Petition for Writ of Certiorari — Camerron L. Bradberry, Petitioner v. Department of the Air Force
Supreme Court briefAug 28, 2025
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Appendix A:
•
Order Denying Rehearing (June 5, 2025)
Case: 25-1112
Document: 36
Page: 1
Filed: 06/05/2025
NOTE: This order is nonprecedential.
QBniteti States Court of Appeals;
for tlje jfeberal Circuit
CAMERRON L. BRADBERRY,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
2025-1112
Petition for review of the Merit Systems Protection
Board in No. DE-1221-23-0108-W-l.
ON PETITION FOR REHEARING EN BANC
Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA,
Taranto, Chen, Hughes, Stoll, Cunningham, and
STARK, Circuit Judges.1
Per Curiam.
ORDER
Camerron Lewis Bradberry filed a petition for rehear
ing en banc. The petition was referred to the panel that
Circuit Judge Newman did not participate.
Case: 25-1112
Document: 36
2
Page: 2
Filed: 06/05/2025
BRADBERRY v. AIR FORCE
heard the appeal, and thereafter the petition was referred
to the circuit judges who are in regular active service.
Upon consideration thereof,
It Is Ordered That:
The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.
For the Court
June 5, 2025
Date
Jarrett B. Perlow
Clerk of Court
Appendix B:
©
Federal Circuit Decision (April 10,2025)
Case: 25-1112
Document: 27
Page: 1
Filed: 04/10/2025
®nite& States (Court of Appeals
for tfje jfelieral (Circuit
CAMERRON L. BRADBERRY,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
2025-1112
Petition for review of the Merit Systems Protection Board in
No. DE-1221-23-0108-W-1.
JUDGMENT
This Cause having been considered, it is
Ordered and Adjudged:
AFFIRMED
FOR THE COURT
April 10, 2025
Date
Jarrett B. Perlow
Clerk of Court
Case: 25-1112
Document: 26
Page: 1
Filed: 04/10/2025
NOTE: This disposition is nonprecedential.
©ntteii States Court of Appeals:
for tfje Jfeberal Circuit
CAMERRON L. BRADBERRY,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
2025-1112
Petition for review of the Merit Systems Protection
Board in No. DE-1221-23-0108-W-1.
Decided: April 10, 2025
Camerron Lewis Bradberry, Lakewood, CO, pro se.
William Porter Rayel, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent
ed by Reginald Thomas Blades, Jr., Brian M. Boynton,
Patricia M. McCarthy.
Before DYK, Reyna, and Stark, Circuit Judges.
Appendix C:
•
MSPB Final Order (Aug. 27,2024)
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOCKET NUMBER
DE-1221 -23 -0108-W-1
CAMERRON L. BRADBERRY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.
DATE: August 27, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Camerron L. Bradberry, Lakewood, Colorado, pro se.
Larry Pruitt. Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action appeal.
On petition for review, the appellant argues, among other things, that there was a
plot to retaliate against him, and that the findings related to his conduct and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
performance were based on hearsay and personal opinions.2 Generally, we grant
petitions such as this one only in the following 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
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision.
5 C.F.R.
§ 1201.113(b).
2 The appellant also claimed that he proved his claim of whistleblower reprisal, and that
the administrative judge illegally denied him corrective action in order to protect his
reputation and career. Petition for Review File, Tab 1 at 5-6. The appellant’s
contention is not based on any evidence of the record. If an appellant proves that his
protected disclosure was a contributing factor in a personnel action taken against him,
corrective action must be granted unless the agency can prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected disclosure. Smith v. Department of the Army, 2022 MSPB 4, 13; see
5 U.S.C. § 1221(e). The administrative judge properly applied the whistleblower
protection analytical framework, and found that, although the appellant proved that he
made a protected disclosure that was a contributing factor in his termination, the agency
proved by clear and convincing evidence that it would have terminated the appellant in
the absence of his whistleblowing. Initial Appeal File, Tab 42, Initial Decision at 27.
Accordingly, the appellant is not entitled to corrective action, and the appellant’s
accusations are without merit. Furthermore, to the extent that the appellant asserts that
the administrative judge acted with prejudice or bias, he has produced no evidence that
would overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382,
386 (1980); see Bieber v. Department of the Army, 287 F.3d 1358, 1362-63
(Fed. Cir. 2002) (explaining that an administrative judge’s conduct during the course of
a Board proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence a deep-seated favoritism or antagonism).
3
NOTICE OF APPEAL RIGHTS3
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
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 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 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:
3 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.
4
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
5
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
6
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.4
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).
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
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.
4 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.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court Locator/CourtWebsites.aspx.
FOR THE BOARD:
Gina K. Grippando
Clerk of the Board
Washington, D.C.
CERTIFICATE OF SERVICE
I certify that the attached Document(s) was (were) sent as indicated this day
to each of the following:
Appellant
Electronic Service
Camerron Bradberry
Served on email address registered with MSPB
Agency Representative
Electronic Service
Chief Law
Served on email address registered with MSPB
Agency Representative
Electronic Service
Larry Pruitt
Served on email address registered with MSPB
08/27/2024
(Date)
J&hru Hayek
John Hayes
Appendix D:
•
MSPB Initial Decision (Aug. 10, 2023)
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENVER FIELD OFFICE
CAMERRON L. BRADBERRY,
Appellant,
DOCKET NUMBER
DE-1221-23-0108-W-1
v.
DEPARTMENT OF THE AIR FORCE,
Agency.
DATE: August 10, 2023
Camerron L. Bradberry, Lakewood, Colorado, pro se.
Chief Labor Law, Joint Base Andrews, Maryland, for the agency.
Larry Pruitt, Joint Base Andrews, Maryland, for the agency.
BEFORE
Glen D. Williams
Administrative Judge
INITIAL DECISION
INTRODUCTION
On January 23, 2023, the appellant timely filed an individual right of
action (IRA) appeal alleging reprisal for whistleblowing when he was terminated
from Federal service during his trial period. Initial Appeal File (IAF), Tab 1.
The Board has jurisdiction over this appeal pursuant to 5 U.S.C. § 1221(e). The
hearing requested by the appellant was held on May 2, 2023.
IAF, Tab 38
(Hearing Recording (HR)).
For the reasons set forth below, the appellant’s request for corrective action
is DENIED.
2
ANALYSIS AND FINDINGS
Background
On September 15, 2019, the appellant received a conditional appointment
with the agency in the excepted service position of Human Resources Assistant
(Military), GS-0203-06, working for the Promotion Board Eligibility (PBE),
Headquarters Air Reserve Personnel Center (HQ ARPC), at Buckley Air Force
Base (now Space Force Base), Colorado. IAF, Tab 24 at 22.1 The Notification of
Personnel Action, Standard Form (SF) 50, memorializing his appointment stated,
“Appointment is subject to completion of a two year trial period beginning 16SEP-2019.” Id.
On February 5, 2020, Major Ruben Hernandez, Chief, Promotion
Eligibility Division, issued a Notice of Termination During Trial Period to the
appellant, terminating him for alleged postappointment conduct reasons. Id. at
14-16.
The appellant filed a Complaint of Prohibited Personnel Practice or Other
Prohibited Activity, OSC Form 14, on or about February 7, 2020. IAF, Tabs 1 at
3, 8 at 4-30.2 The complaint was assigned OSC Case File No. MA-20-001093.
IAF, Tab 1 at 14.
1 Immediately prior to this appointment, the appellant was employed by the Department
of Veterans Affairs (DVA) in the excepted service position of Contact Representative,
GS-0962-05, in Denver, Colorado. IAF, Tab 12 at 32. There was no break in service
between the DVA and the Air Force. Id.
2 I note that the appellant alleged in his OSC complaint that he filed a grievance under a
collective bargaining agreement (CBA) on February 5, 2020. IAF, Tab 8 at 9. Under 5
U.S.C. § 7121(g), an employee who is covered by a CBA and who believes that an
agency retaliated against him for whistleblowing may elect only one of the following
remedies: (1) An appeal to the Board under 5 U.S.C. § 7701; (2) a grievance under the
applicable negotiated grievance procedure; or (3) a request for corrective action with
OSC, followed, if the employee chooses, with an IRA appeal to the Board if OSC
denies corrective action. Johnson v. Department of Veterans Affairs, 121 M.S.P.R. 695,
6 (2014), aff’d, 611 F. App’x 496 (10th Cir. 2015). The remedy first sought by an
aggrieved employee is deemed an election of that procedure and precludes pursuing the
matter in other fora. Sherman v. Department of Homeland Security, 122 M.S.P.R. 644,
3
The appellant requested review of the termination and on February 12,
2020, Colonel William Bridgemohan, Director, Selection Board Secretariat,
issued a Review of Termination During Trial Period sustaining the termination
effective February 13, 2020. IAF, Tabs 1 at 11, 24 at 10.
On January 24, 2023, OSC issued its letter terminating its investigation and
providing the appellant’s appeal rights to the Board. IAF, Tab 1 at 14.
On January 23 or 24, 2023,3 the appellant timely filed his IRA appeal with
the Board. IAF, Tab 1; 5 U.S.C. § 1214(a)(3).
On March 7, 2023, the Board issued an order finding jurisdiction. IAF,
Tab 21. Specifically, the Board found that the appellant nonfrivolously alleged
that he made a protected disclosure in a January 15, 2020 email concerning an
incident with a coworker, Staff Sergeant Jacob Brown, NCOIC, Officer
Promotion Eligibility, and that his January 15, 2020 disclosure was a contributing
factor in the agency’s decision to terminate him during his trial period. Id.
The record on the merits of this appeal closed on May 2, 2023, at the
conclusion of the hearing. HR; IAF, Tab 37 at 12.
*[[ 12 (2015). However, probationary employees and employees serving trial periods
have no right to grieve under a negotiated procedure. McCarty v. Environmental
Protection Agency, 105 M.S.P.R. 74, 1} 11 (2007) (because the appellant here was
serving in an excepted service appointment and the appointment was subject to a trial
period, she was precluded from filing a grievance); Scalera v. Department of the Navy,
102 M.S.P.R. 43, 10 (2006). Because the appellant was serving an excepted service
trial period, any grievance filed by the appellant concerning his termination was not a
valid election and does not bar Board jurisdiction over the IRA appeal. Scalera, 102
M.S.P.R. 43, 9.
3 The petition indicates that it was received by facsimile on January 23, 2023. IAF, Tab
1. However, the petition indicates it was signed on January 24, 2023, which is the same
date as the OSC closure letter. Id. at 6, 14. The petition states that the termination
letter was dated January 23, 2023. Id. at 3.
4
Applicable law and burdens of proof
The Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12, 103
Stat. 16, as amended by the Whistleblower Protection Enhancement Act of 2012
(WPEA), Pub. L. No. 112-199, 126 Stat. 1465, prohibits an agency from taking a
personnel action because of a whistleblowing disclosure or activity.
5 U.S.C.
§ 2302(b)(8), (9); Hudson v. Department of Veterans Affairs, 104 M.S.P.R. 283,
10 (2006) (citation omitted). IRA appeals brought under the WPA operate in a
burden-shifting framework. Miller v. Department of Justice, 842 F.3d 1252, 1257
(Fed. Cir. 2016). At the merits stage of the appeal, the appellant must prove by
preponderant evidence that he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8), or engaged in activity protected by 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and that such disclosure or activity was a contributing factor in a
personnel action taken against him.
Smith v. Department of the Army, 2022
M.S.P.R. 4, U 13 (citing 5 U.S.C. § 1221(e)(1) and Lu v. Department of Homeland
Security, 122 M.S.P.R. 335,
7 (2015)); Whitmore v. Department of Labor, 680
F.3d 1353, 1367 (Fed. Cir. 2012). If the appellant meets that burden, the agency
is given an opportunity to prove by clear and convincing evidence4 that it would
have taken the same personnel action absent the protected disclosure or activity.
Id. (citing 5 U.S.C. § 1221(e)(l)-(2) and Lu, 122 M.S.P.R. at
7); Whitmore, 680
F.3d at 1367-68.
Protected disclosures/activity
Protected whistleblowing occurs when an appellant makes a disclosure that
he reasonably believes evidences a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
4 “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). It is a higher standard than “preponderance of the evidence” as
defined in 5 C.F.R. § 1201.4(q). Id.
5
and specific danger to public health and safety. Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365,
5 (2013); see 5 U.S.C. § 2302(b)(8). To establish
that an appellant made a protected disclosure under 5 U.S.C. § 2302(b)(8), an
appellant need not prove that the matter disclosed actually established one of the
categories of wrongdoing listed under section 2302(b)(8)(A).
Department of the Interior, 122 M.S.P.R. 248,
Webb v.
6 (2015). Rather, he must show
that a disinterested observer with knowledge of the essential facts known to and
readily ascertainable by the employee could reasonably conclude that the actions
of the agency evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Salerno, 123 M.S.P.R. 230,
6.
The disclosures must be specific and detailed, not vague allegations of
wrongdoing.
Id.', see El v. Department of Commerce, 123 M.S.P.R. 76,
6
(2015) (stating that vague, conclusory, unsupported, and pro forma allegations of
alleged wrongdoing do not meet the nonfrivolous pleading standard needed to
establish the Board’s jurisdiction over an IRA appeal), aff’d, 663 F. App’x 921
(Fed. Cir. 2016).
In determining whether a disclosure evidenced a substantial and specific
danger to public health or safety, it is relevant for the Board to consider factors
such as (1) the likelihood of harm resulting from the danger, (2) the imminence of
the potential harm, and (3) the nature of the potential harm.
Department of Veterans Affairs, 116 M.S.P.R. 197,
Parikh v.
14 (2011) (citing Chambers
v. Department of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008).
In
Chambers, the Federal Circuit explained that “the outcomes of past cases ... have
depended upon whether a substantial, specific harm was identified, and whether
the allegations or evidence supported a finding that the harm had already been
realized or was likely to result in the reasonably foreseeable future.” Chambers,
602 F.3d at 1376. “[S]pecific allegations or evidence either of actual past harm
or of detailed circumstances giving rise to a likelihood of impending harm” are
6
needed to demonstrate that a disclosure evidences a substantial and specific
danger to public health or safety. Id.; see Aquino v. Department of Homeland
Security, 121 M.S.P.R. 35,
13 (2014). The potential harm disclosed does not
need to be widespread. See Groseclose v. Department of the Navy, 111 M.S.P.R.
194, *11 25 (2009) (the appellant disclosed that a coworker may have snapped and
had a knife); see also Wojcicki v. Department of the Air Force, 72 M.S.P.R. 628,
634 (1996) (a danger may be substantial and specific even though the perceived
danger was to a limited number of government personnel and not to the general
public at large).
For purposes of an IRA appeal, “protected activity” includes: (A) the
exercise of any appeal, complaint or grievance right granted by any law, rule, or
regulation with regard to remedying a violation of section 2302(b)(8), discussed
immediately above; (B) testifying for or otherwise lawfully assisting any
individual in the exercise of any appeal, complaint or grievance right granted by
any law, rule, or regulation; (C) cooperating with or disclosing information to the
Inspector General of an agency, or the Special Counsel, in accordance with
applicable provisions of law; or (D) refusing to obey an order that would require
an individual to violate a law. 5 U.S.C. §§ 2302(b)(9), 1221(a); see Colbert v.
Department of Veterans Affairs, 121 M.S.P.R. 677,
6-7 (2014).
As to the January 15, 2020 email to Senior Master Sergeant Dawn Couey,
Superintendent, Promotion Boards, from the appellant, this email concerns an
incident between the appellant and Brown on that same date that arose out of the
appellant working a ticket that it is alleged he was instructed by Hernandez not to
work and that Brown was tasked with working. The appellant stated in pertinent
part:
After I had asked him a question about a MyPers ticket he charged
my cubicle and blocked my entry/exit and started yelling at me
demanding to know why I asked my management if the information
he provide me was correct. He began using profanity saying “Your
fucking irritating me”. After I asked told him “Jacob you are too
7
emotionally involved in this matter let’s take a break and come back
to this” I backed my chair further away from him which SSgt Brown
then moved closed towards me and began waving his hands around
in my face demanding to know why I asked for confirmation form
you when he just gave me his answer.
IAF, Tab 10 at 13 (spelling and grammar original).
The Board previously found that this was a nonfrivolous allegation that the
appellant disclosed a violation of law, rule or regulation.
IAF, Tab 21 at 11.
This finding was based in part on the allegation that Brown’s conduct violated a
policy concerning workplace comportment. The email may also be construed as a
disclosure of a physical threat by Brown, which may be an allegation of abuse of
authority.
In making a disclosure involving a violation of law, rule, or regulation, the
inquiry ends upon a determination that the appellant disclosed a violation of law,
rule, or regulation; there is no further inquiry into the type of “fraud, waste or
abuse” involved. There is no exception for a disclosure of a trivial or de minimis
violation of law, rule or regulation. Fisher v. Environmental Protection Agency,
108 M.S.P.R. 296,
32,
9 (2008); Ganski v. Department of the Interior, 86 M.S.P.R.
11 (2000); Pasley v. Department of the Treasury, 109 M.S.P.R. 105,
18
(2008). In general, a protected disclosure must identify a specific law, rule, or
regulation that was violated. Carvalho v. Department of Justice, MSPB Docket
No. SF-1221-15-0208-W-2, Final Order at 1 7 (Jan. 10, 2023)5 (citing Langer v.
Department of the
Treasury,
265
F.3d
1259,
1266
(Fed.
Cir.
2001).
“Nevertheless, this requirement does not necessitate identifying a statutory or
regulatory provision by title or number when the employee's statements and the
circumstances surrounding the making of those statements clearly implicate an
identifiable violation of law, rule, or regulation.” Id. The Board has suggested
5 This Order is nonprecedential; however, an administrative judge may cite to and
follow a Board nonprecedential decision if the judge finds its analysis persuasive. I
find this decision to be persuasive.
8
that a “rule” from “any violation of any law, rule, or regulation” includes
established agency policy. See, e.g., Chavez v. Department of Veterans Affairs,
120 M.S.P.R. 285,
25 (2013).
“[A]n abuse of authority occurs when there is an arbitrary or capricious
exercise of power by a federal official or employee that adversely affects the
rights of any person or that results in personal gain or advantage to himself or to
preferred other persons.” Croft v. Department of Commerce, MSPB Docket No.
SF-1221-16-0254-W-1, Final Order at
14 (Feb. 23, 2023) (citing Mithen v.
Department of Veterans Affairs, 122 M.S.P.R. 489,
27 (2015), aff’dper curiam,
652 F. App’x 971 (Fed. Cir. 2016)); D’Elia v. Department of the Treasury, 60
M.S.P.R. 226, 232-33 (1993), rev’d on other grounds, Thomas v. Department of
the Treasury, 77 M.S.P.R. 224 (1998), overruled in part on other grounds by
Ganski, 86 M.S.P.R. 32. Harassment or intimidation of employees may constitute
an abuse of authority. Id. (citing Herman v. Department of Justice, 115 M.S.P.R.
386,
There is no de minimis standard for abuse of authority.
11 (2011)).
Fabrick v. Department of the Treasury, MSPB Docket No. CH-1221-15-0703-W1, Final Order at
22 (Jan. 6, 2017) (citing D’Elia, 60 M.S.P.R. at 232).
An abuse of authority involving a threat of violence or harassment is most
often found in situations where the alleged perpetrator had management authority
over the appellant.
Id. (Board has found that supervisory bullying and
intimidation may be abuse of authority); Murphy v. Department of the Treasury,
86 M.S.P.R. 131,
7 (2000) (holding that a supervisor who engaged in “threats,
swearing, [and] physical acts of aggression” to intimidate the appellant and other
staff members into following the supervisor’s requests without question was
abusing his authority); Special Counsel v. Costello, 75 M.S.P.R. 562, 580-83
(1997), rev’d on other grounds, 182 F.3d 1372 (Fed. Cir. 1999); Heining v.
General Services Administration, 61 M.S.P.R. 539, 550—51 (1994). However, the
definition of abuse of authority does not require that the perpetrator have
authority over the appellant, and in Heining, for example, the Board held that
9
allegations of intimidation by auditors over other auditors was a nonfrivolous
allegation of abuse of authority. 61 M.S.P.R. at 548-49.
The appellant testified concerning his poor working relationship with
Brown. HR, appellant. He also denied that Hernandez had instructed him not to
work the ticket at issue. Id. He did not add additional information regarding the
January 15, 2020 incident with Brown, although he did allege that Couey
attempted to cover up what Brown did. Id.
Couey testified she was present during the January 15, 2020 incident
between the appellant and Brown. HR, Couey. According to Couey, the incident
started when the appellant approached her asking questions about a ticket that the
appellant was working after having been instructed not to work regarding an
incorrect promotion due to its complexity. Brown overheard the appellant and he
approached the appellant and Couey, telling the appellant he was already told not
to work the ticket and that he was getting very annoyed with the appellant for
doing things he was told specifically not to do. “And it kind of escalated into a
verbal argument between the two of them, which I shut down pretty quick
because it's an open cubicle area.” Id.
She then went with Brown to another
room. She concluded that Brown did not assault the appellant, make threatening
comments or make threatening gestures. Id.
Couey’s testimony was consistent with her email to Hernandez on January
16, 2020, stating:
Cam sent me this yesterday after I spoke with him. SSgt Brown did
not curse at Cam in anyway shape or form and SSgt Brown was
standing outside of Cams cubicle, actually closer to my desk then
Cams [sic]. He did not make any threating comments or gestures.
SSgt Brown was using the “knife hand”. Cam first claimed that SSgt
Brown physically assaulted him, then that changed to assault, then to
feeling intimidated. Cam also changed the statement of what SSgt
Brown said from “You are fucking annoying” to what he stated
below. I also addressed with Cam that how he talks to people is an
issue. Cam first asked me about the MyPers ticket, and I stated that
sometimes DORs are correct in MyPers and to ask SSgt Brown how
10
he should reply to the ticket since it was already correct. Cam went
to SSgt Brown and said “You sent me a MyPers ticket that was
already done,” etc. Then Cam came back to my desk and asked me
about the ticket again and that is when SSgt Brown came. Over.
[sic]
I intervened in 30 secs and separated them. I spoke with SSgt Brown
about how he talks to and deals with Cam, to avoid these types of
situations. Please let me know if you have any questions.
IAF, Tab 36 at 18.
Brown did not testify at the hearing. In an email set on January 15, 2020,
in which he described their interaction as follows:
He turned around and laughed as though I should have processed the
ticket before sending him the ticket to process. Directly following,
he proceeded to ask SMSgt Couey the exact same questions and
asked her what he should do with the ticket. I walked over and told
him not to come to me if he was just going to disregard what I
explained to him. He is wasting my time and becoming aggressive
about the direction that I have been given. I am not stepping out of
my lane. I assigned him the ticket and provided direction the same
way that I would have if it was any other team member.
IAF, Tab 36 at 14.
I find that a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reasonably conclude
that Brown’s actions evidenced a violation of law, rule, or regulation, or an abuse
of authority. Accordingly, the January 15, 2020 email to Couey was a protected
disclosure under 5 U.S.C. § 2302(b)(8)(A).
Contributing factor
A protected activity is a contributing factor if it affects an agency’s
decision to threaten, propose, take, or fail to take a personnel action. Dorney v.
Department of the Army, 117 M.S.P.R. 480,
14 (2012); Rubendall v.
Department of Health & Human Services, 101 M.S.P.R. 599, Tf 12 (2006); see 5
C.F.R. § 1209.4(c).
To prove that a disclosure was a contributing factor in a
personnel action, the appellant only need demonstrate that the fact of, or the
11
content of, the protected disclosure was one of the factors that tended to affect a
personnel action in any way. Payton v. Department of Veterans Affairs, MSPB
Docket No. AT-1221-16-0592-W-1, Remand Order at
21 (Jul. 21, 2023) (citing
Mastrullo v. Department of Labor, 123 M.S.P.R. 110,
18 (2015)).
The
knowledge/timing test allows an employee to demonstrate that the disclosure was
a contributing factor in a personnel action through circumstantial evidence, such
as evidence that the official taking the personnel action knew of the disclosure,
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id.; see 5 U.S.C. § 1221(e)(1). Once the knowledge/timing
test has been met, the appellant has shown that his whistleblowing was a
contributing factor in the personnel action at issue, even if, after a complete
analysis of all of the evidence, a reasonable factfinder could not conclude that her
whistleblowing was a contributing factor in the personnel action.
Remand Order at
21 (citing Mastrullo, 123 M.S.P.R. 110,
Pay ton,
18).
It is undisputed that a decision to terminate the appellant constitutes a
personnel action.
5 U.S.C. § 2302(a)(2)(A)(iii). Thus, the agency took a
personnel action against the appellant.
Here, on January 16, 2020, Couey forwarded the appellant’s January 15,
2020 email concerning the Brown incident to Hernandez. IAF, Tab 10 at 16; HR,
Hernandez. Thereafter, on February 5, 2020, Hernandez issued the termination
notice to the appellant. IAF, Tab 17 at 9-11. The appellant requested review of
the termination by Bridgemohan.
IAF, Tab 9 at 37. In his submission to
Bridgemohan, the appellant stated, “This termination request is in response to
cover up for an altercation that happened between me and TSgt Brown that I
reported January 15, 2020.” Id. at 43. He then appeared to reference a copy of
the January 15, 2020 email. Id.
This blatant attempt to cover up this situation by SMSgt Couey is an
offense to all codes of conduct required by law for all civilian
12
personnel. This has allowed this request for my termination to be
acknowledged 15 business days after the date of the inference.
Please see Article 4. This situation has not been given the proper
amount of investigation, fact find, or mediation for this occurrence
nor the proper guidance under The Whistleblower Protection Act of
1989, 5 U.S. C. 2302 (b)(8)-(9), Pub.L. 101-12. my statements have
even been changed without my written or verbal consent.
Id.
Thereafter, on February 13, 2020, Bridgemohan sustained the appellant’s
termination. IAF, Tabs 1 at 11, 24 at 10.
I note that Hernandez emailed Employee and Labor Relations (ELR) on
January 15, 2020 - before he was aware of the incident with Brown - stating:
I would like to schedule an hour of your time to discuss some issues
I have been having with one of my civilian personnel.
Please let me know if you have time this week or next.
I am getting ready to start a PIP [performance improvement plan] on
the member.
IAF, Tab 36 at 17.
Nevertheless, there is no indication that Hernandez had
deciding to terminate the appellant at this time and in fact, Hernandez testified
that at the time he sent the email to ELR, termination was not something he
thought was an option. HR, Hernandez. It was not until January 17, 2020, that
Hernandez met with ELR and learned that termination was an option. Id.
I further note, however, that in a February 11, 2020 email to Bridgemohan
- after the decision to terminate but before Bridgemohan sustained the
termination on review - Hernandez discussed the appellant protected activity:
He has made false accusations regarding several members of the
team, so much so, that witnesses had to attest to the facts of what
truly occurred via written documentation. Please note his comments
(in his file) that he felt threatened by TSgt Brown and SMSgt Couey
and Ms. Conroy, who were present confirmed that in no way was
TSgt Brown threatening or aggressive towards Cam.
IAF, Tab 31 at 7.
I find that both Hernandez and Bridgemohan were aware of the appellant
protected disclosure at the time they issued their respective decisions.
13
Generally, the Board has found agency actions taken within one to two
years of the employee’s disclosure satisfy the knowledge/timing test. Mastrullo,
123 M.S.P.R. 110,
21; Schnell v. Department of the Army, 114 M.S.P.R. 83,
20-22 (2010); see Redschlag v. Department of the Army, 89 M.S.P.R. 589,
87
(2001) (finding that the appellant’s disclosures were a contributing factor in her
removal when they were made approximately 21 months and then slightly over a
year before the agency removed her); cf. Salinas v. Department of the Army, 94
M.S.P.R. 54, T| 10 (2003) (finding that a delay of more than 2 years was too
remote to satisfy the knowledge/timing test).
Based on the time frame of the disclosure and the personnel action, and by
application of the knowledge/timing test, I find that the appellant has proven by
preponderant evidence that his protected disclosure was a contributing factor in
the agency’s decision to terminate him during his trial period.
Clear and convincing evidence
When, as here, an appellant shows by preponderant evidence that he made
a protected disclosure, or engaged in protected activity, which was a contributing
factor in the decision to take a personnel action, the burden of persuasion shifts to
the agency to prove by clear and convincing evidence that it would have taken the
same actions in the absence of the whistleblowing. Smith, 2022 MSPB 4,
23
(citing 5 U.S.C. § 1221(e)(2) and Scoggins v. Department of the Army, 123
M.S.P.R. 592,
26 (2016)). Evidence 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, 680 F.3d at 1368.
In determining whether the agency met its burden, the Board considers the
following non-exclusive factors (the Carr Factors): (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
14
(3) any evidence that the agency takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situated.
Robinson v.
Department of Veterans Affairs, 923 F.3d at 1004, 1018 (Fed. Cir. 2019) (citing
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)).
This is sometimes referred to as a showing of “independent causation.”
Miller, 842 F.3d at
1257,
See
1259 (Fed. Cir. 2016) (acknowledging that
“independent causation” is another way the agency’s overall burden of proof has
been described and recognizing that the first Carr factor is not a question of
“whether the agency has put forward some evidence purporting to show
independent causation, but instead ... whether such evidence is strong”).
The
WPA was not meant to shield employees from their own misconduct. Dabner v.
Environmental Protection Agency, MSPB Docket No. CH-4324-17-0458-1-1, et
al., Final Order at
8 (Apr. 28, 2023) (citing Carr, 185 F.3d at 1326).
The agency need not produce evidence with regard to each of these factors,
nor must each factor weigh in favor of the agency for the agency to carry its
burden. Id. at 1018-19. The Board does not view the Carr factors as discrete
elements, each of which the agency must prove by clear and convincing evidence,
but rather weighs them together to determine whether the evidence is clear and
convincing as a whole. Soto v. Department of Veterans Affairs, 2022 MSPB 6,
H 13 (citing Alarid v. Department of the Army, 122 M.S.P.R. 600,
Lu, 122 M.S.P.R. 335,
14 (2015) and
7).
Carr Factor 1 (strength of the agency’s evidence):
The first Carr factor focuses on the evidence as it stood at the time of the
action and in light of what agency officials knew at the time they acted. Soto,
2022 MSPB 6,
13 n.5.
In Chambers v. Department of the Interior, 116
M.S.P.R. 17 (2011), the Board held:
When examining the strength of the agency’s evidence, the Board
will look at the evidence the agency had before it when it took the
alleged retaliatory action. If the agency fails to investigate a charge
15
sufficiently before bringing an action, such a failure might indicate
an improper motive. However, if relevant facts are developed on
appeal to the Board that the agency had no prior reason to know, the
Board will not find that such facts undercut the agency’s otherwise
sufficiently clear and convincing evidence that, at the time of the
action, its decision would have been the same absent the
whistleblowing.
Id. at K 30 (internal citations and footnote omitted).
Neither the Board nor its reviewing court has articulated a standard
applying the “clear and convincing” evidentiary standard with the very low
threshold for termination of a probationary employee, compared with the
“efficiency of the service” standard applicable to the removal of an employee
with ordinary Board adverse action appeal rights.
See, e.g.,
5 C.F.R.
§ 315.803(a) (“The agency shall utilize the probationary period as fully as
possible to determine the fitness of the employee and shall terminate his services
during this period if he fails to demonstrate fully his qualifications for continued
employment”).
At the outset, I consider it important to note the purpose of probationary
periods. The Board has recognized that an agency has great latitude in assessing
whether to retain an employee during such a period. See Lewis v. Department of
the Army, 63 M.S.P.R. 119, 126 (1994), aff’d, 48 F.3d 1238 (Fed. Cir.) (Table),
cert, denied, 516 U.S. 834 (1995). Here, the agency’s February 5, 2020 notice
terminating the appellant’s during his trial period cited the
following
shortcomings in his conduct and performance:
On numerous occasions, I have discussed with you performance
concerns and expectations as well as conduct issues. Specifically,
your distracting behavior towards coworkers and the office as well as
not following proper procedures or instructions. You failed to
follow proper leave procedures and guidance on more than one
occasion and continue to disregard leadership instructions for office
protocol and professionalism. Furthermore, your performance over
the last several months has not met expectations and standards due to
a pattern of errors when working tasks. I have not seen any
16
improvement over time needed to show that you can work
independently with little oversight.
IAF, Tab 24 at 14.
Hernandez credibly testified regarding his reasons for terminating the
appellant. He testified that on October 11, 2019, he had a general “onboarding”
discussion with the appellant after he had been working in the office a short time.
HR, Hernandez; IAF, Tabs 9 at 17, 36 at 11.
In that discussion, Hernandez
discussed several complaints coworkers had made about the appellant’s
distractive behavior in the office. Id.
He testified that on October 29, 2019, the appellant texted him asking if he
could have the next day off due to an impending snowstorm. HR, Hernandez;
IAF, Tabs 9 at 16, 36 at 9. Hernandez stated he told the appellant that type of
closure decision would be made by the base commander, to which the appellant
responded by stating he would take sick leave. Id.
Hernandez also discussed an incident on November 1, 2019, when the
appellant was scheduled to work, but failed to show up without communicating
that he would not be there - a “no call, no show.” Id. Hernandez stated he tried
without success to reach the appellant by telephone. He then telephoned others
“that may have known where he was at or I thought, you know, just to get some
kind of knowledge as to where he was that day.”
checked detention facilities.
HR, Hernandez.
He also
Finally, he sent Master Sergeant Jenny Sanchez,
Manager, Promotion Board Eligibility, and Brown to the appellant’s residence
and, when no one answered the door, he called the police to conduct a welfare
check. Id.\ IAF, Tabs 9 at 16, 36 at 9. He then received a call from the appellant
and he canceled the welfare check. Id. The next day, he met with the appellant
and the appellant showed him on the appellant’s phone that he had texted
Hernandez.
Hernandez told him “[t]hat at a minimum he should verify that I
received and approved his leave for the day.” IAF, Tabs 9 at 16, 36 at 9; HR,
Hernandez.
17
Hernandez testified that on November 21, 2019, Coney forwarded an email
from Brown, in which Brown reporting that the appellant “failed his AF NEO
Non-prior Military training on ADLS.” HR, Hernandez; IAF, Tab 36 at 12. In
addition to the failed training, Coney reported that the appellant had been
combining his two 15-minute breaks, and when advised that he could not do that,
he stated he was going to continue to do so. Id.
Hernandez testified that in December 2019, he gave the appellant
permission to spend 30 minutes decorating the directorate for the holidays. HR,
Hernandez. On December 9 or 10, 2019, Sanchez told him that the appellant had
used excessive time decorating. HR, Hernandez; see also HR, Klein. Sanchez
followed this up by an email on December 10, 2020:
Per our discussion, yesterday events were as follows:
-
When I arrived to work I witnessed Mr. Bradberry decorating the
office for Christmas. I reminded him that he was told by you last
week to cease decorating
-
Approximately 1.5 hours later I told him again as he continued
decorating.
-
Around 11 as I was discussing the AFI for promotions vs Title 10
with Ms. Klein, and SSgt Brown in the GIB, Mr. Bradberry
entered the GIB with MSgt Starks and proceeded to rummage
through the Christmas decoration in the back closet of the GIB.
I told him again to stop decorating and that there was a lot of
work to accomplish. Ms. Klein then reminded him that he had
been told by several members to stop decorating and that Col
Bridgemohan had stated that we would not have extreme
decorations within the office.
-
At approximately 1330, Mr. Bradberry placed a Christmas ribbon
on my desk. I told him that I had asked several times throughout
the day and that on a personal level I was asking him to stop
leaving Christmas decorations! Alebeit my tomen [sic] and
approach was inappropriate and harsh.
IAF, Tab 17 at 14.
On January 7, 2020, Sanchez emailed Hernandez:
18
“[For your situational awareness], I have spoken with Mr. Bradberry
several times in literally two days with regards to being on the
phones and using the correct state. As you can see he has been in a
not ready state for 2 hours and 46 minutes.
As I have the
“supervisor” role in CISCO I can push him into a ready status,
however I am trying to showcase his lack of responsibility.”
IAF, Tab 36 at 13; HR, Hernandez. Hernandez stated that at the time the unit was
also a call center and would receive numerous calls from the field from other
reserve units regarding promotion board eligibility or any promotion board
questions. Everyone that was in the office would be in a “ready status,” which
meant that they would be ready and able to answer any incoming phone calls.
Not being in a ready state when at your desk not on a break violated protocol.
HR, Hernandez.
On January 14, 2020, Couey memorialized a conversation with Hernandez
regarding the appellant:
Below is the information I discussed with you today on Cam:
7 Jun - I spoke with him about going through SSgt Brown or Penny
for IT items. He stated that he wants it done now, not later and that
when people do not do things when he wants them done he will be
very demanding and mean to get what he wants. I again informed
him that in a military organize he needs to follow the process and
things are not done on his time line.
14 Jan - Cam stated that he feels like he is always in trouble and
does not understand why. I told him its [sic] because he is always
late, makes inappropriate comments and does not listen to people.
He also made several negative comments to SrA Gonzalez about info
being incorrect in MyPers and that it didn’t matter. He then made
comments to himself that to get SSgt Brown to do. any [sic] work,
not even lighting a fire under his ass would make him move faster.
He also said that Mr. Homie was just being a pain in the ass about
his work and that he (CAM) needed to be the bigger person. Later
today he made the comment about his “Homework assignment”
saying that it was fucking pointless and why couldn’t Mr. Homie just
tell him and that it was a waste of time. I told cam that he was not
being the bigger person and he was acting like he was 12 and to stop
making negative comments about co-workers that are trying to train
him and show him how processes work.
19
Overall, he is late to work almost daily by 10-15 minutes. He does
not want to train on his tasks and does not complete his work in a
timely manner. He is always disappearing from his desk and he is
very disrespectful.
IAF, Tab 24 at 19.
On January 15, 2020, Senior Airman Marianela Gonzalez responded to
Hernandez’s request for an update on the appellant’s progress in training. HR,
Hernandez; IAF, Tab 36 at 15.
These are the main mistakes and concerns:
1.
Promotion Orders, still making mistakes reference 191208002343
2.
Doesn’t read tickets before answering or requesting more
documents. He was instructed to update MILPDS and asked for
documents in order to do a calculation. Reference 191220-009711
3.
MILPDS updates he has had a couple tickets where he
switched the DOR and Effective DOR. This can be a big deal
especially if ticket gets closed because no one will have eyes on it.
If this mistake wasn’t caught the member wouldn’t meet the board on
time and possible result in SSB. The reference mention shoes [sic] a
5 year difference in the error. We could create a second level review
but this is such an easy task and would be creating more work. It
would honestly be easier if someone else completed the task then
actually create second level review. Reference 200103-011470
4.
Responded to member instead of private note, this is bad
practice.
It’s frustrating because he focuses his energy in work that isn’t in
our scope and that he decides is important. He still has so many
questions and we task him with the easiest stuff PBE has and he
makes so many earless [sic] mistakes. When he does date of rank
calculations he makes mistakes and when I try to correct him he
doesn’t see them as a big deal. It’s difficult to help him because he
has a question on every task and expects help immediately. Not to
mention right now he has soo [sic] many questions with our DOR
calculations and the accession piece and will respond “arguing” that
the method requested might be incorrect.
IAF, Tab 36 at 15.
20
Hernandez also testified regarding a ticket regarding the erroneous
promotion or promotion date of an Active Guard Reserve officer.
HR,
Hernandez. Hernandez directed the appellant to not work the ticket - “I just felt
because it was such a high level case where it was a colonel that I wanted my
most experienced folks to work on the case to correct it.” Id. Nevertheless, he
learned that the appellant continued to work the ticket in an email from Brown on
January 16, 2020:
After our conversation with Cam regarding Col Melissa Day's
erroneous promotion to Col because she is an AGR, you directed me
to work the case and directed Cam specifically not to work it. You
told him that he could train with me when I had time. I told him I did
not mind training him on it. At approximately 1440, Cam was at
Nelly’s desk working the ticket he was specifically told not to do.
He took SrA Gonzalez, Ms. Conroy and SMSgt Couey away from
their work to seek assistance with the case. I called him out on it
and asked him to stop working the case with Nelly, as he was
directed by you not to work it. He told me that you did not say that
and continued discussing the case with Nelly in front of me. I told
Nelly that I was working it and to stop engaging with Cam regarding
that case. This is now the third conflict in three days which is
distracting me from completing my work. As you recall, I was more
than willing to train Cam on the case when I worked it.
IAF, Tab 24 at 17.
Similarly, Gonzalez emailed Hernandez on January 16, 2020:
I am frustrated because I was helping Cameron and it was revealed to
me that he was asked not to work on a ticket this ticket by you. This
makes me feel like I am wasting my time. I just want to report this
because SSgt Brown gets frustrated justly so because Cameron tried
to disregard everyone's direct orders and has me helping him for no
reason. Now I’m involved because I had no idea that I wasn't
supposed to be helping him. He is asking everyone how to do this
one ticket and so many people are involved and wasting our time.
This ticket is above his scope of training he can't even accomplish
smaller tasks. Also while trying to help him he has the “I know, I
already did that” mentality but doesn't even know what he’s doing.
Something needs to change this is seriously very difficult to work
with.
IAF, Tab 24 at 18.
21
The appellant testified that he was not instructed by Hernandez to work this
ticket. HR, appellant.
Hernandez’s testimony is consistent with notes he prepared in advance of
his meeting with ELR:
Performance Concerns - Mr. Camerron Bradberry
PD related issues -
Training, retraining and errors.
12/11/19
Mr. Bradberry trained on the PV PRF process and processed 2 PRFs
with assistance. Not ready to accomplish on his own due to lack of
PRF’s.
Trained on DOR Calculation and will have multiple careless errors
when processing. Attention to detail has been emphasized. Can
complete task but needs constant check.
Manual promotion orders - struggles with details. He has yet to
accomplish an order that does not require corrections at the second
level review. Not sure if he is grasping the concepts of our
programs.
1/15/2020
Promotion Orders, still making mistakes reference 191208-002343
Doesn’t read tickets before answering or requesting more documents.
He was instructed to update MILPDS and asked for documents in
order to do a calculation. Reference 191220-009711
MILPDS updates he has had a couple tickets where he switched the
DOR and Effective DOR. This can be a big deal especially if ticket
gets closed because no one will have eyes on it. If this mistake
wasn’t caught the member wouldn’t meet the board on time and
possible result in SSB. The reference mention shoes [sic] a 5 year
difference in the error. We could create a second level review but
this is such an easy task and would be creating more work. It would
honestly be easier if someone else completed the task then [sic]
actually create second level review. Reference 200103-011470
Responded to member instead of private note, this is bad practice.
22
Conduct-Behavioral Issues
10/11/19-
Discussion of distracting behavior in the office. We discussed chain
of command and to come to me first if there is an issue or question
and not to go to our PB Directorate or the Deputy Director. We also
discussed office distractions, such as offering food, snacks, etc. We
discussed that this is distracting especially when folks are at their
desk working. He was given a task to provide me daily goals and to
accomplish goals.
10/31/19
No call no show after Halloween. PB staff reached out to him, did a
welfare check at this house in the AM. Also had local PD go out to
house but was called off after email came in from Mr. Bradberry
Friday PM at 3:23 Nov 1, 2019. He was told to contact until he
receives positive confirmation or response to email, vm, text, etc.
Counseling memo signed on 11/2.
10/29/19
Cam texted on this date and asked if he could take off 10/30 due to
predicted snowstorm. I told him that telework was not an option for
him and we need to see what the installation decides regarding the
storm. He then said that he could take sick leave which “wont’ [sic]
cause issues or suspicion”. I told him that this is not acceptable and
is considered misuse of the sick leave program.
12/9/19
I had given Mr. Bradberry permission to spend 1/2 half [sic] hour on
decorating our directorate, as discussed earlier with our PB director.
Col B did not want to spend too much time on office decorating and
we felt that 1/2 should be plenty. He was found decorating after 1.5
hours and was reminded that we only allotted for .5 hours. Later in
the day he was found decorating the area after being told that only .5
hour was authorized.
1/14 IT issues
Mr. Underhill requesting that Mr. Bradberry not come into his
section due to his frustrations and demands for computer equipment.
He has assisted as much as he can and has asked him to work directly
with his supervisor and/or his equipment custodian.
23
Note: Please review notes in file for further details. This paper
serves as a synopsis of incidences that have occurred over the last
several months.
IAF, Tab 17 at 12-13.
The appellant contends that he was not a probationary employee at the time
of his termination. See, e.g., IAF, Tab 9 at 37.
It seems there was a small miscalculation when I was transferred
over to the organization but it is a mistake which was corrected by
my losing agency (Department of Veterans Affair) but not on my
gaining agency (Buckley Air Force Base). I can provide this
evidence to you of this occurrence which happened only happened on
1/29/20 upon our meeting if you could grant me one. I do not
believe Major Hernandez is aware of this because this was so recent.
Id.
Immediately prior to his appointment with the agency, the appellant was
employed by the DVA in the excepted service position of Contact Representative,
GS-0962-05, in Denver, Colorado. IAF, Tab 12 at 32. There was no break in
service between the DVA and the Air Force. Id. The appellant did not submit a
copy of the SF-50 memorializing his DVA appointment, but it appears that he
was appointed to that position on December 9, 2018. Id. at 31. Because the
appointment SF-50 is not in the record, it is unknown what appointment authority
was used or whether the SF-50 designated a duration for a trial period.6
An individual who meets the definition of an “employee” in 5 U.S.C.
§ 7511(a)(1) may challenge his removal from the federal service by filing an
appeal with the Board. See 5 U.S.C. §§ 7512(1), 7513(d). As relevant in this
case, the definition of “employee” includes a nonpreference eligible individual in
the excepted service “who is not serving a probationary or trial period under an
initial appointment pending conversion to the competitive service” or “who has
6 “For the excepted service, the trial period can vary, but is often either one or two
years.”
www.mspb.gov/studies/adverse_action_report/14_IdentifyingProbationers.htm#_ftn3
24
completed 2 years of current continuous service in the same or similar positions
in an Executive agency under other than a temporary appointment limited to 2
years or less. 5 U.S.C. § 7511(a)(1)(C). An individual serving a probationary or
trial period, is not a public employee who can only be removed for cause, and
thus, has no Constitutional right to pretermination “process.”
Pope v.
Department of the Navy, 62 M.S.P.R. 476, 479 (1994) (citing Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 535, 538-39, 105 S.Ct. 1487, 1491, 84
L.Ed.2d 494 (1985)).
It is clear that Hernandez and Bridgemohan reasonably believed that the
appellant was serving a trial period. On the record before me, I cannot determine
whether the appellant was serving a trial period or whether the appellant
otherwise met the definition of an employee.
Even if the appellant was an
“employee,” I would still find that the agency had strong evidence to support a
removal action against the appellant even under Chapter 75.
I find that the agency’s reasons for terminating the appellant’s appointment
during his trial period, detailed above, were credibly explained, consistent with
the purpose of a trial period, and represent strong evidence supporting
termination. Thus, for purposes of this IRA appeal, I find that Carr factor 1
favors the agency.
Carr Factor 2 (motive to retaliate):
When applying the second Carr factor, the Board will consider any motive
to retaliate on the part of the agency officials who ordered the action, as well as
any motive to retaliate on the part of other officials who influenced the decision.
See Carr, 185 F.3d at 1326.
As stated in Chambers, “One of the factors to
consider in ruling on whether the agency met its burden of proof is the strength of
any retaliatory motive on the part of the officials who were involved in the
decision in question. Because direct evidence of a retaliatory motive is rare,
25
petitioners may rely on circumstantial evidence giving rise to an inference of
impermissible intent.” 116 M.S.P.R. 17,
58 (internal citations omitted).
The termination action was taken by Hernandez and, after review, sustained
by Bridgemohan. Both Hernandez and Bridgemohan denied that their decisions
were motivated by the appellant’s disclosure concerning Brown. HR, Hernandez,
Bridgemohan. The disclosure concerning Brown was not directed at Hernandez
and Bridgemohan did not implicate them in any way.
Moreover, there is no
reason to believe that either Hernandez or Bridgemohan would be subjected to
discipline or any other negative repercussions due to the appellant’s protected
activity.
As noted above regarding contributory factor, Hernandez initiated
discussions about how to address the issues with the appellant’s conduct and
performance with ELR on January 15, 2020 - before he was aware of the incident
with Brown - and this would indicate a nonretaliatory motive for taking the
termination action.
IAF, Tab 36 at 17.
However, it cannot rule out reprisal.
Nevertheless, I discern no personal motive on their part to retaliate against the
appellant for reporting Brown’s conduct.
“The administrative judge also should consider whether the appellant’s
disclosures reflect on the appellant’s supervisors in their capacities as managers
and employees, which may be sufficient to establish a substantial retaliatory
motive.” Pridgen v. Office of Management and Budget, 2022 MSPB 31,
70.
[W]hen a whistleblower makes highly critical accusations of an
agency’s conduct that draws the attention of high-level agency
managers, the fact that an agency official is “outside the
whistleblower’s chain of command, not directly involved in alleged
retaliatory actions, and not personally named in the whistleblower’s
disclosure is insufficient to remove the possibility of a retaliatory
motive or retaliatory influence,” and that the Board should consider
any motive to retaliate on the part of the agency official who ordered
the action, as well as that of any officials who influenced the action.
Soto, 2022 MSPB 6,
14 (citing Whitmore, 680 F.3d at 1368); Robinson, 923
F.3d at 1019 (although the deciding official did not have a personal motive to
26
retaliate against the appellant for contradicting an agency Under Secretary, the
Board erred by failing to consider whether he had a “professional retaliatory
motive” against the appellant because his disclosures “implicated the capabilities,
performance, and veracity of [agency] managers and employees, and implied that
the [agency] deceived [a] Senate Committee).
Hernandez testified that the appellant’s email regarding the Brown incident
portrayed the Air Force in a bad light. HR, Hernandez. But even with that said,
it is hard to see how an incident involving inappropriate behavior in the
workplace by a sergeant toward a peer would “implicated the capabilities,
performance, and veracity of’ Hernandez and Bridgemohan. I further find that
because the disclosure was not made to individuals outside of the unit, the
professional motive to retaliate would be minimal.
I find that the individuals making or influencing the decision to terminate
the appellant had no personal motive to retaliate against the appellant and, at
best, a slight professional motive to retaliate against him. Thus, Carr Factor 2
weighs very minimally for the appellant.
Carr Factor 3 (similar actions against nonwhistleblowers):
Regarding Carr Factor 3, it is the agency that bears the burden of proving
that it would have taken the same action in the absence of the appellant’s
protected activity. Smith, 2022 MSPB 4,
H 14).
30 (citing Alarid, 122 M.S.P.R. 600,
Only evidence reflecting the agency’s treatment of similarly situated
nonwhistleblower employees is relevant to Carr Factor 3. Wilson v. Department
of Veterans Affairs, 2022 MSPB 7,
67 (citing Siler v. Environmental Protection
Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018)). While the agency does not have
an affirmative burden to produce evidence concerning each and every Carr
factor, and “the absence of any evidence relating to Carr Factor 3 can effectively
remove that factor from the analysis,” the failure to produce such evidence if it
exists “may be at the agency’s peril,” and “may well cause the agency to fail to
27
prove its case overall.” Whitmore, 680 F.3d at 1374-75. Moreover, because the
agency bears the burden of proof at this stage of the analysis, when the agency
fails to introduce relevant comparator evidence, the third Carr factor cannot favor
the agency.
Smith, 2022 MSPB 4,
30 (citing Smith v. General Services
Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019) and Siler, 908 F.3d at
1299).
The agency proffered no evidence that it removed other probationary or
trial period employees who did not engage in whistleblowing activity for similar
issues as demonstrated by the appellant.
For their part, Hernandez and
Bridgemohan testified they had little experience supervising civilians and
Bridgemohan had only been involved in one prior removal.
HR, Hernandez,
Bridgemohan. The appellant proffered no comparators. I find that Carr factor 3
is of little import here. Tito v. Department of the Interior, MSPB Docket No. SF-
0752-15-0684-1-1, Final Order at
16 (Feb. 28, 2023) (Carr factor 3 was “of
relatively little import” where “the agency did not present any evidence regarding
this factor, the charged misconduct was unique to the experience of both the
proposing and deciding officials, and none of the purported comparators
identified by the appellant were valid comparators.”).
Thus, I find that the
absence of evidence on the third Carr factor is a neutral factor.
MSPB 6,
Soto, 2022
18; see Rickel v. Department of the Navy, 31 F.4th 1358, 1365 (Fed.
Cir. 2022) (holding that “[t]he lack of evidence on the third Carr factor appears
neutral”).
Considering the record as a whole, and weighing the three Carr factors, I
find the agency met its burden to show by clear and convincing evidence that it
would have terminated the appellant even absent his whistleblowing. Thus, I find
that although the appellant established that he made a protected disclosure that
was a contributing factor in the agency’s decision to terminate him during his
trial period, I nevertheless find he is not entitled to corrective action.
28
DECISION
The appellant’s request for corrective action is DENIED.
FOR THE BOARD:
/S/
Glen D. Williams
Administrative Judge
NOTICE TO APPELLANT
This initial decision will become final on September 14, 2023, unless a
petition for review is filed by that date.7 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 30day 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.
7 On August 4, 2023, MSPB announced the October 2, 2023 launch of the new e-Appeal
and the planned downtime for the system transition. Due to this transition, MSPB will
suspend the processing of all cases beginning on Saturday, September 9, 2023, through
Friday, October 6, 2023. All filing and processing deadlines that fall during that period
will be automatically extended by 28 calendar days. A copy of this announcement is
available on the MSPB website at www.mspb.gov.
29
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 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 identify specific
evidence in the record that demonstrates the error. In reviewing a claim of an
erroneous finding of fact, the Board will give deference to an administrative
30
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.
(c) The 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.
(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 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.
31
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. 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.
§ 1201.4(j). If the petition is filed electronically, the online process itself will
serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(l).
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.
32
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 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
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,
following address:
you
must
submit your petition
to
the
court
at the
33
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 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 Protection Board,
582 U.S. 420 (2017). 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.
§ 2000e-5(f) and 29 U.S.C. § 794a.
See 42 U.S.C.
34
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 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:
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
35
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
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://www.uscourts.gov/CourULocator/CourtWebsites.aspx
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.