                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 38

                            Docket No. DA-0752-14-0353-I-1

                                 William R. Campbell,
                                       Appellant,
                                            v.
                               Department of the Army,
                                         Agency.
                                    November 2, 2016

           William R. Campbell, El Paso, Texas, pro se.

           Russell Wardlow, Fort Bliss, Texas, for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his demotion for negligent performance of duty and found that he did
     not prove his affirmative defense of reprisal for whistleblowing. For the reasons
     set forth below, we DENY the petition for review.           Except as expressly
     MODIFIED by this Opinion and Order to supplement the administrative judge’s
     analysis of the appellant’s whistleblower reprisal claim, we AFFIRM the initial
     decision.
                                                                                        2

                                      BACKGROUND
¶2         The initial decision contains a lengthy discussion of the facts in this appeal,
     but the essential facts are that the appellant occupied a GS-15 position as Director
     of the agency’s Directorate of Plans, Training, Mobilization, and Security
     (DPTMS) at Fort Bliss, Texas. Initial Appeal File (IAF), Tab 1 at 7-8. DPTMS
     is composed of several branches, including the Range Operations Branch (Range
     Branch). IAF, Tab 7 at 23. The appellant’s responsibilities included establishing
     and maintaining effective internal controls, which are the agency’s mechanisms
     and procedures for protecting agency resources. IAF, Tab 6 at 102.
¶3         In May 2012, several employees of the Range Branch were arrested and
     charged with theft of Government property, including furniture, which had been
     acquired for use in military training villages.     IAF, Tab 37 at 4-68, Tab 38
     at 4-68, Tab 19 at 50. As an outgrowth of the agency’s investigation into the
     theft, the appellant also suspected wrongdoing in the use of Government purchase
     cards (GPC) in the Range Branch.       IAF, Tab 7 at 15.       Following an internal
     review that led to some actions, the appellant requested an external audit. Id.
     The Garrison Commander then initiated an investigation of GPC use in the Range
     Branch pursuant to Army Regulation (AR) 15-6.            Id. at 11.    The AR 15-6
     investigation found, among other things, that: management controls for the GPC
     program at the Range Branch were not in place; the appellant did not adequately
     monitor the GPC program at the Range Branch; the appellant did not clearly
     understand or communicate agency policy and priorities regarding the GPC
     program; and the absence of management controls for the Range Branch’s GPC
     program caused the misuse of the program. Id. at 18.
¶4         Following the AR 15-6 investigation, the agency proposed the appellant’s
     removal based on a charge of negligent performance of duty. Id. at 4-6. The
     charge was supported by three specifications involving the alleged absence of
     management controls in the Range Branch GPC program and the lack of
     management controls regarding the furniture.       Id. at 4.     After the appellant
                                                                                     3

     responded to the notice of proposed removal, IAF, Tab 6 at 13-18, the deciding
     official sustained the charge but mitigated the penalty to a demotion to a GS-12
     Workforce Development Specialist position, IAF, Tab 1 at 11-13.
¶5         The appellant filed a Board appeal of his demotion, arguing that the charge
     against him was “unfounded” and that he had instituted required policies and
     procedures and conducted required inspections.      Id. at 5.   He also raised an
     affirmative defense of reprisal for whistleblowing activity, alleging that the
     agency demoted him in retaliation for his having reported to his superior his
     suspicion that employees were engaging in theft of Government property and
     seeking an external investigation of the GPC program. Id.
¶6         After holding a hearing, the administrative judge issued an initial decision
     that affirmed the appellant’s demotion. IAF, Tab 43, Initial Decision (ID)
     at 1, 38. The administrative judge found that: the agency proved the charge and
     each specification by preponderant evidence, ID at 5-32; the appellant did not
     prove his affirmative defense, ID at 32-35; and the penalty of demotion was
     reasonable and promoted the efficiency of the service, ID at 35-37.
¶7         The appellant has filed a petition for review, arguing that the agency
     applied outdated GPC program operating procedures in its investigation, he took
     immediate action once he learned of control issues within the Range Branch, the
     control weaknesses in the Range Branch were not material, and other directors
     had accountability issues and were not demoted. Petition for Review (PFR) File,
     Tab 1 at 4-5. The agency has filed a response in opposition to the petition for
     review, and the appellant has filed a reply to the agency’s response. PFR File,
     Tabs 7-8.

                                        ANALYSIS
     The administrative judge correctly found that the agency proved the charge by
     preponderant evidence.
¶8         In the initial decision, the administrative judge thoroughly analyzed the
     hearing testimony and documentary evidence and found that the agency proved
                                                                                           4

      the charge. ID at 5-32. The appellant challenges this finding on review, arguing
      that the investigators improperly used an outdated regulation, AR 715-xx, in
      evaluating the GPC program. PFR File, Tab 1 at 4; see IAF, Tab 12 at 5, 9. The
      appellant asserts that, although AR 715-xx required the billing official to
      maintain original documentation for GPC purchases, an updated regulation
      governing GPC purchases did not include such a requirement. PFR File, Tab 1
      at 4. He contends that because they relied on an outdated regulation in finding
      that the management controls over the GPC program at the Range Branch were
      unsatisfactory, the investigators provided the deciding official with incorrect
      information. Id.
¶9             We find this argument unpersuasive. The audit covered GPC transactions
      at the Range Branch from March 2011 through August 2012. IAF, Tab 7 at 32.
      As the administrative judge correctly noted, the appellant’s certifications of 2010
      and 2011 reflect that the regulation governing the GPC program at that time was
      AR 715-xx, and the updated GPC Standard Operating Procedure (SOP) was
      published on February 23, 2012. ID at 7 n.4 (citing IAF, Tab 8 at 61, 72; 1 IAF,
      Tab 18 at 56); IAF, Tab 17 at 39. Given the time period covered by the audit, we
      find that the agency investigators appropriately relied on both the agency’s GPC
      SOP dated February 23, 2012, and AR 715-xx in evaluating the GPC program at
      the Range Branch. IAF, Tab 7 at 32.
¶10            The appellant also argues on review that once he learned of “accountability
      issues” in the DPTMS, he immediately took actions to remedy them. PFR File,
      Tab 1 at 4. As the administrative judge found, however, the appellant failed to
      implement adequate controls to prevent issues from arising in the first place and
      the weaknesses were material.           ID at 15, 25-26, 30-32.        In sum, we have
      considered the appellant’s arguments set forth above, and we find that he has not


      1
          The administrative judge inadvertently cited to page 73 instead of page 72.
                                                                                         5

      set forth a basis to disturb the administrative judge’s well-reasoned findings
      regarding the charge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106
      (1997) (finding no reason to disturb the administrative judge’s findings when she
      considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions); Broughton v. Department of Health & Human Services,
      33 M.S.P.R. 357, 359 (1987) (same).

      The agency proved by clear and convincing evidence that it would have taken the
      same action in the absence of the appellant’s protected disclosure.
¶11         In an adverse action appeal such as this, an appellant’s claim of
      whistleblower reprisal is treated as an affirmative defense.            Shannon v.
      Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 21 (2014); Shibuya v.
      Department of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013). In such instances,
      once the agency proves its adverse action case by a preponderance of the
      evidence, the appellant must show by preponderant evidence that he engaged in
      whistleblowing activity by making a protected disclosure under 5 U.S.C.
      § 2302(b)(8) and that the disclosure was a contributing factor in the agency’s
      personnel action. Shannon, 121 M.S.P.R. 221, ¶ 21; Shibuya, 119 M.S.P.R. 537,
      ¶ 19; 5 C.F.R. § 1201.56(b)(2)(i)(C).
¶12         If an appellant meets this burden, the burden shifts to the agency to
      establish by clear and convincing evidence that it would have taken the same
      action in the absence of the protected disclosure. Shannon, 121 M.S.P.R. 221,
      ¶ 22; 5 C.F.R. § 1209.4(d).     In determining whether the agency has met this
      burden, the Board will consider the following 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 the agency officials involved in the decision; and
      (3) any evidence that the agency takes similar actions against employees who are
      not whistleblowers, but who are otherwise similarly situated.        Carr v. Social
      Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does
      not view these factors as discrete elements, each of which the agency must prove
                                                                                            6

      by clear and convincing evidence, but rather, the Board will weigh the factors
      together to determine whether the evidence is clear and convincing as a whole.
      Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). Our
      reviewing court has added that “[e]vidence only clearly and convincingly
      supports a conclusion when it does so in the aggregate considering all the
      pertinent evidence in the record, and despite the evidence that fairly detracts from
      that conclusion.” Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed.
      Cir. 2012); Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 27 (2015).
¶13         The administrative judge found that the appellant proved that he made a
      protected disclosure and that this disclosure was a contributing factor in the
      agency’s decision to demote him. 2 ID at 34. The administrative judge further
      found, however, that the agency proved by clear and convincing evidence that it
      would have taken the same action in the absence of the appellant’s disclosure.
      ID at 35.
¶14         Although the appellant does not raise this issue on review, the
      administrative judge did not explicitly address each of the Carr factors in making
      her clear and convincing assessment.       ID 34-35.     Instead, she focused on the
      second Carr factor, i.e., the existence and strength of any motive to retaliate on
      the part of the agency officials involved in the decision. The administrative judge
      found that the proposing and deciding officials credibly testified that they had no
      motive to retaliate against the appellant based on his whistleblowing. ID at 35.
      In making this finding, the administrative judge noted that the deciding official
      stated that the misconduct that was the subject of the appellant’s disclosure
      occurred before he took command of the garrison, thus implying that he was not
      directly implicated by the appellant’s disclosures. ID at 34; see PFR File, Tab 7,


      2
       The agency has not filed a cross petition for review challenging these findings, and we
      discern no reason to disturb them.
                                                                                           7

      Hearing Transcript (HT) at 134-35 (testimony of deciding official). 3              The
      appellant does not challenge the administrative judge’s assessment of the
      proposing and agency officials’ motive to retaliate, and we discern no reason to
      disturb this portion of the initial decision. However, because the administrative
      judge did not make any findings regarding the other two Carr factors in her clear
      and convincing assessment, we find it appropriate to supplement her analysis by
      addressing the other two factors.

            The agency’s evidence in support of its action is strong.
¶15         The record evidence shows that the agency had strong reasons for
      disciplining the appellant, as there was significant evidence to support the charge
      and the consequences of the appellant’s negligence were very serious. As
      discussed above, the results of both the agency audit and the AR 15-6
      investigation showed that the appellant failed to perform his duties of ensuring
      that management controls were in place to prevent misuse of the GPC program
      and theft of Government property.        The proposing official testified that the
      investigation showed that there were systemic long-term issues with internal
      controls relating to property accountability and the GPC program, HT at 21
      (testimony of the proposing official), and he stated that the appellant failed to
      ensure that Range Branch personnel were aware of the requirements governing
      property accountability and were following them, HT at 42 (testimony of the
      proposing official).
¶16         In addition, the deciding official testified that the results of the agency
      audit were “alarming” and demonstrated a “complete failure” of management
      controls for the GPC program at the Range Branch. HT at 97 (testimony of the



      3
        The hearing transcript is included as part of the agency response to the petition for
      review, but our citations to the hearing transcript will be to the separately paginated
      hearing transcript and not the pagination of the entire response.
                                                                                      8

      deciding official). He also testified that the AR 15-6 investigation “documented a
      number of abuses, likely criminal activity, pilferage, theft, fraud, waste, and
      abuse in the [GPC program], and rampant [leadership] failures at all echelons,
      including [the appellant] as the Director of DPTMS.” HT at 98 (testimony of the
      deciding official). He further noted that both the agency audit and the AR 15-6
      investigation illustrated that the appellant had not made any efforts to rectify
      weaknesses and ensure that procedures were in place to prevent them from
      recurring. HT at 112 (testimony of the deciding official). The deciding official
      explained that he imposed the demotion because the investigation revealed that
      the problems at the Range Branch were caused, in part, by the appellant’s
      inaction and lack of oversight. HT at 124 (testimony of the deciding official). In
      sum, based on our review of the record, we find that the evidence in support of
      the appellant’s demotion is very strong.

            The record does not reveal whether there are any employees who are not
            whistleblowers, but who are otherwise similarly situated to the appellant.
¶17         The agency did not present any evidence showing that it took similar
      actions against employees who were not whistleblowers, but who were otherwise
      similarly situated to the appellant.   See generally IAF, Tabs 36-38 (agency’s
      response to the administrative judge’s affirmative defense order); HT.        The
      appellant argues on review that there were property accountability issues in three
      other directorates; however, he was the only director who was removed from his
      position. PFR File, Tab 1 at 5. In support of this argument, the appellant notes
      that the Logistics Management Specialist who conducted Command Supply
      Discipline Program (CSDP) evaluations at Fort Bliss testified that other
      directorates also had accountability issues but the agency did not take any action
      against their directors. PFR File, Tab 8 at 3 (citing HT at 189) (testimony of the
      Logistics Management Specialist). The appellant further notes that the proposing
                                                                                          9

      official, who is the Director of the agency’s Directorate of Family, Morale,
      Welfare, and Recreation (DFMWR) at Fort Bliss, 4 testified that there had been
      property accountability issues at DFMWR but no action was taken against him.
      Id. (citing HT at 67-70) (testimony of the proposing official).
¶18            As the proposing official explained, however, once he became aware of
      property accountability issues in his directorate, he addressed them immediately,
      whereas the appellant did not. Specifically, the proposing official testified that
      when an inventory of DFMWR revealed that a number of items were missing, he
      began implementing safeguards within 30 days to ensure that property
      accountability issues would not recur.       HT at 39-40, 69 (testimony of the
      proposing official).    By contrast, the record evidence demonstrates that the
      appellant did not adequately address the property accountability issues in DPTMS
      once he became aware of them. For example, a May 2011 evaluation showed that
      DPTMS was unsatisfactory in 6 of 9 areas and made recommendations for
      improvement; however, a follow-up evaluation conducted in July and August of
      2011 indicated that the primary recommendation had not been implemented. IAF,
      Tab 23 at 20-23; see HT at 33-34 (testimony of the proposing official).            In
      addition, as previously noted, the deciding official testified that both the agency
      audit and the AR 15-6 investigation illustrated that the appellant had not made
      any efforts to rectify weaknesses and ensure that procedures were put in place to
      prevent them from recurring.      HT at 112 (testimony of the deciding official).
      Given these circumstances, we find that the proposing official is not a valid
      comparator employee for purposes of the appellant’s whistleblowing retaliation
      claim.



      4
       At the time of the appellant’s proposed removal, the proposing official was serving a
      detail as Deputy to the Garrison Commander. HT at 15-16 (testimony of the proposing
      official).
                                                                                       10

¶19         In his petition for review, the appellant does not identify the other two
      directors (other than the proposing official), who he asserts were not disciplined
      for accountability issues, but he refers to the testimony of the Logistics
      Management Specialist, who identified the other directorates in his hearing
      testimony.   PFR File, Tab 8 at 3; HT at 188-89 (testimony of the Logistics
      Management Specialist). At no point, however, does the appellant describe the
      specific circumstances surrounding the accountability issues in those other
      directorates. The agency does not do so either. Thus, it is not possible, based on
      the evidence presented, to determine whether the directors who were not
      whistleblowers engaged in similar misconduct and were not disciplined, or if they
      were not similarly situated to the appellant because their misconduct was not as
      serious.
¶20         In Whitmore, our reviewing court determined that “Carr does not impose
      an affirmative burden on the agency to produce evidence with respect to each and
      every one of the three Carr factors to weigh them each individually in the
      agency’s favor.”   Whitemore, 680 F.3d at 1374.       Rather, “the absence of any
      evidence relating to Carr factor three can effectively remove that factor from the
      analysis.” Id.; see Runstrom v. Department of Veterans Affairs, 123 M.S.P.R.
      169, ¶ 18 (2016) (finding that, due to lack of evidence that there were any
      employees similarly situated to the appellant, the third Carr factor was not
      significant for the analysis of that case). This is the situation presented in the
      instant matter. Accordingly, we find that the third Carr factor is insignificant due
      to the lack of evidence regarding similarly situated employees.
¶21         Weighing the three Carr factors together, we find that, given the strength
      of the agency’s evidence regarding its reason for demoting the appellant and the
      absence of a motive to retaliate on the part of the proposing and deciding
      officials, the agency demonstrated by clear and convincing evidence that it would
      have demoted the appellant even absent his protected disclosure. We therefore
                                                                                         11

      agree with the administrative judge’s determination that the appellant failed to
      prove his whistleblower reprisal claim.

      The administrative judge complied with the guidance in Whitmore regarding the
      clear and convincing evidence issue.
¶22         In reviewing this case, we also have considered the guidance in Whitmore
      regarding how the Board should analyze the evidence in addressing a
      whistleblowing claim.     As noted above, our reviewing court has stated that a
      proper analysis of the clear and convincing evidence issue requires that the Board
      evaluate all of the pertinent evidence in determining whether an agency has met
      its clear and convincing burden.     Whitmore, 680 F.3d at 1368. In Whitmore, the
      court found that, in analyzing whether the agency met this burden, the Board
      excluded or ignored evidence offered by the appellant that was necessary to
      adjudicate his whistleblower reprisal claim. Id. at 1368-72. In particular, the
      court found that the administrative judge in that case abused her discretion by
      excluding certain of the appellant’s requested witnesses, thereby admitting only
      testimony on the charges brought against the appellant and excluding witnesses
      offered    to   support   his   affirmative   defense   of   whistleblower   reprisal.
      Id. at 1368-70. The court held that the administrative judge “treated the hearing
      as if it only functioned to examine the proof of the charges and the
      reasonableness of the penalty—not Whitmore’s whistleblower defense.”               Id.
      at 1363.
¶23         By contrast, the administrative judge in this case did not prevent the
      appellant from effectively presenting his whistleblowing defense. Not only did
      the administrative judge approve all 14 of the appellant’s requested witnesses,
      compare IAF, Tab 12 at 7-10, with IAF, Tab 33 at 2, but she also granted him an
      extension of time to submit a prehearing submission, which consisted of 20
      separate parts and thousands of pages, some of which pertained to his
      whistleblowing reprisal claim, IAF, Tabs 12-31. Most importantly, her thorough
                                                                                        12

      initial decision shows that she closely listened to the testimony of witnesses from
      both sides, including those who bolstered the appellant’s whistleblowing defense.

      The administrative judge correctly found that the agency established nexus and
      that demotion is a reasonable penalty.
¶24         In addition to the requirement that the agency prove its charge against the
      appellant, the agency also must prove that there is a nexus, i.e., a clear and direct
      relationship between the articulated grounds for the adverse action and either the
      appellant’s ability to accomplish his duties satisfactorily or some other legitimate
      government interest.    Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 8
      (2010). Here, the administrative judge found that nexus was established, see ID
      at 35, and we agree. There is a presumption of a nexus where the misconduct
      occurred in part at work. Parker v. U.S. Postal Service, 819 F.2d 1113, 1116
      (Fed. Cir. 1987). The appellant has not presented any argument to the contrary,
      and thus we see no reason to disturb the administrative judge’s finding on nexus.
¶25         The Board will review an agency imposed penalty only to determine if the
      agency considered all the relevant factors and exercised management discretion
      within tolerable limits of reasonableness. Douglas v. Veterans Administration,
      5 M.S.P.R. 280, 305-06 (1981). In making this determination, the Board must
      give due weight to the agency’s primary discretion in maintaining employee
      discipline and efficiency, recognizing that the Board’s function is not to displace
      management’s responsibility, but to ensure that managerial judgment has been
      properly exercised. Ellis, 114 M.S.P.R. 407, ¶ 11; Douglas, 5 M.S.P.R. at 306. It
      is not the Board’s role to decide what penalty it would impose, but, rather, to
      determine whether the penalty selected by the agency exceeds the maximum
      reasonable penalty. Lewis v. General Services Administration, 82 M.S.P.R. 259,
      ¶ 5 (1999).
¶26         The decision letter and the deciding official’s hearing testimony show that
      he appropriately considered the relevant Douglas factors in deciding to demote
      the appellant. IAF, Tab 1 at 11-13; HT at 111-21, 126 (testimony of the deciding
                                                                                      13

      official).   Specifically, he considered the seriousness of the appellant’s
      misconduct and found that it was “quite serious” because the situation at the
      Range Branch was longstanding and pervasive and no action was taken to address
      it. HT at 112 (testimony of the deciding official). The deciding official also
      considered that the appellant’s conduct had caused him to lose faith and
      confidence in the appellant’s ability to serve as a director. HT at 115 (testimony
      of the deciding official). In addition, he considered the appellant’s potential for
      rehabilitation and determined that the appellant could not function as a supervisor
      but could continue to serve in a nonsupervisory role. HT at 120-21 (testimony of
      the deciding official). The deciding official considered as mitigating factors the
      appellant’s lengthy service (36 years), the statements he provided, his health, and
      his emotional state, and the deciding official testified that these factors caused
      him to mitigate the proposed removal penalty to a demotion.            HT at 126
      (testimony of the deciding official).
¶27          In assessing the reasonableness of the penalty, the administrative judge
      also considered the appellant’s disparate penalty claim, noting that the appellant
      “complained that no other directors were demoted from their positions when there
      were problems within their directorates.”     ID at 36.   The consistency of the
      penalty with those imposed upon other employees for the same or similar offenses
      is one of the factors to be considered under Douglas in determining the
      reasonableness of an agency-imposed penalty. Douglas, 5 M.S.P.R. at 305. To
      establish disparate penalties, the appellant must show that the charges and the
      circumstances surrounding the charged behavior are substantially similar to those
      in his comparator’s case. Voss v. U.S. Postal Service, 119 M.S.P.R. 324, ¶ 6
      (2013). Here, the administrative judge properly rejected the appellant’s disparate
      penalty claim, noting that the appellant failed to identify any director whose
      directorate had similar problems. ID at 36.
¶28          Finally, the administrative judge considered as mitigating factors the
      appellant’s length of service, his commitment to the agency and its mission, his
                                                                                        14

      lack of any prior discipline, and the good records of other branches in DPTMS
      under his supervision, but found that the sustained charge was serious and
      militated against mitigating the penalty. Based on her review of the record, the
      administrative judge found that the deciding official properly exercised his
      discretion in determining that demotion was an appropriate penalty in this case
      and that the agency’s selected penalty was not unreasonable. ID at 37. We see
      no reason to disturb this finding.

                                             ORDER
¶29         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      U.S. Court of Appeals for the Federal Circuit.
            The court must receive your request for review no later than 60 calendar
      days after the date of this order.     See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
      Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
      has held that normally it does not have the authority to waive this statutory
      deadline and that filings that do not comply with the deadline must be dismissed.
      See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you want to request review of the Board’s decision concerning your
      claims   of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
      the Board’s disposition of any other claims of prohibited personnel practices, you
      may request the U.S. Court of Appeals for the Federal Circuit or any court of
      appeals of competent jurisdiction to review this final decision.        The court of
      appeals must receive your petition for review within 60 days after the date of this
                                                                                 15

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
         If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode/htm.
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, and 11.            Additional
information about other courts of appeals can be found at their respective
websites,            which         can          be         accessed         through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         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
                                                                                 16

Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.



FOR THE BOARD:


______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
