UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYRIL L. EDWARDS, DOCKET NUMBER
Appellant, NY-0752-15-0030-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: January 5, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
William E. Burkhart, Jr., Rochester, New York, for the appellant.
James R. Stellabotte, Philadelphia, Pennsylvania, 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
sustained his reduction in grade and pay. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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, 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
the disparate penalties analysis below, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed as a Supervisor, Maintenance Operations.
Initial Appeal File (IAF), Tab 7 at 42. It is undisputed that on March 17, 2014,
when he was scheduled to work an 8-hour tour, he worked less than 2 hours. IAF,
Tab 36 at 4. A few days later, the appellant told an acting supervisor, who was
charged with recording time and attendance, to credit him with 8 work hours for
the day. IAF, Tab 7 at 29. After investigating the appellant’s actions as to his
tour on March 17, 2014, the agency proposed reducing him in grade and pay to a
Mail Handler position based on a charge of improper conduct. Id. at 23-26. After
the appellant responded orally to the proposed action, id. at 28-30, the deciding
official upheld the reduction in grade and pay, id. at 15-21.
¶3 The appellant challenged the reduction in grade and pay before the Board
and requested a hearing. IAF, Tab 1. After holding the requested hearing, the
administrative judge issued an initial decision sustaining the agency’s action.
IAF, Tab 43, Initial Decision (ID). Specifically, she found that: (1) the agency
proved the charge of improper conduct; (2) the appellant failed to prove his
affirmative defenses of harmful procedural error and denial of due process;
(3) the agency established that the disciplinary action promoted the efficiency of
3
the service; and (4) the agency established that the reduction was within the
tolerable limits of reasonableness. ID at 4-15.
¶4 The appellant filed a timely petition for review in which he asserts that the
administrative judge improperly characterized the penalty as a removal, made
erroneous discovery rulings, and erred in finding the penalty reasonable. Petition
for Review (PFR) File, Tab 3. The agency has filed a response in opposition to
the petition for review, PFR File, Tab 5, and the appellant has filed a reply, PFR
File, Tab 6. 2
DISCUSSION OF ARGUMENTS ON REVIEW
We discern no basis for disturbing the administrative judge’s finding that the
agency proved its charge.
¶5 On review, the appellant appears to challenge the administrative judge’s
finding that the agency proved its charge of improper conduct. PFR File, Tab 3
at 6-7. In particular, he sets forth sections of the agency’s Employee and Labor
Relations Manual (ELM) pertaining to employee leave usage. Id. He also
references the testimony of a witness in support of his argument that, pursuant to
the ELM, he was permitted to get paid for a full 8 hours of work on March 17,
2014, despite only having worked less than 2 hours, because his supervisor had
told him to go home. Id. at 7.
¶6 Based on credibility determinations, the administrative judge properly
determined that the appellant should have completed a PS Form 3971 requesting
leave when he left work on the night in question. ID at 6-7. We decline to
disturb the administrative judge’s demeanor-based credibility findings on review.
See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(finding that the Board must give deference to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on the
2
The appellant does not challenge the administrative judge’s findings that the agency
proved nexus and that he failed to prove his harmful error claim. PFR File, Tab 3. We
see no reason to disturb these findings.
4
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so). The administrative judge further found that the appellant was not
entitled to be paid for 8 hours of work, despite having worked less than 2, under
any of the “personal absence” exceptions in the agency’s ELM. ID at 6-7.
Specifically, the administrative judge found that the agency’s rules clearly state
that an employee must work a minimum of 4 hours to receive personal leave for
the remainder of the day absent some type of emergency. ID at 7. The
administrative judge found that the appellant did not work the required 4 hours,
nor did he set forth evidence of an emergency situation. ID at 8. Based upon our
review, we conclude that the appellant’s petition for review does not provide a
basis for disturbing the administrative judge’s well-reasoned findings that the
agency proved its charge of improper conduct.
The agency’s chosen penalty is within the tolerable limits of reasonableness.
¶7 Where, as here, the agency’s one charge has been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant factors 3 and exercised management discretion within tolerable
limits of reasonableness. Portner v. Department of Justice, 119 M.S.P.R. 365,
¶ 10 (2013). The Board will modify a penalty only when it finds that the agency
failed to weigh the relevant factors or that the penalty the agency imposed clearly
exceeded the bounds of reasonableness. Id. For the reasons discussed below, we
agree with the administrative judge that the reduction in grade and pay is
reasonable under the circumstances.
3
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
identified a nonexhaustive list of 12 factors that are relevant in determining the
appropriateness of the penalty.
5
The administrative judge properly found that the deciding official correctly
considered the nature and seriousness of the offense.
¶8 The appellant argues that the administrative judge accorded too much
weight to the seriousness of the offense and that the deciding official actually
considered a charge of falsification without notifying the appellant that he was
doing so. PFR File, Tab 3 at 13-15. We agree with the administrative judge that,
in evaluating whether a penalty is warranted, the Board examines, first and
foremost, the nature and seriousness of the misconduct and its relation to the
employee’s duties, position, and responsibilities, including whether the offense
was intentional. ID at 13 (citing Neuman v. U.S. Postal Service, 108 M.S.P.R.
200, ¶ 23 (2008); Martin v. Department of Transportation, 103 M.S.P.R. 153,
¶ 13 (2006)). At the hearing, the deciding official testified that he considered the
appellant’s misconduct serious because: (1) although the appellant had the
opportunity to correct the misconduct, he did not; and (2) the appellant was a
supervisor. IAF, Tab 40, Hearing Compact Disc 2 (HCD2). We find that neither
the administrative judge nor the deciding official gave unnecessary weight to the
seriousness of the offense. See Rasmussen v. Department of
Agriculture, 44 M.S.P.R. 185, 191 (1990) (finding that the appellant could have
lessened the seriousness of his offense by advising the agency and law
enforcement of his actions, instead of choosing to cover up his actions).
¶9 The appellant urges us to conclude, as the Board did in Raco v. Social
Security Administration, 117 M.S.P.R. 1, ¶ 22 (2011), that the deciding official
acted on the unspoken belief that the appellant engaged in falsification and thus
imposed a harsher penalty. PFR File, Tab 3 at 13-14. The deciding official
testified that, although he considered regulations concerning falsification of time
records to the extent that they related to whether the appellant improperly
recorded his leave, he considered the charge as one of improper conduct
consistent with the proposal notice. HCD2. We find that the deciding official’s
testimony does not imply that he considered the charge itself to be falsification.
6
There is no further evidence that the deciding official considered the elements of
falsification. Id.; see IAF, Tab 7 at 15-20. Thus, the appellant’s argument
does not provide a basis for disturbing the initial decision.
The deciding official did not err in his consideration of the appellant’s job
level and type of employment, including his status as a supervisor.
¶10 The appellant next asserts that he was unreasonably penalized for his status
as a supervisor. PFR File, Tab 3 at 15. The deciding official testified that he
weighed the appellant’s status as a supervisor heavily because the appellant was
required to apply rules regarding timekeeping to his subordinates. HCD2. We
agree with the administrative judge that the deciding official, in assessing which
penalty to impose, properly considered the appellant’s status as a supervisor. See
House v. U.S. Postal Service, 80 M.S.P.R. 138, ¶ 12 (1998) (determining that the
agency was entitled to hold the appellant to a higher standard of conduct because
of his status as a supervisor).
We find no reversible error in the deciding official’s consideration of the
appellant’s work record.
¶11 The appellant also asserts that the deciding official erred by failing to give
sufficient mitigating weight to his past work performance and by failing to
consider certain evidence regarding his past work performance. PFR File, Tab 3
at 16-17. The deciding official testified that he considered that the appellant had
excellent performance and no issues getting along with others during his 13 years
of experience with the agency. HCD2. Thus, although the deciding official
may not have reviewed all of the evidence that the appellant asserts he should
have reviewed or considered all the factors regarding the appellant’s
performance, it is clear that the deciding official weighed the appellant’s
performance history as a mitigating factor in the penalty determination.
¶12 Additionally, the appellant asserts that the deciding official and the
administrative judge erred by failing to consider his military service as part of his
total length of service, which is one of the Douglas factors. See Douglas,
5 M.S.P.R. at 305. PFR File, Tab 3 at 16. When an appellant has both military
7
and civilian service, the Board has considered the combined period of Federal
service in its penalty analysis. See, e.g., Boo v. Department of Homeland
Security, 122 M.S.P.R. 100, ¶ 21 (2014) (considering, as a mitigating factor, the
appellant’s 23 years of total Government service, which included only about
1 year of civilian service with the agency). The deciding official therefore should
have considered the appellant’s military service. However, because the deciding
official already considered the appellant’s 13 years of civilian service as a
mitigating (as opposed to an aggravating) factor, HCD2, we find that his failure
to consider the appellant’s military service as additional support for mitigation
would not have affected the ultimate penalty determination.
The deciding official properly considered the effect of the offense upon the
appellant’s ability to perform at a satisfactory level and its effect upon his
confidence in the appellant’s ability to perform assigned duties.
¶13 The appellant asserts that the deciding official’s consideration of the effect
of the offense upon his ability to perform is flawed because: (1) the deciding
official does not have specific knowledge of the impact of the appellant’s
misconduct as it relates to his trustworthiness and performance at the new facility
and position to which he was scheduled to be assigned shortly after the
misconduct; (2) the deciding official’s belief that the appellant would violate
rules for himself and other employees based upon a single instance of misconduct
is highly speculative; and (3) the deciding official turned the appellant’s years of
service into an aggravating factor when he stated that a certain amount of trust is
placed in individuals as they advance and get promoted in their careers. PFR
File, Tab 3 at 17-18. The deciding official testified that the appellant breached
the agency’s trust because, as a supervisor, he was required to enforce agency
rules but had not himself followed the those rules. HCD2. In Douglas, the Board
determined that, when assessing the penalty, it is appropriate to consider “the
employee’s job level and type of employment, including supervisory or fiduciary
role.” Douglas, 5 M.S.P.R. at 305. We find that the deciding official here
8
properly considered the agency’s lack of trust in the appellant as a supervisor and
we defer to his determination that the agency no longer had confidence in the
appellant’s ability to serve in a supervisory role. See Neuman, 108 M.S.P.R. 200,
¶ 23 (finding that the Board’s role is not to displace the judgment of senior
agency managers who must have confidence that employees—particularly those
in supervisory roles—will act appropriately at all times). After considering the
deciding official’s analysis as a whole, we find no error regarding this factor.
We modify the rationale for the administrative judge’s finding that the
appellant did not show that he was subjected to a disparate penalty.
¶14 The appellant argues generally that the administrative judge’s disparate
penalty analysis is erroneous. PFR File, Tab 3 at 18-20. The appellant
specifically asserts that the administrative judge erred by rejecting proffered
comparators from the same division in which he worked because they did not
have the same supervisor or work in the same unit as did the appellant. Id.
at 19-20. He asserts that R.S. and A.W. are appropriate comparators because,
inter alia, they were disciplined for similar violations and were disciplined shortly
before he was. Id. at 20. He also asserts that the administrative judge erred in
not developing the record regarding D.G., whom he alleges engaged in similar
conduct but suffered no discipline. Id. The deciding official testified that he
did not consider R.S. and A.W. as comparators. HCD2. He testified that, instead,
he considered one of the appellant’s managers and D.G., and was told by someone
in Employee and Labor Relations (ELR) that there were no other possible
comparators. HCD2.
¶15 First, we find that the administrative judge erred to the extent that she found
that R.S. and A.W. were invalid comparators because they had a different
supervisor and worked in a different unit. ID at 14. To establish disparate
penalties, an appellant must show that the charges and the circumstances
surrounding the charged behavior are substantially similar. Lewis v. Department
of Veterans Affairs, 113 M.S.P.R. 657, ¶ 6 (2010). Whether a comparator was
9
employed in the same work unit is not dispositive as to whether an employee was
a valid comparator. Villada v. U.S. Postal Service, 115 M.S.P.R. 268, ¶ 12
(2010). Thus, we modify the initial decision to the extent that the administrative
judge relied on the different work unit and supervisor to exclude the
two comparators.
¶16 Instead, we find that R.S. is not a valid comparator because the penalty
imposed upon him was the result of a settlement agreement and that both R.S. and
A.W. are not valid comparators because of the nature of their misconduct. Where
another employee receives a lesser penalty, despite apparent similarities in
circumstances, as the result of a settlement agreement, the agency will not be
required to explain the difference in treatment. Davis v. U.S. Postal
Service, 120 M.S.P.R. 457, ¶ 10 (2013). Here, R.S. is not a valid comparator
because he and the agency reached a settlement resolving his proposed discipline.
IAF, Tab 31 at 53. Additionally, neither R.S. nor A.W. is a valid comparator
because of the nature of their misconduct. Similar to the appellant, both
employees were charged with violations related to recording time and attendance.
IAF, Tab 31 at 54-57, 61-64. However, neither R.S. nor A.W. was charged with
requesting a full 8 hours of work time when they knew they had worked
substantially fewer hours. Id. at 54-55, 61-62. Thus, we find that these
employees are not valid comparators. See Reid v. Department of the
Navy, 118 M.S.P.R. 396, ¶¶ 22-23 (2012) (finding that the appellant provided
insufficient evidence to establish that he was similarly situated to two other
employees for purposes of his disparate penalties claim because the employees
did not engage in conduct similar to the appellant’s).
¶17 Second, we modify the administrative judge’s rationale for finding that
D.G. was not a valid comparator. The administrative judge found that D.G.
was not a valid comparator because the record did not indicate that she violated
any agency rules or regulations concerning her time and attendance or that she
sought credit for work hours that she did not work. ID at 14. We instead find
10
that, regardless of whether such evidence existed, D.G. is not a valid comparator
because she was never actually charged with misconduct. See Chavez v. Small
Business Administration, 121 M.S.P.R. 168, ¶ 19 (2014) (explaining that, when
conducting a disparate penalty analysis, the deciding official is not required to
consider the universe of conduct that was both charged and could have
been charged).
¶18 Finally, we disagree with the appellant’s assertion that the deciding official
improperly considered one of his supervisors, who also was reduced in grade and
salary for similar misconduct, as the sole comparator. The appellant asserts that
the supervisor was an improper comparator because her misconduct was
discovered during the same investigation as his. PFR File, Tab 3 at 23 (citing
Chavez, 121 M.S.P.R. 168). Contrary to the appellant’s arguments, however, the
Board held in Chavez that a deciding official should be provided with information
concerning the penalties imposed upon comparators whose misconduct was
discovered in the same investigation. Chavez, 121 M.S.P.R. 168, ¶ 11. Thus, we
find that the deciding official properly considered the penalty he imposed on the
supervisor for purposes of disparate penalty. 4
We find no error in the deciding official’s consideration of the clarity with
which the appellant was on notice of any rules that were violated.
¶19 Next, the appellant asserts, inter alia, that he was not warned about the
conduct in question because he had never been released from scheduled work due
to lack of work and that his managers had conflicting interpretations about
4
The appellant asserts that the administrative judge refused to allow him to develop the
record regarding whether the deciding official was retaliating against one of his
supervisors by imposing discipline on her for similar misconduct. PFR File, Tab 3
at 23. An administrative judge has wide discretion to control proceedings and the
Board will only reverse an initial decision on the ground that the administrative judge
excluded evidence or testimony if that evidence or testimony would have affected the
outcome of the case. Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48, ¶ 12
(2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005). We fail to see a relationship between
the alleged retaliation against the appellant’s supervisor and the merits of the adverse
action before the Board.
11
applicable rules. PFR File, Tab 3 at 26. The administrative judge found, in
sustaining the charge, that absent some type of emergency, the agency rules
clearly state that an employee must work a minimum of 4 hours to receive
personal leave for the remainder of the day. ID at 7. The deciding official
testified that, although the appellant may not have been warned about this specific
situation, the rules regarding timekeeping were very widely known. HCD2. In
his opinion, the appellant, who was a longtime employee and a supervisor,
could not have thought that he could work for less than 2 hours and get paid for
8 hours. HCD2. In Brown v. Department of the Army, 96 M.S.P.R. 232 (2004),
the Board upheld a penalty determination that considered the appellant’s length of
service both as a mitigating factor in itself and also as evidence that he should
have been aware of applicable rules. Id., ¶¶ 13, 16. We similarly find that the
deciding official here properly considered the appellant’s length of service both
as a mitigating factor and for purposes of notice.
The deciding official’s consideration of whether the appellant had the
potential for rehabilitation is reasonable.
¶20 The appellant further challenges the penalty determination by questioning
the deciding official’s statement that his potential for rehabilitation was a neutral
factor. PFR File, Tab 3 at 28-29. The administrative judge found that the
deciding official properly considered that the appellant could no longer be trusted
to enforce the rules as a supervisor. ID at 13. The deciding official testified that
the appellant’s potential for rehabilitation was such that he could continue
employment with the agency, but that he could not continue in a managerial role.
HCD2. We agree with the administrative judge that the deciding official’s
consideration of this factor was reasonable. See Douglas, 5 M.S.P.R. at 305
(considering an employee’s potential for rehabilitation is appropriate).
The administrative judge properly found that the deciding official correctly
considered possible mitigating circumstances.
¶21 The appellant next asserts that the deciding official, in determining which
penalty to impose, should have considered three other mitigating circumstances:
12
(1) he was acting in a higher job level; (2) he was assigned to cover all three
shifts; and (3) he was preparing to transfer to a different job, in a different career
field, at a different facility. PFR File, Tab 3 at 29. Prior to finding that the
deciding official properly considered the Douglas factors, the administrative
judge noted that the deciding official was aware that the appellant was being
transferred, but testified that he found no reason to consider this a mitigating
factor because it was a lateral move. ID at 14; HCD2. The deciding official
did not consider that the appellant was acting in a higher job level as a mitigating
factor because the appellant would have volunteered to do so. HCD2. He also
did not consider as a mitigating factor the fact that the appellant worked multiple
shifts because working in a higher level job often resulted in multiple shifts but
also would result in a higher salary. Id. We find no error in the deciding
official’s choice not to consider the aforementioned mitigating factors. See
Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 136 (1997) (finding
that stressful events did not constitute mitigating circumstances where the
appellant did not explain or show how his misconduct was related to the
stressful events).
The deciding official’s consideration of the adequacy and effectiveness of
alternative sanctions was reasonable.
¶22 Finally, the appellant argues that the agency could have imposed a penalty
of a letter of warning or a suspension, but instead elected not to apply progressive
discipline or to provide him training. PFR File, Tab 3 at 30. The deciding
official testified that the agency uses progressive discipline only for minor
offenses. HCD2. He also testified that he considered other lesser penalties such
as a letter of warning or a suspension but found that these penalties would not
return the trust he lost in the appellant. Id. Contrary to the appellant’s assertions,
we find that the deciding official reasonably concluded that alternative lesser
sanctions would not have been effective. Thus, although the appellant may wish
13
that the deciding official weighed the Douglas factors differently, this does not
provide a basis for the Board to disturb the agency’s penalty determination.
The appellant’s remaining arguments do not provide a basis for disturbing the
initial decision.
¶23 On review, the appellant asserts that the administrative judge erred because
she considered the agency action as a removal. PFR File, Tab 3 at 10. While it is
true that the administrative judge at times mistakenly referred to the penalty as a
removal, she specifically concluded that the reduction in grade and pay was
reasonable under the circumstances. ID at 15. We thus find that the
administrative judge ultimately considered the correct penalty.
¶24 Next, the appellant asserts that he was prejudiced by the agency’s refusal to
provide an unredacted copy of a note of a meeting between the deciding official
and ELR staff, and the administrative judge’s failure to order the agency to
provide said discovery. PFR File, Tab 3 at 21-22. The administrative judge
informed the appellant that he could file a motion to compel discovery, IAF,
Tab 19, but the appellant decided not to do so, IAF, Tab 21. Instead, the
appellant asserted that the agency’s failure to provide the unredacted document
was a due process violation because it included an ex parte communication with
the deciding official. Id. Because the appellant chose not to file a motion to
compel, the administrative judge issued an order in which she concluded that
discovery was completed. IAF, Tab 23. An administrative judge has broad
discretion in ruling on discovery matters, and absent an abuse of discretion the
Board will not find reversible error in such rulings. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 15 (2013). Based upon these facts, we find the
administrative judge did not abuse her discretion. 5
5
The appellant asserts that the administrative judge also erred by excluding certain
documents. PFR File, Tab 3 at 23. At the hearing, the administrative judge excluded
the appellant’s exhibits H, I, J, L, M, and N, which she found were not relevant. HCD2.
We find that the exclusion of these documents does not constitute reversible error
because the appellant has not established that the administrative judge excluded
14
¶25 To the extent that the appellant still argues that the communication in
question was an improper ex parte communication with the deciding official,
there is no indication that the communication was substantial enough to constitute
a due process violation. See Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999) (stating that the ultimate
inquiry for due process purposes is whether the ex parte communication was “so
substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such circumstances”).
The redacted document contains the deciding official’s notes of a June 2014
meeting with an ELR staff member regarding how he should handle the proposed
action. IAF, Tab 22. The notes do not reflect that any new or material
information was presented to the deciding official. See Stone, 179 F.3d at 1377
(holding that only ex parte communications that introduce new and material
information to the deciding official violate due process). Thus, we find that the
document does not represent a due process violation.
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. You must submit your request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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,
evidence or testimony that would have affected the outcome of the appeal. See Jezouit,
97 M.S.P.R. 48, ¶ 12.
15
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 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 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.
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 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.