Petition for Writ of Certiorari — Camerron L. Bradberry, Petitioner v. Department of the Air Force

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NOTE: This order is nonprecedential.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NOTE: This disposition is nonprecedential.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