.T.’s statement any weight
because of this deficiency, ID at 10, which is not accurate. An agency investigator
signed a statement swearing that S.T.’s statement was an accurate summary of S.T.’s
testimony during the agency’s investigation. IAF, Tab 5, Part I at 10. Thus, the
administrative judge should have analyzed the probative value of this hearsay evidence.
See generally Borninkhof v. Department of Justice, 5 M.S.P.R. 77 (1981). We discern
no harm, however, because we find that S.T.’s statement does not outweigh the other
evidence upon which the administrative judge relied. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).
7
¶12 We also note that another agency employee, S.S., declared under penalty of
perjury that while riding in a car with R.W. and K.S. sometime in Spring 2012, he
heard them discuss that the appellant had recently groped R.W.’s rear end while
they were in K.S.’ cubicle. IAF, Tab 5, Part H at 23; see Wright v. Department of
Transportation, 24 M.S.P.R. 550, 553 (1984) (finding the appellant’s recollection
of events to be more credible because it was based on his contemporaneous notes
as to what occurred). Also, in July 2012, R.W. sent an email to a coworker
stating that her supervisor had “rubbed on [her] butt one day” and “said she
doesn’t have any underwear one [sic].” IAF, Tab 5, Part J at 25; see Wright,
24 M.S.P.R. at 553. Most importantly, although the appellant now vehemently
denies this misconduct, she twice stated that she could not recall whether it
occurred and conceded that it may have occurred. Even when denying the
misconduct, though, she left open the possibility that she may have touched
R.W.’s buttocks as a “knee jerk reaction.” Based on the foregoing, we agree with
the administrative judge that the agency proved this specification by preponderant
evidence.
Specification (b)
¶13 Specification (b) alleged that the appellant touched R.W.’s buttocks in
July 2012. IAF, Tab 5, Part D at 24, Tab 7 at 6. R.W. declared under penalty of
perjury that this incident occurred. 7 IAF, Tab 5, Part G at 11. Her claim is
corroborated by an email she sent to a coworker on July 24, 2012, wherein she
reported that her supervisor had “smacked [her] on [her] butt” in front of one of
the contractors that morning. IAF, Tab 5, Part J at 25. Based on the
aforementioned evidence, and a finding that the appellant admitted to sometimes
touching R.W.’s buttocks over at least a 2‑year period, the administrative judge
sustained this specification. ID at 7.
7
R.W. stated that this incident occurred on July 24, 2013. IAF, Tab 5, Part G at 11.
We agree with the administrative judge that, based on R.W.’s contemporaneous email
documenting the incident, she clearly meant that it occurred on July 24, 2012. ID at 7.
8
¶14 The appellant argues that the administrative judge erred in sustaining this
specification because she relied primarily on her finding that the appellant
admitted to sometimes touching R.W.’s buttocks over at least a 2‑year period,
which was based on a misinterpretation of one of the appellant’s statements. PFR
File, Tab 1 at 11‑12. Specifically, the administrative judge relied on the
following statement: “One wonders why an active participant would wait two
years to complain or why they simply didn’t just say they no longer wanted their
buttocks touched. It would have stopped there.” IAF, Tab 5, Part B at 22; ID
at 7.
¶15 Through her counsel, the appellant claims that this statement was not an
admission, but rather, that she was simply raising a question as to R.W.’s
credibility. PFR File, Tab 1 at 12. However, we need not rely on the appellant’s
counsel’s interpretation of her statement, as the statements of a party’s
representative in a pleading do not constitute evidence. See Hendricks v.
Department of the Navy, 69 M.S.P.R. 163, 168 (1995). Even if the administrative
judge misinterpreted the particular statement at issue, we discern no harm
because, as discussed at length above, the appellant has clearly admitted to
engaging in such behavior as part of so‑called office horseplay. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). Further, we find that
R.W.’s account of this incident, bolstered by her contemporaneous record of it,
constitutes preponderant evidence sufficient to prove this specification. See
Wright, 24 M.S.P.R. at 553.
¶16 The appellant claims that, even if she did engage in this behavior, it did not
constitute sexual harassment because such conduct commonly occurred in her
office environment and was not unwelcome. PFR File, Tab 1 at 11. This
argument is wholly irrelevant to whether the agency proved this specification
because the appellant was not charged with sexual harassment. See Morrison v.
National Aeronautics & Space Administration, 65 M.S.P.R. 348, 356‑57 (1994).
9
Based on the above, we agree with the administrative judge that the agency
proved this specification.
Specification (f)
¶17 Specification (f) alleged that in October 2011, the appellant told an
employee, J.S., that her breasts were too small to produce milk and asked her if
she produced chocolate milk. IAF, Tab 5, Part D at 24, Tab 7 at 6. J.S. declared
under penalty of perjury that when she returned to work in October 2011, after
giving birth, she was on her way to the lactation room and the appellant stated to
her in front of R.W. that her breasts were too small to produce milk. IAF, Tab 5,
Part G at 19. J.S. then explained to the appellant that breast size does not
determine the amount of milk that a woman can produce. Id. The appellant then
asked J.S. whether she produced chocolate milk. Id. The appellant apparently
was alluding to J.S.’ skin color, as J.S. then had to explain to her that a woman’s
skin color does not affect the type of milk she produces. Id.
¶18 R.W. corroborated J.S.’ claims. She stated under penalty of perjury that in
the fall of 2011, while J.S. was heading to the lactation room, the appellant asked
J.S. how she could breastfeed with small breasts. Id. at 12. R.W. then explained
to the appellant that a woman’s breast size does not affect her ability to produce
milk for her baby, and the appellant thereafter asked J.S. whether she produced
chocolate milk. Id. The appellant conceded that she participated in a discussion
regarding lactation with “a group of ladies” at work, including R.W., but denied
making the aforementioned statements. IAF, Tab 5, Part H at 6, Tab 24 at 3.
¶19 The administrative judge credited J.S.’ claims over the appellant’s denials.
ID at 12‑13. She noted that R.W. corroborated J.S.’ allegations and that the
appellant failed to establish any reason why R.W. would be motivated to lie about
witnessing this event as J.S. described. ID at 12‑13.
¶20 The appellant challenges this credibility finding on review. She argues that
J.S. was biased against her because she was partially responsible for J.S.’
10
removal. PFR File, Tab 1 at 12‑13. However, even if J.S. were biased against
her, the fact remains that R.W. witnessed the incident and supports J.S.’ claim.
The appellant suggests that R.W. also is biased against her, but we are not
persuaded by that claim. As evidence of bias, the appellant expresses her belief
that R.W., K.S. and another employee, S.M., “corroborated stories and filed
[equal employment opportunity (EEO)] complaints, each resulting in a substantial
settlement.” Id. at 12. The appellant does not explain why any actions R.W. took
with respect to complaints K.S. and S.M. may have filed have any bearing on her
account of the incident that occurred between J.S. and the appellant. She also has
not explained why R.W.’s filing of an EEO complaint would motivate her to lie
about something that happened to J.S. We further find it significant that,
although the appellant now denies making the statement regarding J.S.’ breast
size and ability to produce milk, she previously stated that she could “neither
deny nor confirm” whether she made that statement. IAF, Tab 5, Part C at 17; see
Hillen, 35 M.S.P.R. at 459 (determining that a prior inconsistent statement raises
doubt as to its truthfulness). Accordingly, we discern no basis to disturb the
administrative judge’s credibility finding. As a result, we agree with the
administrative judge’s decision to sustain specification (f).
Specification (g)
¶21 Specification (g) alleged that in or around March 2014, while S.S. was
introducing her to a new team member, the appellant stated that she runs the “hot
and horny hen house.” IAF, Tab 5, Part D at 24. On the one hand, the appellant
denied making this statement, but stated that her office branch was often referred
to as the “Hormonal Hen House.” IAF, Tab 24 at 3. On the other hand, S.S.
declared under penalty of perjury that the appellant made this statement. IAF,
Tab 5, Part H at 23. The appellant also submitted an unsworn statement from S.S.
wherein he again confirmed that she made this statement. IAF, Tab 23 at 44. The
11
administrative judge credited S.S.’ account over the appellant’s. 8 ID at 13. She
noted S.S.’ consistency in affirming that the appellant made this remark. 9 Id.
Further, she noted that the appellant apparently did not consider S.S. to be biased
against her, given that she proffered a statement she gathered from him as
evidence in support of her appeal. Id.
¶22 On review, the appellant contends that she made a reference to the
“hormonal hen house,” not the “hot and horny hen house,” and surmises that S.S.
“must have misheard her” because these two statements “may have sounded
similar.” PFR File, Tab 1 at 13‑14. The appellant raised this argument below
and the administrative judge apparently did not find it persuasive. ID at 13
(citing IAF, Tab 24 at 3). Her mere disagreement with the administrative judge’s
resolution of this factual dispute provides no basis for review. See Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987). In any
event, we find it inherently improbable that one could mistake the word
“hormonal” for the words “hot and horny.” See Hillen, 35 M.S.P.R. at 461 (the
likelihood of an event occurring in the manner described is a factor to be
considered in assessing credibility). Therefore, we find that the administrative
judge correctly sustained specification (g).
The penalty of removal was reasonable.
¶23 Where, as here, the agency’s charge has been sustained, the Board will
review an agency‑imposed penalty only to determine if the agency considered all
8
The administrative judge also considered the appellant’s self‑interest in denying the
allegation. ID at 13. As discussed above, we find that this error does not detract from
the administrative judge’s otherwise well‑founded credibility determinations. See
supra ¶ 9 n.4.
9
The administrative judge stated that S.S. reaffirmed his recollection of this incident
three times. ID at 13. However, it appears that she relied twice on the same April 2015
unsworn statement, which appears more than once in the record. Compare IAF, Tab 23
at 43‑44, with IAF, Tab 24 at 28‑29. Even if S.S. only confirmed twice, as opposed to
three times, that this incident occurred, it would not warrant a different outcome in this
appeal. See Panter, 22 M.S.P.R. at 282.
12
of the relevant factors and exercised management discretion within tolerable
limits of reasonableness. 10 Archerda v. Department of
Defense, 121 M.S.P.R. 314, ¶ 25 (2014). In determining whether the selected
penalty is reasonable, the Board gives due deference to the agency’s discretion in
exercising its managerial function of maintaining employee discipline and
efficiency. Id. The Board recognizes that its function is not to displace
management’s responsibility or to decide what penalty it would impose, but to
assure that management judgment has been properly exercised and that the
penalty selected by the agency does not exceed the maximum limits of
reasonableness. Id. Thus, the Board will modify a penalty only when it finds that
the agency failed to weigh the relevant factors or that the penalty the agency
imposed clearly exceeded the bounds of reasonableness. Id.
¶24 The administrative judge affirmed the agency’s removal action, finding that
the agency considered the appropriate factors under Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305‑06 (1981), and that the penalty of removal
was reasonable. ID at 18‑20. As she observed, the deciding official considered
the appellant’s lengthy Federal service and her past work record. IAF, Tab 5,
Part A at 11, 17, 19. However, he also considered that: (1) the nature of the
charged misconduct was serious; (2) the appellant was a supervisor and, thus,
held to a higher standard of conduct, see Bowman v. Small Business
Administration, 122 M.S.P.R. 217, ¶ 12 (2015); (3) the appellant was on notice,
based on training she received, that such conduct was not acceptable; (4) the
appellant’s misconduct negatively affected the work environment and caused
agency management to lose trust and confidence in her ability to treat employees
appropriately; and (5) the appellant demonstrated little potential for
rehabilitation, given her failure to take responsibility for her misconduct and her
10
The appellant does not dispute, and we will not disturb, the administrative judge’s
finding that there is a nexus between the sustained misconduct and her job duties. ID
at 15-16.
13
assertion that the inappropriate conduct to which she did admit was merely
normal office horseplay. IAF, Tab 5, Part A at 10, 12, 14, 19‑20.
¶25 The appellant argues that the penalty of removal is unreasonable and should
be mitigated because: (1) she had 31 years of Federal service with no history of
discipline; and (2) three of the agency’s specifications were not sustained. 11
PFR File, Tab 1 at 14‑16. We are not persuaded by these arguments and will not
disturb the agency’s penalty determination. The agency considered the
appellant’s length of service and work history, but found that those factors did
not outweigh the aggravating factors it also considered. We find that
determination reasonable. Further, although some of the agency’s specifications
have not been sustained, the sustained misconduct is extremely serious. The
Board has upheld the penalty of removal in similar cases involving a supervisor
engaging in inappropriate behavior of a sexual nature, including touching. See
Batten v. U.S. Postal Service, 101 M.S.P.R. 222, ¶ 14 (stating that “[t]he Board
has held that removal is a proper penalty when a supervisor makes inappropriate
comments of a sexual nature to co-workers”), aff’d, 208 F. App’x 868
(Fed. Cir. 2006); Luongo v. Department of Justice, 95 M.S.P.R. 643, ¶¶ 2‑3,
13-16 (2004). Accordingly, we agree with the administrative judge that the
penalty of removal is within the bounds of reasonableness.
The agency has not established a basis for review.
¶26 The agency has filed a cross petition for review, arguing that the
administrative judge erred in failing to sustain specification (d). PFR File, Tab 3
at 4‑6. Based upon specifications (a), (b), (f), and (g), the administrative judge
found that the agency proved its charge by preponderant evidence and affirmed
the agency’s removal action. ID at 13‑16, 18‑20. As previously stated, we
11
She also argues that the penalty of removal should be reversed because the agency
failed to prove its charge by preponderant evidence. PFR File, Tab 1 at 6‑7. We reject
this argument based on our finding that the agency indeed proved its charge by
preponderant evidence.
14
discern no basis to disturb her decision. We therefore deny the agency’s cross
petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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.
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
15
Circuit. The Merit Systems 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.