                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     FRANZ MULLER,                                   DOCKET NUMBER
                  Appellant,                         SF-0752-13-0151-I-2

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: February 13, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Stephanie L. Ayers, Esquire, and Thad M. Guyer, Esquire, Medford,
             Oregon, for the appellant

           Chandra R. Postma, Esquire, Anchorage, Alaska, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     sustained his removal from service. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the
     initial decision is based on an erroneous interpretation of statute or regulation or

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     the erroneous application of the law to the facts of the case; 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; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See 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, and based on the following points and authorities, 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 held the position of Airplane Pilot (Law Enforcement) for the
     agency’s Fish and Wildlife Service (FWS), in Cold Bay, Alaska. MSPB Docket
     No. SF-0752-13-0151-I-1 (I-1), Initial Appeal File (IAF), Tab 4, Subtab 4
     (Standard Form (SF) 50 documenting removal), Subtab 4k (position description).
     Following a February 2010 accident involving his piloting of an FWS plane, the
     agency’s Office of Aviation Services (OAS) convened a Pilot Review Board
     (PRB) to determine what, if any, action to take regarding the appellant’s pilot
     authorization card. 2 See, e.g., I-1, IAF, Tab 12 at 13-28 (PRB report). The PRB
     considered the appellant’s accident, as well as several other incidents where he
     had reportedly failed to follow agency-specific piloting policies. Id. Ultimately,
     the PRB recommended that the agency reinstate the appellant’s pilot authorization
     card only if several conditions were met. Id. at 13-14. Among them, the PRB
     “strongly recommend[ed]” that the appellant be moved from his isolated position

     2
       The appellant’s position required that he hold both a pilot’s license, issued by the
     Federal Aviation Administration (FAA), and a pilot authorization card, issued by the
     OAS, which was previously known as the Aviation Management Directorate. See
     MSPB Docket No. SF-0752-13-0151-I-2 (I-2), IAF, Initial Decision (ID) at 2; I-1, IAF,
     Tab 4, Subtab 4k at 6 (relevant portion of the position description).
                                                                                            3

     in Cold Bay to one where he could receive “adequate oversight and supervision
     from an aviation knowledgeable supervisor and [could] be mentored within a
     positive [agency] safety culture atmosphere.” Id. at 14. The agency determined
     that it had no such positions available in the appellant’s region (Alaska). I-1,
     IAF, Tab 4, Subtab 4g at 2. Therefore, the associate director of OAS declined to
     reinstate the appellant’s pilot authorization card. I-1, IAF, Tab 4, Subtab 4f.
¶3         The   agency removed        the   appellant   for   “Loss of [Agency]        Pilot
     Authorization.” I-1, IAF, Tab 4, Subtab 4a (decision letter), Subtab 4e (proposal
     letter). The appellant appealed his removal to the Board. I-1, IAF, Tab 1. After
     holding the requested hearing, the administrative judge sustained the appellant’s
     removal. ID. The appellant has filed a petition for review. 3 I-2, Petition for
     Review (PFR) File, Tab 1. The agency has filed a response, PFR File, Tab 3, and
     the appellant has replied, PFR File, Tab 6. 4

     The administrative judge properly found that the agency met its burden of
     proving the charge.
¶4         On review, the appellant argues that the administrative judge erred in
     sustaining the charge that he lost his pilot authorization.        PFR File, Tab 1 at
     10-11, 18-19, 22-28, 31-32. We do not agree.
¶5         Generally, in an adverse action appeal, the agency must prove its charge by
     a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of
     the evidence is that degree of relevant evidence that a reasonable person,



     3
       The appellant’s petition did not contain any arguments as to the administrative judge’s
     findin gs on the affirmative defense of age discrim ination or nexus. Accordingly, we
     will not revisit or disturb the judge’s well-reasoned analysis of those issues on review.
     See ID at 28-32.
     4
        In part, the appellant’s petition for review and reply improperly rely upon Board
     in itial decisions for support. See PFR File, Tab 1 at 31-32 (citing “Steele v. DOI”), 36
     (citing “Sullivan v. DOT”), Tab 6 at 10 n.3 (citing “Mital v. Dep’t of Agric”). Because
     in itial decisions are not precedential, we decline to consider them. See 5 C.F.R.
     § 1201.113.
                                                                                             4

     considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
¶6         Here, the administrative judge determined that the agency met its burden of
     proof as to the charge by showing the following: (1) the appellant held a position
     that required a pilot authorization; (2) the agency revoked that authorization; and
     (3) the agency acted reasonably in revoking the authorization. ID at 5-6; see
     generally Adams v. Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007) (when
     a charge consists of the employing agency’s withdrawal or revocation of its
     certification or other approval of the employee’s fitness or other qualifications to
     hold his position, the Board’s authority generally extends to a review of the
     merits of that withdrawal or revocation), aff’d, 273 F. App’x 947 (Fed. Cir.
     2008).     On review, the appellant does not dispute the first two elements, but
     presents arguments as to the third—whether the agency acted reasonably in
     revoking his pilot authorization card. His arguments are not persuasive.
¶7         The appellant first asserts that because the administrative judge dismissed
     some of the incidents in the PRB report as unproven, he should have but failed to
     consider    whether    the   remaining     incidents 5   still   warranted   the   PRB’s
     recommendations, which ultimately resulted in the revocation of his pilot
     authorization card and removal for the same.              PFR File, Tab 1 at 10-11.
     However, the administrative judge specifically addressed this question and found
     that the proven incidents were sufficient bases for the PRB’s recommendations.
     See ID at 5-6, 17-19. Among other things, the administrative judge concluded
     that the agency established multiple instances of the appellant violating
     agency-specific flying policies.       ID at 17-18.       Therefore, we find that the

     5
       The administrative judge found that the agency proved that the appellant: (1) vio lated
     agency policy by flying in “visual flight rules o ver-the-top” conditions on one occasion;
     (2) vio lated agency policy by flying over a body of water beyond glidin g d istance to
     shore on one occasion; (3) violated agency policy by using his personal p lane for
     official flights on at least two occasions; (4) failed to understand carburetor heat; and
     (5) failed to take responsibility for his accident. ID at 5-16.
                                                                                          5

     administrative judge correctly found it reasonable for the PRB to conclude that it
     would help prevent further violations to have his pilot authorization contingent
     upon him being stationed in a location where he could be under direct supervision
     of an aviation-savvy manager and integrated into the agency’s culture and
     policies. ID at 17-18.
¶8         The appellant next asserts that the administrative judge failed to consider
     evidence that he was a highly trained pilot with a vast array of experience. PFR
     File, Tab 1 at 18-19. We disagree. The administrative judge explicitly addressed
     the issue, concluding that while the appellant may have been “extremely well
     trained” as to flying generally, the agency had legitimate concerns as to his
     adherence to agency-specific flight policies. ID at 18.
¶9         The appellant also alleges that he reported far more specific and detailed
     bias in the PRB process than the administrative judge acknowledged. PFR File,
     Tab 1 at 22-25, 31-32. But again, the administrative judge adequately addressed
     this issue below. See ID at 18-19. The appellant’s bias argument is premised
     upon an assertion that his FWS regional aviation manager tainted the PRB
     process. See, e.g., PFR File, Tab 1 at 22-25; I-1, IAF, Tab 14 at 47 of 54. The
     administrative judge considered this argument, finding that the FWS regional
     aviation manager emailed a PRB member prior to the start of its inquiry and that
     this contact was less than ideal, but that it did not taint the process. 6 ID at 18-19.
     The administrative judge correctly reasoned that the PRB member provided
     testimony indicating that he was not influenced by the email, and the FWS
     regional aviation manager’s views were hardly secret since he was later
     interviewed as part of the PRB process. See ID at 18-19. The contact between
     the appellant’s supervisor and the prospective PRB member was relatively


     6
       The sender asked if the recipient would be willing to serve on the PRB. I-1, IAF, Tab
     14 at 47 of 54. In relevant portion, the message stated, “I have been invo lved in the
     investigation . . . and they do not want me to be on the board because I have already
     decided that he should not fly for us. We need an unbiased review.” I d.
                                                                                       6

      innocuous on its face, and it merely provided an early indication of what the
      supervisor was likely to discuss later, when the full PRB interviewed him. While
      the appellant would have us find that it tainted the entire PRB process, we are not
      convinced that this one off-hand comment is of consequence.
¶10        Finally, the appellant alleges that the PRB’s recommendations were a
      “decisional sham that [were] not in any meaningful sense a recommendations
      [sic] for saving appellant’s job.” PFR File, Tab 1 at 25-28. He seems to suggest
      that the PRB should have offered different conditions on the reinstatement of his
      pilot authorization, such as remote mentoring, which would have allowed him to
      retain his isolated position in Cold Bay. See id. at 26-27. However, the appellant
      has failed to present any evidence that the PRB was tasked with saving his job.
      Moreover, the administrative judge addressed the viability of alternative remedial
      measures below, finding that the agency had legitimate reasons for rejecting each.
      See ID at 19-21. We agree with that determination. The alternative mentoring
      methods the appellant has suggested differ from those recommended by the PRB
      in that they would have either not allowed for a similar degree of supervision or
      they would have required a significant and otherwise unnecessary burden to the
      agency, such as the relocation of other employees.
¶11        In sum, we find that the appellant has failed to present any reason to disturb
      the administrative judge’s conclusion that the agency proved his loss of agency
      pilot authorization.    See Broughton v. Department of Health & Human
      Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the
      administrative judge’s findings where the administrative judge considered the
      evidence as a whole, drew appropriate inferences, and made reasoned
      conclusions).

      The appellant’s argument that he was unfairly subjected to a PRB fails.
¶12        The appellant asserts, as he did below, that he was subjected to PRB review
      after just one accident, while other pilots had been involved in one or more
                                                                                       7

      accidents without ever being subjected to a PRB. PFR File, Tab 1 at 28-31; I-1,
      IAF, Tab 35 at 23-25. We find no merit to the argument.
¶13         The administrative judge found that the PRB was convened not solely
      because of the February 2010 accident, but also because the investigation into
      that accident revealed that the appellant may have violated agency policy on other
      occasions. ID at 19. Citing testimony from agency officials, the administrative
      judge found that the accident played but a minor role in the PRB’s review. ID at
      19.   The record supports this conclusion and the appellant has presented no
      evidence to the contrary.   The administrative judge also found that, while the
      appellant had identified others who had similarly been involved in accidents, their
      circumstances were distinguishable. ID at 19. We agree with that finding.
¶14         The appellant’s first comparator, D.S., was reportedly involved in three
      accidents without ever going before a PRB.       See PFR File, Tab 1 at 28-29.
      However, the record does not establish that D.S. was at fault in those accidents,
      or that he engaged in a pattern of policy violations. See id.; Hearing Transcript
      (HT) at 85-90. The appellant’s next comparator, R.K., was reportedly involved in
      one accident and he erred in moving the airplane after that accident, but he was
      not brought before a PRB. PFR File, Tab 1 at 29-30. Again, the record does not
      establish that R.K. engaged in a pattern of policy violations.     See id.; HT at
      90-93. Accordingly, neither is a meaningful comparator to the appellant, who
      was involved in an accident and engaged in a pattern of policy violations. The
      appellant also identified two other comparators, M.M. and H.P. PFR File, Tab 1
      at 29-31. However, like the appellant, both M.M. and H.P. did appear before a
      PRB. See id.; HT at 194-202, 280. Therefore, they were treated the same as the
      appellant by being brought before the PRB.
                                                                                              8

¶15         If the appellant intends this argument to be construed as one of disparate
      penalty, 7 it still fails. Where, as here, all of the agency’s charges are sustained,
      the agency’s penalty determination is entitled to deference and should be
      reviewed only to determine whether it is within the parameters of reasonableness.
      See Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). Among those
      factors the Board will review in determining the reasonableness of the penalty is
      its consistency with those imposed upon other employees for the same or similar
      offenses. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
      The agency’s burden to prove consistency of penalties is triggered when there is
      enough similarity between both the nature of the misconduct and other factors to
      lead a reasonable person to conclude that the agency treated similarly-situated
      employees differently. Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶¶ 20,
      24 (2012). Here, the record reflects that none of the employees identified by the
      appellant as comparators was engaged in similar policy violations or that any
      were similarly charged with losing their pilot authorization.             See generally
      Penland v. Department of the Interior, 115 M.S.P.R. 474, ¶ 11 (2010) (finding
      removal a reasonable penalty where the agency charged an Airplane Pilot with
      loss of pilot authorization and the charge was sustained).

      The administrative judge properly found that the appellant failed to meet his
      burden of proving whistleblower retaliation as an affirmative defense.
¶16         The administrative judge concluded that the appellant failed to meet his
      burden because he did not prove that any of his alleged disclosures were
      protected for purposes of whistleblower retaliation. ID at 21-28 (citing Ryan v.
      Department of the Air Force, 117 M.S.P.R. 362, ¶ 12 (2012)). On review, the


      7
         Because the appellant has not claimed any sort of prohibited d iscrim ination in
      connection with this claim, we have not considered his argument as one of disparate
      treatment. See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010)
      (an allegation that the agency treated an appellant disparately to another employee,
      without claiming prohibited discrim ination, is an allegation of disparate penalties to be
      proven by the appellant, but it is not an affirmative defense).
                                                                                       9

      appellant presents several arguments.    He asserts that the administrative judge
      incorrectly applied the Whistleblower Protection Act (WPA), instead of the
      Whistleblower Protection Enhancement Act of 2012 (WPEA), PFR File, Tab 1 at
      32-33; the administrative judge failed to consider his reports of maintenance
      issues immediately after his accident in 2010, id. at 19-22, and erred in finding
      that some of his disclosures were not protected, id. at 19-22, 33-37; and there was
      clear retaliatory animus in the PRB process due to his whistleblowing, id. at
      22-24. We find no merit to these arguments.
¶17         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). 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.        A protected disclosure is a disclosure of
      information that the appellant reasonably believes evidences any violation of any
      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. 5
      U.S.C. § 2302(b)(8)(A); Shannon, 121 M.S.P.R. 221, ¶ 22.
¶18         Here, the appellant first asserts that the administrative judge incorrectly
      applied the WPA, instead of the WPEA, concerning disclosures made in the
      normal course of duty. PFR File, Tab 1 at 32-33. However, this assertion is
      incorrect.   ID at 22-23; see generally Day v. Department of Homeland
      Security, 119 M.S.P.R. 589, ¶¶ 12, 26 (2013) (finding that the WPEA simply
      clarified the term “disclosure” in the WPA).          As properly noted by the
      administrative judge, the WPEA clarified that a disclosure made during an
      employee’s normal course of duties is not excluded from whistleblower
      protections. See ID at 22-23; see also 5 U.S.C. § 2302(f)(2). The administrative
                                                                                               10

      judge went on to state that the appellant had the burden of showing that the
      agency took the action in reprisal for his disclosure. ID at 23. This is consistent
      with Board precedent issued after the issuance of the initial decision in this case.
      See Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 15 (2014). 8
¶19         The disclosures the appellant made in the normal course of duty were
      reports of maintenance issues before his accident with the agency aircraft he flew.
      See ID at 22. However, as the administrative judge noted, the record contains no
      evidence that he reported these issues outside the normal channels for doing so,
      and no evidence that these disclosures had any bearing on his removal. See ID at
      22.   Instead, the record included testimony from agency officials emphasizing
      that it was crucial for pilots to identify and report potential safety problems. See
      ID at 22. Hence, the administrative judge found that the appellant failed to meet
      his burden regarding his pre-accident disclosures of maintenance issues made in
      the normal course of duty. We agree.
¶20         Next, although the appellant asserts that the administrative judge failed to
      consider his claim of reprisal for his reports of maintenance issues immediately
      after his accident in 2010, PFR File, Tab 1 at 19-22, the initial decision reflects
      otherwise, ID at 24. Accordingly, we proceed to whether the judge rightly found
      that these were not protected disclosures.
¶21         The appellant asserts that the administrative judge erred in finding that his
      “disclosures of lack of airworthiness to investigators and officials outside his

      8
        5 U.S.C. § 2302(f)(1) sets out several types of disclosures that shall not be excluded
      from the whistleblower protections of 5 U.S.C. § 2302(b)(8). By contrast, 5 U.S.C.
      § 2302(f)(2) separately addresses disclosures made during the normal course of duty, to
      include additional language indicating that such a disclosure shall not be excluded from
      the whistleblower protections of 5 U.S.C. § 2302(b)(8) “if any employee who has
      authority to take, direct others to take, recommend, or approve any personnel action
      with respect to the employee making the d isclosure, took, failed to take, or threatened
      to take or fail to take a personnel action with respect to that employee in reprisal for the
      disclosure.” Disclosures made in the course of duty are protected only if the employee
      also proves that the agency took the personnel action with an improper retaliatory
      motive. Benton-Flores, 121 M.S.P.R. 428, ¶ 15.
                                                                                            11

      chain of command” were not protected. PFR File, Tab 1 at 34-37. Although the
      appellant failed to cite specific disclosures in his petition, we have construed his
      argument as implicating his February 18, 2010 letter and his March 12, 2010
      email, both of which expressed concerns about the crashed airplane’s brakes and
      carburetor, see I-1, IAF, Tab 14 at 6-8, 12-17 of 54, as well as the June 28, 2010
      email, in which he questions the absence of an aircraft maintenance log
      documenting that airplane’s inspections, see I-1, IAF, Tab 16 at 27 of 74. 9 He
      seems to argue that the February 18 and March 12, 2010 correspondences were
      protected because the information related to a substantial and specific danger to
      public health or safety, and/or gross mismanagement, while the June 28, 2010
      correspondence was protected because it concerned the violation of a law, rule, or
      regulation. See PFR File, Tab 1 at 34-36. We disagree.
¶22         A protected disclosure is one that the appellant reasonably believed to
      evidence gross mismanagement, a gross waste of funds, an abuse of authority, a
      substantial and specific danger to public health or safety, or any violation of a
      law, rule, or regulation. 5 U.S.C. § 2302(b)(8). The test for determining if an
      employee’s belief concerning such a matter is reasonable is as follows: “could a
      disinterested observer with knowledge of the essential facts known to and readily
      ascertainable by the employee reasonably conclude that the actions of the
      government     evidence    [the   wrongdoing      in   question]?”       Lachance      v.
      White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
¶23         In determining whether a disclosure is protected because of a reasonable
      belief that it evidenced a substantial and specific danger to public health or
      safety, the Board considers factors such as (1) the likelihood of harm resulting

      9
        Below, the administrative judge also considered several other disclosures, finding
      none protected. ID at 22-28. However, the appellant’s petition only directs our
      attention to “disclosures of lack of airworthiness to investigators and officials outside
      his chain of command.” PFR File, Tab 1 at 34-37. Accordingly, we will not revisit the
      administrative judge’s well-reasoned findings as to any alleged disclosures falling
      outside that purview.
                                                                                       12

      from the danger, (2) the imminence of the potential harm, and (3) the nature of
      the potential harm. Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197,
      ¶ 14 (2011).   Alternatively, gross mismanagement is action or inaction which
      creates a substantial risk of significant adverse impact upon the agency’s ability
      to accomplish its mission. Francis v. Department of Air Force, 120 M.S.P.R.
      138, ¶ 12 (2013).
¶24        Here, the appellant crashed the agency’s airplane on February 11, 2010, and
      he submitted correspondence to agency officials, expressing concerns about that
      plane’s brakes and carburetor, on February 18, 2010, and March 12, 2010. I-1,
      IAF, Tab 14 at 6-8, 12-17 of 54.    However, the record reveals that the accident
      caused extensive damage to the airplane, such that it would not be in service
      anytime in the near future. See, e.g., id. at 3-4 of 54 (March 3, 2010 article about
      the accident with photos), 12 of 54 (letter from the appellant describing the
      damaged portions of the plane as including the wings, cowling, spinner, and
      propeller). Consequently, the administrative judge correctly determined that the
      appellant failed to prove that he had a reasonable belief that his post-accident
      maintenance disclosures were protected.        See ID at 24.       The appellant’s
      February 18, 2010 and March 12, 2010 correspondences did not disclose an
      ongoing threat to safety, nor did either identify gross mismanagement. See ID at
      24; cf. Parikh, 116 M.S.P.R. 197, ¶¶ 12, 15 (finding a disclosure protected where
      the appellant reasonably believed that he disclosed systematic problems of
      untimely and inadequate patient care that were likely to result in severe harm);
      see generally White v. Department of the Air Force, 95 M.S.P.R. 1, ¶¶ 38-40
      (2003) (finding that a disclosure, alleging that the agency was requiring
      adherence to unworkable and untenable standards, was not protected as a gross
      mismanagement disclosure), aff’d, 391 F.3d 1377 (Fed. Cir. 2004).
¶25        Similarly, the appellant’s June 28, 2010 email questioning whether
      maintenance logs should be kept in agency airplanes was not protected. See ID at
      25-26; I-1, IAF, Tab 16 at 27 of 74. Below, and on review, the appellant has
                                                                                       13

      suggested that aircraft operators are required to have ready-access to maintenance
      documentation. E.g., PFR File, Tab 1 at 34. As the administrative judge noted,
      the appellant made this assertion but failed to cite any law, rule, or regulation
      requiring that the agency keep maintenance logs in its airplanes. See ID at 25.
      Moreover, it is evident that the appellant knew that the documentation was
      readily available, albeit in a location he may not have preferred. See I-1, IAF,
      Tab 16 at 27 of 74 (the appellant’s June 28, 2010 email questioning whether the
      documentation should be in the airplane, and his supervisor’s response indicating
      that the log books were kept at a central location, where the appellant knew that
      he could review them as needed). Therefore, we agree with the administrative
      judge’s conclusion that the appellant did not have a reasonable belief that the
      June 28, 2010 email disclosed any violation of law, rule, or regulation.
¶26        Finally, because the appellant failed to show that he made any protected
      disclosure, we need not address his final argument, alleging clear retaliatory
      animus in the PRB process due to his whistleblowing. See PFR File, Tab 1 at
      22-24; see also Clark v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19
      n.10 (2014) (an appellant must first establish a prima facie case that a protected
      disclosure was a contributing factor to a personnel action; otherwise the Board
      may not proceed to whether the agency meets its burden of showing that it would
      have taken the same action in the absence of the disclosure).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision.          There are
      several options for further review set forth in the paragraphs below. You may
      choose only one of these options, and once you elect to pursue one of the avenues
      of review set forth below, you may be precluded from pursuing any other avenue
      of review.
                                                                                   14

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination claims
by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the
United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit
your request 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 your request 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, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
                                                                                 15

file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.          See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.

Other Claims: Judicial Review
     If you do not want to request review of this final decision concerning your
discrimination claims, but you do want to request review of the Board's decision
without regard to your discrimination claims, you may request review of this final
decision on the other issues in your appeal by the United States 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 described in 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 review of this final decision by the United States Court of Appeals
for the Federal Circuit or by any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this 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.
     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
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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 United States 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
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit.        The 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:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
