UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MITCH WINE,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

DA-1221-16-0513-W-2

DATE: February 10, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Mitch Wine, Mountain View, Arkansas , pro se.

Annette Tarnawsky, Esquire, and John Austin, Esquire, Knoxville, 

Tennessee, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

denied his request for corrective action in this individual right of a ction appeal. 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of material fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

or the erroneous application of the law to the facts of the case; the administrative 

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 f or review. 

Therefore, we DENY the petition for review. Except as expressly MODIFIED to 

clarify the applicable legal standards and supplement the administrative judge’s 

analysis of the agency’s burden of proof, we AFFIRM the initial decision.

BACKGROUND

¶2 The following facts, as further detailed in the initial decision and record, 

appear to be undisputed. At all times relevant to this appeal, the appellant 

worked for the Department of the Interior’s Fish and Wildlife Service (FWS). 

Wine v. Department of the Interior, MSPB Docket No. DA-1221-16-0513-W-2, 

Refiled Appeal File (RAF), Tab 6, Initial Decision (ID) at 2. 2 From June 2003 to 

October 2014, he worked as a Transportation Liaison wherein his duties included 

coordinating with the Arkansas Highway and Transportation Department 

 

2

To accommodate scheduling conflicts, the administrative judge dismissed the 

appellant’s initial appeal without prejudice, for automatic refiling at a later date. Wine

v. Department of the Interior, MSPB Docket No. DA-1221-16-0513-W-1, Initial Appeal 

File, Tab 114, Initial Decision. It was refiled on the appointed date as MSPB Docket 

No. DA-1221-16-0513-W-2.
3

(AHTD), the Federal Highway Administration (FHA), and other entities to 

mitigate the environmental impact of transportation projects. Id.

¶3 In 2011, the appellant purchased a tract of land, and in the years that 

followed he sought out a Nationwide Permit (NWP) from the United States Army 

Corps of Engineers (USACE) to use that land as a mitigation bank—in his 

personal capacity, through a limited liability corporation he owned. ID at 2 -3; 

see, e.g., Wine v. Department of the Interior, MSPB Docket No. DA-1221-16-

0513-W-1, Initial Appeal File (IAF), Tab 41 at 23, Tab 45 at 4-10. The appellant 

has described mitigation banking in a succinct manner that is useful background 

information endorsed by the agency. Wine v. Department of the Interior, MSPB 

Docket No. DA-1221-16-0513-W-2, Petition for Review (PFR) File, Tab 7 at 7-8, 

Tab 15 at 6. In short, mitigation is required for projects that will negatively 

impact the waters of the United States. PFR File, Tab 7 at 7. This is 

accomplished through various means, including compensation. Id. Compensation

involves a system regulated by the USACE wherein an entity compensates for the 

damage it causes to one parcel through the repair of another. Id. In practice, this 

works as follows: If, for example, the AHTD is unable to avoid or minimize 

damage to a waterway during the construction of a highway, that damage is 

assigned a number of mitigation credits. Id. at 7-8. The AHTD then purchases a 

corresponding number of mitigation credits from a mitigation banker, i.e., a 

separate individual or entity that generated credits through restoration projects. 

Id.

¶4 In September 2013, the appellant sought and received agency approval to 

engage in outside employment—mitigation banking. ID at 3-4; IAF, Tab 13 

at 125-27. A year later, in October 2014, the appellant left his Transportation 

Liaison position to become the agency’s Karst and Cave Biologist. ID at 4. 

Despite this change in position, the appellant’s FWS work continued to involve 

the AHTD and other outside entities. For example, in his new role, the appellant 

assessed whether AHTD projects adversely affected the groundwater and 
4

endangered species in the Karst region. ID at 15. In October 2014, just after the 

change in his FWS position, the appellant received the NWP he had been seeking 

for his personal mitigation bank. ID at 3; IAF, Tab 46 at 5-6.

¶5 Between February and May 2015, the appellant reported what he believed 

were violations of the Endangered Species Act, the Clean Water Act, and th e 

National Environmental Policy Act in connection with several AHTD projects, as 

well as a sewer project for the City of Centerton. ID at 4. Around this same 

period, the appellant actively solicited both the AHTD and the USACE regarding 

the mitigation credits he had to offer. ID at 5.

¶6 In June 2015, the USACE contacted the FWS, expressing ethics concerns 

about the appellant—concerns the USACE described as being shared by the 

AHTD and the FHA. ID at 5-6. Specifically, the USACE recounted the 

appellant’s “decreasingly professional demeanor” in the form of aggressive 

telephone calls and emails, as well as a perceived conflict of interest between the 

appellant’s FWS position and his mitigation banking. Id.; IAF, Tab 11 at 116-17. 

For example, the USACE official recounted how the appellant had, at times, 

called staff to discuss both his FWS work and mitigation banking work in the 

same lengthy telephone call. IAF, Tab 11 at 116. This USACE official also 

recounted how the appellant had essentially worked on certain AHTD projects in 

his FWS role, then claimed violations on those projects, and then hoped for or 

expected AHTD to resolve the matter by purchasing the mitigation credits he 

personally had available for sale. Id. at 116-17. 

¶7 In August 2015, the appellant’s employing agency—FWS—hired an outside 

firm to investigate USACE’s allegations. ID at 6-7; see, e.g., IAF, Tab 11 at 73. 

Around that same time, the appellant completed a 2-week detail assignment. ID

at 35; see, e.g., IAF, Tab 11 at 126. After the conclusion of its investigation, the 

agency issued a January 2016 letter asking the appellant to either cease his 

mitigation banking or resign from his FWS position, effectively rescinding the 
5

approval for outside activity that had been granted 2 years earlier.3 ID at 7; IAF,

Tab 11 at 20-22. The agency subsequently issued a March 2016 memorandum of 

expectations that, among other things, prohibited him from communicating with 

USACE or AHTD on official time, with some exceptions, and reassigned some of 

his duties. ID at 7-8; IAF, Tab 10 at 60-61.

¶8 The appellant filed two complaints with the Office of Special Counsel 

(OSC), alleging that the agency had subjected him to whistleblower reprisal. ID

at 8-9. He later filed the instant IRA appeal alleging the same. IAF, Tab 1. 

¶9 After developing the record and holding the requested hearing, the 

administrative judge denied the appellant’s request for corrective action. ID at 2. 

She first found that the appellant met his burden of proving that he made 

protected disclosures, which generally pertained to violations of environmental 

laws, and those protected disclosures were a contributing factor in 4 alleged 

personnel actions: the 2-week detail assignment (Personnel Action 1); the

decision to rescind his approval to engage in outside activity (Personnel

Action 3); the restriction on his communications with USACE and AHTD 

(Personnel Action 4); and the reassignment of certain duties (Personnel

Action 5).4 ID at 13-20, 22-32. Although the appellant alleged that the agency’s 

investigation (Personnel Action 2) constituted another covered personnel action, 

the administrative judge found otherwise. ID at 20-22. Because she found that 

the appellant established a prima facie case of reprisal, the administrative judge

shifted the burden and found that the agency proved that it would have taken the 

 

3

In the initial decision, the administrative judge identified this letter as dated 

December 2015, but the associated citation and description corresponds to a letter dated 

January 2016. Compare ID at 7, with IAF, Tab 11 at 20-22. The appellant has also, at 

times, referred to this memorandum as being dated December 2015. PFR File, Tab 7 

at 30. For the sake of clarity, our decision will exclusively refer to the January 2016 

date.

4

For the sake of clarity, we will utilize the same identifying descriptors from the initial 

decision—Personnel Actions 1-5.
6

same actions in the absence of the appellant’s protected whistleblowing. ID 

at 32-55.

¶10 The appellant has filed a petition for review. PFR File, Tab 7. The agency 

has filed a response, and the appellant has replied. PFR File, Tabs 15, 18. The

appellant has since filed three motions. PFR File, Tabs 19-20, 27. In the first, 

the appellant’s attorney requested oral argument before the Board, simply citing 

“the complexity of the matter.” PFR File, Tab 19. That request is denied. See 

New v. Department of Veterans Affairs, 99 M.S.P.R. 404, ¶ 13 (2005) (denying a 

request for oral argument where the appellant failed to indicate what would be 

presented at oral argument or show that such argument would add to the 

proceedings); Social Security Administration v. Harty, 96 M.S.P.R. 65, ¶ 13 

(2004) (same). In the second, filed by the appellant himself because he 

terminated his representative, the appellant requests leave to submit additional 

arguments and evidence. PFR File, Tab 20 at 4, Tab 23 at 2. The agency

presented an argument in opposition, after the Clerk of the Board denied the 

agency’s attempt to submit evidence in opposition. PFR File, Tabs 22, 24. It

seems that the basis for the appellant’s request, which the agency opposes, is a 

combination of dissatisfaction with his attorney’s choices, documents from 2016 

that he recently discovered, and a new legal theory. PFR File, Tab 20 at 4-6. The 

appellant’s request is denied. See, e.g., 5 C.F.R. § 1201.114(a) (recognizing the 

pleadings allowed on review); Banks v. Department of the Air Force, 4 M.S.P.R. 

268, 271 (1980) (the Board will not consider an argument raised for the first time 

in a petition for review absent a showing that it is based on new and mate rial

evidence not previously available despite the party’s due diligence); Avansino v. 

U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (the Board will not consider 

evidence submitted for the first time with the petition for review absent a showing 

that it was unavailable before the record was closed despite the party’s due 

diligence); see also Grassell v. Department of Transportation, 40 M.S.P.R. 554, 

564 (1989) (to constitute new and material evidence, the information contained in 
7

the documents, not just the documents themselves, must have been unavailable 

despite due diligence when the record closed). For the same reasons, we also 

deny the appellant’s third motion, which also seeks an opportunity to present 

additional arguments and evidence, this time regarding what the appellant 

describes as medical evidence proving that he was harmed by agency reprisal. 

PFR File, Tab 27.

ANALYSIS

¶11 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), 

Pub. L. No. 112-199, 126 Stat. 1465, the Board has jurisdiction over an IRA 

appeal if the appellant has exhausted his administrative remedies before OSC and 

makes nonfrivolous allegations that (1) he made a protected disclosure described 

under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 

5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected 

activity was a contributing factor in the agency’s decision to take or fail to take a 

personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). Salerno v. Department 

of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Once an appellant establishes 

jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his 

claim, which he must prove by preponderant evidence. Id. 

¶12 If the appellant proves that his protected disclosure or activity was a 

contributing factor in a personnel action taken against him, the agency is given an 

opportunity to prove, by clear and convincing evidence, that it would have taken 

the same personnel action in the absence of the protected disclosure. Id. In

determining whether the agency has met this burden, the Board will consider the 

following factors: (1) the strength of the agency’s evidence in support of its 

action; (2) the existence and strength of any motive to retaliate on the part of the 

agency officials involved in the decision; and (3) any evidence that the agency 

takes similar actions against employees who are not whistleblowers, but who are 

otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d
8

1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete 

elements, each of which the agency must prove by clear and convincing evidence, 

but rather, the Board will weigh the factors together to determine whether the 

evidence is clear and convincing as a whole. Phillips v. Department of 

Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). The U.S. Court of Appeals for the 

Federal Circuit has added that “[e]vidence only clearly and convincingly supports 

a conclusion when it does so in the aggregate considering all the pertinent 

evidence in the record, and despite the evidence that fairly detracts from that 

conclusion.” Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 

2012).

The scope of this appeal is limited to the personnel actions that were identified in 

the prehearing summary.

¶13 There appears to be no dispute that the appellant met the exhaustion 

requirement regarding several alleged personnel actions. See, e.g., IAF, Tab 54 

at 45-46, 50-51. In his complaints to OSC, the appellant alleged that he disclosed 

violations of the Endangered Species Act, the Clean Water Act, and the National 

Environmental Policy Act by the AHTD, USACE, and City of Centerton, IAF,

Tab 4 at 38, 45-46, Tab 38 at 14-15, 21-22, after which FWS engaged in 

retaliation in the form of an investigation (Personnel Action 2), IAF, Tab 4 at 40,

46, Tab 38 at 22, the decision to rescind his approval for outside activity 

(Personnel Action 3), IAF, Tab 4 at 40, 47, Tab 38 at 16, 22-23, the restriction on 

his communications with USACE and AHTD (Personnel Action 4), IAF, Tab 4 

at 40, 47-48, Tab 38 at 16, 23, and the reassignment of certain job duties 

(Personnel Action 5), IAF, Tab 4 at 47-48.5

¶14 On review, the appellant suggests that the administrative judge erroneously 

limited the scope of his appeal to exclude two other alleged personnel actions: 

the agency’s January 2016 letter rescinding the approval for outside activity and 

 

5 We will not address Personnel Action 1 in this decision, since neither party raised it 

on review and the appellant has seemingly abandoned the claim.
9

its March 2016 memorandum of expectations. He seems to suggest that the 

documents constitute additional personnel actions, above and beyond Personnel

Actions 3-5, the personnel actions first identified within those documents. PFR 

File, Tab 7 at 30. He also alludes to a hostile work environment, as if that may 

have been yet another personnel action. Id. at 28. However, the appellant did not 

raise these as personnel actions below, in response to the administrative judge’s

prehearing summary, which identified the only issues to be considered. IAF, 

Tab 94 at 2-3. Accordingly, we will not consider them on review. See Crowe v. 

Small Business Administration, 53 M.S.P.R. 631, 634-35 (1992) (explaining that 

an issue is not properly before the Board when it is not included in the 

administrative judge’s memorandum summarizing the prehearing conference, 

which states that no other issues will be considered, unless either party objects);

see also Durr v. Department of Veterans Affairs, 119 M.S.P.R. 195, ¶ 16 n.2 

(2013) (applying this principle in the context of a new theory of alleged 

whistleblower retaliation that was not among the issues considered before the 

administrative judge, even if that theory had been exhausted before OSC). 

The appellant is not entitled to corrective action for Personnel Action 2.

¶15 As mentioned above, there is no dispute that the appellant met his burden of 

proving exhaustion for the matters properly before us on review, including 

Personnel Actions 2-5. Supra ¶ 13. Similarly undisputed is the administrative 

judge’s finding that the appellant made protected disclosures. ID at 13-19. 

Generally speaking, those disclosures involved his various reports of construction 

projects either causing environmental damage or failing to meet applicable 

standards in violation of the Endangered Species Act, the Clean Water Act, and 

the National Environmental Policy Act. ID at 13-15. For example, the appellant 

disclosed that the AHTD’s work on a particular project—Highway 5—had 

resulted in a nearby stream’s contamination, as demonstrated by his measurement 

of turbidity, which would adversely affect species in the region. ID at 14-15; see,

e.g., IAF, Tab 4 at 53-56, Tab 14 at 130. The appellant made these disclosures to 
10

numerous officials or entities, including his chain of command, the Arkansas 

Department of Environmental Qualify (ADEQ), the USACE, and the U.S. 

Attorney’s Office for the Eastern District of Arkansas. ID at 15-18. In fact, for 

the aforementioned example, ADEQ responded to the appellant’s disclosure by 

investigating and determining that the AHTD had failed to utilize proper controls 

to prevent contamination. ID at 15; IAF, Tab 4 at 51-52, 58-59. Further, the 

appellant’s first- and second-level supervisors both testified that they agreed with 

at least some of the appellant’s assessments of environmental violations, and his 

disclosures resulted in the remediation of multiple sites.

6

 ID at 16-17. 

¶16 It is also undisputed that the appellant’s protected disclosures were close 

enough in time to satisfy the contributing factor criterion for 

Personnel Actions 2-5. ID at 30-32. However, what is disputed on review is 

whether Personnel Action 2 constituted a covered personnel action and, if so, 

whether the agency proved that it would have taken the same action in the 

absence of the appellant’s whistleblowing. The administrative judge found that 

the appellant failed to meet his burden of presenting a prima facie case of 

whistleblower reprisal regarding the agency’s investigation, Personnel Action 2, 

because that investigation was not a covered personnel action. ID at 20-22. 

On review, the appellant reasserts that the agency’s investigation was a cove red 

personnel action, and it would not have occurred in the absence of his 

whistleblowing. PFR File, Tab 7 at 10-19.

¶17 A “personnel action” is defined as follows: (i) appointments; 

(ii) promotions; (iii) actions under 5 U.S.C. chapter 75 or other disciplinary or 

 

6

The administrative judge recognized that the appellant’s disclosures were “related to” 

his duties. ID at 12. However, she noted that the appellant’s supervisor provided 

testimony indicating that at least some of the appellant’s disclosures were outside his 

normal duties, and the agency does not appear to have argued otherwise. ID at 16; PFR

File, Tab 15 at 10. Accordingly, this appeal does not appear to implicate 5 U.S.C. 

§ 2302(f)(2), the provision identifying a heightened legal burden in cases that involve a 

disclosure made in the normal course of duties of an employee.
11

corrective actions; (iv) details, transfers, or reassignments; (v) reinstatements; 

(vi) restorations; (vii) reemployments; (viii) performance evaluations under 

5 U.S.C. chapter 43 or under Title 38; (ix) decisions regarding pay, benefits, or 

awards, or involving education or training if it reasonably may be expected to 

lead to an appointment, promotion, performance evaluation, or other action 

described in 5 U.S.C. § 2302(a)(2)(A); (x) decisions to order psychiatric testing 

or examination; (xi) implementations or enforcements of any nondisclosure 

policy, form, or agreement; and (xii) any other significant changes in duties,

responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A); Spivey v. 

Department of Justice, 2022 MSPB 24, ¶ 6. In arguing that the agency’s 

investigation constitutes a covered personnel action, even though it is not 

specifically enumerated in section 2302(a)(2)(A), the appellant presents a 

two-fold argument about the law, followed by an argument about the facts. We

will address each in turn.

The Applicable Standard7

¶18 The appellant first refers us to a change in the law between the 

Whistleblower Protection Act (WPA) and the WPEA. PFR File, Tab 7 at 10-11. 

Among other things, the latter added 5 U.S.C. § 1221(g)(4) to the relevant 

statutory scheme. See WPEA § 104. That provision provides as follows: “Any

corrective action ordered under this section to correct a prohibited personnel 

practice may include fees, costs, or damages reasonably incurred due to an agency 

 

7

Though not raised by the appellant, we recognize that the National Defense 

Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, was signed 

into law on December 12, 2017, just after the issuance of the initial decision in the 

instant appeal. Spivey, 22 MSPB 24, ¶ 5 n.1. In particular, Congress added a provision 

to 5 U.S.C. § 1214 that allows OSC to petition the Board for corrective action 

concerning damages incurred by an employee due to an agency’s investigation of the 

employee if it was commenced, expanded, or extended in retaliation for protected 

whistleblowing activity. Id.; see 5 U.S.C. § 1214(i). Regardless of questions 

concerning retroactivity, the provision does not apply to the instant IRA appeal because 

OSC has not petitioned the Board for such relief. Spivey, 2022 MSPB 24, ¶ 5 n.1. 
12

investigation of the employee, if such investigation was commenced, expanded, 

or extended in retaliation for the disclosure or protected activity that formed the 

basis of the corrective action.” 5 U.S.C. § 1221(g)(4). According to the 

appellant, the addition of section 1221(g)(4) shows that Congress intended to 

expand whistleblower protections to include retaliatory investigations as 

actionable personnel actions, on their own. PFR File, Tab 7 at 10-11. We

disagree.

¶19 Section 1221(g)(4) does not create a separate cause of action for retaliatory 

investigations. In fact, the legislative history shows that Congress considered and 

rejected the option of changing the standard developed under the WPA and Board 

precedent to recognize a retaliatory investigation as a personnel action because 

Congress wanted to avoid discouraging agencies from undertaking legitimate and 

necessary inquiries. See S. Rep. No. 112-155, at 20-22 (2012), as reprinted in 

2012 U.S.C.C.A.N. 589, 608-09 (referencing Russell v. Department of Justice, 

76 M.S.P.R. 317, 323-25 (1997)). Congress opted to instead authorize an award 

of consequential damages once an employee is able to prove a claim under the 

WPA, if the employee can further demonstrate that an investigation was 

undertaken in retaliation for the protected disclosure. Id. at 21-22; see 5 C.F.R. 

§ 1201.202(b)(2). Accordingly, the appellant’s first argument about his 

retaliation by investigation claim fails.

¶20 The appellant’s second argument, in the alternative, is that the agency’s 

investigation qualified as a covered personnel action, even before the WPEA’s 

addition of section 1221(g)(4). PFR File, Tab 7 at 11. He asserts that “a 

retaliatory investigation was considered a personnel action if it was a pretext for 

gathering evidence to retaliate.” Id. (citing Russell, 76 M.S.P.R. at 323-24). On

this point, we again disagree. The appellant appears to misunderstand Board 

precedent. 

¶21 An investigation into an allegation of misconduct is not a personnel action 

per se. Spivey, 2022 MSPB 24, ¶ 10. Instead, the investigation must otherwise fit 
13

within one of the items listed under section 2302(a)(2)(A) to constitute a covered 

personnel action. See id. (discussing S. Rep. No. 112-155, at 20). However, even 

if the investigation does not constitute a significant change in working conditions 

or other personnel action enumerated in section 2302(a)(2)(A), the Board will 

consider evidence of the conduct of an agency investigation when it is so closely 

related to a personnel action that it could have been pretext for gathering 

evidence to retaliate. Spivey, 2022 MSPB 24, ¶ 10; Russell, 76 M.S.P.R. at 

323-24. In considering such evidence, the Board looks at where the investigation 

had its beginnings. Russell, 76 M.S.P.R. at 324.

¶22 The Board’s decision in Mangano v. Department of Veterans Affairs, 

109 M.S.P.R. 658 (2008), best illustrates how the appellant’s assertions about the 

applicable standard are mistaken. The appellant in Mangano argued that the 

administrative judge erred by finding that two investigations—an Administrative 

Investigation Board (AIB) and a Quality Improvement Review (QIR)—were not 

personnel actions. Id., ¶¶ 3, 36. The Board did not adopt the appellant’s 

position, and the Board did not find that the agency’s investigations were covered 

personnel actions. Id., ¶¶ 36-44. Instead, the Board recognized that the AIB and 

QIR investigations were so closely related to the misconduct charge underlying 

the appellant’s removal that they could have been pretext for gathering evidence 

to use to retaliate for his whistleblowing. Id., ¶ 44. In doing so, the Board 

discussed how the QIR was convened by the subject of the employee’s 

whistleblowing and was conducted in an unusual manner, and the agency included 

the AIB results in its misconduct charge against the employee in a way that was 

inconsistent with the investigatory results. Id. Under those circumstances, the 

Board concluded that the appellant’s allegation of retaliation by investigation 

concerning the AIB and QIR should be considered on remand in determining the 

strength of the agency’s evidence supporting the appellant’s removal. Id. In

other words, the alleged retaliation by investigation was not a separate personnel 

action subject to its own burden-shifting analysis. Instead, the Board would 
14

consider the alleged retaliation by investigation as part of the burden-shifting 

analysis of a personnel action that is enumerated in section 2302(a)(2)(A).

Applying the Applicable Standard to This Appeal

¶23 Turning back to the instant appeal, the administrative judge found that the 

appellant failed to establish that the investigation constituted a personnel action 

as defined in section 2302(a)(2)(A), or that the investigation was a pretext for 

gathering evidence to retaliate for his whistleblowing. ID at 20-22. She further 

found that even if the appellant had met his burden regarding Personnel Action 2, 

the agency met its burden of proving that it would have conducted the 

investigation in the absence of the appellant’s whistleblowing activity. ID

at 36-46, 52-55. We agree with the administrative judge’s findings of fact. 

However, we modify the initial decision to apply those findings of fact to the 

proper standards, which we just described. 

¶24 Again, an investigation is not a personnel action, per se. Supra ¶ 21. 

Furthermore, we found no substantive argument or evidence establishing that the 

investigation at issue in this appeal, which was conducted by an outside party, 

constituted a significant change in the appellant’s working conditions or other 

enumerated personnel action, as defined in section 2302(a)(2)(A). 

¶25 The more relevant question is whether retaliation by investigation tainted 

any personnel action that is enumerated in section 2302(a)(2)(A). See supra

¶¶ 21-22. To the extent that the administrative judge applied the burden shifting

framework to the appellant’s retaliation by investigation claim, as if it might be a 

separate personnel action, she erred. ID at 36-46, 52-55; see Clarke v. 

Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that 

the Board may not proceed to the clear and convincing evidence test unless it has 

first determined that the appellant established his prima facie case), aff’d, 

623 F. App’x 1016 (Fed. Cir. 2015). Nevertheless, we find no basis for 

disturbing the underlying findings of fact about the legitimacy or nonretaliatory 

nature of the investigation, findings which are more appropriately considered in 
15

connection with whether the agency would have taken Personnel Actions 3-5 in 

the absence of the appellant’s whistleblowing. See Mangano, 109 M.S.P.R. 658, 

¶ 44; supra ¶ 22. 

¶26 Although the appellant reasserts that the investigation was a pretext for 

retaliation, PFR File, Tab 7 at 11, he has failed to present any persuasive basis for 

us to disturb the administrative judge’s findings to the contrary, which are largely 

based on hearing testimony and credibility determinations regarding several

witnesses from multiple agencies, ID at 21-22, 36-46, 52-55; see Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (recognizing that the 

Board must give deference to an administrative judge’s credibility determinations 

when they are based, explicitly or implicitly, on the observation of the demeanor 

of witnesses testifying at a hearing). The appellant suggests that the USACE 

complaint and ensuing investigation was a coordinated effort between officials at 

USACE and his management chain to stop his whistleblowing. PFR File, Tab 7 

at 11-13 (citing IAF, Tab 48 at 32). Yet the only evidence to which the appellant 

refers us is not supportive. IAF, Tab 48 at 32. Instead, that evidence merely 

shows that the appellant’s management chain was concerned about the precise 

matters raised in USACE’s complaint—the appellant’s tone and professionalism 

when dealing with outside entities and the propriety of his mitigation banking 

while employed at FWS. Id.

¶27 To the extent that they are relevant under the applicable standards, we have 

also considered the appellant’s follow-up arguments about whether the 

investigation would have occurred in the absence of his disclosures. PFR File, 

Tab 7 at 12-19. Generally speaking, these arguments dispute some of the 

underlying allegations from the USACE complaint—the USACE complaint that

precipitated the agency’s investigation. Id. For example, in response to 

USACE’s complaint that the appellant was blurring the line between his FWS 

work and personal mitigation banking work by conducting both in the same phone 

calls to USACE staff, IAF, Tab 11 at 116, the appellant suggests that he was 
16

entitled to multiple breaks each day, during which he was free to attend to his 

mitigation banking or any other personal matter, PFR File, Tab 7 at 14 -15. In

response to USACE’s complaint about the possible conflict of interest between 

his mitigation banking and FWS work, which explicitly cited three sets of 

regulatory provisions, see IAF, Tab 11 at 116-17 (citing 5 C.F.R. 

§§-2635.401-.403 (governing conflicting financial interests), .501-.503 

(governing impartiality in performing official duties), .801-.809 (governing 

outside activities)), the appellant attempts to show that one set of those 

regulations did not apply under the circumstances, PFR File, Tab 7 at 16-17 

(citing 5 C.F.R. §§ 2635.401, .402 (governing conflicting financial interests)). 

We are not persuaded. Among other things, the administrative judge found that 

officials from multiple agencies had valid concerns about the propriety of the 

appellant’s actions and were not prompting the investigation as a pretext for 

retaliation—a conclusion based largely on credibility. E.g., ID at 46. The 

appellant’s arguments do not warrant a different conclusion. See Haebe, 288 F.3d 

at 1301.

The appellant is not entitled to corrective action for Personnel Actions 3-5.

¶28 The only matter disputed on review for Personnel Actions 3-5 is whether 

the agency met its burden of proving that it would have taken the same actions in 

the absence of the appellant’s whistleblowing. PFR File, Tab 7 at 19-29. Once

again, in analyzing the agency’s burden, the Board will consider the following 

factors: (1) the strength of the agency’s evidence in support of its action; (2) the 

existence and strength of any motive to retaliate on the part of the agency 

officials involved in the decision; and (3) any evidence that the agency takes 

similar actions against employees who are not whistleblowers, but who are 

otherwise similarly situated. Carr, 185 F.3d at 1323; supra ¶ 12. 
17

We modify the initial decision to clarify the applicable standards.

¶29 As a preliminary matter, we note that the administrative judge gave the 

parties proper notice of the burdens below, describing the Carr factors just as we 

have in both the jurisdictional order and a prehearing conference summary. IAF,

Tab 3 at 6, Tab 94 at 2 n.3. However, she characterized the first Carr factor 

somewhat differently in the initial decision by referring to “whether the agency 

had legitimate reasons for the personnel action.” ID at 33. This is consistent

with how the Board has described the first Carr factor, at times, when analyzing a 

personnel action that is not disciplinary. ID at 33; see, e.g., Gonzales v. 

Department of the Navy, 101 M.S.P.R. 248, ¶ 12 (2006) (explaining that the first 

Carr factor did not apply straightforwardly to the agency’s imposition of a shift 

change, which was a covered personnel action but was not disciplinary and did 

not require evidence of misconduct, so it was appropriate to consider the broader 

question of whether the agency had legitimate reasons for the shift chang e). The 

administrative judge later described the first Carr factor as one of “independent 

causation” for the personnel actions. E.g., ID at 46, 48, 50. Though not raised by 

either party on review, we modify the initial decision to clarify any resulting 

confusion. Despite the administrative judge’s different descriptions, the first 

Carr factor remains the strength of the agency’s evidence in support of its action. 

See Miller v. Department of Justice, 842 F.3d 1252, 1257, 1259 (Fed. Cir. 2016) 

(acknowledging that “independent causation” is another way the agency’s overall 

burden of proof has been described and recognizing that the first Carr factor is 

not a question of “whether the agency has put forward some evidence purporting 

to show independent causation, but instead . . . whether such evidence is strong”). 

¶30 We also recognize that while the administrative judge initially characterized 

the Carr factors as part of the agency’s burden, ID at 32-33, her subsequent 

discussion of the second and third Carr factors suggested otherwise by finding 

that the appellant did not present any credible motive to retaliate on the part of 

pertinent agency officials and did not identify any similarly situated employees. 
18

ID at 54-55. The appellant has argued that these findings reflect an improper 

shifting of the burden to him. PFR File, Tab 7 at 29. To the extent that the initial 

decision could be interpreted as such, we clarify that it was the agency’s burden 

regarding each of the Carr factors, not the appellant’s, just as the administrative 

judge previously explained. Supra ¶ 12; ID at 32-33; IAF, Tab 3 at 6, Tab 94 at 2 

n.3.

The agency met its burden.

¶31 Aside from the modifications explicitly identified below, we discern no 

basis for reaching a conclusion different than the administrative judge . The

agency met its burden of proving by clear and convincing evidence that it would 

have taken Personnel Actions 3-5—the decision to rescind his approval to engage 

in outside activity, the restriction on his communications with USACE and 

AHTD, and the reassignment of certain duties—in the absence of the appellant’s 

whistleblowing. For the first Carr factor, the administrative judge’s extensive 

findings of fact reflect strong evidence in support of Personnel Actions 3-5, 

findings with which we agree. ID at 36-52. While we need not recount all of 

these findings, we will provide a brief summary.

¶32 Most relevant to Personnel Action 3, the administrative judge’s findings 

detail ample evidence of the appellant conducting personal work during business 

hours on days in which he was working for FWS, evidence that included the 

appellant’s own admissions. E.g., ID at 36-37. Even if we were to assume that 

he only did so during breaks, as the appellant asserts, the evidence shows that 

officials with the USACE, AHTD, and FHA all perceived his dual role as a 

conflict of interest, and they were routinely confused about which role the 

appellant was representing during their interactions. E.g., ID at 36-46. In fact, 

AHTD credited that conflict of interest for their rejection of the appellant’s 

mitigation banking bid on one particular project and denying permission even 

before the appellant bid on another. ID at 44. The administrative judge’s 

findings also detail how multiple FWS officials were involved in the approval of 
19

the appellant’s outside activity request, but they did so with limited information 

and ultimately regretted the decision as the conflict posed by the appellant’s dual 

role became more apparent. ID at 46-47. 

¶33 Next, most relevant to Personnel Action 4, some of the same officials from 

the USACE and AHTD provided detailed descriptions of the appellant’s behavior, 

which they generally characterized as accusatory, aggressive, and threatening. ID

at 38-43. And when given a temporary restriction on his contact with these 

entities to investigate the same, the appellant flouted the restriction. ID at 48-50. 

Finally, most relevant to Personnel Action 5, the administrative judge detailed 

how the FWS had actually reassigned certain duties in response to the appellant’s 

own accommodations request for personal health reasons. ID at 50-52.

¶34 Turning to the second Carr factor, the administrative judge found little or 

no motive to retaliate on the part of relevant agency officials. ID at 52-54. If

anything, it appears that FWS officials found disclosures like the appellant’s to be 

both expected and appreciated of an individual in his position, even if they did 

not agree with the manner in which the appellant conveyed some of his concerns. 

See, e.g., ID at 15-17, 52. The administrative judge also noted, inter alia, that the 

relevant agency officials gave the appellant positive performance reviews during 

the same period, they supported his request for a detail assignment, and they 

attempted to modify his job duties to alleviate work-related stress. ID at 52. 

¶35 On review, the appellant suggests that the administrative judge should have 

considered whether FWS officials may have been motivated to retaliate based on 

his disclosures reflecting poorly on them or their relations with the USACE, 

AHTD, or other outside entities. PFR File, Tab 7 at 28. We agree that this is a

relevant consideration and modify the initial decision accordingly. See Whitmore, 

680 F.3d at 1370 (recognizing that “[t]hose responsible for the agency’s 

performance overall may well be motivated to retaliate even if they are not 

directly implicated by the disclosures, and even if they do not know the 

whistleblower personally, as the criticism reflects on them in their capacities as 
20

managers and employees”). However, the circumstances at hand are notably 

dissimilar to those in Whitmore, where the employee’s disclosures were highly 

critical of his employing agency and high-level managers, many high-level 

managers were aware of and concerned about the disclosures, and there was a 

years-long pattern of personnel actions taken against the employee following the 

disclosures. Whitmore, 680 F.3d at 1371. In this case, the appellant’s disclosures 

implicated wrongdoing on the part of outside agencies or entities, not his 

employer—FWS. While that could still create some motive to retaliate, 

especially if FWS officials perceived the appellant’s disclosures as damaging to 

interagency relationships, we are not aware of any evidence supporting a 

conclusion that this motive was significant. We discern no basis for concluding 

that the appellant’s protected disclosures caused notable tension between FWS 

and the outside agencies implicated by his disclosures beyond that which is 

inherent, given their respective missions, e.g., FWS’s protection of the 

environment and AHTD’s construction of highways.

¶36 For the third and final Carr factor, the administrative judge found no 

evidence of other employees who were not whistleblowers but were otherwise 

similarly situated. ID at 54-55. We modify the initial decision to recognize that, 

if anything, the absence of evidence concerning the third Carr factor “tends to cut 

slightly against the Government,” which the administrative judge failed to 

acknowledge. Miller, 842 F.3d at 1262. 

¶37 Although the appellant presents several other arguments pertaining to 

Personnel Actions 3-5, each is unavailing. The majority of his arguments amount 

to little more than disagreement with the administrative judge’s well-reasoned 

analysis of hearing testimony as it concerns both the strength of the agency’s 

evidence, e.g., PFR File, Tab 7 at 20-21, and the motivations of relevant officials, 

e.g., id. at 21-25, which we will not disturb, see Haebe, 288 F.3d at 1301. For

example, the appellant directs us to the transcript of a conversation he had with 

agency officials about whistleblower protections, which he apparently obtained 
21

by secret recording. PFR File, Tab 7 at 23-24 (referencing IAF, Tab 52 at 67, 70,

76, 79, 82); see ID at 7. According to the appellant, portions of this conversation 

provide direct evidence of the agency’s retaliatory intent and a deliberate 

cover-up. PFR File, Tab 7 at 24. Yet the administrative judge found otherwise, 

based on a review of the transcript, the context of what these officials said, and 

the credibility of witnesses who testified about the conversation. ID at 53-54. 

We see no reason to reach a different conclusion. 

¶38 While the record includes strong evidence of FWS officials being concerned 

with the manner in which the appellant interacted with outside entities and a 

conflict of interest, the appellant has not presented any basis for concluding that 

they had a significant motive to retaliate for his disclosures, which supported the 

agency’s mission. Separately, the appellant also asserts that the administrative 

judge ignored several pieces of evidence, such as evidence about his fall 2015 

superior performance appraisal. E.g., PFR File, Tab 7 at 26 (citing IAF, Tab 11 

at 34). We have considered this evidence pursuant to our obligation under 

Whitmore, 680 F.3d at 1368. However, the appellant has not persuaded us that 

his performance appraisal covering the timeframe of October 1, 2014, through 

September 30, 2015, IAF, Tab 11 at 34, is relevant to the administrative judge’s 

analysis of the strength of the agency’s evidence concerning the personne l 

actions, including Personnel Action 4 (which occurred in March 2016), or her

analysis of the motive to retaliate. 

¶39 We have considered each of the appellant’s arguments, but agree with the 

administrative judge’s conclusion. Weighing each of the Carr factors, and all 

relevant evidence, the agency met its burden of proving that it would have taken 

the same actions—Personnel Actions 3-5—in the absence of the appellant’s 

whistleblowing. See ID at 55.

The appellant’s procedural arguments are unavailing.

¶40 The appellant presents a few additional arguments pertaining to the 

administrative judge’s handling of the appeal. First, he argues that the 
22

administrative judge erred in allowing the agency to substitute one requested 

witness for another, just days before the scheduled hearing. PFR File, Tab 7 

at 19-20. We disagree.

¶41 The agency initially requested, and the administrative judge approved, the 

agency’s current Ethics Counselor. IAF, Tab 50 at 9, Tab 94 at 4. A few days 

before the scheduled hearing, the agency submitted a motion indicating that it had 

located its former Ethics Counselor—the one who reviewed the appellant’s 2013 

request to engage in the outside activity of mitigation banking—and wanted to 

call him instead. IAF, Tab 104 at 1-2; see, e.g., IAF, Tab 13 at 125-26. The

administrative judge granted the motion over the appellant’s objection, which was 

primarily based on the timing of the substitution. IAF, Tab 107 at 4. On review, 

the appellant describes the agency’s request as a “last minute, surprise change of 

witnesses” and describes the administrative judge’s decision on the matter as

erroneous. PFR File, Tab 7 at 19-20. Given the former Ethics Counselor’s 

unique insight into the 2013 decision to grant the appellant’s outside activity 

request, the appellant has not presented any basis for us to conclude that the 

decision was an abuse of discretion. See Tisdell v. Department of the Air Force, 

94 M.S.P.R. 44, ¶ 13 (2003) (recognizing that an administrative judge has wide 

discretion to control the proceedings, to receive relevant evidence, and to ensure 

that the record on significant issues is fully developed). 

¶42 The appellant next asserts that the administrative judge prejudicially 

interfered with his cross-examination by preventing him from using prior 

deposition testimony to impeach witnesses. PFR File, Tab 7 at 31. Yet, the 

appellant has failed to identify the witnesses, testimony, and impeachment 

evidence to which he is referring, so we are not persuaded by this conclusory 

argument. See generally Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 8 

(2000) (explaining that an administrative judge has wide discretion to control the 

proceedings, including authority to exclude testimony he believes would be 

irrelevant or immaterial). We are also unpersuaded by the appellant’s final 
23

argument—that the administrative judge did not similarly interfere with the 

agency’s presentation of its case, reflecting a bias against the appellant and for 

the agency. PFR File, Tab 7 at 31; see Bieber v. Department of the Army, 

287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (stating that an administrative judge’s 

conduct during the course of a Board proceeding warrants a new adjudication 

only if her comments or actions evidence “a deep-seated favoritism or antagonism 

that would make fair judgment impossible”) (quoting Liteky v. United States, 

510 U.S. 540, 555 (1994)); Oliver v. Department of Transportation, 

1 M.S.P.R. 382, 386 (1980) (observing that, in making a claim of bias or 

prejudice against an administrative judge, a party must overcome the presumption 

of honesty and integrity that accompanies administrative adjudicators).

NOTICE OF APPEAL RIGHTS8

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 may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation an d 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failur e to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

 

8

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
24

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 
25

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 
26

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.9The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

 

9

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
27

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the 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.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board