                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                     2016 MSPB 20

                            Docket No. SF-0752-15-0741-I-1

                                  Henry A. O’Lague,
                                       Appellant,
                                           v.
                           Department of Veterans Affairs,
                                        Agency.
                                      May 11, 2016

           Michael B. Love, Esquire, Spokane, Washington, for the appellant.

           Mandeev Singh Brar, Portland, Oregon, 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 that
     sustained the agency’s removal action.     For the reasons set forth below, we
     AFFIRM the initial decision as MODIFIED by this Opinion and Order to find that
     the agency did not prove the charge of lack of candor. The removal action is
     still SUSTAINED.

                                    BACKGROUND
¶2         Prior to his removal, the appellant was a Police Officer, GS-0083, at the
     Department of Veterans Affairs (VA) Medical Center (Medical Center), in
     Spokane, Washington. Initial Appeal File (IAF), Tab 5 at 99. On June 8, 2015,
                                                                                           2

     the agency proposed to remove the appellant on charges of: (1) Inappropriate
     Behavior (eight specifications); (2) Sleeping on Duty (three specifications); and
     (3) Lack of Candor. Id. at 32-34. The appellant responded orally and in writing,
     and, on July 10, 2015, the agency issued a decision letter sustaining the charges
     and finding that removal was the appropriate penalty. Id. at 14-16, 18-30. The
     appellant was removed effective July 10, 2015. Id. at 17.
¶3         The appellant filed a timely appeal. IAF, Tab 1. Following a hearing, the
     administrative judge issued an initial decision sustaining the removal action.
     IAF, Tab 14, Initial Decision (ID).        The administrative judge sustained all
     charges and specifications, with the exception of specifications 1, 6, and 8 of the
     Inappropriate Behavior charge, and found that the agency established a nexus
     between the sustained misconduct and the efficiency of the service. Id. at 3-17.
     She further found that the appellant failed to establish his affirmative defense of
     whistleblowing reprisal. Id. at 17-25. Finally, she found that the removal penalty
     was within the bounds of reasonableness. Id. at 25-27.
¶4         On petition for review, the appellant challenges the administrative judge’s
     findings on the charges, as well as her penalty analysis.         Petition for Review
                          1
     (PFR) File, Tab 1.       The agency has filed a response, to which the appellant has
     replied. PFR File, Tabs 3-4.

                                           ANALYSIS
     The administrative judge correctly sustained the charge of Inappropriate
     Behavior.
¶5         As noted above, the charge of inappropriate behavior was based on eight
     specifications, of which the administrative judge sustained specifications 2-5,
     and 7. IAF, Tab 5 at 32-33; ID at 3-17. With the exception of specification 5,

     1
        The appellant does not challenge the administrative judge’s findings on his
     whistleblowing reprisal claim, and we discern no error in her finding that the appellant
     failed to prove that affirmative defense.
                                                                                         3

     the sustained specifications are based on allegations that the appellant made false
     entries in the VA Police Daily Operations Journal (VAP DOJ).           IAF, Tab 5
     at 32-33.
¶6         To sustain a falsification charge, the agency must prove by preponderant
     evidence that the employee knowingly supplied incorrect information and that he
     did so with the intention of defrauding the agency.      Naekel v. Department of
     Transportation, 782 F.2d 975, 977 (Fed. Cir. 1986). The intent element, in turn,
     requires two distinct showings:    (a) that the employee intended to deceive or
     mislead the agency; and (b) that he intended to defraud the agency for his own
     private material gain. Leatherbury v. Department of the Army, 524 F.3d 1293,
     1300 (Fed. Cir. 2008); Boo v. Department of Homeland Security, 122 M.S.P.R.
     100, ¶¶ 11-12 (2014).    The intent to defraud or mislead the agency may be
     established by circumstantial evidence and also may be inferred when the
     misrepresentation is made with a reckless disregard for the truth or with
     conscious purpose to avoid learning the truth.      Boo, 122 M.S.P.R. 100, ¶ 10.
     Whether intent has been proven must be resolved by considering the totality of
     the circumstances, including the appellant’s plausible explanation, if any. Id.
¶7         Under specifications 2, 3, and 4, the agency alleged that, on February 4,
     2015, the appellant falsely recorded in the VAP DOJ that he conducted vehicle
     patrols of the premises at 0330, 0358, and 0600 hours, respectively. IAF, Tab 5
     at 32; see id. at 63, 69. In support of its allegations, the agency relied on the
     testimony of S.B., one of the other two officers on duty that evening.            S.B.
     explained that he and B.H.-P., the third officer on duty, had the keys for both VA
     Police vehicles on site and that the appellant, therefore, could not have performed
     the patrols. Hearing Transcript (HT) at 74-78; see IAF, Tab 5 at 67-68. While
     the appellant denied making false entries in the VAP DOJ, the administrative
     judge credited the testimony of S.B., based in part on her observation of witness
     demeanor. ID at 11.
                                                                                       4

¶8         The appellant contends that the administrative judge failed to consider
     evidence that officers conduct solo patrols of a very large campus, and would not
     necessarily know where the other officers on duty are, or whether they had
     possibly transferred vehicle keys. PFR File, Tab 1 at 9; see HT at 84 (testimony
     of S.B.), 145-46 (testimony of B.H.-P.); 229-30 (testimony of D.K.). He further
     notes that B.H.-P. did not provide specific testimony as to which officers were in
     possession of the vehicle keys on the night of February 4, 2015. PFR File, Tab 1
     at 9-10. Hence, the appellant reasons, it is possible that B.H.-P. transferred his
     vehicle keys to the appellant without S.B.’s knowledge. However, in the absence
     of any recollection by the appellant or B.H.-P. that this actually occurred, the
     appellant’s speculation is not sufficient to undermine the agency’s case.       See
     Strachan v. Department of the Air Force, 30 M.S.P.R. 501, 502 n.* (1986)
     (finding that the agency is only required to prove its case by a preponderance of
     the evidence and need not prove it beyond a reasonable doubt). The appellant
     also contends the administrative judge failed to consider his testimony that he and
     S.B. did not have a positive working relationship.      PFR, Tab 1 at 11; see HT
     at 54-55.   The administrative judge did, however, address the appellant’s
     contention that S.B. was jealous of him, ID at 10, and, in any event, the failure of
     an administrative judge to mention all of the evidence of record does not mean
     that she did not consider it in reaching her decision, Marques v. Department of
     Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062
     (Fed. Cir. 1985) (Table).     In sum, we find the appellant has not provided
     sufficiently sound reasons to overturn the administrative judge’s demeanor-based
     credibility determination. See Haebe v. Department of Justice, 288 F.3d 1288,
     1301 (Fed. Cir. 2002).
¶9         Under specification 7, the agency alleged that, on February 10, 2015, the
     appellant falsely recorded in the VAP DOJ that he conducted a vehicle patrol
     at 0330 hours. IAF, Tab 5 at 32; see id. at 81. In support of this specification,
     S.B. testified that he reviewed surveillance video footage, which had a clear view
                                                                                       5

      of the vehicle the appellant would have used to conduct the patrol, and found that
      the vehicle never moved during the time frame at issue. HT at 79; see IAF, Tab 5
      at 79-80, 83-84. Again, the administrative judge credited the testimony of S.B.
      over that of the appellant, based in part on observations of witness demeanor. ID
      at 10.    The appellant notes that witness D.K., who investigated the alleged
      misconduct, testified that the video was of poor quality and that there were
      “serious issues” as to whether the appellant had in fact made false entries in the
      VAP DOJ. PFR File, Tab 1 at 11; see HT at 240-41. 2 D.K.’s statements do not,
      however, amount to an admission that the video evidence was ambiguous, and
      S.B. expressed no doubts as to what he saw. HT at 79 (testimony of S.B.). The
      appellant also speculates that the footage, which has been lost or destroyed,
      “could have exonerated” him. PFR File, Tab 1 at 11. However, as noted above,
      the agency need only establish its case by a preponderance of the evidence, and
      we find that the appellant’s bare speculation does not provide sufficiently sound
      reasons for overturning the administrative judge’s credibility determination. See
      Haebe, 288 F.3d at 1301. Accordingly, we discern no error in the administrative
      judge’s conclusion that the VAP DOJ entries at issue in specifications 2, 3, 4,
      and 7 were inaccurate.
¶10            The appellant does not challenge the administrative judge’s findings
      regarding the element of intent, presumably because he denies having made
      incorrect VAP DOJ entries in the first instance. However, considering the record
      as a whole, we agree with the administrative judge that, at a minimum, the false
      entries demonstrated a reckless disregard for the truth. ID at 12. Furthermore, as
      the administrative judge explained, the appellant obtained a private material gain
      from his deception, as he was credited with the required twice-nightly patrols

      2
        D.K. did not use that precise wording, but he agreed with the statement by the
      appellant’s attorney that “there were some real issues with whether [the appellant]
      actually entered false information.” HT at 241.
                                                                                       6

      while saving himself the trouble of actually performing them.         Id.; see Boo,
      122 M.S.P.R. 100, ¶ 13 (emphasizing that the definition of “own private material
      gain” is broad and not limited to monetary gains). We therefore find that the
      administrative judge correctly sustained specifications 2, 3, 4, and 7.
¶11            In specification 5, the agency alleged that on February 7, 2015, at
      approximately 0035 hours, B.H.-P. witnessed the appellant leaving the facility
      grounds in a police vehicle without having informed any other officer that he was
      leaving the facility grounds. IAF, Tab 5 at 32. B.H.-P. testified to these events
      at the hearing and in his February 12, 2015 witness statement. HT at 141-42;
      IAF, Tab 5 at 70-71. He further testified that, while it was permissible to take a
      police vehicle off the property for certain purposes, e.g., maintenance, it was
      improper to do so without first notifying a coworker.       HT at 141-42.   At the
      hearing, the appellant did not deny leaving the premises at the time in question,
      but testified that he “suspect[ed]” that he was back in 10 minutes, which was the
      time it would have taken to go to the gas station, put air in the tires, clean the
      windows and return. HT at 16. He further testified that he “suspect[ed]” that he
      verbally informed B.H.-P. that he was leaving.        Id.   However, the appellant
      did not definitively contradict B.H.-P.’s version of events, or deny that it was
      improper to take a police vehicle off the facility premises without notifying
      another officer on duty.     Accordingly, we find that the administrative judge
      properly sustained specification 5, and consequently the charge as a whole. See
      Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990)
      (holding that when more than one event or factual specification supports a single
      charge, proof of one or more, but not all, of the supporting specifications is
      sufficient to sustain the charge).

      The administrative judge correctly sustained the charge of Sleeping on Duty.
¶12            In its second charge, the agency charged the appellant with sleeping on
      duty on three separate occasions, on February 7, 10, and 11, 2015. IAF, Tab 5
      at 33.    On review, the appellant does not contest the administrative judge’s
                                                                                        7

      finding that the agency proved its allegations, and we discern no error in her
      analysis. The appellant instead contends that he did not intend to fall asleep, that
      other officers who had been observed sleeping on the job were not removed, and
      that the agency failed to show that his sleeping on the job created a safety risk
      that would warrant removal under the agency’s table of penalties.        PFR File,
      Tab 1 at 12-14.    These arguments go to the propriety of the removal penalty,
      which we will address below. See Downey v. Department of Veterans Affairs,
      119 M.S.P.R. 302, ¶¶ 10-12 (2013).

      The agency did not prove the Lack of Candor charge by preponderant evidence.
¶13         In its third charge, the agency alleged that the appellant displayed a lack of
      candor during a May 26, 2015 investigative interview concerning allegations that
      he had behaved inappropriately during a March 1, 2015 traffic stop of another
      Medical Center employee, A.N. IAF, Tab 5 at 33. 3 As our reviewing court has
      explained, lack of candor and falsification are distinct charges. See Ludlum v.
      Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002).               Whereas
      falsification “involves an affirmative misrepresentation and requires intent to
      deceive,” lack of candor, by contrast, “is a broader and more flexible concept
      whose contours and elements depend on the particular context and conduct
      involved.”   Id.   For example, lack of candor need not involve an affirmative
      misrepresentation, but “may involve a failure to disclose something that, in the
      circumstances, should have been disclosed to make the statement accurate and
      complete.”   Id.   Furthermore, while lack of candor “necessarily involves an
      element of deception, ‘intent to deceive’ is not a separate element of the
      offense—as it is for falsification.” Id. at 1284-85. Nevertheless, to constitute


      3
        The March 1, 2015 incident was the subject of specification 1 of the Inappropriate
      Behavior charge. IAF, Tab 5 at 32. The administrative judge did not sustain
      that specification.
                                                                                          8

      lack of candor, a misrepresentation or omission must have been made knowingly.
      Parkinson v. Department of Justice, 815 F.3d 757, 766 (Fed. Cir. 2016);
      Fargnoli v. Department of Commerce, 2016 MSPB 19, ¶¶ 17-18 (applying the
      standard set forth in Parkinson); Rhee v. Department of the Treasury,
      117 M.S.P.R. 640, ¶¶ 10-11 (2012), overruled in part on other grounds by
      Savage v. Department of the Army, 122 M.S.P.R. 612 (2015).
¶14         The following facts are undisputed.        The interview was conducted by
      Police Lieutenant J.L. and Police Sergeant D.K., with a union representative
      present. IAF, Tab 5 at 60. During the interview, the appellant was handed a
      written statement by A.N. recounting the traffic stop incident.          Id.; see id.
      at 57-59. The appellant was unable to read A.N.’s handwriting, and asked J.L. to
      read the statement out loud. Id. at 60; HT at 43 (testimony of the appellant). As
      J.L. began to read the statement out loud, he misread A.N.’s handwriting, and
      erroneously stated that the traffic stop took place on March 7, 2015. HT at 31, 43
      (testimony of the appellant), 221-22 (testimony of D.K.). 4           The appellant
      interjected that he could not have made a traffic stop on that date, as he had been
      relieved of his badge some days before. IAF, Tab 5 at 20, 60. He further stated
      that he did not know who A.N. was and that, while he might recognize her, he
      did not know her by name. Id. at 60. The interview then ended. Id.
¶15         The parties differ on the following crucial detail. The appellant maintains
      that, during the interview, he correctly informed J.L. and D.K. that he had been
      relieved of his badge on March 4, 2015, and therefore was not on a shift on
      March 7, 2015.    HT at 31, 43 (testimony of the appellant); IAF, Tab 5 at 20.
      However, in their memorandum of the interview, J.L. and D.K. relate that the


      4
        The first sentence of A.N.’s statement reads as follows: “Spokane VA Medical Center,
      was pulled over after my Saturday night shift, approx. 0035 Sunday morning
      (03/01/15).” IAF, Tab 5 at 57. The statement is handwritten, such that the “1” could
      easily be mistaken for a “7.”
                                                                                         9

      appellant claimed that he was relieved of duty on February 25, 2015. IAF, Tab 5
      at 60. The alleged discrepancy is the basis of the lack of candor charge, which
      sets out the following specification:
            On 26 May 2015, you were interviewed regarding the [traffic stop
            incident]. You claimed that you could not have been the one to stop
            [A.N.] because you were not working that night and had been
            relieved of your badge and credentials on 25 February 2015.
            However, your time card shows you having worked that shift and the
            VAP DOJ shows that you were making entries during that shift. You
            were not candid and truthful with me [sic] 5 during that interview.
      IAF, Tab 5 at 33.
¶16         As noted above, a lack of candor charge need not involve an affirmative
      misrepresentation. Ludlum, 278 F.3d at 1284. However, because the agency in
      this case based its charge on an alleged affirmative misrepresentation, i.e., that he
      had been relieved of his badge on February 25, 2015, it must prove that the
      appellant in fact made the statement in question and that he did so knowingly.
      See Parkinson, 815 F.3d at 766; Prouty v. General Services Administration,
      122 M.S.P.R. 117, ¶ 16 (2014) (holding that the Board is required to review the
      agency’s decision on an adverse action solely on the grounds invoked by the
      agency; the Board may not substitute what it considers to be a more adequate or
      proper basis).   In sustaining the charge, the administrative judge credited the
      statement by D.K. and J.K. that the appellant told them he had been relieved of
      his badge on February 25, 2015. ID at 16. However, because the administrative
      judge did not in this instance base her credibility determination on observations
      of witness demeanor, we will reweigh the evidence.            See Haebe, 288 F.3d
      at 1302. For the following reasons, we credit the appellant’s version of events.




      5
        It is undisputed that the proposing official was not present at the May 26, 2015
      interview.
                                                                                      10

¶17         First, contrary to what the administrative judge stated in the initial
      decision, the appellant specifically testified under oath that he informed J.L. and
      D.K. that he had been relieved of his badge on March 4, 2015.            HT at 31
      (testimony of the appellant); see IAF, Tab 5 at 20; contra ID at 16. In contrast,
      while the signed memorandum by J.L. and D.K. is contemporaneous, which tends
      to weigh in its favor, it is also unsworn, and the agency failed to elicit sworn
      testimony from either J.L. or D.K. that the appellant gave February 25, 2015, as
      the date his badge was removed. HT at 206-50 (testimony of D.K.); IAF, Tab 13
      (stipulated testimony of J.L.); see Borninkhof v. Department of Justice,
      5 M.S.P.R. 77, 87 (1981) (setting forth the factors that affect the weight afforded
      hearsay evidence, including the availability of persons with first-hand knowledge
      to testify at the hearing and whether statements of out-of-court declarants are
      signed and in affidavit form).      The credibility of the memorandum is also
      compromised by its omission of the fact that J.L. had misstated the date of the
      incident being investigated. IAF, Tab 5 at 60. Given that the appellant had been
      led to believe that the interview concerned an incident that took place on
      March 7, 2015—subsequent to March 4, 2015, when his badge was in fact
      removed—he had no apparent reason to misrepresent that his badge instead was
      removed on February 25, 2015. Indeed, it is inherently unlikely that he would
      have done so, knowing that the agency could have readily verified that he was
      performing police officer duties on that date. See Hillen v. Department of the
      Army, 35 M.S.P.R. 453, 458 (1987) (holding that the inherent improbability of a
      witness’s version of events is among the factors to be considered in making a
      credibility determination). Under these circumstances, we credit the appellant’s
      claim that he truthfully informed J.L. and D.K. that his badge was removed on
      March 4, 2015, and we therefore do not sustain the lack of candor charge.

      The removal penalty is sustained.
¶18         Where, as here, not all of the charges are sustained, the Board will consider
      carefully whether the sustained charges merited the penalty imposed by the
                                                                                        11

      agency. Downey, 119 M.S.P.R. 302, ¶ 8. In such a case, the Board may mitigate
      the agency’s penalty to the maximum reasonable penalty so long as the agency
      has not indicated in either its final decision or in proceedings before the Board
      that it desires that a lesser penalty be imposed on fewer charges. Id. Here, the
      agency did not indicate that it desired a lesser penalty if the lack of candor charge
      was not sustained. In assessing the reasonableness of the penalty, the Board will
      consider such factors as the nature and seriousness of the offense, the employee’s
      past disciplinary record, the consistency of the penalty with the agency’s table of
      penalties, and the consistency of the penalty with those imposed on others for
      similar offenses.     Douglas v. Veterans Administration, 5 M.S.P.R. 280,
      305-06 (1981).
¶19         As to the charge of Sleeping on Duty, the appellant has raised legitimate
      concerns as to whether removal would be an appropriate penalty for that charge
      alone. He correctly observes that in Downey, a case in which the Board sustained
      a charge of sleeping on duty, the Board found it appropriate to remand for further
      findings on penalty issues similar to the ones raised by the appellant here. First,
      the appellant in Downey contended that he did not intend to fall asleep, which the
      Board found to be a pertinent consideration in assessing the seriousness of the
      misconduct.   Downey, 119 M.S.P.R. 302, ¶ 10.         Second, as here, the agency’s
      table of penalties allows for removal for a first offense of sleeping on duty only
      when the “safety of patients, beneficiaries, members, employees, or property may
      be endangered.” Id.; see IAF, Tab 5 at 37. The Board has held that, under those
      circumstances, an explicit finding on the issue of whether the appellant
      endangered the safety of people or property was necessary to determine if the
      removal penalty was reasonable. Downey, 119 M.S.P.R. 302, ¶ 10. Finally, as
      here, the appellant in Downey raised a disparate penalties claim, which also
      required further analysis on remand. Id., ¶¶ 11-14.
¶20         This case differs from Downey, however, in that the agency proved not
      only that the appellant slept on duty, but also that he committed additional
                                                                                         12

      misconduct, including falsifying entries in the VAP DOJ.           Falsification is a
      serious offense that affects an employee’s reliability, veracity, trustworthiness,
      and ethical conduct, and the Board has frequently upheld the penalty of removal
      for a sustained charge of falsification. Gebhardt v. Department of the Air Force,
      99 M.S.P.R. 49, ¶ 21 (2005), aff’d, 180 F. App’x 951 (Fed. Cir. 2006).            The
      penalty of removal for a first offense of intentional falsification is also consistent
      with the agency’s table of penalties. IAF, Tab 5 at 37. Furthermore, unlike the
      appellant in Downey, the appellant in this case is a law enforcement officer, and it
      is well settled that law enforcement officers may be held to a higher standard of
      conduct than other Federal employees.        Hartigan v. Veterans Administration,
      39 M.S.P.R. 613, 619 (1989).       While the appellant’s lack of prior discipline
      serves as a mitigating factor, the sustained acts of falsification are nonetheless
      sufficiently serious to support a removal penalty, regardless of whether the
      appellant intended to sleep on duty, or whether the “safety of patients,
      beneficiaries, members, employees, or property” was endangered as a result.
¶21         Finally, as to the appellant’s claim of disparate penalties, the Board has
      held that, to trigger the agency’s evidentiary burden on disparate penalties, the
      appellant must show that there is enough similarity between both the nature of the
      misconduct and other relevant factors to lead a reasonable person to conclude that
      the agency treated similarly situated employees differently. Lewis v. Department
      of Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010). However, the Board does not
      have hard and fast rules regarding the “outcome determinative” nature of these
      factors. Id.; see Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012).
      If the appellant makes the required showing, the agency then must prove a
      legitimate reason for the difference in treatment by a preponderance of the
      evidence before the penalty can be upheld. Boucher, 118 M.S.P.R. 640, ¶ 20.
      Here, the record reflects that other police officers were caught sleeping on the
      job, but received only a verbal or written counseling. HT at 211-12 (testimony of
      D.K.). However, we find the agency has adequately justified the difference in
                                                                                          13

      treatment on the grounds that those officers also did not commit acts of
      dishonesty, such as making false entries in the VAP DOJ. Id. at 212. In sum, we
      agree with the administrative judge and find the agency has met its burden of
      showing that the penalty of removal in this case was not outside the bounds
      of reasonableness.

                                               ORDER
¶22            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 review of this final decision by the U.S. Court of Appeals for the
      Federal Circuit or any court of appeals of competent jurisdiction. The court of
      appeals must receive your petition for review within 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
                                                                                 14

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 U.S. 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 U.S. 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 the link below:
      http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your 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
                                                                                 15

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.
