Petition for Writ of Certiorari — Jason Antoine Brock, Petitioner v. Department of Transportation

Supreme Court briefDec 15, 2023

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TABLE OF CONTENTS

APPENDIX A - Per Curium, Federal Circuit,

9-19-2023 ........................................................

APPENDIX B - Decision, MSPB, 8-31-2022 ... 25a

APPENDIX C - Decision, OFO, 6-22- -2022 .... 61a

APPENDIX D - Decision, Federal Circuit,

12-14-2021 .................................................

73a

APPENDIX E - Decision, EEOC, 3-15-2021 ... 75a

APPENDIX F - Reddick v. USPS, Federal Circuit,

8-17-2023 .............................................................. 78a

APPENDIX G - Jones v. MSPB, Federal Circuit,

8-10-2023 ............................................. ................ 80a

APPENDIX A

Note: This disposition is nonprecedential

United States Court of Appeals

for the Federal Circuit

JASON ANTOINE BROCK,

Petitioner

DEPARTMENT OF TRANSPORTATION,

Respondent

2023-1133

Petition for review of the Merit Systems

Protection Board in No. AT-0752-20-0542-M-1.

Decided: September 19, 2023

FLORENCE M. JOHNSON, Johnson and

Johnson, PC, Memphis, TN, for petitioner.

DANIEL BERTONI, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, for respondent. Also

represented by BRIAN M. BOYNTON, ELIZABETH

MARIE HOSFORD, PATRICIA M. MCCARTHY.

Before DYK, HUGHES, and STOLL, Circuit

Judges.

PER CURIAM.

Mr. Jason Brock worked for the Department of

Transportation, Federal Aviation Administration

(FAA) as an Airway Transportation Systems Specialist

(ATSS) at the Nashville System Support Center before

the FAA removed him for insubordination. Mr. Brock

appealed to the Merit Systems Protection Board,

disputing the charge of insubordination, alleging that

the FAA's removal was retaliatory, and alleging

harmful procedural error. The Board affirmed the

FAA's decision. For the reasons below, we affirm.

BACKGROUND

Mr. Brock began his federal service in 2006 and

most recently held the position of ATSS. As an ATSS,

Mr. Brock was expected to maintain FAA buildings,

roads, and grounds. Mr. Brock's disciplinary history

includes a 12-day suspension for misusing a

government credit card; a 5- day suspension for failing

to follow instructions (specifically, failing to complete

driver's training); and a 30-day1 suspension for

negligent work performance and giving inaccurate

information in a government record. On April 10, 2020,

the FAA issued a proposed removal letter to Mr.

Brock, providing two specifications to support a charge

of insubordination. Brock v. Dep't of Transp., 2022

1 Management officials later reduced this suspension to

fourteen days. J.A. 152.

MSPB LEXIS 3305, at *2 (M.S.P.B. Aug. 31, 2022)

(Decision).

In the first specification, the agency alleged that

Mr. Wesley Ivory-Mr. Brock's first-level supervisorhad instructed Mr. Brock to purchase lights and to

replace emergency lighting. Mr. Brock objected

because he believed this task was outside the scope of

his duties, but offered to "carry out [the] request on

overtime." J.A. 382. Mr. Brock did not purchase the

emergency lighting or replace the emergency lighting.

For the second specification, the agency alleged

that Mr. Ivory instructed Mr. Brock to troubleshoot

the lighting system on a landing runway and update

the control center accordingly. J.A. 386. Mr. Brock

responded that because he had not passed the theory

requirement for the lighting system, he would not

troubleshoot the lighting system. J.A. 387. Mr. Ivory

explained that troubleshooting the lighting system was

within the scope of Mr. Brock's duties in accordance

with FA Order 6000.15 and again directed Mr. Brock

to troubleshoot the lighting system. Decision at *9-10;

J.A. 389-90. Mr. Brock did not comply with this

instruction. Based on these two specifications, Mr. Eric

Alexander, the deciding official, determined that

removal was the appropriate penalty. After

considering Mr. Brock's response, Mr. Alexander

sustained Mr. Brock's removal, effective May 20, 2020.

Mr. Brock appealed to the Board, disputing the

charge of insubordination, also arguing that the FAA

retaliated against him for his protected whistleblowing

disclosures and that the FA had committed harmful

procedural error.2

The Board sustained the insubordination

charge. Regarding Mr. Brock's whistleblower defense,

the Board explained the burden-shifting framework for

whistleblower cases:

To prove a prima facie case of retaliation

for whistleblowing or other protected

activity, the appellant must prove by

preponderant evidence that: (a) he

engaged in activity protected by 5 U.S.C.

§ 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D);

and (b) it was a contributing factor in the

personnel action being appealed. If the

appellant meets this burden, the agency

must prove by clear and convincing

evidence that it would have taken the

same action even absent the disclosure or

other protected activity. In determining

whether the agency has proven by clear

and convincing evidence that it would

have taken the same action against the

appellant in the absence of this protected

activity, the Board and its reviewing

court have stated that they will consider

all of the relevant factors, including: 1)

the strength of the agency's evidence in

support of its action; 2) the existence and

2 Mr. Brock also claimed the FAA had removed him based

on his race, religion, gender, age, and previous Title VII activity.

Decision at *24. The Board rejected this defense. Id. at *24-28. Mr.

Brock does not challenge the Board's determination in this regard.

strength of any motive to retaliate on the

part of agency officials involved in the

decision; and 3) any evidence that the

agency takes similar actions against

employees who are not whistleblowers

but who are otherwise similarly situated.

Decision at *13-14 (citations omitted).

The Board then found that the first of the six

alleged protected disclosures was indeed protected. By

email dated February 7, 2020, Mr. Brock disclosed to

management that a coworker had told a contractor to

"shut up." J.A. 83. For this single protected disclosure,

the Board determined that Mr. Brock had proved that

it was a factor contributing to the agency's decision to

remove him because it occurred close in time to Mr.

Alexander's decision to remove Mr. Brock. In

determining whether the FAA had proved by clear and

convincing evidence that it would have removed Mr.

Brock in the absence of his disclosure, the Board

considered the seriousness of the insubordination in

light of the FAA's ability to carry out its objectives; Mr.

Brock's disciplinary history; the potential for

retaliatory motive; and the FAA's actions against

"employees with a prior disciplinary history who were

not whistleblowers." Decision at *16-17. The Board

concluded that the FAA proved by clear and convincing

evidence that it would have removed Mr. Brock in the

absence of his protected disclosure. For each of the

remaining five allegedly protected disclosures, the

Board determined either that it was not protected or

that Mr. Brock had not shown that it was a

contributing factor to his removal.

The Board also considered Mr. Brock's defense

that the FAA committed harmful procedural error by

"misapplying] Executive Order 13839 in effectuating

his removal," "assigning] him the tasks which were

the subject of its insubordination charges," and

"violating] its procedures by charging him with

insubordination instead of failure to follow

instructions." Decision at *22-24. The Board explained

that there was no evidence that the agency relied on

Executive Order 13,839, that Mr. Brock failed to

specify which agency procedures were allegedly

violated by assigning him the particular tasks, and

that no agency procedure prohibited the

insubordination charge in favor of failure to follow

instructions. The Board thus did not find this defense

persuasive.

Turning to whether the agency's removal

decision "promotes the efficiency of the service," the

Board found that there was a nexus between the

removal and promoting the efficiency of the FAA's

service. The Board found the nexus "self-evident"

because the insubordination "took place at work." Id.

at *28.

Finally, the Board analyzed the reasonableness

of removal in light of the relevant factors set forth in

Douglas u. Veterans Administration, 5 M.S.P.B. 313

(1981). Id. at *28-30 (citing Douglas, 5 M.S.P.B. at

331-33). The Board considered and credited Mr.

Alexander's testimony that Mr. Brock's

insubordination was "serious, intentional, and

repeated" and hindered the FAA's operation; that

other insubordinate employees had been removed and

removal was in the agency's table of penalties; that

Mr. Brock's repeated misconduct and lack of remorse

showed his inability to be rehabilitated; and that Mr.

Alexander had not considered suspension-rather than

removal- due to past discipline. Id. at *29. The Board

also noted that Mr. Alexander believed Mr. Brock's

fourteen years of service was a mitigating factor, but

this was outweighed by the other Douglas factors. The

Board accordingly affirmed the FAA's action.

Mr. Brock timely appeals under5U.S.C. § 7703.

We have jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

We review the Board's legal conclusions de novo

and its fact findings for substantial evidence. See

Smith v. Gen. Servs. Admin., 930 F.3d 1359, 1364

(Fed. Cir. 2019). "To determine whether substantial

evidence supports the Board, we must determine

whether 'considering the record as a whole, the

agency's evidence is sufficient to be found by a

reasonable factfinder to meet the [agency's]

evidentiary burden.'" Id. at 1367 (quoting Leatherbury

v. Dep't of the Army, 524 F.3d 1293, 1300 (Fed. Cir.

2008)). The Board's decision must be affirmed unless

it is found to be "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law";

"obtained without procedures required by law, rule, or

regulation having been followed"; "or unsupported by

substantial evidence." 5 U.S.C. § 7703(c).

On appeal, Mr. Brock argues that the Board

erred by: (1) sustaining the two specifications of the

agency's insubordination charge; (2) concluding he

failed to prove his affirmative defense of retaliation; (3)

concluding that he failed to prove his affirmative

defense of harmful procedural error; (4) finding a

nexus between the insubordination charge and Mr.

Brock's ability to accomplish his duties; and (5)

determining that removal was a reasonable penalty.

We address each argument in turn.

We first address Mr. Brock's argument that the

Board erred in sustaining the FAA's charge of

insubordination. We review the Board's decision to

sustain such charges for substantial evidence. See

Bieber v. Dep't of Army, 287 F.3d 1358, 1364 (Fed. Cir.

2002). Insubordination is "a willful and intentional

refusal to obey an authorized order of a superior officer

which the officer is entitled to have obeyed." Phillips v.

Gen. Servs. Admin., 878 F.2d 370, 373 (Fed. Cir. 1989)

(emphasis omitted). The "obey now, grieve later" rule

states that "government employees may not refuse to

do work merely because of disagreements with

management and failure to perform their duties is

done at the risk of being insubordinate." Bigelow v.

Dep't of Health & Hum. Servs., 750 F.2d 962, 965 (Fed.

Cir. 1984) (cleaned up); see Larson v. Dep't of Army,

260 F.3d 1350, 1354 n.3 (Fed. Cir. 2001). The two

recognized exceptions to this rule are when: (1) an

order places an employee in a dangerous situation; and

(2) when an order to make a disclosure would cause

irreparable harm. In addition, personnel action may

not be taken against an employee for "refusing to obey

an order that would require the individual to violate a

law, rule, or regulation." 5 U.S.C. § 2302(b)(9)(D).

The

FAA supported its

charge

insubordination with two specifications. We address

the Board's analysis of each specification in turn.

The first specification alleges that on February

19, 2020, Mr. Ivory verbally instructed Mr. Brock to

purchase LED emergency lights and replace

emergency lighting at the air traffic control tower. The

next day, Mr. Ivory emailed this instruction to Mr.

Brock with a deadline of February 27, 2020, along with

the advisement that "failure or delay in completing

this assignment could result in disciplinary action."

Decision at *4. Mr. Brock did not purchase or install

the lights.

As the Board correctly noted, because there was

no dispute that Mr. Brock's supervisor gave him an

instruction which he intentionally failed to obey, "the

only question is whether the agency order was proper."

Id. at *6. In considering the propriety of the order, the

Board relied on Mr. Ivory's testimony that: following

an Occupational Safety and Health Administration

inspection that found some emergency lights out of

service, he decided to upgrade the lights and fixtures;

he instructed Mr. Brock with the assistance of a

colleague to purchase and install these lights; Mr.

Brock responded that such tasks were not within his

job scope; Mr. Brock offered to perform these tasks if

he was paid overtime; operational risk management

(ORM) was only necessary where harm was likely to

result from the task; and ORM was unnecessary

because the instruction would merely require turning

off the power and replacing the lights, "a procedure

which all environmental specialists knew to safely

execute." Id. at *6-8. The Board considered Mr. Brock's

explanations as to why he was entitled to disobey-the

task was outside the scope of his duties; he was too

busy; he had no assistance; and there was no ORM for

the task-found that based on Mr. Ivory's testimony, the

task was not dangerous and thus did not fall within

that exception to the "obey now, grieve later" rule.

On appeal, Mr. Brock argues that the Board

"improperly discounted" his testimony and should have

discounted Mr. Ivory's testimony. Appellant Br. 11,

13-14. Mr. Brock further argues he should be protected

under the Follow the Rules Act of 2017 because

following Mr. Ivory's order would have required him to

violate a law, rule, or regulation. Appellant Br. 9. We

disagree. The Board was entitled to weigh the evidence

in reaching its fact findings, which we review for

substantial evidence. Here, the Board considered both

Mr. Brock's and Mr. Ivory's testimony and, based on

that testimony, found that the task assigned was not

dangerous. The Board emphasized Mr. Brock's

testimony that he did not perform the task because it

was outside the scope of his duties. After reviewing the

record, we conclude that substantial evidence supports

the Board's finding that the task was not dangerous,

and that Mr. Brock has failed to show that performing

the task would have required him to violate a law,

rule, or regulation. Accordingly, we affirm the Board's

finding that Mr. Brock's intentional refusal to perform

this task was insubordinate.

10a

The second specification alleges that on March

12, 2020, Mr. Ivory directed Mr. Brock to "troubleshoot

and report an update to Atlantic Operations Control

Center (AOCC) on the UQU Approach Lighting

System (ALS) Remote Monitoring and Logging System

(RMLS) no later than 14:00 CST," but Mr. Brock "did

not comply with the directive." Decision at *8-9.

In finding that the FAA had proven that Mr.

Brock failed to carry out an instruction, the Board

relied on Mr. Ivory's testimony that: an ALS on a

runway helps pilots find the runway on approach for

landing; "UQU" identifies the runway on which these

ALS lights are located; Mr. Ivory assigned Mr. Brock

the task of troubleshooting the ALS at UQU

monitoring and logging system to find the cause of the

malfunction, which he believed was due to "a blown

light bulb or a loose battery"; Mr. Brock refused

because he was not certified to work on the system;

Mr. Ivory responded to Mr. Brock that Mr. Brock was

certified and therefore should perform the instruction.

Id. at *9-10. Again, the Board found, based on Mr.

Brock's "statements ... expressly refusing to obey his

supervisor's instruction," that Mr. Brock's failure to

obey was "intentional." Id. at *10.

In assessing whether the instruction was

improper—i. e., would have placed Mr. Brock in danger

or would have required Mr. Brock to violate a law,

rule, or regulation-the Board considered Mr. Brock's

contention that he lacked certification on the "Airflow"

system; evidence that the ALS system was a "Godfrey"

11a

system with Airflow components, that Mr. Brock was

certified to work on Godfrey systems, and that Mr.

Brock had previously worked on Airflow systems; and

Mr. Alexander's testimony that Mr. Brock could safely

troubleshoot the system without certification, that the

Godfrey system at issue having an Airflow component

does not require Airflow certification, and that Mr.

Brock "had previously worked on this very system in

May of 2019." Id. at *11-12. The Board also considered

the FAA rule pertaining to maintenance duties:

Maintenance personnel without active

certification authority may perform

maintenance and logging duties. If these

duties affect a certification parameter, an

ATSS with active certification authority

must follow up with the appropriate

certification.

Id. at *12 (quoting FAA Order 6000.15H § 5-5(d)). The

Board ultimately found that "no evidence" showed that

Mr. Brock would have been in a dangerous situation,

that the "obey now, grieve later" rule applied, and that

Mr. Brock's intentional refusal to perform the

instruction was insubordinate. Id. at *12-13; see

Larson, 260 F.3d at 1354 n.3.

The above-described record evidence is sufficient

to be found by a reasonable factfinder to demonstrate

that the instruction was proper (i.e., not dangerous

and did not require Mr. Brock to violate a law, rule, or

regulation). Smith, 930 F.3d at 1367; 5 U.S.C. §

2302(b)(9)(D). As such, we conclude that substantial

evidence supports the Board's finding that, for the

12a

second specification, the agency proved that Mr.

Brock's failure to follow instructions to troubleshoot

the ALS and report an update was insubordination.

Substantial evidence therefore supports the

Board's decision to sustain the F AA's charge of

insubordination.

We now address Mr. Brock's arguments

regarding his affirmative defense of retaliation. Before

the Board, Mr. Brock alleged he had made six

protected disclosures to the FAA. On appeal, he

challenges the Board's determinations regarding three

of these disclosures. First, on February 7, 2020, Mr.

Brock reported to management about a colleague, Mr.

Phillips, telling a contractor to "shut up" in violation of

agency policy to treat others with decorum (discourtesy

disclosure). Decision at *15. In another disclosure, Mr.

Brock alleges he disclosed the requirement of an ORM

concerning the instruction in the first specification of

the insubordination charge (ORM disclosure). Finally,

Mr. Brock emailed Mr. Ivory on February 24, 2020,

alleging that Mr. Phillips was "sabotaging" his work

and gear (sabotage disclosure). Id. at *21.

On appeal, Mr. Brock specifically argues that (1)

the Board erred when it "inexplicably" determined that

the agency would have removed Mr. Brock even absent

the discourtesy disclosure; (2) Mr. Brock should be

"given the benefit of a ruling in his favor" as to the

13a

ORM disclosure because all but one of the lights were

operational; and (3) as to the sabotage disclosure, the

Board should have reviewed the entire timeline for

context as to the alleged sabotage.3 Appellant Br.

14-17. We find these arguments unavailing.

We start with Mr. Brock's argument that the

Board "inexplicably" determined that the agency met

its burden to show it had removed Mr. Brock even in

the absence of the discourtesy disclosure. Because

substantial evidence supports the Board's

determination that the FAA showed independent

causation by clear and convincing evidence, we affirm.

The Whistleblower Protection Act prohibits

retaliation against an employee for whistleblowing.

See 5 U.S.C. § 2302(b)(8). An employee who believes he

was subjected to prohibited retaliatory action must

prove by a preponderance of the evidence that he made

a protected disclosure that contributed to the agency's

action against him. See Smith, 930 F.3d at 1365. "If

the employee establishes this prima facie case of

reprisal for whistle blowing, the burden of persuasion

3 Mr. Brock also challenges the Board's credibility

determinations in the whistleblower analysis as violative of Hillen

v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). Appellant

Br. 11-13, 18. The Board need not thoroughly and explicitly

discuss Hillen in every decision. See Joseph v. Dep't of Homeland

Sec., 497 F. App'x 26, 28 (Fed. Cir. 2012) ("[W]e have not required

a formalistic discussion of the Hillen factors in every Board

decision.").

14a

shifts to the agency to show by clear and convincing

evidence that it would have taken 'the same personnel

action in the absence of such disclosure.'" Whitmore v.

Dep't of Lab., 680 F.3d 1353, 1364 (Fed. Cir. 2012)

(quoting 5 U.S.C. § 1221(e)).

In determining whether the FAA has met its

burden of showing by clear and convincing evidence it

would have taken the same action in the absence of the

whistleblowing disclosure, we have instructed the

Board to consider three nonexclusive factors:

[1] the strength of the agency's evidence

in support of its personnel action; [2] the

existence and strength of any motive to

retaliate on the part of the agency

officials who were involved in the

decision; and (3] any evidence that the

agency takes similar actions against

employees who are not whistleblowers

but who are otherwise similarly situated.

Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.

Cir. 1999).

Here, the first Carr factor-the strength of the

agency's evidence in support of its action-re quires an

analysis of the strength of the FAA's evidence

pm porting to show independent cause for Mr. Brock's

removal. See Miller v. Dep't of Just., 842 F.3d 1252,

1259 (Fed. Cir. 2016). The Board considered the

seriousness of insubordination on the FAA's ability to

operate efficiently, which it characterized as "quite

strong" evidence, and Mr. Brock's prior disciplinary

15a

history. Decision at *16-17. Based on this record, we

conclude that substantial evidence-including Mr.

Brock's disciplinary history and the testimony of his

supervisor Mr. Ivory and the deciding official Mr.

Alexander regarding the seriousness of the

offense-supports the Board's conclusion that this factor

favors the FAA.

The Board also found the second Carr factor—the

existence and strength of any retaliatory motive on the

part of the FAA officials involved in the decision-to

favor the FAA. The Board considered that the

discourtesy disclosure did not accuse any management

official involved in Mr. Brock's removal of wrongdoing

and that Mr. Ivory testified that he communicated

with Mr. Phillips about the unacceptable behavior. The

Board also noted that although "an institutional

motive to retaliate against [Mr. Brock] could arise,"

this discourtesy disclosure was an isolated incident

that did not warrant concern. Decision at *16 (citing

Whitmore, 680 F.3d at 1370). In view of the record

evidence, we cannot say that the Board's fact finding

was unreasonable and we therefore find that

substantial evidence supports the Board's finding that

this Carr factor favors the FAA. See Smith, 930 F.3d at

1365.

For the third Carr factor-evidence that the

agency takes similar actions against similarly situated

employees who are not whistleblowers—the Board

found this factor to be neutral as there was no

evidence presented that the FAA "did not remove

insubordinate employees with a prior disciplinary

history who were not whistleblowers." Decision at

16a

*16-17. The Board's conclusion for the third Carr

factor was reasonable as the FAA "need not produce

evidence with regard to each of the factors, nor must

each factor weigh in favor of the agency for it to carry

its burden." Rickel v. Dep't of the Navy, 31 F.4th 1358,

1366 (Fed. Cir. 2022) (cleaned up) (quoting Robinson

v. Dep't of Veterans Affs., 923 F.3d 1004, 1018-19 (Fed.

Cir. 2019). We disagree with Mr. Brock's assertion that

the Board's thorough analysis was inexplicable.

Having considered the record as a whole, we conclude

that substantial evidence supports the Board's finding

that the FAA would have removed Mr. Brock

independent of the discourtesy disclosure.

We next address Mr. Brock's argument that the

Board erred in its findings regarding his ORM

disclosure and sabotage disclosure. Specifically, Mr.

Brock argues that he should have been "given the

benefit of a ruling in his favor" as to the ORM

disclosure "for several reasons including that the lights

... were all operational with one exception."4 Appellant

4 Mr. Brock has not explained how the operation of lights

entitles him to "the benefit of a ruhng in his favor." We have

explained that "[a]n issue that is merely alluded to and not

developed as an argument in a party's brief is deemed waived."

Rodriguez v. Dep’t of Veterans Affs., 8 F.4th 1290, 1305 (Fed. Cir.

2021) (citing cases); see also, e.g., Monsanto Co. v. Scruggs, 459

F.3d 1328, 1341 (Fed. Cir. 2006) ("In order for this court to reach

the merits of an issue on appeal, it must be adequately

developed."). In this case, Mr. Brock's undeveloped argument,

"unsupported by ... citation to any authority," Rodriguez, 8 F.4th

at 1305, is therefore waived.

17a

Br. 16. Similarly, Mr. Brock asserts that, when

considering the sabotage disclosure, Board should have

reviewed the entire timeline for context and, had it

done so, it would have found in his favor.5 Our review

of Mr. Brock's arguments reveals that what he really

seeks is for this court to reweigh the evidence and

make factual findings in his favor. But "[i]t is not for

this court to reweigh evidence on appeal." Rickel, 31

F.4th at 1366. Because substantial evidence supports

the Board's findings concerning the ORM disclosure

and sabotage disclosure, we affirm.

Ill

We now address Mr. Brock's challenge to the

Board's conclusion that he failed to prove his

affirmative defense of harmful procedural error.

Appellant Br. 18-20.

To prove an affirmative defense of "harmful

error," Mr. Brock must show that an error was "likely

to have caused the agency to reach a conclusion

different from the one it would have reached in the

absence or cure of the error" and that the error "caused

substantial harm or prejudice." 5 C.F.R. § 1201.4(r);

Ward v. U.S. Postal Serv., 634 F.3d 1274, 1281-82

(Fed. Cir. 2011) (citing 5 U.S.C. § 7701(c)(2)(A) and 5

C.F.R. § 1201.56(c)(1)).

5 Mr. Brock does not elaborate on what part of the

timeline the Board neglected to consider. As previously explained,

Mr. Brock thus waives this underdeveloped and unsupported

argument. See Rodriguez, 8 F.4th at 1305.

18a

The Board, in considering Mr. Brock's allegation

that the FAA misapplied Executive Order 13,8396

during his removal proceedings, found there was no

evidence that the FAA relied on this executive order.

Decision at *22; see Exec. Order No. 13,839, 83 Fed.

Reg. 25,343 (May 25, 2018). In addressing Mr. Brock's

allegation that it was "harmful error for the agency to

assign him the tasks which were the subject of its

insubordination charges," the Board explained that

Mr. Brock did not specify what procedures the FAA

violated by assigning him these tasks. Decision at *23.

As for Mr. Brock's allegation that the FAA violated its

procedure by "charging him with insubordination

instead of failure to follow instructions," the Board

noted that Mr. Brock did not show which agency

procedure required a charge of failure to follow

instructions, instead of insubordination. Id. at *23-24.

Here, Mr. Brock's argument-that the Board

improperly determined that the executive order was

inapplicable-is not supported by the record evidence.

Mr. Brock contends that Executive Order 13,839 was

not rescinded by Executive Order 14,003 until January

21, 2021, and thus should have applied to his removal

proceedings. Appellant Br. 19; see Exec. Order No.

14,003, 86 Fed. Reg. 7231 (Jan. 22, 2021). Mr. Brock

6 Executive Order 13,839 aimed to "promote civil servant

accountability" by reducing the opportunities for an employee to

demonstrate acceptable performance; not requiring "progressive

discipline"; and not requiring suspension before proposing

removal. 83 Fed. Reg. at 25,343.

19a

also alleges that the FAA7 failed to follow its policy

entitled "Procedures for Disciplinary and Adverse

Actions." Appellant Br. 19. We find Mr. Brock's

arguments unpersuasive.

As an initial matter, we see no harmful error in

the Board's analysis regarding the FAA not applying

Executive Order 13,839. Mr. Brock's removal

proceeding fell within the FAA's personnel

management system. Executive Order 13,839 pertains

to Title 5 disciplinary procedures not applicable to the

FAA's personnel management system; thus, under

these facts, Title 5 does not apply to Mr. Brock's

removal proceeding. See 49 U.S.C. § 40122(g)(2)

(stating that absent certain exceptions, "provisions of

title 5 shall not apply to the [FAA] personnel

management system"); Roche v. Merit Sys. Prat. Bd.,

596 F.3d 1375, 1378 (Fed. Cir. 2010) (same).

Furthermore, Mr. Brock does not elaborate on what

policy the FAA violated or how it violated its own

policy. Substantial evidence therefore supports the

Board's conclusion that Mr. Brock failed to prove an

affirmative defense of harmful procedural error.

We turn now to Mr. Brock's challenge to the

Board's finding that there was a nexus between his

7 Mr. Brock's briefing states that "the AU did not

properly ... follow established policy within FAA." Appellant Br.

19. We believe Mr. Brock misspoke as the administrative judge or

Board is not governed by FAA policy and therefore interpret his

argument to mean that the FAA did not follow its own pohcy.

20a

conduct and his removal. Appellant Br. 20-22.

The agency must establish a nexus-"a clear and

direct relationship "-between the sustained charge and

the "employee's ability to accomplish his or her duties

satisfactorily or some other legitimate government

interest." Decision at *28. A nexus may be presumed

when "egregious circumstances (falsification of records,

theft, assault at work, insubordination)" make the

connection between misconduct and the efficiency of

the service "speaks for itself." Hayes v. Dep't of the

Navy, 727 F.2d 1535, 1539 (Fed. Cir. 1984). "It is not

our duty to find nexus but rather to decide ... whether

the MSPB affirmance of the agency conclusion on the

nexus issue meets the statutory criteria for our

affirmance," i.e., whether the Board abused its

discretion in affirming the FAA's conclusion. Id.; 5

U.S.C. § 7703(c).

The Board here found that the "nexus is

self-evident because [Mr. Brock]'s misconduct took

place at work." Decision at *28. Mr. Brock argues that

the Board erred in finding a nexus existed because the

insubordination '"took place at work' without further

discussion." Appellant Br. 20 (quoting Decision at *28).

Although the Board's analysis is brief, we find

no reversible error. We have "held that where an

employee's misconduct is contrary to the agency's

mission, the agency need not present proof of a direct

effect on the employee's job performance." Allred v.

Dep't of Health & Hum. Servs., 786 F.2d 1128, 1131

(Fed. Cir. 1986). And as we explained in Hayes,

insubordination at work is one of those circumstances

21a

in which the nexus is so apparent that it may be

presumed. Hayes, 727 F.2d at 1539. As Mr. Brock's

insubordination was an impairment to the FAA's

ability to carry out its objectives efficiently, the Board's

nexus determination was rational and made within

reasonable discretion.

Finally, we consider Mr. Brock's challenge to the

Board's determination that the FAA acted reasonably

in removing Mr. Brock. In determining the

reasonableness of the penalty imposed by the FAA, the

Board must consider whether the penalty represents

a responsible balance of the relevant factors

articulated in Douglas. Mr. Brock argues that Mr.

Alexander's "self-serving" testimony and mitigating

factors, including that this was Mr. Brock's first

charge of insubordination, should have caused the

Board to find the agency's penalty unreasonable.

Appellant Br. 22- 23. Mr. Brock also reargues the

charge of insubordination, asserting that he credibly

testified that he thought the orders were dangerous.

We are not persuaded that the Board erred in its

review of the record and in sustaining the agency's

choice of penalty.

An agency determines the appropriate penalty

based on the relevant Douglas factors. See Holmes v.

U.S. Postal Serv., 987 F.3d 1042,1047 (Fed. Cir. 2021).

The Board's role is to "assure that the agency did

conscientiously consider the relevant factors and did

strike a responsible balance within tolerable limits of

reasonableness." Norris v. Sec. & Exch. Comm'n, 675

22a

F.3d 1349, 1355 (Fed. Cir. 2012) (quoting Douglas, 5

M.S.P.B. at 329). Which Douglas factors are applicable

lies primarily within "the agency's broad discretion to

determine the appropriate penalty for a particular

case." Holmes, 987 F.3d at 1047 (quoting Zingg v. Dep't

of the Treasury, 388 F.3d 839, 844 (Fed. Cir. 2004)).

We review a penalty determination for clear excess or

an abuse of discretion. Coleman v. U.S. Secret Seru.,

749 F.2d 726, 729 (Fed. Cir. 1984).

Mr. Alexander, the deciding officer, testified

regarding: the seriousness, intentionality, and

frequency of Mr. Brock's insubordination; his loss of

trust in Mr. Brock because the ATSS position requires

integrity for public safety; removal of other FAA

employees for insubordination; removal being in the

FAA's table of penalties; his belief that Mr. Brock

could not be rehabilitated due to a lack of remorse; and

not considering suspension in lieu of removal because

prior discipline did not change Mr. Brocks behavior.

Mr. Alexander also testified that he considered Mr.

Brock's fourteen years of service, but "ultimately

determined this factor insufficient to outweigh the

[other] aggravating factors." Decision at *29-30 (citing

J.A. 140). Based on Mr. Alexander's testimony, which

the Board was free to credit, the Board found the

agency's choice of removal to be reasonable.

We cannot say, considering the record evidence

and the Board's analysis, that the FAA's

determination to remove Mr. Brock was outside the

"tolerable limits of reasonableness." Norris, 675 F.3d

at 1355 (quoting Douglas, 5 M.S.P.B. at 332-33). We

therefore conclude that the Board did not err in

23a

concluding that removal was within these limits.

CONCLUSION

We have considered Mr. Brock's remaining

arguments and find them unpersuasive. For the

foregoing reasons, we affirm the Board's decision.

AFFIRMED

24a

APPENDIX B

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

JASON ANTOINE BROCK,

Appellant,

DEPARTMENT OF

TRANSPORTATION,

Agency.

DOCKET NUMBER

AT-0752-20-0542-M-1

DATE: August 31, 2022

Jason Antoine Brock., Nashville, Tennessee, pro se.

Briana Martino., Esquire, Des Plaines, Illinois, for the

agency.

BEFORE

Christopher G. Sprague

Administrative Judge

INITIAL DECISION

On May 28, 2020, the appellant timely filed this

appeal to contest his removal from his position of

Airway Transportation Systems Specialist (ATSS),

25a

FV-2101-H, with the Department of Transportation,

Federal Aviation Administration (FAA or agency) in

Nashville, Tennessee, effective May 20, 2020. Initial

Appeal File (IAF). The Board has jurisdiction over this

appeal. 49 U.S.C. § 40122(g)(3); Hart v. Department of

Transportation, 109 M.S.P.R. 280, f 7 (2008) (holding

the Board has jurisdiction over appeals of adverse

actions taken by the FAA); see also 5 U.S.C. §§ 7701,

7512(2) & 7513(d). At the appellant's request, a

hearing was held via Zoom for Government on July 13,

2022. Brock v. Department of Transportation,

AT-0752-20-0542-M-1, Remand Appeal File (RAF), Tab

38. For the reasons set forth below, the agency's action

is AFFIRMED.

Background

Except as noted herein, the following facts are

undisputed. The appellant entered into Federal service

effective March 12, 2006. IAF, Tab 1, p. 7. At the time

of his May 20, 2020 removal, the appellant occupied

the position of ATSS and had over 14 years of Federal

service. Id. The role of an ATSS is to maintain FAA

facilities, and the role of an Environmental Specialist,

such as the appellant was to maintain the electrical,

mechanical, lighting, and approach systems of FAA

buildings, roads, and grounds. RAF, Tab 38.

By letter dated February 2, 2011, the agency

suspended the appellant for 12 days for misuse of a

government credit card. IAF, Tab 6, pp. 83-84. By

letter dated November 13, 2015, the agency suspended

the appellant for 5 days for failure to follow

instructions, involving the appellant's failure to

26a

complete required driver's training. Id. at pp. 79-81.

By letter dated May 24, 2017, the agency suspended

the appellant for 30 days for negligent work

performance and providing inaccurate information in

a government record. Id. at pp. 72-77.

By letter dated April 10, 2020, Mr. Eric

Alexander, Technical Operations Manager and the

appellant's second-level supervisor, proposed the

appellant's removal for two specifications of

insubordination. Id. at pp. 6-12. The appellant

provided a written reply. IAF, Tab 5. By letter dated

May 14,2020, Mr. Alexander sustained the appellant's

removal, effective May 20, 2020. IAF, Tab 4, pp. 19-26.

This appeal timely followed.

ANALYSIS AND FINDINGS

Burdens of Proof

The agency bears the burden of proving its

charges by preponderant evidence. 5 U.S.C. §

7701(c)(1)(B). A preponderance of the evidence is that

degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as

sufficient to find that a contested fact is more likely to

be true than untrue. 5 C.F.R. § 1201.4(q). The agency

must also establish a nexus between the sustained

charge and the efficiency of the service. 5 U.S.C. §

7513(a). Finally, the agency must demonstrate the

reasonableness of the penalty it has imposed. Douglas

v. Department of Veterans Affairs, 5 M.S.P.R. 280,

307-08 (1981).

27a

The agency proved both specifications of its

charge by preponderant evidence.

The agency charged the appellant with

insubordination. In order to prove this charge, the

agency must show that: a) an order was given by the

appellant's supervisor; b) the order was proper; c) the

appellant failed to carry out the order; and d) the

appellant's failure was deliberate, i.e., intentional.

Phillips v. General Services Administration, 878 F.2d

370, 373 (Fed. Cir. 1989). The two specifications

following the charge allege are detailed below.

1) Specification One

Specification one alleges:

On February 19, 2020, you were verbally

instructed to purchase LED1 emergency

lights to replace emergency lighting at

BNA2 ATCT3. On February 20, 2020, you

were issued a written directive via email

to purchase LED emergency lights and

replace emergency lighting at BNA ATCT

no later than February 27, 2020. The

directive advised that failure or delay in

completing this assignment could result

in disciplinary action. You did not

1 LED means light emitting diode.

2 BNA is code for the Nashville, Tennessee Airport.

3 ATCT means air traffic control tower.

28a

purchase the LED emergency lights nor

did you replace the emergency lighting.

IAF, Tab 6, p. 8.

Mr. Wesley Ivory, an FAA employee since 2009

and the appellant's first-level supervisor in 2020,

testified that, in February of 2020, he supervised

between 9 and 10 ATSS employees, including the

environmental team, and that this environmental

team consisted of the appellant, Mr. Jason Phillips,

and Mr. Don Hall. RAF, Tab 38. Mr. Ivory stated that,

after an Occupational Safety and Health

Administration (OSHA) inspection found certain

emergency lights out of service at an ATCT, he found

another inoperable light and decided to replace all

lights with an updated version and upgrade the

fixtures those using a lithium battery with LED lights.

Id. Mr. Ivory testified that, on February 19, 2020, he

verbally instructed the appellant to purchase and

install these LED lights in the BNA ATCT with the

assistance of Mr. Hall, that the appellant responded to

him that such tasks were not within the scope of his

duties, that he replied to the appellant that these

tasks were within the scope of his duties, and that the

appellant told him that he would only perform these

tasks if he was paid overtime. Id.

By email dated February 19, 2020, Mr . Ivory

repeated his instruction to the appellant to purchase

the LED lights and install them with Mr. Hall's

assistance. IAF, Tab 6, p. 89. The appellant responded

that such tasks fell outside his position description,

that these tasks should be assigned to an "802" series

29a

employee, that he would perform the tasks if

compensated with overtime, and that assigning him

these tasks violates the collective bargaining

agreement (CBA). Id. at p. 87. Mr. Ivory replied that

management assigns the work, that he expected the

appellant to complete the tasks by February 27, 2020,

and that, if the appellant failed to do so, he could be

subject to discipline. Id. at pp. 86-87. In response, the

appellant continued to disagree with Mr. Ivory's

authority to task him as he had, offered to "see if a

contractor is available" to perform these tasks, and

stated, "I'll wait for disciplinary action to occur and file

a grievance per CBA Article 5." Id. at p. 86. Mr. Ivory

stated that the appellant neither purchased nor

installed the lights as instructed, and there is no

dispute that the appellant never completed these

tasks. RAF, Tab 38.

At hearing, the appellant testified that he was

entitled to disobey because: 1) he did not have the time

and he was too busy; 2) the employee management

assigned to help him with this task was not going

assist him; and 3) this tasking lacked documentation

of the dangers involved in this task, an operational

risk management or ORM. Id.

Based on the foregoing, there is no dispute that

the appellant's supervisor gave the appellant an

instruction and that the appellant failed to carry out

that instruction. Based on the appellant's statement

that he would await discipline for failing to carry out

this instruction, I find that the appellant failure to

obey this instruction was intentional. Thus, the only

question is whether the agency order was proper.

30a

The general rule on this issue is that an

appellant must obey now, grieve later. Pedeleose v.

Department of Defense, 110M.S.P.R. 508, 16 (2009).

The rule generally requires an employee

to comply with an agency order, even

where the employee may have

substantial reason to question it, while

taking steps to challenge its validity

through whatever channels are

appropriate. The rule reflects the

fundamental management right to expect

that its decisions will be obeyed and its

instructions carried out.

Id. (citations omitted). The two recognized exceptions

to this rule are when: 1) an order places an employee

in a dangerous situation; and 2) an order to make a

disclosure would cause irreparable harm. Id. (citations

omitted).

Here, the appellant's objection central to his

supervisor's instruction was that the task fell outside

his position description, i.e., it is someone else's job.

Mr. Ivory testified, without contradiction, that all this

task required was to turn off the electricity and replace

the lights. RAF, Tab 38. On cross examination, the

appellant questioned Mr. Ivory on the lack of an ORM

identifying the safety hazards of this task. Id.

However, Mr. Ivory persuasively testified that an

ORM was only necessary when harm was likely to

result from a task and that, because all this task

required was to cut the power and replace the lights a procedure which all environmental specialists knew

31a

to safely execute, no ORM was necessary. Id.

Based on the foregoing, I find that the agency's

instruction to the appellant to replace these lights

would not have placed the appellant in a dangerous

situation because the appellant knew he was required

to cut the power before doing so. That the appellant

offered to perform this task if the agency paid him

overtime entirely supports my finding that this task

was not dangerous. Therefore, I find that performing

this task would not have placed the appellant in a

dangerous situation, that the obey now, grieve later

rule applied, and that the appellant's intentional

refusal to perform this task was insubordinate.

Based on the foregoing, this specification is

SUSTAINED.

2) Specification

Two Specification two alleges:

On March 12, 2020, you were verbally

directed by Mr. Ivory to troubleshoot and

report an update to Atlantic Operations

Control Center (AOCC) on the UQU

Approach Lighting System (ALS) Remote

Monitoring and Logging System (RMLS)

no later than 14:00 CST. As a follow up,

this same date, Mr. Ivory sent you an

email directing you to troubleshoot and

report an update to AOCC on the UQU

ALS RMLS by 14:00 local. You responded

to Mr. Ivory's email, stating that since

32a

you did not pass the theory requirement

for the Airflo Navigational Aid (NA

VAID) Lighting System, you will not

follow his directive in regards to

troubleshooting the UQU ALS. Mr. Ivory

replied to your email on March 12, 2020,

and relayed to you the work you were

directed to perform at UQU ALS was

within your scope of duties in accordance

with FAA Order 6000.15. Mr. Ivory's

email again directed you to trouble shoot

and repair UQU ALS by close of business

that day. The directive advised that

failure to do so could result in

disciplinary action. You did not comply

with the directive.

IAF, Tab 6, p. 8.

Mr. Ivory testified that an ALS is located on an

airport runway and helps airplane pilots identify the

runway on approaching for landing and that "UQU"

identifies the specific runway where these ALS lights

were located. RAF, Tab 38. Mr. Ivory stated that, in

March of 2020, he assigned the appellant to

troubleshoot the ALS at UQU monitoring and logging

system and determine what was causing these systems

to malfunction, that he believed the fault to be either

a blown light bulb or a loose battery, that the

appellant declined because he (the appellant) was not

certified on that system, and that he replied to the

appellant that he (the appellant) was certified on that

system, reaffirming his initial instruction. Id.

33a

In an email dated March 12, 2020 at 8:01 a.m.,

Mr. Ivory reiterated his instruction to the appellant to

complete this ALS task that day 2:00 p.m. IAF, Tab 6,

p. 93. In reply, the appellant asserted that he was not

going to follow Mr. Ivory's directive because the

lighting system at issue incorporated two systems and

because he (the appellant) had failed the training

requirements for one of the systems. Id. at pp. 95-96.

There is no dispute that the appellant did not

troubleshoot the UQU ALS as tasked by Mr. Ivory.

Based on the foregoing, I find that the

appellant's supervisor gave the appellant an

instruction and that the appellant failed to carry out

that instruction. Based on the appellant's statements

detailed above expressly refusing to obey his

supervisor's instruction, I find that the appellant

failure to obey this instruction was intentional. The

only question then, is whether the agency order was

improper, i.e., would have placed the appellant in

danger. Pedeleose, 110 M.S.P.R. at § 16.

At hearing, the appellant's central contention as

to why he was justified in refusing to obey this order

centered on his lack of certification on the "Airflow"

system. RAF, Tab 38. The agency conceded that the

appellant had failed the "theory" portion of the Airflow

certification but countered that, in practice, the

appellant had successful experience working on the

Airflow system, that it is uncontroverted that the

appellant was certified on the "Godfrey" system, that

the ALS system at issue was a Godfrey system with

Airflow components, and that the appellant was,

therefore, certified to work on this system. Id. The

34a

agency further argued its instruction to the appellant

was to troubleshoot, not certify, this system, that, even

if the appellant had not been certified, on this system,

he could have troubleshot the system up to the point of

certification . Id. Specifically, Mr. Alexander testified

that, even without the actual Airflow certification, the

appellant could have safely troubleshot the system,

that the fact that the Godfrey system at issue had an

Airflow component does not create a requirement for

Airflow certification, and that the appellant had

previously worked on this very system in May of 2019.

Id.; Tab 10, pp. 83-84 (certification parameters); IAF,

Tab 6, p. 109 (system maintenance log). Indeed, an

agency rule covering this issue instructs:

Maintenance personnel without active

certification authority may perform

maintenance and logging duties. If these

duties affect a certification parameter, an

ATSS with active certification authority

must follow up with the appropriate

certification.

RAF, Tab 10, p. 197 (FAA Order 6000.15H, § 5-S(d),

"Certification Responsibilities").

Based on the foregoing, I find that, even

accepting the appellant's certification objection to his

supervisor's instruction as valid, there is no evidence

that troubleshooting this ALS would have placed the

appellant in any danger. Specifically, the appellant

points to no situation in which his lack of Airflow

certification would have caused him a safety concern.

This finding is supported by the appellant's own

35a

testimony that he had previously worked on this

system, with no evidence of a safety objection, when no

one else was available to do so. RAF, Tab 38. If the

appellant had at least attempted to perform this

troubleshooting task, determined that the system issue

was beyond a blown light bulb or loose battery, and

concluded that he lacked the technical expertise to

adequately identify the problem, he could have

reported that situation to his supervisor. Because he

did not even attempt to troubleshoot this system and

because there is no evidence that troubleshooting this

system would have placed him in a dangerous

situation, I find that the obey now, grieve later rule

applied and that the appellant's intentional refusal to

perform this task was insubordinate.

Based on the foregoing, this specification is

SUSTAINED. Because both specifications of this

charge are sustained, the charge is SUSTAINED.

The appellant's affirmative defenses fail.

Except as noted herein, the appellant bears the

burden of proving his affirmative defenses by

preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(c).

Retaliation for Whistleblowing

To prove a prima facie case of retaliation for

whistleblowing or other protected activity, the

appellant must prove by preponderant evidence that:

(a) he engaged in activity protected by 5 U.S.C. §

2302(b)(8), (b)(9)(A)(i), (B), (C), or (D); and (b) it was a

contributing factor in the personnel action being

36a

appealed. If the appellant meets this burden, the

agency must prove by clear and convincing evidence

that it would have taken the same action even absent

the disclosure or other protected activity. See Horton

u. Department of Navy, 66 F.3d 279, 283-84 (Fed. Cir.

1995). In determining whether the agency has proven

by clear and convincing evidence that it would have

taken the same action against the appellant in the

absence of this protected activity, the Board and its

reviewing court have stated that they will consider all

of the relevant factors, including: 1) the strength of the

agency's evidence in support of its action; 2) the

existence and strength of any motive to retaliate on

the part of agency officials involved in the decision;

and 3) any evidence that the agency takes similar

actions against employees who are not whistleblowers

but who are otherwise similarly situated. Mithen, 119

M.S.P.R. 215, | 17 (citing Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999);

Schnell, 114 M.S.P.R. 83, 1 23) ("Carr factors").

Further, the Federal Circuit has held that "[e] vide nee

only clearly and convincingly supports a conclusion

when it does so in the aggregate considering all the

pertinent evidence in the record, and despite the

evidence that fairly detracts from that conclusion."

Whitmore v. Department of Labor, 680 F.3d 1353,1368

(Fed. Cir. 2012). Clear and convincing evidence is that

measure or degree of proof that produces in the mind

of the trier of fact a firm belief as to the allegations

sought to be established. 5 C.F.R. § 1209.4(e).

i. Disclosure One

By email dated February 7, 2020, the appellant

37a

disclosed to management that coworker Mr. Phillips

told a contractor to "shut up" and that Mr. Phillip's

behavior violated an agency requiring employees to

treat others with decorum. RAF, Tab 15, pp. 5, 64

(email); IAF, Tab 6, p. 27 (agency rule requiring

courtesy). In response to the appellant's email, Mr.

Phillips indicated that he did not recall telling the

contractor to "shut up" but admitted to telling the

contractor to "stop several times". RAF, Tab 15, p. 64.

Based on the foregoing, I find that the

appellant's emailed detailed above was a disclosure a

violation of the agency's courtesy violation, because, at

a minimum, I find it more likely than not that the way

Mr. Phillips told this contractor to stop talking was

rude and lacked courtesy. I further find that, because

the appellant disclosed this rule violation close in time

to, inter alia, Mr. Alexander's decision to remove the

appellant, he proved contributing fac tor. However, for

the reasons detailed below, I find that the agency

proved by clear and convincing evidence that it would

have removed the appellant in the absence of this

disclosure.

First, the agency's reasons for removing the

appellant are quite strong. The Board had long held

that insubordination is a serious offense as it goes to

the heart of the agency's ability to carry out its

mission. Considering the appellant's insubordination

in the context of his extensive prior disciplinary

history, I find that the agency's reasons for removing

him are quite compelling.

Second, there is nothing about the appellant's

38a

coworker discourtesy disclosure which accuses any

management official involved in the appellant's

removal of wrongdoing. Mr. Ivory testified, without

contradiction, that he did address this situation with

Mr. Phillips, telling him that it was unacceptable to

act in this manner. RAF, Tab 38. While I acknowledge

that an institutional motive to retaliate against the

appellant could arise, I find that this isolated, minor

disclosure of coworker discourtesy does not

meaningfully raise such concerns. See Whitmore v.

Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir.

2012) (finding an institutional motive to retaliate

where disclosures were highly critical of another

agency manager's actions).

Finally, there is no evidence that the agency did

not remove insubordinate employees with a prior

disciplinary history who were not whistleblowers.

Therefore, I find this Carr factor to be neutral. Rickel

v. Department of Navy, 31 F.4th 1358, 1365 (Fed. Cir.

2022).

Based on the foregoing, I find that the agency

proved by clear and convincing evidence that it would

have removed the appellant in the absence of

disclosure one.

ii. Disclosure Two

By email dated February 13,2020, the appellant

disclosed that there was "missing paperwork"

regarding an EFDR tutorial link. RAF, Tab 15, pp.

65-66. In his prehearing submissions, the appellant

alleged this issue involved missing equipment

39a

documentation and proficiency training and that these

deficiencies violated agency policy 6000.15H, § 22-2(b).

Id. at p. 5; Tab 10, p. 117 (policy). The policy at issue

requires: "You must retain the current TRDR until the

system or subsystem is decommissioned." RAF, Tab

10, p. 117.

Presuming, without deciding that this was a

disclosure of a violation of a rule, the appellant failed

to prove that it was a contributing factor in his

removal. Specifically, there is no evidence that Mr.

Alexander was aware of this disclosure or that anyone

influenced Mr. Alexander's decision to remove the

appellant because of this disclosure. Mr. Alexander

was not copied on the email at issue and credibly

testified that he was unaware of the appellant's

disclosure of this issue. RAF, Tab 38.4

iii. Disclosure Three

By email dated February 18,2020, the appellant

reported to, inter alia, Mr. Ivory, that coworker Mr.

Phillips was performing work in an agency facility to

which he was allegedly unassigned. RAF, Tab 15, p. 5;

Tab 10, p. 345 (email). The appellant alleges Mr.

Phillips actions violated FAA Order 1600.69C, section

4-2-8(a) which requires restricts access to FAA

facilities. Id.; AF, Tab 10, p. 396 (agency policy).

4 Even if the appellant had carried his burden on this

disclosure, I would have found that the agency proved by clear and

convincing evidence that it would have removed him in the

absence of this protected activity for the reasons detailed in

disclosure one.

40a

Presuming, without deciding that this was a

disclosure of a violation of a rule, the appellant failed

to prove that it was a contributing factor in his

removal. Specifically, there is no evidence that Mr.

Alexander was aware of this disclosure or that anyone

influenced Mr. Alexander's decision to remove the

appellant because of this disclosure. Mr. Alexander

was not copied on the email at issue and credibly

testified that he was unaware of the appellant's

disclosure of this issue. RAF, Tab 38.5

Additionally, the appellant appears to allege

that Mr. Ivory failed to comply with various reporting

requirements associated with this disclosure three.

RAF, Tab 15, p. 5. However, there is no evidence that

the appellant disclosed Mr. Ivory's alleged failures in

this regard to anyone.6 Consequently, I find that this

aspect of the appellant's allegations provide no basis

for relief under 5 U.S.C. § 2302.

iv. Disclosure Four

The appellant alleges that, on February 19,

5 Even if the appellant had carried his burden on this

disclosure, I would have found that the agency proved by clear and

convincing evidence that it would have removed him in the

absence of this protected activity for the reasons detailed in

disclosure one.

6 Even if the appellant had carried his burden on this

disclosure, I would have found that the agency proved by clear and

convincing evidence that it would have removed him in the

absence of this protected activity for the reasons detailed in

disclosure one.

41a

2020, he alleged to agency management that the lights

he was instructed to replace, which are the subject of

insubordination specification one above, violated

agency policy and constituted a gross mismanagement

of funds. However, the appellant presented no

evidence that he either made these disclosures to Mr.

Alexander or that anyone to whom he made these

disclosures influenced Mr. Alexander to remove him.

Consequently, the appellant's allegations provide no

basis for relief under 5 U.S.C. § 2302.7

v. Disclosure Five

The appellant alleges that he disclosed the

requirement of an ORM for the tasks the agency

required him to perform for insubordination

specification one. RAF, Tab 15, p. 5. However, there is

no evidence that the appellant disclosed this allegation

as some type of safety issue. Rather, it appears the

appellant raised the policy concerning ORMs to

dispute whether such a task fell within his position

7 Even if the appellant had proved he disclosed his

concerns to Mr. Alexander, I would have found that they are not

disclosures protected under 5 U.S.C. § 2302 because whether the

decision to replace these lights was a debatable expenditure.

Czarkowski v. Department of Navy, 87 M.S.P.R. 107, 112, 12

(2000) (holding that a disclosure questioning management

decisions that are merely debatable or just simple negligence or

wrongdoing, with no element of hlatancy, is not protected as a

disclosure of gross mismanagement). Even if the appellant had

carried his burden on this disclosure, I would have found that the

agency proved by clear and convincing evidence that it would have

removed him in the absence of this protected activity for the

reasons detailed in disclosure one.

42a

description. See IAF, Tab 5 (reply to proposed

removal). As such, I find that this is not a disclosure of

a safety risk.8

vi. Disclosure Six

By email dated February 24,2020, the appellant

disclosed to Mr. Ivory that he believed coworker

Phillips was "sabotaging" his "workload' and "gear"

rending it inoperable. RAF, Tab 10, p. 346. The

appellant based this accusation that, each time his had

an issue with his gear, he was told by others that Mr.

Phillips was in the facility where his gear was located.

Id.

The appellant did not develop this accusation

with hearing testimony. Additionally, the appellant

presented no evidence of anyone observing Mr. Phillips

tampering with his equipment or any other evidence

that might lead one to believe that Mr. Phillips was

responsible for these issues. Given the appellant's lack

of specificity as to what was wrong with his "gear" and

given the multitude of other plausible explanations as

to why his gear was inoperable or what could have

caused such issues, I find that a reasonable person

aware of the facts known by or ascertainable to the

appellant was would not have reasonably concluded

government wrongdoing, i.e., that Mr. Phillips

8 Even if the appellant had carried his burden on this

disclosure, I would have found that the agency proved by clear and

convincing evidence that it would have removed him in the

absence of this protected activity for the reasons detailed in

disclosure one.

43a

sabotaged his gear. White v. Department of Air Force,

95 M.S.P.R. 1, 11 27-28 (2003); see also Lachance v.

White, 174 F.3d 1378 (Fed. Cir. 1999), cert, denied, 528

U.S. 1153 (2000). Therefore, I find that this disclosure

is not protected under 5 U .S.C. § 2302.9 Finally, I find

that the appellant failed to establish contributing

factor because Mr. Alexander was not copied on the

email at issue and credibly testified that he was

unaware of the appellant's disclosure of this issue.

RAF, Tab 38.

Harmful Procedural Error

To prove harmful procedural error, the

appellant must prove that the agency committed an

error in the application of its procedures that is likely

to have caused the agency to reach a conclusion

different from the one it would have reached in the

absence or cure of the error. See 5 C.F.R. § 1201.4(r).

The burden is upon the appellant to show that the

agency committed an error and that the error was

harmful, i.e., that it caused substantial prejudice to his

rights.

The appellant appears to allege that the agency

misapplied Executive Order 13839 in effectuating his

removal. RAF, Tab 15, p. 8. However, there is no

evidence that the agency relied on this Executive

9 Even if the appellant had carried his burden on this

disclosure, I would have found that the agency proved by clear and

convincing evidence that it would have removed him in the

absence of this protected activity for the reasons detailed in

disclosure one.

44a

Order to remove him. Rather, I find that the evidence

demonstrates that the agency employed its traditional

adverse action procedures.

The appellant also appears to allege that it was

harmful error for the agency to assign him the tasks

which were the subject of its insubordination charges.

Id. However, it is unclear form the appellant's

submission what specific procedures the agency

violated by assigning these tasks to the appellant.

Finally, the appellant appears to allege that the

agency violated its procedures by charging him with

insubordination instead of failure to follow

instructions. Id. However, the appellant has pointed to

no agency procedure requiring that the agency charge

the appellant as he contends.

In sum, I find that the appellant failed to prove

this affirmative defense.

Title VII Discrimination

The appellant claims his removal was based on

his race (African American), religion (Nation of Islam),

his gender (male), his age (47), and his prior Title VII

activity. RAF, Tab 37. Federal employees are protected

against discrimination based on race by 42 U.S.C. §

2000e-16. Savage v. Department of the Army, 122

M.S.P.R. 612, Iff 36, 37 (2015). The Board has held

that a violation is established where the appellant

shows that discrimination "was a motivating factor in

the contested personnel action, even if it was not the

only reason." Id., If 41.

45a

Although the Board's case law has frequently

addressed the differences between direct and

circumstantial evidence in support of an affirmative

defense of discrimination, and discussed the concept of

a "convincing mosaic" as proof, in Gardner v.

Department of Veterans Affairs, 123 M.S.P.R. 647

(2016), the Board clarified that under the proper

analysis administrative judges should not separate

"direct" from "indirect" evidence and proceed as if such

evidence were subject to different legal standards, or

require appellants to demonstrate a "convincing

mosaic" of discrimination or retaliation. Rather, the

dispositive inquiry is whether the appellant has shown

by the preponderance of the evidence10 that the

prohibited consideration was a motivating factor in the

contested personnel action. Savage, 122 M.S.P.R. 612,

If 51. Thus, whatever theory of discrimination the

appellant pursues and whatever evidence he

introduces to support it, all of the evidence must be

examined as a whole to determine if the appellant has

shown by a preponderance of the evidence that the

prohibited consideration was a motivating factor in the

contested personnel action. If he has made such a

showing, the Board will find that the agency

committed a prohibited personnel practice in violation

of 5 U.S.C. § 2302(b)(1). If he has not made such a

showing, the inquiry will end at that point.

If the appellant makes the required showing,

10 A preponderance of the evidence is that degree of

relevant evidence that a reasonable person, considering the record

as a whole, would accept as sufficient to find that a contested fact

is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

46a

the next issue is whether he is entitled to corrective

action. A violation of 42 U .S.C. § 2000e-16 will entitle

the appellant to reversal of the personnel action only

if the prohibited personnel practice was its "but for"

cause, meaning that the agency would not have taken

the same action in the absence of the discriminatory

motive. Savage, 122 M.S.P.R. 612, H 48, 49. The

burden of proof shifts to the agency to show, also by

preponderant evidence, that it would have taken the

action even if it lacked such a motive. Gerlach v.

Federal Trade Commission, 9 M.S.P.R. 268, 273

(1981). "If we find that the agency has made that

showing, its violation of 42 U.S.C. § 2000e-16 will not

require reversal of the action." Savage, id. at f 51.

In support of this affirmative defense, the

appellant claims that the light fixtures (subject of

insubordination specification one above) were never

replaced by the appellant's Caucasian coworkers and

was therefore a pretext to remove him, that Mr. Hall

and Mr. Phillips, that Mr. Ivory (Caucasian) failed to

equally distribute the workload to replace these light

fixtures between Mr. Phillips and himself, and that

Mr. Ivory should have assigned the ALS UQU project

(subject of insubordination specification two above) to

Mr. Hall and Mr. Phillips who were certified on the

Airflow system. RAF, Tab 15, p. 8. The appellant

further clams that Mr. Alexander (African American)

retaliated against him for March 9, 2020 Title VII

protected activity when he proposed the appellant's

removal on April 10, 2020 and for May 12, 2020 Title

VII protected activity when Mr. Alexander removed

the appellant on May 14, 2020. Id. For the reasons

detailed below, I find that the appellant failed to prove

47a

any aspects of this affirmative defense.

First, other than the appellant's conjecture

regarding disparate treatment, there is no evidence

that any of the agency decisions complained of were

motivated by any protected category. Second, there is

no comparator evidence of another employee with a

similar disciplinary history who engaged in similar

misconduct but was not removed. Finally, I find it

more likely than not that Mr. Alexander became aware

of the appellant's spring of 2020 Title VII activity at

some point after he proposed the appellant's removal

but before he issued his removal decision. RAF, Tab 38

(Alexander testimony); Tab 15, pp. 125-31 (informal

EEO complaint). However, other than the closeness in

time of the appellant's complaint to his removal and

his naming Mr. Alexander as a responsible

management official, there no evidence of retaliatory

animus. Given the appellant's extensive prior

disciplinary history, the seriousness of his

insubordination, and his lack of remorse for his

misconduct, I find that the appellant failed to establish

a genuine nexus between his Title VII protected

activity and his removal.

The agency action promotes the efficiency of the

service.

The nexus requirement, for purposes of whether

an agency has shown that its action promotes the

efficiency of the service, means there must be a clear

and direct relationship between the articulated

grounds for an adverse action and either the

employee's ability to accomplish his or her duties

48a

satisfactorily or some other legitimate government

interest. Merritt v. Department of Justice, 6 M.S.P.R.

585, 596 (1981), modified by, Kruger v. Department of

Justice, 32 M.S.P.R. 71, 75 n.2 (1987). Here, I find

nexus is self-evident because the appellant's

misconduct took place at work.

The penalty of removal is reasonable.

The agency also bears the burden of proving its

penalty selection is reasonable. Douglas, 5 M.S.P.R. at

307-08. When, as here, an agency's charge has been

sustained, the Board will review an agency-imposed

penalty only to determine if the agency considered all

the relevant factors and exercised management

discretion within tolerable limits of reasonableness.

Wentz v. U.S. Postal Service, 91 M.S.P.R. 176, 183

(2002), citing Stuhlmacher v. U.S. Postal Service, 89

M.S.P.R. 272 (2001) & Fowler v. U.S. Postal Service, 77

M.S.P.R. 8, 12, rev. dismissed, 135 F.3d 773 (Fed. Cir.

1977) (Table); Douglas, 5 M.S.P.R. at 306. In

determining whether the penalty is reasonable, the

Board gives deference to the agency's discretion in

exercising its managerial function of maintaining

employee discipline and efficiency, recognizing that the

Board's function is not to displace management's

responsibility, but to ensure that management

judgment has been properly exercised. Howard v. U.S.

Postal Service, 72 M.S.P.R. 422, 425 (1996).

Here, Mr. Alexander testified that he viewed the

appellant's insubordination as serious, intentional, and

repeated. RAF Tab 38. He further stated that he had

lost confidence and trust in the appellant because his

49a

position requires a high degree of integrity due to its

connection to public safety. Id. He testified that other

FAA employees had been removed for insubordination

and that removal was within the range of the agency's

table of penalties. Id. Mr. Alexander considered the

appellant's 14 years of service to be mitigating, but

ultimately determined this factor insufficient to

outweigh the outer aggravating factors. Id. He testified

that he considered the appellant's prior misconduct

detailed above to be aggravating, that he believed the

appellant lacked potential for rehabilitation because

the appellant lacked remorse for his misconduct, and

that he did not consider a suspension instead of

removal because the appellant's prior discipline failed

to alter his behavior.

Based on the foregoing, I find that the deciding

official properly considered the Douglas factors, and I

find that the penalty of removal is well within the

parameters of reasonableness. See Luciano v.

Department of Treasury, 88 M.S.P.R. 335, 343-44,

20-23 (2001) (reiterating well-settled Board law that

deliberate refusal to follow orders, i.e.,

insubordination, is serious misconduct warranting

removal).

DECISION

The agency's action is AFFIRMED.

FOR THE BOARD:

/S /

Christopher G. Sprague

Administrative Judge

50a

NOTICE TO APPELLANT

This initial decision will become final on October

5, 2022, unless a petition for review is filed by that

date. This is an important date because it is usually

the last day on which you can file a petition for review

with the Board. However, if you prove that you

received this initial decision more than 5 days after

the date of issuance, you may file a petition for review

within 30 days after the date you actually receive the

initial decision. If you are represented, the 30-day

period begins to run upon either your receipt of the

initial decision or its receipt by your representative,

whichever comes first. You must establish the date on

which you or your representative received it. The date

on which the initial decision becomes final also

controls when you can file a petition for review with

one of the authorities discussed in the "Notice of

Appeal Rights" section, below. The paragraphs that

follow tell you how and when to file with the Board or

one of those authorities. These instructions are

important because if you wish to file a petition, you

must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial

decision by filing a petition for review.

If the other party has already filed a timely

petition for review, you may file a cross petition for

review. Your petition or cross petition for review must

state your objections to the initial decision, supported

by references to applicable laws, regulations, and the

51a

record. You must file it with:

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.

Washington, DC 20419

A petition or cross petition for review may be filed by

mail, facsimile (fax), personal or commercial delivery,

or electronic filing. A petition submitted by electronic

filing must comply with the requirements of 5 C.F.R.

§ 1201.14, and may only be accomplished at the

Board's e-Appeal website (https://e-appeal.mspb.gov).

Criteria for Granting a Petition or

Cross Petition for Review

Pursuant to 5 C.F.R. § 1201.115, the Board

normally will consider only issues raised in a timely

filed petition or cross petition for review. Situations in

which the Board may grant a petition or cross petition

for review include, but are not limited to, a showing

that:

(a) The initial decision contains erroneous

findings of material fact. (1) Any alleged factual error

must be material, meaning of sufficient weight to

warrant an outcome different from that of the initial

decision. (2) A petitioner who alleges that the judge

made erroneous findings of material fact must explain

why the challenged factual determination is incorrect

and id entity specific evidence in the record that

demonstrates the error. In reviewing a claim of an

erroneous finding of fact, the Board will give deference

52a

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.

(b) 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

petitioner must explain how the error affected the

outcome of the case.

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.

(d) New and material evidence or legal

argument is available that, despite the petitioner's due

diligence, was not available when the record closed. To

constitute new evidence, the information contained in

the documents, not just the documents themselves,

must have been unavailable despite due diligence

when the record closed.

As stated in 5 C.F.R. § 1201.114(h), a petition

for review, a cross petition for review, or a response to

a petition for review, whether computer generated,

typed, or handwritten, is limited to 30 pages or 7500

words, whichever is less. A reply to a response to a

petition for review is limited to 15 pages or 3750

words, whichever is less. Computer generated and

typed pleadings must use no less than 12 point

typeface and 1-inch margins and must be double

53a

spaced and only use one side of a page. The length

limitation is exclusive of any table of contents, table of

authorities, attachments, and certificate of service. A

request for leave to file a pleading that exceeds the

limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days

before the filing deadline. Such requests must give the

reasons for a waiver as well as the desired length of

the pleading and are granted only in exceptional

circumstances. The page and word limits set forth

above are maximum limits. Parties are not expected or

required to submit pleadings of the maximum length.

Typically, a well-written petition for review is between

5 and 10 pages long.

If you file a petition or cross petition for review,

the Board will obtain the record in your case from the

administrative judge and you should not submit

anything to the Board that is already part of the

record. A petition for review must be filed with the

Clerk of the Board no later than the date this initial

decision becomes final, or if this initial decision is

received by you or your representative more than 5

days after the date of issuance, 30 days after the date

you or your representative actually received the initial

decision, whichever was first. If you claim that you and

your representative both received this decision more

than 5 days after its issuance, you have the burden to

prove to the Board the earlier date of receipt. You must

also show that any delay in receiving the initial

decision was not due to the deliberate evasion of

receipt. You may meet your burden by filing evidence

and argument, sworn or under penalty of perjury (see

5 C.F.R. Part 1201, Appendix 4) to support your claim.

54a

The date of filing by mail is determined by the

postmark date. The date of filing by fax or by

electronic filing is the date of submission. The date of

filing by personal delivery is the date on which the

Board receives the document. The date of filing by

commercial delivery is the date the document was

delivered to the commercial delivery service. Your

petition may be rejected and returned to you if you fail

to provide a statement of how you served your petition

on the other party. See 5 C.F.R. § 1201.4j). If the

petition is filed electronically, the online process itself

will serve the petition on other e-filers. See 5 C.F.R. §

1201.140)(1).

A cross petition for review must be filed within

25 days after the date of service of the petition for

review.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for

review of this initial decision in accordance with the

Board's regulations.

NOTICE OF APPEAL RIGHTS

You may obtain review of this initial decision

only after it becomes final, as explained in the "Notice

to Appellant" section above. 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

55a

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 decision

when it becomes final, you should immediately review

the law applicable to your claims and carefully 24

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 review below to decide which one

applies to your particular case. If you have questions

about whether a particular forum is the appropriate

one to review your case, you should contact that forum

for more information.

(1) Judicial review in general. As a general

rule, an appellant seeking judicial review of a final

Board order must file a petition for review with the

U.S. Court of Appeals for the Federal Circuit, which

must be received by the court within 60 calendar

days of the date this decision becomes final. 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.

56a

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 this decision becomes final under the rules

set out in the Notice to Appellant section, above. 5

U.S.C. § 7703(b)(2); see Perry v. Merit Systems

137 S. Ct. 1975

Protection Board, 582 U.S.

(2017). If the action involves a claim of discrimination

57a

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/CourtLocator/Court

Websites.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 this decision becomes

final as explained above. 5 U.S.C. § 7702(b)(1).

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:

58a

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 with the U.S. Court of

Appeals for the Federal Circuit or any court of appeals

of competent jurisdiction. The court of appeals must

receive your petition for review within 60 days of the

date this decision becomes final under the rules set out

in the Notice to Appellant section, above. 5 U.S.C. §

7703(b)(1)(B).

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 following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N. W.

Washington, D.C. 20439

59a

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.

Contact information for the courts of appeals

can be found at their respective websites, which can be

accessed through the link below:

http ://w ww.uscourts.gov/CourtLocator/Court

Websites.aspx

60a

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.