Opinion

Yaw Obeng v. Department of Commerce

Court: Merit Systems Protection Board
Filed: Jul 18, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

YAW S. OBENG, DOCKET NUMBER

Appellant, DC-0752-20-0124-I-1

DEPARTMENT OF COMMERCE, DATE: July 18, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles W. Day, Jr., Esquire, Rockville, Maryland, for the appellant.

Ashley Geisendorfer, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review and the appellant has filed a cross

petition for review of the initial decision, which sustained the charge of failure to

follow safety procedures but mitigated the demotion penalty to a 30 -day

suspension. Generally, we grant petitions such as these only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner ’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that neither party has

established any basis under section 1201.115 for granting the petition or cross

petition for review. Therefore, we DENY the petition for review and the cross

petition for review and AFFIRM the initial decision, which is now the Board ’s

final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 The appellant was previously employed as ZP-V Research Scientist with the

agency. Initial Appeal File (IAF), Tab 5 at 87. By a letter dated November 14,

2018, the agency proposed to demote the appellant (with a resulting loss in pay)

from the ZP-V pay band to a ZP-IV Research Chemist position, based on the

charge of failure to follow safety procedures with a single specification. Id.

at 146-53. In the narrative description under the charge, the agency alleged that

the appellant accessed a laboratory at his place of employment, the National

Institute of Standards and Technology (NIST), without authorization, and

completed a procedure cleaning a silicon wafer with hydrofluoric acid (HF)

without obtaining necessary permission or approval, and without u sing proper

required personal protective equipment (PPE). Id. at 149-50. The appellant

provided a written reply and an oral response to the proposal, as well as a

supplemental written reply. Id. at 98, 100-38, 140-44. After considering the

appellant’s replies, the deciding official issued a decision letter sustaining the

charge and the demotion penalty. Id. at 89-96.

¶3 The appellant subsequently filed a formal equal employment opportunity

(EEO) complaint alleging that the agency discriminated against him on the basis

of race (Black), national origin (Ghana), and age (61 years of age) when it

demoted him. Id. at 33-38. The agency issued a final agency decision (FAD)

finding no discrimination and provided the appellant with Board appeal rights for

his mixed-case complaint. 2 Id. at 40-85. The appellant timely filed the instant

Board appeal challenging his demotion and reduction in pay, arguing that the

charge was unsupported, and that the penalty was unreasonable and the deciding

official failed to properly apply the Douglas 3 factors in making his penalty

determination. IAF, Tab 1 at 1-5. The appellant also raised affirmative defenses

of discrimination based on his race, national origin, and age. Id. at 5. After

holding the appellant’s requested hearing, see IAF, Tab 21, Hearing Compact

Disc (HCD), the administrative judge issued an initial decision that sustained the

charge of failure to follow safety procedures and found nexus between the charge

and the efficiency of the service, but mitigated the demotion penalty to a 30-day

suspension as the maximum reasonable penalty, IAF, Tab 22, Initial Decision

(ID) at 9-19. The administrative judge also concluded that the appellant failed to

establish any of his affirmative defenses. ID at 20 -26.

A “mixed-case” complaint is a complaint of employment discrimination filed with a

Federal agency relating to or stemming from an action that can be appealed to the

Board. Moore v. Department of Justice, 112 M.S.P.R. 382, ¶ 4 n.4 (2009); 29 C.F.R.

§ 1614.302(a)(1). The appellant’s case was a mixed-case because, at the time the

agency issued the FAD, he had been issued a letter of decision on the demotion and loss

of pay that was appealable to the Board.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of 12 relevant factors to be considered in determining

the appropriateness of an imposed penalty.

¶4 The agency has filed a petition for review of the initial decision, arguing

that the administrative judge misapplied the law to the facts , made erroneous

credibility determinations, and abused her discretion by mitigating the agency’s

chosen penalty. 4 Petition for Review (PFR) File, Tab 1. The appellant has filed a

response to the petition for review and a cross petition for review. 5 PFR File,

Tab 3. The agency has filed a reply to the response and the cross petition for

review. PFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, the agency argues that the administrative judge erred by failing

to identify all of the material issues of fact and by failing to resolve necessary

credibility disputes. PFR File, Tab 1 at 19-22. The agency also argues that the

With its petition for review, the agency submitted a certification of its complianc e

with the interim relief order and provided evidence demonstrating that it has complied

with the administrative judge’s interim relief order, which the appellant does not

challenge on review. Petition for Review (PFR) File, Tab 1 at 34 -39; see 5 C.F.R.

§ 1201.116(a).

The appellant was required to file a response to the petition for review and a cross

petition for review by Sunday, July 19, 2020. PFR File, Tab 2 at 1. Where, as here, the

deadline falls on a weekend, the filing deadline is extended to the next business day.

5 C.F.R. § 1201.23. Thus, the appellant’s submission was due on Monday, July 20,

2020. The appellant’s first response/cross petition for review was electronically filed at

11:56 p.m. Eastern Standard Time (EST) on July 20, 2020, and a substantially similar

second response with a number of formatting and spelling error corrections was

electronically filed at 12:48 a.m. EST on July 21, 2020. See PFR File, Tabs 3-4. The

appellant asserted that the first filing was erroneously submitted due to a

“synchronization conflict on Microsoft SharePoint,” and requests that the second filing

be accepted into the record. PFR File, Tab 4 at 3. The agency argues that the changes

made in the latter filing were “extensive” and went “beyond c orrecting mere

formatting” issues, and requests that the latter submission be rejected as untimely filed

without good cause shown for the delay. PFR File, Tab 6 at 5. We have reviewed both

filings, and aside from the nominal number of misspelling correct ions, word

substitutions, and general formatting changes the agency identified, the two filings were

otherwise functionally the same in terms of both structure and content. Nevertheless,

we have not considered the appellant’s second filing, and our decisi on here is based

exclusively on the first, timely filed response in opposition to the petition for review

and cross petition for review.

administrative judge abused her discretion when she mitigated the agency ’s

chosen penalty, by reweighing the Douglas factors and by substituting her

judgment for that of the deciding official. Id. at 23-32.

The administrative judge made reasoned findings of fact and credibility-based

determinations.

¶6 Regarding its argument that the administrative judge failed to identify all

material issues of fact, the agency points to a footnote in the initial decision

stating that, based on the appellant’s admission that he entered the HF lab and

cleaned silicon wafers without authorization and without using required PPE, the

administrative judge found that to be “a sufficient basis for finding that [the

appellant] engaged in the charged misconduct,” and so she found it unnecessary

to further discuss the specific evidence supporting the charge. PFR File, Tab 1

at 19; see ID at 10 n.1. The agency argues that in concluding that the charge was

proven based on the appellant’s admission, the administrative judge failed to

resolve the significant discrepancies between the testimony from the appellant

and the agency witnesses concerning how far the students accompanying the

appellant in the lab stood from the appellant, how the fume hood sash was

arranged, whether the appellant had received permission to use the HF lab,

whether he had regularly worked in the HF lab on previous occasions, and

whether his use of safety equipment was superior to that mandated by the lab ’s

standard operating procedures (SOPs), among other things. PFR File, Tab 1

at 19-21. The agency also argues that the administrative judge failed to make

explicit credibility findings pursuant to the Board’s decision in Hillen v.

Department of the Army, 35 M.S.P.R. 453, 458 (1987), and improperly credited

the appellant’s version of events with respect to some of these factual disputes.

Id. at 21-22; PFR File, Tab 6 at 9-10, 15-17. The agency asserts that the failure

to resolve these disputed issues constituted reversible error , citing the Board’s

decision in George v. Department of the Air Force, 24 M.S.P.R. 269, 270-71

(1984), for support. PFR File, Tab 1 at 19, 22, Tab 6 at 6-7, 15-17.

¶7 In response, the appellant argues that the administrative judge correctly

considered all material facts and made reasoned credibility determinations

necessary to resolve the appeal. PFR File, Tab 3 at 5-10. The appellant argues

that the agency overstates the importance of the cited footnote, observing that the

administrative judge merely concluded that based on the appellant’s admission,

no further evidentiary determinations were necessary concerning the issue of

whether the narrative charge had been proven, but that the administrative judge

made clear that she reviewed “all relevant evidence to include testimony and

admitted exhibits” in reaching her determination. Id. at 6-7; see ID at 10 n.1.

The appellant asserts that the administrative judge properly made credibility

findings in resolving the relevant disputed testimony, but that contrary to the

agency’s assertion otherwise, it was not necessary for the administrative judge to

resolve “the details of every instance of disputed testimony” in order to determine

that the agency proved the charge. PFR File, Tab 3 at 7-9. He also disputes the

agency’s assertion that the administrative judge improperly credited the

appellant’s testimony over that of agency officials on disputed issues. Id. at 9-10.

¶8 We agree with the appellant that the administrative judge properly

considered the relevant evidence in making her determinations. As the appellant

correctly notes, it was not necessary for the administrative judge to resolve the

dispute concerning issues such as the position of the fume hood, the relative

distance of the students observing the appellant, and the other factors identified

by the agency in order to determine whether the misconduct as described in the

proposal occurred as charged. When an agency relies upon a generic charge of

misconduct and an accompanying narrative specification supporting its cha rge,

the agency is required to prove only the essence of the charge, not every single

fact alleged, in order to sustain the charge. See Hicks v. Department of the

Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995)

(Table). As described in the proposal, the agency charged the appellant with the

following: (1) accessing a NIST laboratory without authorization; (2) engaging

in the activity of cleaning a silicon wafer using HF; (3) without obtaining

necessary authorization and approval; and (4) without using the proper PPE

required by the SOP. IAF, Tab 5 at 149-50. The administrative judge concluded

that the agency proved each of these aspects of the charge based on the

appellant’s admission to each of these facts at his oral response to the proposal, in

his supplemental written response, and at the hearing. IAF, Tab 5 at 98, 100-38;

HCD (testimony of appellant); see ID at 9-10.

¶9 The administrative judge then turned to a detailed penalty analysis

discussion to address the remaining disputed issues regarding the seriousness and

severity of the appellant’s misconduct, whether he was on notice that he was

engaging in misconduct, and other mitigating or aggravating factors related to the

appellant’s misconduct that would bear on the appropriate penalty. ID at 12-19.

However, for the purpose of determining whether the agency proved the charge as

described in the proposal, the administrative judge properly considered and

summarized the relevant evidence in the record and made approp riate findings.

As the appellant correctly notes, the fact that the administrative judge did not

painstakingly recount all of the material facts and all of the evidence in the record

supporting the agency’s charge in reaching her determination that the agency

proved the misconduct as alleged does not mean that she did not consider it in

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

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

PFR File, Tab 3 at 6-7.

¶10 With respect to the Board’s decision in George cited by the agency, that

decision is inapposite and distinguishable. PFR File, Tab 1 at 19, 22, Tab 6

at 6-7, 15-17. In concluding that the agency failed to show that the proposed

discipline would promote the efficiency of the service in George, the

administrative judge in that case failed to analyze whether the charged conduct

had, in fact, even occurred. George, 24 M.S.P.R. at 270. Here, by contrast, the

administrative judge specifically determined that the misconduct occurred based

on the appellant’s admission that it did, and that alone was sufficient to support

the administrative judge’s finding that the charge was proven.

¶11 Regarding the agency’s argument that the administrative judge “apparently

credited” the appellant’s testimony on disputed issues, such as his claim that he

was trying to improve the SOP or that the fume hood was configured in the

manner he described and similar such issues, and failed to credit contrary

testimony by agency witnesses concerning these points, there is also no merit to

this assertion. PFR File, Tab 1 at 21-22. Because the administrative judge held a

hearing, her credibility determinations were implici tly based on witness

demeanor. 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);

see Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 13 (2015)

(noting that an administrative judge’s credibility determinations are “virtually

unreviewable”), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). In the initial decision,

the administrative judge made clear that she relied on the factors identified by the

Board in Hillen for resolving credibility-based disputes, to the extent they existed

and were relevant to her determinations. 6 See ID at 23 (citing Hillen, 35 M.S.P.R.

at 458).

Indeed, the administrative judge explicitly noted that she credited the deciding

official’s testimony in analyzing the appellant’s discrimination affirmative defense

claims, citing the appropriate Hillen factors, but noted that her decision to mitigate the

demotion penalty was not based on the deciding official’s lack of credibility. See ID

at 23 (citing the Hillen factors related to the deciding official’s demeanor, prior

consistent statements, and lack of bias in crediting his testimony). Additionally, she

explicitly declined to credit the appellant’s testimony that he believed he was

“grandfathered” into using the HF lab and therefore lacked notice of his misconduct.

See ID at 16 (rejecting the appellant’s arguments regarding lack of notice).

¶12 With respect to the agency’s specific objections, the administrative judge

identified the appellant’s statement that he deviated from the SOP in order to

make the safety requirements “more rigorous,” first, in analyzing whether he had

notice that his actions were contrary to the agency’s established rules and

guidance, and second, in identifying his testimony at the hearing that he later

came to understand that he could not deviate from the established SOP. ID

at 15-16, 19. In neither instance did the administrative judge credit these

statements as true or as confirming that the appellant had, in fact, improved the

established safety protocols, but she instead cited them to show that there was a

shift in the appellant’s demeanor before and after the oral response to the

proposed demotion, after he reviewed his lab authorizations and contemplated his

conduct and began to fully understand the seriousness of his misconduct. See ID

at 5, 18-19.

¶13 Regarding the agency’s claim that the administrative judge apparently

credited the appellant’s testimony that he had the fume hood positioned in the

manner he described, there is also no support for this assertion. PFR File, Tab 1

at 21. The administrative judge did not make any findings at all about the

positioning of the fume hood in the initial decision because, as discussed above,

such a finding was not necessary to her determination that the charged

misconduct occurred, and the agency fails to identify where in the decision the

administrative judge purportedly made any such finding. Accordingly, we

conclude that the administrative judge properly considered the relevant evidence

in making her findings of fact and made reasoned credibility determinations, and

we see no reason to disturb those findings on review. See Clay v. Department of

the Army, 123 M.S.P.R. 245, ¶ 9 (2016) (finding no reason to disturb the

administrative judge’s findings where the administrative judge consider ed the

evidence as a whole, drew appropriate inferences, and made reasoned

conclusions); Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (same).

The administrative judge did not abuse her discretion by mitigating the demotion

penalty to a 30-day suspension.

¶14 On review, the agency argues that given the administrative judge’s finding

that the deciding official provided a “thorough Douglas factor analysis,” she

abused her discretion by failing to give deference to the agency’s penalty

determination when she reweighed the Douglas factors and substituted her own

judgement for that of the agency. PFR File, Tab 1 at 22-32; Tab 6 at 13-15; see

Douglas, 5 M.S.P.R. at 305-06. Specifically, with respect to the appellant’s

potential for rehabilitation, the agency argues that the administrative judge

erroneously rejected the deciding official’s conclusion that the appellant’s

“continued rationalizations” and his failure to fully apologize for his misconduct

and acknowledge wrongdoing indicated that he had little potential for

rehabilitation. PFR File, Tab 1 at 23-28; Tab 6 at 10. To support its position, the

agency cites a number of Board decisions it argues demonstrate that the Board

will reverse an administrative judge’s penalty mitigation determination where she

rejected the deciding official’s Douglas factor analysis and instead independently

reweighed the mitigating and aggravating factors. See PFR File, Tab 1 at 26-28;

Tab 6 at 12-14.

¶15 The agency also disputes the administrative judge’s finding that the

appellant showed contrition and acknowledged his misconduct during the course

of the disciplinary process, and argues that this finding was in tension with the

deciding official’s testimony at the hearing that he was not satisfied with the

appellant’s apology or convinced that the appellant understood the severity of his

misconduct. PFR File, Tab 1 at 27-31; see ID at 14. To that end, the agency

highlights the fact that the appellant failed to specifically note that two students

were present while he was improperly using HF in his post-oral reply

supplemental statement, and that during his deposition and at the hearing, he

continued to take the position that he could deviate from the SOP and that his

procedure for handling HF was sufficiently safe. PFR File, Tab 1 at 27-31; Tab 6

at 11-12. The agency argues that as a result of these erroneous findings, the

administrative judge improperly concluded that the appellant’s misconduct

constituted a “technical violation,” and not an intentional one, and thus warranted

a reduced penalty. PFR File, Tab 1 at 22-25, 28-31 (citing Oddo v. Department of

the Treasury, 13 M.S.P.R. 483 (1982)). Finally, the agency argues that the

penalty of removal was within the bounds of reasonableness and so the penalty

should have been upheld. PFR File, Tab 1 at 25-29, Tab 6 at 6-7, 13-15.

¶16 When the Board sustains all of the charges, it will review an

agency-imposed penalty only to determine if the agency considered all of the

relevant factors and exercised management discre tion within tolerable limits of

reasonableness. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20

(2001). 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, recognizing that its

function is not to displace management’s responsibility or to decide what penalty

it would impose, but to ensure that management judgment has been properly

exercised and that the penalty selected 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. The Board will

correct the agency’s penalty when all of the charges are sustained only to the

extent necessary to bring it to the maximum penalty or the outermost boundary of

the range of reasonable penalties. Id.

¶17 Nevertheless, the ultimate burden is on the agency to persuade the Board of

the appropriateness of the penalty imposed. Douglas, 5 M.S.P.R. at 307.

Although management officials are afforded significant deference in their penalty

determinations, “[t]he deference to which the agency’s managerial discretion may

entitle its choice of penalty cannot have the effect of shifting to the appel lant the

burden of proving that the penalty is unlawful, when it is the agency’s obligation

to present all evidence necessary to support each element of its decision .” Id.

¶18 In mitigating the agency’s chosen penalty, the administrative judge

reviewed the deciding official’s Douglas factor analysis and concluded that he

failed to properly consider all of the evidence relevant to a number of those

factors. ID at 12-19. Although the agency argues that this constituted an

unwarranted reweighing of the Douglas factors, the administrative judge instead

identified specific relevant information that the deciding official either failed to

consider or inappropriately discounted in conducting his Douglas factor analysis.

¶19 For example, regarding the first Douglas factor, which concerns the nature

and seriousness of the offense and its relation to the employee’s duties, position,

and responsibilities, including whether the offense was intentional or technical or

inadvertent, was committed maliciously or for gain, or was frequently repeated,

the administrative judge agreed with the deciding official’s conclusion that the

appellant’s violation was serious, but rejected his implicit conclusion that the

appellant’s misconduct was intentional, finding instead that it was a mere

oversight or error in judgment that was unlikely to be repeated in the future. ID

at 12-13, 15; see IAF, Tab 5 at 91. On review, the agency doubles down on its

assertion, arguing that the appellant’s misconduct was “intentional” or “willful,”

in contrast to that of the employee in the Board case cited by the appellant where

the penalty was mitigated. See PFR File, Tab 1 at 21, 28-31, Tab 6 at 14-15.

¶20 Despite the agency’s assertion otherwise, the record supports the

administrative judge’s conclusion that the appellant’s safety violation was

attributable to his mistaken belief that he could access the HF lab and that his

choice of PPE equipment was appropriate, and the deciding official failed to

adequately consider these facts and instead misconstrued the appellant’s

explanation for why he held his mistaken belief as post-hoc rationalizations for

his action. See ID at 14-15. Specifically, in his oral reply, the appellant

acknowledged that at the time he accessed the HF lab, he believed tha t he had

been “grandfathered” into using the lab, but that after he reviewed the Hazard

Review materials for the lab, he understood that he was not authorized to perform

certain activities in certain labs. IAF, Tab 5 at 111-13. The appellant later made

clear that he understood that this prior belief was mistaken, noting that he “fully

admit[ted]” that he made a mistake, that he was “not trying to justify the

mistake,” and that he was embarrassed by his oversight because he prided himself

as “mister safety.” Id. at 122. To further drive the point home, the appellant later

repeated that he was “willing—again repeat I’m willing to admit the mistakes that

I’ve made,” restated that he was not attempting to justify his mistakes, that he

“made mistakes . . . I made a mistake, period,” and that “[m]istakes were made

based on me making assumptions.” Id. at 124-25.

¶21 Seemingly recognizing the appellant’s acknowledgment that his actions

were the result of a mistake, the deciding official offered the appellant the

opportunity to supplement his oral response with a “very short concise statement

accepting responsibility for what happened,” and stated that he would consider

reducing the penalty to a 30-day suspension. Id. at 119-20, 128-29, 132-33. The

appellant agreed to do so and later produced the requested brief statement, in

which he once again stated that he entered the HF lab without authorization, that

he deviated from the lab’s required SOP, and that those actions “were mistakes”

and he “took responsibility for them.” Id. at 98. Accordingly, we agree with the

administrative judge’s finding that the appellant’s misconduct was not an

intentional violation of the agency’s safety rules, but instead was an oversight

based on his admittedly mistaken belief about the propriety of his actions, and

that the deciding official failed to adequately account for this fact in considering

the nature and seriousness of the misconduct, particularly with respect to whether

the appellant’s misconduct was intentional or technical or inadvertent. See ID

at 13; Douglas, 5 M.S.P.R. at 332.

¶22 Similarly, the agency challenges the administrative judge’s conclusion that

the appellant demonstrated clear potential for rehabilitation and that the deciding

official erred by determining otherwise. PFR File, Tab 1 at 26-29; Tab 6

at 13-14; see ID at 17-19. The agency points to the deciding official’s finding

that the appellant’s acknowledgment that “mistakes were made” in his oral reply

understated the severity of his actions and were evidence that he had limited

potential for rehabilitation, and the agency argues that the administrative judge

erred in concluding otherwise. PFR File, Tab 1 at 26-29, Tab 6 at 13-14; see IAF,

Tab 5 at 93. The agency argues that the deciding official appropriately concluded

that the appellant’s insistence on explaining his rationale for why he accessed the

HF lab and performed the cleaning activity without the proper PPE was evidence

that he did not truly understand the severity of his misconduct and so he had

limited rehabilitative potential. PFR File, Tab 1 at 28 -31, Tab 6 at 10. The

agency also cites a number of Board cases it argues support its position that the

Board will reverse an administrative judge’s mitigation determination where she

disregards the agency’s finding that the appellant has little rehabilitative

potential. PFR File, Tab 1 at 26-28 (citing Saiz v. Department of the Navy,

122 M.S.P.R. 521 (2015); Balouris v. U.S. Postal Service, 107 M.S.P.R. 574

(2008) aff’d, No. 2008-3147, 2009 WL 405827 (Fed. Cir. Feb. 19, 2009); Batten

v. U.S. Postal Service, 101 M.S.P.R. 222 (2006), aff’d, 208 F. App’x 868 (Fed.

Cir. 2006)).

¶23 We agree with the administrative judge’s conclusion that the appellant

exhibited clear potential for rehabilitation, and that the deciding official erred by

disregarding that fact in his penalty analysis. See ID at 18; IAF, Tab 5 at 93. As

the administrative judge correctly observed, the deciding official’s assertion in

the decision letter and in testimony at the hearing that there was no evidence of

the appellant’s potential for rehabilitation was directly at odds with his posture

during the appellant’s oral reply. See ID at 19. Specifically, in addition to the

appellant’s statements identified above acknowledging that he impermissibly

deviated from the SOP when he accessed the lab without using proper PPE, the

appellant also made clear that he accepted that he was wrong to deviate from the

SOP, but offered that he was only attempting to improve the procedures to make

them more rigorous. IAF, Tab 5 at 117. When pressed by the deciding official

regarding whether the appellant fully understood that deviating from a lab’s SOP

was impermissible even if the intention was to improve the SOP, the appellant

reaffirmed that he understood that, and stated that if he had ideas for how to

improve an SOP, he should have spoken with the lab overseer about his ideas as

opposed to “implementing it on the fly,” and stated that he was “profoundly

sorry” for not doing so. Id. at 118-19. Based on the appellant’s responses, the

deciding official asked him to prepare the supplemental statement acknowledging

that the facts set forth in the proposal letter were met and stated that he would

then consider reducing the penalty, mentioning a 30-day unpaid suspension as the

potential reduced penalty. Id. at 119-20. The deciding official acknowledged

that “mistakes are going to happen,” but that based on the appellant’s first written

response to the proposal, he had concerns that the appellant did not appear

“contrite” and did not “recognize, acknowledge mistakes that were made.” Id.

at 121, 123-24. To assuage any remaining concerns about his apparent lack of

contrition, the appellant once again stated that he was “willing to admit the

mistakes [he] made,” and clarified that he was not trying to justify his actions.

Id. at 124. He also expressed surprise about the fact that after he met with the

proposing official for the first time to discuss the incident, the language in the

resulting proposal suggested that the appellant was “insisting that [he] was right,”

which was not what the appellant intended to convey, so he acknowledged that he

may have “failed to communicate with [the proposing official] properly. ” Id.

at 124-25. The appellant then again stated that he was “profoundly sorry,” and

agreed to supplement his oral testimony with the requested written statement. Id.

at 126, 128. After the appellant sought clarification on what form the

supplemental response should take, the deciding official stated that he wanted a

“very short concise statement accepting responsibility for what happened” by

email, and the appellant agreed to do so. Id. at 132-33.

¶24 As the administrative judge correctly observed, the appellant did exactly as

he was asked to do in the supplemental statement. See ID at 18. The resulting

supplemental statement succinctly memorialized the issues discussed above, with

the appellant acknowledging the following: (1) that he entered the HF lab

without explicit authorization and training; (2) he deviated from the lab ’s SOP

without authorization from the Principal Investigator (PI) as specified by the

Hazard Review protocols; (3) that these were mistakes and he took responsibility

for them; and (4) that he apologized for the problems he caused the lab and its

management. 7 Id. at 98. Although the decision letter acknowledges the fact that

the appellant provided a supplemental response, the penalty determination section

includes no mention of the supplemental statement, instead selectively drawing

language from the appellant’s initial written response and oral reply. See IAF,

Tab 5 at 91-93.

¶25 Further, there is also no merit to the agency’s argument that the appellant

continued to rationalize his misconduct during his testimony at the hearing,

On review, the agency also makes much of the appellant’s statement in his

supplemental written reply acknowledging that he could not deviate from the HF SOP

“without authorization,” arguing that because changes to the SOP at issue must be

approved by the Director of the Physical Measurement Laboratory, the appellant’s

added qualifier further demonstrated his lack of rehabilit ation and that he did not know

the correct procedures. See PFR File, Tab 1 at 22 n.10; Tab 6 at 16. The agency’s

argument is unconvincing. As an initial matter, the agency omits additional qualifying

language the appellant included in his supplemental r esponse, stating that he deviated

from the SOP “without prior authorization from the PI as specified by the Hazard

Review protocols.” See IAF, Tab 5 at 98. Further, in discussing the Hazard Review

process and requirements with the appellant during the oral reply, the deciding official

noted that the appellant “did not have the freedom” to deviate from the established

SOP, but that he could “bring the issue back up to the PI, and the PI can decide that

under the right set of circumstances alternatives may be acceptable,” and that the

Hazard Review policies are set up to “ensure that people do not deviate from agreed

training unless agreed upon by line management.” IAF, Tab 5 at 117-18; see IAF,

Tab 14 at 9-10. Consequently, the language the appellant used in his supplemental

response stating that deviations from the SOP must be sought in the manner “specified

by the Hazard Review protocols” is consistent with the language used by the deciding

official and with the requirements identified in the agency’s Hazard Review policies.

providing additional evidence of his limited rehabilitative potential. See PFR

File, Tab 1 at 27-28, 32, Tab 6 at 10. As was the case with the appellant’s

statements during his oral reply, in his hearing testimony the appellant made clear

that his intent in explaining his actions was to identify his motivations at the time

he accessed the HF lab and used improper PPE, and was not an effort to defend

his actions after the fact. See HCD (testimony of the appellant) (stating that he

took “full responsibility” for his actions as he understood them at the time in his

response to the proposal and that he later “apologized profusely” for his

misunderstanding, and answering “zero,” and “I’m not going to do that again” in

response to a question concerning the likelihood that there would be “any

repetition of any conduct” identified in the charge).

¶26 On review, the agency also restates its argument that the appellant’s failure

to address the fact that students were present demonstrated that he was unwilling

to take full responsibility for his misconduct, and points to testimony from the

deciding official stating that the students’ presence was “extremely problematic”

and presumably weighed heavily in his decision finding a lack of rehabilitation.

PFR File, Tab 1 at 28-29, Tab 6 at 6-7. However, as the administrative judge

correctly noted, while the presence of the students was briefly discussed during

the oral reply, see IAF, Tab 5 at 129-30, the deciding official did not give any

indication that he expected the appellant to specifically mention that fact in his

supplemental written apology, and so it was unreasonable for the deciding official

to have considered the absence of that acknowledgment as eviden ce of a lack of

rehabilitation, see ID at 17-18. As previously noted, if a deciding official failed

to appropriately consider the relevant Douglas factors in making his penalty

determination, the Board need not defer to the agency’s penalty determination.

Von Muller v. Department of Energy, 101 M.S.P.R. 91, ¶ 19 (2005), aff’d, 204 F.

App’x 17 (Fed. Cir. 2006). Additionally, the Board may abandon its deference to

an agency’s penalty determination where the deciding official misjudged the

appellant’s rehabilitative potential. See id., ¶ 21; Watkins v. Department of the

Navy, 29 M.S.P.R. 146, 148 (1985) (declining to credit a supervisor’s assertion

that he lost confidence in the appellant, instead concluding that the appellant

exhibited good potential for rehabilitation). For the foregoing reasons, we agree

with the administrative judge’s conclusion that the appellant repeatedly took

responsibility for his misconduct and exhibited clear rehabilitation, and it is clear

from the record that the agency failed to properly consider the appellant ’s

rehabilitative potential in making its penalty determination. See Wentz v. U.S.

Postal Service, 91 M.S.P.R. 176, ¶¶ 24-25 (2002) (mitigating a penalty, based in

part on disagreement with the deciding official’s conclusion that appellant lacked

potential for rehabilitation).

¶27 Another of the factors to be considered in determining the propriety of a

penalty is the consistency of the penalty with the agency’s table of penalties.

Douglas, 5 M.S.P.R. at 305; see Peterson v. Department of Transportation,

54 M.S.P.R. 178, 184 (1992) (consistency of the penalty imposed with the

agency’s table of penalties is a relevant factor in determining the reasonableness

of the penalty). Where the agency has a table of penalties, the Board will adhere

to the guidelines in the table unless a deviation from the suggested penalty is

warranted under the circumstances. Goode v. Defense Logistics Agency,

45 M.S.P.R. 671, 676 (1990). The Board has long held that the agency’s table of

penalties should not be applied so inflexibly as to impair consideration of other

factors relevant to the individual case. Douglas, 5 M.S.P.R. at 307. Deviation

from the table is permissible where the circumstances of the case so justify.

Zazueta v. Department of Justice, 94 M.S.P.R. 493, ¶ 8 (2003), aff’d, 104 F.

App’x 166 (Fed. Cir. 2004).

¶28 Nevertheless, if the agency deviates from its guidelines in its table of

penalties, it must establish that the more severe penalty is within the bounds of

reasonableness. Basquez v. Department of the Air Force, 48 M.S.P.R. 215, 218

(1991). If the agency cannot justify the deviation, it has abused its discretion.

Williams v. Department of the Air Force, 32 M.S.P.R. 347, 349 (1987)

(concluding that where the agency has a table of penalties, it must adhere to the

guidelines in the table unless it can show that a deviation from the suggested

penalty is justified by the circumstances of the case); Stead v. Department of the

Army, 27 M.S.P.R. 630, 634 (1985). Indeed, a penalty grossly exceeding that

provided by an agency’s standard table of penalties, for that reason alone, may be

arbitrary and capricious, even where such a table provides only suggested

guidelines. Douglas, 5 M.S.P.R. at 307 n.71; cf. IAF, Tab 5 at 196 (noting that

the agency’s table of penalties in this case are “guidelines only and are not

mandatory”).

¶29 The agency’s table of penalties identifies a penalty range of an oral

admonishment to a 3-day suspension for a first offense of the most closely

analogous charge to the sustained charge, a “violation of safety regulations,

instructions, or prescribed safe practices.” See IAF, Tab 5 at 201. Aside from

generally stating on review that the demotion penalty was the “only reasonable”

or “lowest possible” penalty available under the circumstances, the agency does

not offer any specific argument explaining why such a significant departure from

the penalty range was justified. See PFR File, Tab 1 at 32, Tab 6 at 7.

¶30 Conversely, the Board has sustained decisions mitigating a removal to an

unpaid suspension for a first offense of a safety-related violation in circumstances

similar to those in this case, even on occasions where the appellant’s misconduct

potentially endangered himself or others. See, e.g., Wentz, 91 M.S.P.R. 176,

¶¶ 15-25 (concluding that a 5-day suspension, rather than removal, was the

maximum reasonable penalty for the sustained sole charge of “unsatisfactory

performance/failure to perform the duties of your position in a safe manner ”

based on a motor vehicle accident, where the appellant had several mitigating

factors including 13 years of discipline-free Federal service, he was under the

influence of prescription medication that played a part in the misconduct, and

other employees were treated much less harshly for similar safety violations);

Williams v. Department of the Navy, 38 M.S.P.R. 387, 390-91 (1988) (mitigating

a removal penalty to a 30-day suspension for a first offense of “failure to observe

precautions for personal safety, posted rules, signs, written or oral safety

instructions, or to use protective clothing or equipment,” where the appellant

violated medical restrictions mandating his use of a cane and endangered his own

safety, and where the agency’s table of penalties identified a penalty range of a

reprimand to 2-day suspension for a first offense); Watkins, 29 M.S.P.R.

at 147-48 (mitigating a removal penalty to a 60-day suspension for a first offense

of “endangering the safety personnel through car elessness” when the appellant

exposed himself and a subordinate to X-ray radiation, despite the seriousness of

the offense, the fact the appellant’s supervisor stated that he had lost confidence

in that appellant and declined to mitigate the penalty based on that loss of

confidence, and the fact that the appellant was in charge and therefore was held to

a higher standard, where the violation was the appellant’s first offense in an

otherwise spotless 25-year work and safety record, and the appellant ’s potential

for rehabilitation was good).

¶31 Further, as the administrative judge correctly noted, the agency could have

charged the appellant with a charge of “conduct demonstrating untrustworthiness

or unreliability,” for which the demotion penalty would have been more in line

with the agency’s table of penalties, and it is clear from the record that agency

officials specifically contemplated doing so but ultimately chose not to. See IAF,

Tab 5 at 203, Tab 16 at 63-64; HCD (testimony of proposing official); ID at 16.

The Board is required to review the agency’s decision on an adverse action solely

on the grounds invoked by the agency, and the Board will not substitute what it

considers to be a more adequate or proper basis. Gottlieb v. Veterans

Administration, 39 M.S.P.R. 606, 609 (1989). For the foregoing reasons, we

agree with the administrative judge’s conclusion that the demotion penalty

significantly exceeds the 3-day suspension maximum penalty provided by the

agency’s table of penalties, the agency failed to adequately justify such a

significant departure from the its table of penalties, and that a 30-day suspension

is the maximum reasonable penalty based on the facts of this case. See ID

at 16, 19.

The administrative judge correctly concluded that the appellant failed to establish

his affirmative defenses.

¶32 The appellant has also filed a cross petition for review challenging the

administrative judge’s finding that he failed to establish his affirmative defenses

of discrimination based on his race, national origin, and age. PFR File, Tab 3

at 17-18; see ID at 20-26. Specifically, the appellant argues that the

administrative judge erred by concluding that his white co-worker was not a valid

comparator, despite the fact that the deciding official had ultimate supervisory

authority over both the appellant and the co-worker, and the co-worker’s

misconduct was more egregious but he did not receive any disciplinary act ion.

PFR File, Tab 3 at 17-18. In response, the agency argues that the administrative

judge did not err in determining that the co-worker was not a valid comparator,

highlighting the administrative judge’s finding that the purported comparator was

in the ZP-IV pay band while the appellant was a ZP-V, the co-worker was already

subject to additional oversight at the time the agency considered discipline, and

the comparator immediately took responsibility for his misconduct and self-

reported his safety violation while the appellant did not. PFR File , Tab 6

at 17-18.

¶33 In the initial decision, the administrative judge determined that the

appellant failed to establish by preponderant evidence that race, national origin,

or age discrimination was a factor in the agency’s demotion decision. See ID

at 20-26. In reaching that determination, she thoroughly reviewed the record and

testimonial evidence and concluded that the appellant did not provide any direct

or circumstantial evidence of discrimination, any evidence of suspicious timing,

ambiguous oral or written statements, behavior or comments directed at

employees in the appellant’s protected groups, or any other evidence that could

establish an inference of discriminatory intent. ID at 22 -26. Regarding the

appellant’s purported comparator employee, as the administrative judge correctly

noted, the Board has held that for other employees to be deemed similarly

situated for purposes of a discrimination affirmative defense claim, comparators

must have reported to the same supervisor, been subjected to the same standards

governing discipline, and engaged in conduct similar to the appellant ’s without

differentiating or mitigating circumstances. Gregory v. Department of the Army,

114 M.S.P.R. 607, ¶ 44 (2010) (citing Adams v. Department of Labor,

112 M.S.P.R. 288, ¶ 13 (2009); Spahn v. Department of Justice, 93 M.S.P.R. 195,

¶ 13 (2003)).

¶34 As the administrative judge correctly concluded, the proposed comparator

identified by the appellant is not an appropriate comparator because he was in a

lower pay band than the appellant (and thus had a lower level of independence),

did not report to the same supervisor, and made an immediate effort to report and

acknowledge his misconduct. See ID at 25-26. Accordingly, we agree with the

administrative judge that the identified co-worker was not an appropriate

comparator, and we also agree with her conclusion that there is no evidence in the

record showing that the appellant’s race, national origin, or age played any role in

the demotion decision. See ID at 22-26. Accordingly, we find that the

administrative judge properly found that the appellant failed to prove any of his

discrimination affirmative defenses. 8 ID at 22-23. For the foregoing reasons, we

deny the petition for review and cross petition for review an d affirm the initial

decision, which sustained the charge of failure to follow safety procedures but

mitigated the demotion penalty to a 30-day suspension.

Because we discern no error with the administrative judge’s motivating factor anal ysis

or conclusion regarding these claims, we do not reach the question of whether

discrimination was a “but for” cause of the removal action. See Pridgen v. Office of

Management and Budget, 2022 MSPB 31.

ORDER

¶35 We ORDER the agency to CANCEL the appellant’s demotion effective

March 3, 2019, and substitute in its place a 30-day suspension without pay. See

Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The

agency must complete this action no later than 20 days after the date of this

decision.

¶36 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency ’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶37 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶38 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶39 For agencies whose payroll is administered by either the Nation al Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 9

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

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.

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of rev iew

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. 10 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