                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SCOTT SNYDER,                                   DOCKET NUMBER
                         Appellant,                  DC-0752-14-0964-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 28, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Christopher D. Vaughn, Esquire, Decatur, Georgia, for the appellant.

           Therese M. Novell, Esquire, Warren, Michigan, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s removal action. 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 the erroneous application of the law to the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.       Except as
     expressly MODIFIED by this Final Order to address the mitigating factors in the
     penalty determination, we AFFIRM the initial decision.
¶2        Prior to his removal, the appellant was a Small Arms Repairer, WG-6610-
     08, at the U.S. Army Tank-Automotive and Armaments Command (TACOM) at
     Fort Lee, Virginia. Initial Appeal File (IAF), Tab 6 at 24. The agency proposed
     his removal based on four charges: (1) failing to follow supervisory instructions;
     (2) unauthorized entry by use of force into the TACOM Fleet Management
     Expansion (FMX) small arms room; (3) lack of candor; and (4) being unable to
     perform the essential functions of his position as a result of being banned from
     the on-site small arms rooms. Id. at 26, 40. The charges originally arose from an
     incident on April 1, 2013, wherein a coworker witnessed the appellant taking
     pictures with his cell phone inside the 23rd Quartermaster Brigade small arms
     room. Id. at 40 & n.1. On April 8, 2013, he was barred from unaccompanied
     access to the TACOM FMX small arms room, which is a restricted area, and his
     key to that room was taken. Id. at 40; IAF, Tab 11 at 11. On May 16, 2013,
     however, the appellant, unaccompanied, entered the TACOM FMX small arms
     room after forcibly shaking the gate leading to the room. IAF, Tab 6 at 40-41.
     He later made misleading statements to management regarding his entry to the
     room. Id. at 41. The agency found that, because he was banned from accessing
                                                                                      3

     on-site small arms rooms, he could no longer perform the essential duties of his
     position. Id. at 41-43.
¶3         After the appellant responded to the proposed removal, the deciding official
     sustained the charges and found that removal was the appropriate penalty. Id.
     at 26-34. The appellant then filed this adverse action appeal, asserting that the
     agency retaliated against him for whistleblowing and violated his due process
     rights. IAF, Tabs 1, 21-22. He waived his right to a hearing. IAF, Tab 18 at 4.
     Based on the written record, which included several declarations made under
     penalty of perjury, IAF, Tab 29 at 38-64, the administrative judge sustained all
     charges, IAF, Tab 37, Initial Decision (ID) at 2-22. The administrative judge
     rejected the appellant’s due process argument and found that he failed to prove
     that his disclosure played any role in the personnel action, specifically that he
     failed to present evidence of knowledge on the part of the accused management
     officials sufficient to conclude that his alleged disclosure contributed in any way
     to the personnel action. ID at 10, 29. The administrative judge further found that
     the penalty of removal was reasonable and supported the efficiency of the service.
     ID at 29-32.

     The appellant has not shown that the agency violated his due process rights.
¶4         On review, the appellant argues that the agency failed to give him a copy of
     the April 8, 2013 memorandum upon which the deciding official relied in
     deciding to remove him, thus violating his due process rights.        Petition for
     Review (PFR) File, Tab 1 at 7-10; see Stone v. Federal Deposit Insurance
     Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (finding that procedural due
     process guarantees are not met if the employee has notice of only certain charges
     or portions of the evidence and the deciding official considers new and material
     information; therefore, it is constitutionally impermissible to allow a deciding
     official to receive additional material information that may undermine the
     objectivity required to protect the fairness of the process). The April 8, 2013
     memo authorized the appellant for “accompanied access to the Weapons Vault
                                                                                      4

     located in BLDG 6298 Rear Access Rd Ft. Lee, VA.”             IAF, Tab 11 at 11
     (emphasis added). The appellant argues that he first saw the memo when it was
     submitted with the agency file. PFR File, Tab 1 at 8; IAF, Tab 6 at 26-27. He
     asserts that the deciding official’s consideration of the memo was both substantial
     and prejudicial to his case. PFR File, Tab 1 at 9. He also asserts that the memo
     itself does not reveal the “entire story” in his case; namely, that his access was
     revoked and later restored orally, and he received nothing in writing revoking his
     access again.   Id.   The administrative judge, however, rejected his claim that
     consideration of the memo violated his due process rights.        ID at 10.    The
     administrative judge found that the information in the memo was provided in the
     proposal notice and, even if the deciding official had considered the memo, the
     appellant failed to establish that the information therein was new and
     material. Id.
¶5        In determining if an ex parte communication introduces new and material
     information, the Board considers, among other factors, whether: (1) the ex parte
     communication merely introduces cumulative information or new information;
     (2) the employee knew of the error and had a chance to respond to it; and (3) the
     ex parte communication was of the type likely to result in undue pressure upon
     the deciding official to rule in a particular manner. Stone, 179 F.3d at 1377.
     Ultimately, the inquiry is whether the deciding official’s consideration of the
     additional material was so substantial and so likely to cause prejudice that no
     employee could fairly be required to be subjected to a deprivation of property
     absent an opportunity to respond. Id.
¶6        The administrative judge decided this issue correctly. The appellant offered
     nothing to support his assertion that he failed to receive the April 8, 2013 memo,
     whereas the agency submitted proof that it had provided him with the memo
     during the advance notice period. Such proof included a sworn statement from
                                                                                            5

     the deciding official. 2 PFR File, Tab 3 at 25-26. The deciding official explained
     and included proof that the appellant received the April 8, 2013 memo with a
     package of other relevant documents on May 28, 2014. Id. at 25-27, 32. The
     appellant acknowledged receipt of those materials and, in fact, he has referenced
     other documents in the same package, thus establishing that he had an opportunity
     to respond to the memo. Id. at 26, 41-42, 44-78. In any event, the appellant also
     failed to show that the memo provided any information not already included in
     the notice of proposed removal. See, e.g., Buelna v. Department of Homeland
     Security, 121 M.S.P.R. 262, ¶ 32 (2014).

     The appellant has not shown that the agency retaliated against him for
     whistleblowing.
¶7         The appellant argues that the administrative judge erred in concluding that
     he failed to prove by preponderant evidence that the agency took action against
     him in retaliation for protected whistleblowing activity.         PFR File, Tab 1 at
     10-15. The appellant’s alleged protected disclosures pertained to the removal of
     “unauthorized controlled weapons parts not acquired in accordance with Army
     regulations” by his work leader, S.W., from secure areas in the facility. IAF,
     Tab 23 at 30. The appellant alleged that, during March 2013, he informed his
     first-, second-, and third-level supervisors about S.W.’s removal of weapons parts
     from secure storage areas. Id. He alleged that shortly thereafter, on April 1,
     2013, S.W. accused him of taking photographs inside the 23rd Quartermaster
     Brigade small arms room after a member of the military staff reported that he had
     seen the appellant doing so. Id. at 31. S.W. took the appellant’s keys to the 23rd
     Quartermaster Brigade small arms room on April 2, 2013. Id. On April 8, 2013,


     2
       Although the sworn statements in support of the agency’s argument post-date the close
     of the record below, PFR File, Tab 3 at 25-26, 44-45, 63-64, the Board will consider
     those statements. Based on the administrative judge’s rulings, IAF, Tab 21 at 1,
     Tab 22, it would have been reasonable for the agency to conclude that he did not intend
     to consider the due process issue and thus declined to submit evidence that the appellant
     received the memo.
                                                                                            6

     the appellant alleged, he was counseled in writing and informed that he was
     restricted from working in the 23rd Quartermaster Brigade small arms room. Id.
     at 31-32. The appellant alleged that on May 15, 2013, he reported in writing that
     the claim that he was taking photos was false and made in retaliation for
     whistleblowing activities. 3 Id. at 32.
¶8         The administrative judge considered sworn statements made by the
     proposing and deciding officials, as well as sworn statements from S.W. and two
     persons to whom the appellant asserted he had made protected disclosures.
     ID at 24-29. The administrative judge found that the record evidence showed that
     no one other than the appellant remembered anything about his alleged
     disclosures. ID at 28-29. The administrative judge noted that some supervisors
     and managers remembered that the appellant identified a different problem, which
     was related to the failure of some repairers to use trigger weights but was not the
     disclosure he claimed to have made. ID at 29. The administrative judge further
     noted that, even if the appellant could show that he made a disclosure regarding
     the improper removal of small arms parts from secure storage areas, S.W.
     successfully explained why the appellant had not reported any violation of a
     regulation or policy. Id.; IAF, Tab 29 at 252-53. S.W. further explained that he
     was unaware that the appellant had told anyone he had improperly acquired and
     stored parts. Id. The record thus does not support the appellant’s contention that
     he made a protected disclosure regarding S.W.’s acquisition and storage of parts.
¶9         The appellant also argues that the alleged disclosures contributed to his
     removal by way of indirect improper influence. PFR File, Tab 1 at 12-15. The
     U.S. Supreme Court adopted the term “cat’s paw” to describe such influence.
     Under the “cat’s paw” theory, an agency official acting from improper animus


     3
       The record includes a May 15, 2013 memo from the appellant’s supervisor, J.C.,
     which states that the appellant articulated his intention to submit a statement asserting
     that he had not committed any violation of physical security. IAF, Tab 24 at 115. We
     were unable to locate such a statement in the record.
                                                                                        7

      influences another agency official who is unaware of the improper animus while
      that official is implementing a personnel action.       Aquino v. Department of
      Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014) (citing Staub v. Proctor
      Hospital, 562 U.S. 411, 415-16 (2011)). The appellant explains that the deciding
      official met with him only one time and subsequently relied upon statements
      given by S.W. and his immediate supervisor J.C. PFR File, Tab 1 at 14. Thus,
      appellant asserts, S.W. and J.C. were the de facto decisionmakers in his
      removal. Id. The appellant asserts that J.C. failed to correct S.W.’s wrongful
      acquisition and storage of the parts and thus was “motivated to collude with
      [S.W.] to retaliate against” him because J.C. knew his disclosures would
      detrimentally affect both men.     Id.   Their collusive activities, the appellant
      asserts, included making an unsubstantiated allegation that he was taking pictures
      inside of the 23rd Quartermaster Brigade small arms room.              Id. at 14-15.
      According to the appellant, J.C. and S.W. thus set him up for loss of
      unaccompanied access to the small arms rooms and for eventual removal. Id.
¶10        The administrative judge, however, fully considered the record evidence
      and properly concluded that the appellant presented no evidence that the deciding
      or proposing official had any knowledge of his claimed disclosures or were
      influenced by any person with such knowledge.         ID at 29.    The appellant’s
      allegations are thus speculative, and further, he missed the opportunity to
      cross-examine the agency officials to whom he allegedly made disclosures or who
      purportedly retaliated against him by withdrawing his hearing request.

      The appellant has not shown that the findings of fact are incorrect.
¶11        The appellant asserts that the administrative judge reached incorrect
      findings of fact.   Regarding the first charge, failing to follow supervisory
      instructions, the appellant asserts that he was never informed that his
      unaccompanied access to the TACOM FMX small arms room had been
      terminated. PFR File, Tab 1 at 16-17; IAF, Tab 6 at 40; ID at 3-11. He asserts
      that the April 8, 2013 memo regarding the revocation of his access may have been
                                                                                      8

      “drafted for purposes of this appeal only,” and that he was never told of the
      access restrictions during a counseling meeting held on April 8, 2013. PFR File
      Tab 1 at 15; IAF, Tab 11 at 11, Tab 30 at 7. He further asserts that the agency
      confused the April 8 meeting with another meeting during which his
      unaccompanied access to a separate secure facility, the 23rd Quartermaster
      Brigade small arms room, was revoked. PFR File, Tab 1 at 17. He explains that
      his keys to the 23rd Quartermaster Brigade small arms room were taken on
      April 1, 2013, when the agency generally limited unaccompanied access to the
      room by collecting the keys from several individuals. Id. The record, however,
      includes two sworn statements, an investigative report, and a contemporaneous
      memorandum establishing that the appellant’s unaccompanied access to the
      TACOM FMX small arms room was revoked on April 8, 2013. IAF, Tab 6 at 76,
      Tab 29 at 73-74, 251, Tab 30 at 7.
¶12        Regarding both the first charge and the second charge, unauthorized entry
      to the TACOM FMX small arms room by force, the appellant argues that no
      eyewitness saw his alleged breach of the security gate leading to the room. PFR
      File, Tab 1 at 18; IAF, Tab 6 at 40-41; ID at 11-12. The appellant argues that
      witness T.F.’s back was turned and he did not see him open the security gate
      leading to the room.    Instead, T.F. saw only the bent rod that the appellant
      allegedly used to force the lock lying on the floor by the gate. PFR File, Tab 1
      at 18-19. He asserts that the only “witness” to his entry to the room, the StarPin
      security system zone report, “only confirms whether the front door was shut down
      properly.” Id. at 19. The appellant, however, admitted entering the room, both in
      the sworn declaration that he submitted for the record and in his response to the
      agency’s request for admissions.       IAF, Tab 23 at 32-33, Tab 29 at 187.
      Additionally, a significant body of circumstantial evidence supports the finding
      that he entered the room, including the StarPin security system zone report, which
      shows that he secured the room.      IAF, Tab 7 at 22, Tab 11 at 6, Tab 25 at 25,
      Tab 28 at 39.
                                                                                           9

¶13         Concerning the third charge, lack of candor, the appellant asserts that his
      agency manager, J.C., lacked credibility when he stated that the appellant initially
      denied entering the TACOM FMX small arms room on May 16, 2013. PFR File,
      Tab 1 at 20-21; IAF, Tab 6 at 41; ID at 16-18. The appellant argues that he never
      denied entering the room or tried to hide his actions from his managers or
      colleagues. PFR File, Tab 1 at 21. As the administrative judge noted, however,
      the agency need not prove intent to deceive for a lack of candor charge to be
      sustained. ID at 17; see Rhee v. Department of the Treasury, 117 M.S.P.R. 640,
      ¶ 10 (2012), overruled in part on other grounds by Savage v. Department of the
      Army, 2015 MSPB 51. In his sworn statement, J.C. said that the appellant denied
      going into the TACOM FMX small arms room when J.C. questioned him on May
      17, 2013.    IAF, Tab 30 at 9.      J.C.’s sworn statement is consistent with his
      contemporaneous account of the events of May 16, 2013. IAF, Tab 28 at 49. The
      appellant also failed to present any evidence supporting his assertion that he had
      not denied entering the room.       In any event, he declined the opportunity to
      cross-examine J.C. when he waived his right to a hearing. IAF, Tab 18 at 4.
¶14         As for the fourth charge, inability to perform the essential functions of his
      position, the appellant asserts that the agency has advanced a circular argument
      and engaged in “charge building” intended to justify his removal.           PFR File,
      Tab 1 at 22; IAF, Tab 6 at 41-43; ID at 18-21. To the contrary, the record shows
      that the appellant lost access to the small arms rooms on post because agency
      managers and military personnel believed that his actions had posed a physical
      threat to the security of those facilities, thus raising concerns about his reliability
      as an employee. See, e.g., IAF, Tab 6 at 48 (“Mr. Snyder’s behavior has raised
      significant doubt as to his reliability and trustworthiness and has destroyed any
      reasonable assurance that he can be trusted with continued access to the [small
      arms rooms].”); id. at 49 (“Mr. Scott E. Snyder is no longer able to perform his
      duties because of physical security violations.”); see also IAF, Tab 7 at 20
                                                                                      10

      (banning the appellant from the 23rd Quartermaster Brigade small arms room for
      physical security violations).
¶15         The appellant also argues that he could perform the duties of his position
      without unescorted access to a small arms room. PFR File, Tab 1 at 22-23. The
      agency, however, submitted a sworn statement from T.B., the appellant’s
      second-tier supervisor, explaining that, although he might be able to perform
      some work outside of the small arms rooms, his inability to access those rooms
      independently to obtain weapons and parts would impose difficulties, especially
      during emergencies or when other team members were unavailable to assist him.
      IAF, Tab 29 at 52-53. T.B. noted that the ban included the 23rd Quartermaster
      Brigade small arms room and the appellant’s management lacked the independent
      authority to restore his access to that room. Id. at 53. The administrative judge
      thus reasonably concluded that the appellant’s situation was comparable to that of
      an employee who had lost a credential necessary for performing the essential
      functions of his position. ID at 21; cf., e.g., Robinson v. Department of Homeland
      Security, 498 F.3d 1361, 1365 (Fed. Cir. 2007) (loss of security clearance);
      Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 12 (2014) (loss of
      eligibility for a non-critical sensitive position); Benally v. Department of the
      Interior, 71 M.S.P.R. 537, 539-40, 542 (1996) (revocation of a valid state driver’s
      license, which was required for the position).

      The penalty of removal is sustained.
¶16         The appellant asserts that the agency failed to give proper consideration to
      the penalty factors set forth in Douglas v. Veterans Administration. PFR File,
      Tab 1 at 22-24; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
      (1981).   He asserts that the deciding official failed to address which of the
      mitigating factors he had considered. PFR File, Tab 1 at 23. He argues that his
                                                                                            11

      misconduct was not serious, 4 he had no prior discipline, and he produced
      excellent work. Id. at 23-24. He also asserts that the offense was not notable and
      had no public impact upon the agency. Id. at 24. The appellant raised these
      matters before the administrative judge, but they were not discussed in the initial
      decision. 5 IAF, Tab 23 at 24-25.
¶17         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, 5 M.S.P.R. at 306.        The
      record shows that the deciding official weighed some of the Douglas factors,
      giving specific attention to the seriousness of the misconduct, the type of position
      the appellant held, the negative effect of the offenses upon his ability to perform
      the essential functions of his position and his supervisor’s loss of confidence in
      him, his apparent lack of remorse and unwillingness to accept responsibility for
      his actions, and the inadequacy of alternative sanctions. IAF, Tab 29 at 44; see
      Douglas, 5 M.S.P.R. at 305-06. The deciding official gave greatest weight to the
      seriousness of the offense and the fact that the appellant’s actions caused
      management to lose trust in his ability to do his job. IAF, Tab 29 at 44-45; IAF,
      Tab 6 at 28-29. The appellant correctly observes that neither the deciding official




      4
        The appellant also asserts here that his removal would not promote the efficiency of
      the service because he acted in response to an emergency. PFR File, Tab 1 at 20. He
      argues that the room had not been properly secured, and he entered only to shut off a
      silent alarm, as he had been instructed to do earlier in his employment. Id. There was,
      however, no need for the appellant to enter the room. The record does not show that
      any threat existed to persons or property as a result of the alarm, and he already had
      requested the assistance of other persons who would have handled the matter. He had
      called a supervisor, who was off-post at the time, but explained to the appellant that he
      would return to the facility. IAF, Tab 25 at 25. The appellant also had notified the
      Provost Marshall’s office about the alarm. Id.; IAF, Tab 6 at 77.
      5
        Cf. Yeschick v. Department of Transportation, 801 F.2d 383, 385 (Fed. Cir. 1986)
      (finding that the administrative judge need not contemplate mitigating factors not
      identified by the appellant as significant).
                                                                                         12

      nor the administrative judge discussed any mitigating factors, including those that
      he now reasserts on review. PFR File, Tab 1 at 23-24; ID at 30-32.
¶18         An agency’s determination of an appropriate penalty is not entitled to
      deference when the deciding official did not consider any of the relevant
      mitigating circumstances. Bivens v. Tennessee Valley Authority, 8 M.S.P.R. 458,
      461 (1981). After reviewing the mitigating factors, however, the Board still may
      find that the penalty falls within the tolerable limits of reasonableness for the
      sustained charges. See, e.g., Daniels v. U.S. Postal Service, 57 M.S.P.R. 272,
      284-87 (1993). Here, we make such a finding, modifying the initial decision by
      considering the mitigating factors that the appellant identified. ID at 29-32; PFR
      File, Tab 1 at 23-24. Although the appellant had a clean disciplinary record and a
      solid performance history, IAF, Tab 28 at 57-58, we do not agree with his
      assertion that his offense was nominal or nonexistent. We likewise find that he
      does not show excellent potential for rehabilitation. PFR File, Tab 1 at 23; IAF,
      Tab 23 at 25. To the contrary, the agency has shown that the appellant committed
      serious misconduct by breaching a secure facility where sensitive and dangerous
      weapons are stored after he had been ordered not to access that facility without an
      escort. IAF, Tab 29 at 43-45. His conduct raises significant doubts as to his
      future reliability. Id. at 44. His lack of remorse and unwillingness to accept
      responsibility for his actions militates against his potential for rehabilitation. Id.
      Accordingly, we find that the penalty of removal falls within the tolerable limits
      of reasonableness for the sustained charges.

      The administrative judge did not err when he declined to admit the appellant’s
      compact discs into evidence.
¶19         Finally, the appellant argues that the administrative judge erred by not
      admitting into evidence two of the compact discs (CDs) he submitted. 6 PFR File,


      6
        The petition for review includes several attachments. PFR File, Tab 1, Attachments
      1-10. The attached documents are already in the record and thus are not new evidence
      under the Board’s definition. See Meier v. Department of the Interior, 3 M.S.P.R. 247,
                                                                                          13

      Tab 1 at 14. These CDs, he asserts, prove that his access to the TACOM FMX
      small arms room was orally revoked and then orally restored prior to May 16,
      2013. PFR File, Tab 1 at 9-10; IAF, Tab 31 at 4-5. The agency argued that the
      CDs should not be admitted because the appellant did not produce them during
      discovery and he first disclosed their existence in his close of the record brief.
      IAF, Tab 31 at 4-5, 9-10. The agency first received the CDs 6 days after the
      close of the record. Id. at 10.
¶20         Evidentiary issues fall within the sound discretion of the Board and its
      officials. See Curtin v. Office of Personnel Management, 846 F.2d 1373, 1378-79
      (Fed. Cir. 1988) (citing Spezzaferro v. Federal Aviation Administration, 807 F.2d
      169, 173 (Fed. Cir. 1986); 5 C.F.R. § 1201.41(a), (b)). Such matters will not be
      overturned “unless an abuse of discretion is clear and is harmful.” Id.            The
      administrative judge explained that he did not admit the CDs because they had
      not been authenticated and they lacked “even any accompanying description to
      establish any factual basis for the recording.” ID at 9 n.3. The administrative
      judge noted that the appellant also failed to explain why the records had not been
      produced in discovery.       Id.   The appellant argues that authentication was
      unnecessary. PFR File, Tab 1 at 16.
¶21         In light of the circumstances, however, we find no abuse of discretion. The
      CDs are of limited value. The agency found the sound quality to be poor, even
      unintelligible in places, and the appellant did not provide a transcript.         IAF,
      Tab 31 at 4-6. Additionally, the appellant averred during discovery that he had
      produced all verbal conversations.        IAF, Tab 29 at 175.        His last-minute
      production of the CDs denied the agency the opportunity to proffer rebuttal
      evidence. For all of these reasons, we affirm the initial decision as modified.


      256 (1980) (determining that evidence that is already a part of the record is not new);
      5 C.F.R. § 1201.115(d) (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).
                                                                                   14

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
        The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
        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 review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days 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. You may choose to request
review of the Board’s decision in the United States 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
                                                                                     15

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     information   regarding   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.
