Kevin Ortegel v. National Aeronautics and Space Admin ( 2017 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN ORTEGEL, DOCKET NUMBER
Appellant, DC-0432-15-0715-I-1
v.
NATIONAL AERONAUTICS AND DATE: January 3, 2017
SPACE ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nathaniel D. Johnson, Esquire, White Plains, Maryland, for the appellant.
Bryan R. Diederich, Esquire, Washington, D.C., 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 his removal for unacceptable performance pursuant to 5 U.S.C.
chapter 43. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 contr ast, 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
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision. Because we agree with the administrative judge’s
finding that the appellant did not make any whistleblowing disclosures protected
under 5 U.S.C. § 2302(b)(8), we MODIFY the initial decision to VACATE the
administrative judge’s alternate finding that the agency proved by clear and
convincing evidence that it would have removed the appellant in the absence of
his alleged protected disclosures.
BACKGROUND
¶2 The appellant served as a GS-15 Workplace Planning Program Specialist in
the agency’s Office of Human Capital Management. Initial Appeal File (IAF),
Tab 5 at 22. On July 8, 2014, the appellant was issued a performance plan for the
2015 performance year, indicating that he would be evaluated based on four
critical elements. Id. at 183. By letter dated October 23, 2014, his supervisor,
the Division Director, notified him that he was performing at an unacceptable
level for two of the four critical elements of his position: “Labor Pricing
Program Manager; Center labor pricing study” (critical element 3), and
“Workforce planning and human capital reports—standard and ad hoc” (critical
element 4). Id. at 203-04. His supervisor placed him on a 12-week performance
improvement plan (PIP) to provide him an opportunity to raise his performance.
3
Id. at 202. The PIP letter set forth specific tasks to perform and deliverables to
submit at the end of the PIP period. Id. at 205.
¶3 At the conclusion of the PIP, the Division Director determined that, based
on a review of the appellant’s deliverables, his performance remain ed
unacceptable. Id. at 102. On February 9, 2015, the Division Director issued the
appellant a notice of proposed removal based on his unacceptable performance in
the two elements noted as deficient in his PIP. Id. at 93-100. Following the
appellant’s oral and written replies to the notice, the appellant’s second-line
supervisor issued a decision letter imposing his removal effective May 9, 2015.
Id. at 22, 24-26.
¶4 The appellant filed this appeal, challenging the removal and raising an
affirmative defense of whistleblower reprisal based on his disclosures concerning
the potential for manipulating the employee viewpoint survey (EVS) online too1
and alleged inconsistencies in his second-line supervisor’s congressional
testimony. IAF, Tab 1. The administrative judge held a hearing and issued an
initial decision affirming the agency’s removal action and denying the appellant’s
affirmative defense. IAF, Tab 84, Initial Decision (ID). The administrative judge
found that the agency proved all of the elements for taking a performance -based
action under 5 U.S.C. chapter 43. ID at 3-18. He further found that the appellant
failed to establish by preponderant evidence that either of his alleged
whistleblowing disclosures were protected disclosures under 5 U.S.C.
§ 2302(b)(8) and, alternatively, that the agency established by clear and
convincing evidence that it would have taken the same personnel action in the
absence of the alleged disclosures. ID at 18-22.
¶5 The appellant has filed a petition for review, contending that the
administrative judge erred in finding that the agency proved all of the elements
required to support a chapter 43 action and in failing to find whistleblower
reprisal. Petition for Review (PFR) File, Tab 3. The agency has filed a response
4
in opposition, PFR File, Tab 5, to which the appellant has replied, PFR File,
Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 To prevail in an appeal of a performance-based removal under chapter 43,
the agency must establish the following by substantial evidence: (1) the Office of
Personnel Management (OPM) approved its performance appraisal system and
any significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of his position; (3) the appellant’s
performance standards were valid under 5 U.S.C. § 4302(b)(1); (4) the agency
warned the appellant of the inadequacies of his performance during the appraisal
period and gave him a reasonable opportunity to demonstrate acceptable
performance; and (5) the appellant’s performance remained unacceptable in one
or more of the critical elements for which he was provided an opportunity to
demonstrate acceptable performance. Lee v. Environmental Protection Agency,
115 M.S.P.R. 533, ¶ 5 (2010). Substantial evidence is the “degree of relevant
evidence that a reasonable person, considering the record as a whole, might
accept as adequate to support a conclusion, even though other reaso nable persons
might disagree.” 5 C.F.R. § 1201.4(p).
¶7 On review, the appellant argues that the agency failed to meet its burden
regarding elements 1, 3, and 4. PFR File, Tab 3 at 14-27. In doing so, he claims
that the administrative judge failed to make explicit credibility findings and
“ignored” certain evidence supporting his theory of the case. Id. As discussed
below, we have considered the appellant’s arguments and discern no reason to
disturb the administrative judge’s findings. 2
2
The appellant does not object to the administrative judge’s findings that the agency
established the second and fifth elements, and we find no reason to disturb
those findings.
5
OPM approved the agency’s performance appraisal system.
¶8 The appellant argues that the three-tier rating system applied to him (i.e.,
“Substantially Exceeds Expectations,” “Meets Expectations,” and “Fails to Meet
Expectations”) was a significant change to the agency’s prior five-tier system
(used until the 2012-13 performance cycle) and was never approved by OPM.
E.g., PFR File, Tab 3 at 4-5, 16-17; IAF, Tab 5 at 189-200. We agree with the
administrative judge’s finding that the three-tier rating system was within the
parameters of the performance appraisal system that had been approved by OPM.
ID at 4-6. As correctly noted by the administrative judge, the performance
appraisal system approved by OPM in 1996 was a “framework-type overview”
similar to the one discussed in Salmon v. Social Security Administration, 663 F.3d
1378, 1384 (Fed. Cir. 2011), and not a “detailed implementation.” ID at 5. OPM
approved a system providing for employee performance plans that use a minimum
of two levels to appraise each critical element but did not require a specific
number of levels to be used. IAF, Tab 5 at 237, 240. Because the three-tier
rating method under which the appellant was reviewed was consistent with the
OPM-approved appraisal system, we find that the change to three-tier ratings for
each element was not a significant change in the system requiring additional OPM
review. See Salmon, 663 F.3d at 1384.
The appellant’s performance standards were valid.
¶9 The appellant asserts that the administrative judge erred in finding that the
three-tier appraisal policy announced in the 2013 personnel bulletin validly
superseded an agency procedural requirement and that the agency intended for the
policy to extend beyond the 2013-14 performance year. PFR File, Tab 3 at 17;
IAF, Tab 10 at 41. We agree with the administrative judge that the agency’s use
of the three-tier appraisal method was valid. ID at 8-9. The agency Human
Resource Specialist who drafted the 2013 personnel bulletins testified that the
agency uses them as a tool to memorialize changes in policy pending updates in
the agency’s national procedural requirements (NPR); that it was the intent of
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herself, the labor-management forum, and agency leadership that the agency
would continue using three appraisal levels for each critical element in the
2014-15 performance cycle and beyond; that she was tasked with updating the
NPR to reflect the new policy; and that she had not yet updated the NPR because
other changes were also being processed and she wanted to input all the changes
at the same time. Hearing Compact Disc (HCD) (testimony of the Human
Resource Specialist).
¶10 The appellant also argues that the performance standards were invalid
because they were not realistic, reasonable, and attainable. PFR File, Tab 3
at 18-19; see Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 21
(2013) (stating that standards must be reasonable, realistic, and attainable). We
find, however, that the administrative judge’s finding to the contrary is supported
by the appellant’s supervisor’s testimony that the duties described in the
performance plan were consistent with the appellant’s high -level position and
position description, as well as his team leader’s testimony regarding the
complexity and time requirements involved in the critical elements. H CD
(testimony of the supervisor and the team leader).
¶11 We have considered the appellant’s contention that the administrative judge
“ignored” certain evidence that the critical elements were too onerous and
unattainable during the time provided. E.g., PFR File, Tab 3 at 18-19. We find
his arguments unavailing. An administrative judge’s failure to mention all of the
evidence of record does not mean that he did not consider it in reaching his
decision. See Marques v. Department of Health & Human Services , 22 M.S.P.R.
129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985). Further, we find that the
mere fact that an assigned task previously has not been performed by an employee
or his coworkers does not establish that the task is unattainable. Similarly,
evidence that the appellant was assigned more subject matter areas than a
coworker does not demonstrate that the standards were unreasonable, especially
when, as here, the record is devoid of evidence suggesting that the appellant’s
7
duties, as a whole, were more difficult or time-consuming than his coworker’s
duties. The administrative judge considered the appellant’s timeline , as well as
his unsuccessful efforts to convince his supervisor that his workload was too
difficult, but found that, notwithstanding this evidence, the agency had proffered
substantial evidence that the standards were achievable. ID at 10-11. Having
considered the record and the appellant’s arguments, we agree with the
administrative judge that the agency has proven by substantial evidence that the
performance standards were valid. See Jackson v. Department of Veterans
Affairs, 97 M.S.P.R. 13, ¶ 14 (2004) (holding that an agency is free to set its
performance standards as high as it thinks appropriate, so long as those standards
are objective and meet the other express requirements of section 4302(b)(1)).
The agency afforded the appellant a reasonable opportunity to demonstrate
acceptable performance.
¶12 In determining whether an agency has afforded an employee a reasonable
opportunity to demonstrate acceptable performance, relevant factors include the
nature of the duties and responsibilities of the employee’s position, the
performance deficiencies involved, and the amount of time which is sufficient to
enable the employee to demonstrate acceptable performance. Lee, 115 M.S.P.R.
533, ¶ 32. We agree with the administrative judge’s finding that the agency
proffered substantial evidence that it afforded the appellant a reasonable
opportunity to improve in the two critical elements at issue. ID at 11-18. The
appellant was a GS-15, and his position description referenced, among other
things, planning, organizing and conducting ground -breaking studies, applying
advanced analytical techniques, and preparing and contributing to reports and
other presentations. IAF, Tab 5 at 230-31.
8
¶13 On review, the appellant contends that the agency failed to afford him a
reasonable opportunity to improve for several reasons. 3 First, he claims that the
PIP was premature and that his performance was satisfactory prior to its issuance.
See, e.g., PFR File, Tab 3 at 20-21. It is well settled, however, that an agency
need only prove that the appellant failed the PIP; it need not prove unacceptable
performance prior to the PIP. See, e.g., Wright v. Department of Labor,
82 M.S.P.R. 186, ¶ 12 (1999); Brown v. Veterans Administration, 44 M.S.P.R.
635, 640 (1990). We thus find that evidence of the appellant’s performance
immediately preceding the PIP is immaterial to whether the agency met its burden
under chapter 43.
¶14 The appellant also reasserts his claims that his supervisor modified his PIP
task requirements during the regular progress meetings, thus failing to provide
him with a firm benchmark toward which to aim his performance. PFR File,
Tab 3 at 22-24. We have reviewed the referenced meeting summaries and find,
however, that his supervisor’s comments constituted substantive feedback
designed to help the appellant produce acceptable deliverables rather than
changes in the requirements of the PIP. IAF, Tab 5 at 159-68.
¶15 We are also unconvinced by the appellant’s argument that he received
insufficient assistance during his PIP. PFR File, Tab 3 at 22. The record reflects
that, during the PIP, the agency provided the appellant with detailed oral and
written feedback during bimonthly meetings at which the appellant’s supervisor
and the appellant discussed his progress. IAF, Tab 5 at 159-68, Tab 65.
Furthermore, the appellant testified that his team leader provided him reference
materials and answered his questions as they arose. HCD (testimony of the
appellant). We therefore find that the agency met its obligation to offer
3
The appellant admitted during his hearing testimony that he did not satisfy the
requirements of the PIP. HCD (testimony of the appellant).
9
assistance in improving his performance. See Goodwin v. Department of the
Air Force, 75 M.S.P.R. 204, 208-09 (1997); 5 C.F.R. § 432.104.
¶16 Regarding the appellant’s claim that his supervisor denied him training
related to his dashboard task, PFR File, Tab 3 at 22, we find that the referenced
training was not necessary to complete the task. The evidence indicates that, on
December 3, 2014, the appellant requested permission to attend a 3 -day course on
Visual Basic because he thought it would be helpful for the unit to have in -house
capability to write basic code, and it would help him learn the m ore sophisticated
functions for dashboarding available in Excel. IAF, Tab 5 at 163, Tab 51. In
rejecting his request, the appellant’s supervisor indicated that contractors would
perform the coding and, thus, his focus during the PIP should be on the look and
functionality of the dashboard. IAF, Tab 5 at 163. This was consistent with her
prior instruction that he would be provided coding support as necessary. Id.
at 159. Moreover, the record indicates that the appellant asked to take the course
in late January, which would have been after his PIP period ended and, therefore,
not helpful in completing his PIP assignments. IAF, Tab 51.
¶17 We also considered the appellant’s argument that he had insufficient time to
complete his PIP tasks and find that this argument is belied by the evidence of
record. Although the appellant now claims that he could not focus on the
labor-pricing studies until mid-December and his attempts at scheduling
interviews was made difficult by the holiday schedules of the interview ees, PFR
File, Tab 3 at 24, the notes from the appellant’s regular meetings with his
supervisor reveal that in mid-November, the appellant’s supervisor offered to
help him get responses from the labor centers and that the appellant indicated he
was on target to complete the labor-pricing study by January 15—the end of his
PIP, IAF, Tab 5 at 162. On December 3 and 15, the appellant informed his
supervisor that he had completed enough interviews, and he was “in good enough
shape to start writing over the holidays.” Id. at 163-64, 166. Finally, in a
January 9 email, the appellant indicated that his only remaining PIP task was
10
completing the labor-pricing study, which he stated would be difficult but
“doable.” IAF, Tab 40 at 75. Similarly, the appellant’s claim that he was forced
to miss a week of work (January 5-9, 2015) during his PIP due to his wife’s
illness is also contradicted by the record. PFR File, Tab 3 at 24. As he explained
in an email dated January 9, he worked at home that week after requesting and
receiving permission from his supervisor to do so. IAF, Tab 40 at 75, Tab 77.
Finally, as noted by the administrative judge, the appellant admitted that he never
asked for an extension of time to complete his PIP projects. HCD (testimony of
the appellant). Accordingly, we agree with the administrative judge that the
appellant had sufficient time to complete his tasks. ID at 18.
The appellant failed to meet his burden of proving that his disclosures were
protected under 5 U.S.C. § 2302(b)(8).
¶18 The appellant argues that the administrative judge erred in f inding that he
failed to prove his affirmative defense of retaliation for whistleblowing pursuant
to 5 U.S.C. § 2302(b)(8). PFR File, Tab 3 at 27. To prove an affirmative defense
of whistleblower reprisal, the appellant must show by preponderant evidence that
he engaged in whistleblowing 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 v. Department of Veterans Affairs, 121 M.S.P.R. 221,
¶ 21 (2014). 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); Shannon, 121 M.S.P.R. 221, ¶ 22. To demonstrate that he had a
reasonable belief that he made a protected disclosure, an appellant need prove
only that a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
agency’s actions evidenced one of the categories of wrongdoing listed in 5 U.S.C.
§ 2302(b). Shannon, 121 M.S.P.R. 221, ¶ 22.
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¶19 The appellant alleges that he made a protected disclosure in April 2014
when he notified agency management of an alleged weakness in OPM’s EVS
online tool and that he made a separate protected disclosure in a May 2014 email
to agency management identifying statistical errors in his second-line
supervisor’s testimony before Congress. PFR File, Tab 3 at 6-7, 27-29. We agree
with the administrative judge that the appellant did not reasonably believe that
either of these disclosures evidenced one of the categories of wrongdoing listed in
5 U.S.C. § 2302(b)(8). ID at 20-21.
¶20 Regarding his first disclosure, the appellant alleged that, on April 10, 2014,
he told his first- and second-line supervisors that he had discovered a weakness in
OPM’s EVS online tool wherein, under certain circumstances, managers with
access to the tool could learn the identity of certain survey respondents by
conducting a series of searches with filters and comparing the results of those
searches. IAF, Tab 8 at 6, Tab 10 at 88. The appellant described the alleged
weakness in a subsequent email and made a recommendation that he believed
would resolve the issue. IAF, Tab 10 at 88. Although the appellant testified that
he was unaware of anyone who actually had used this technique, HCD (testimony
of the appellant), he stated that he was concerned that one of the approximately
100 agency managers with access to the tool could learn to replicate what he had
discovered and would use it in a manner that would jeopardize the confidentiality
of the survey results, IAF, Tab 8 at 6. The appellant alleged that his second-line
supervisor initially told him to notify OPM but later changed her mind. Id. He
admits that this disclosure did not implicate his supervisors in any improper
behavior and that they were apparently “clueless” as to the potential
consequences of the alleged weakness. IAF, Tab 81 at 22.
¶21 We find no reason to disturb the administrative judge’s finding that the
appellant did not reasonably believe his disclosures about the EVS online tool
evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). ID at 20. On
review, the appellant continues to argue that his disclosure evidenced a gross
12
waste of funds, PFR File, Tab 3 at 27-28, but the Board’s gross waste of funds
analysis focuses on improper expenditures, Embree v. Department of the
Treasury, 70 M.S.P.R. 79, 85 (1996), and the appellant failed to identify any such
expenditures by the agency. To the extent that the appellant is alleging that the
disclosure evidences gross mismanagement, it is well settled that gross
mismanagement is more than de minimis wrongdoing or negligence; it means a
management action or inaction that creates a substantial risk of significant
adverse impact on the agency’s ability to accomplish its mission. Swanson v.
General Services Administration, 110 M.S.P.R. 278, ¶ 11 (2008). The evidence
here regarding this disclosure falls short of that standard. 4 See Webb v.
Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015) (holding that policy
disagreements with agency decisions or actions are not protected unless they
separately constitute a protected disclosure of one of the categories of
wrongdoing listed in section 2302(b)(8)(A)).
¶22 We further agree with the administrative judge that the appellant has not
proven that he had a reasonable belief that his disclosure about p erceived
weaknesses in the EVS online tool evidenced an abuse of authority. ID at 20.
The Board has defined abuse of authority as an arbitrary or capricious exercise of
power by a Federal official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to himself or to preferred
other persons. Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 22
(2013). As correctly noted by the administrative judge, the appella nt failed to
identify who, if anyone, conducted the alleged abuse of authority related to the
perceived weakness in the EVS online tool. ID at 20. On review, the appellant
4
The appellant’s claim that an OPM official testified that his disclosure evidenced a
“very serious concern” is not supported by the record. PFR File, Tab 3 at 28; IAF,
Tab 72 at 3. The transcript excerpt in the record contains no evidence that the OPM
witness was asked about the appellant’s specific disclosure. IAF, Tab 72 at 3. In any
event, such testimony would be of insufficient weight to change the outcome.
13
appears to argue that his supervisors abused their authority after his April 10,
2014 disclosure in that they failed to notify OPM of his concerns. PFR File,
Tab 3 at 28. However, the disclosure at issue in this case is the appellant’s
April 10, 2014 statement to his managers about the EVS online tool. There is no
evidence that the appellant made a disclosure regarding his supervisors’ failure to
take action after that conversation and, therefore, his claim has no merit.
¶23 Regarding his second disclosure, the record indicates that, by email dated
May 22, 2014, the agency’s Office of Legislative and Interagency Affairs asked
the appellant’s office to verify the figures and information provided by his
second-line supervisor as well as nonagency witnesses who testified at the May 6,
2014 congressional hearing, but noted that such substantive statements could not
be altered in the record. IAF, Tab 40 at 95-96. An agency employee forwarded
this email to the appellant and asked him to verify specific statements made about
the EVS. Id. at 94-95. In his May 27, 2014 email response, the appellant noted
that a certain nongovernmental witness’s testimony contained some statistical
errors. Id. at 94, 189. He also noted that his second-line supervisor stated that
EVS results indicated that 13% of the agency’s employees plan ned to retire
within the next 5 years, when in fact the correct number was 23%. Id. at 94, 152.
In a subsequent email, the appellant opined that his second-line supervisor had
probably been referring to the number of agency employees who intended to
retire within 3 years, which was 12.6%. Id. at 100.
¶24 On review, the appellant reasserts his argument that his May 27, 2014 email
was protected under 5 U.S.C. § 2302(b). 5 PFR File, Tab 3 at 29. We agree with
5
We also disagree with the appellant’s characterizing his email as a “Congressional
disclosure.” PFR File, Tab 3 at 29. The appellant did not send his email to Congress.
Moreover, he had no reason to believe that the information provided in his email would
be disclosed to Congress because the email to which the appellant responded
specifically indicated that only grammatical, typographical , and spelling errors could be
changed in the remarks, not substantive remarks. IAF, Tab 40 at 95.
14
the administrative judge that the appellant’s email did not suggest that his
second-line supervisor was intentionally deceitful in her testimony and that he
failed to prove that he reasonably believed his disclosure of this statistical error
evidenced a category of wrongdoing set forth in 5 U.S.C. § 2302(b)(8)(A). ID
at 21.
¶25 Thus, we uphold the administrative judge’s finding that the appe llant failed
to prove whistleblower reprisal. 6
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 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
6
Because we have found that the appellant failed to prove that his disclosures were
protected, it is unnecessary to decide whether the agency proved by clear and
convincing evidence that it would have removed him in the absence of the disclosures.
See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014),
aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the administrative
judge’s findings concerning whether the agency met its clear and convincing burden.
15
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
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 dec ision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.