UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HASSAN HWIG,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-0752-18-0368-I-1

DATE: August 25, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

M. Jefferson Euchler, Esquire, Virginia Beach, Virginia, for the appellant.

Kathleen A. Giacolone, Portsmouth, Virginia, for the agency.

Lauren Leathers, Falls Church, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

reversed the appellant’s removal for failing to provide the agency information 

regarding his arrest. For the reasons discussed below, we GRANT the agency’s 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

petition for review, REVERSE the initial decision, and AFFIRM the agency’s 

action removing the appellant. 

BACKGROUND

¶2 The agency employed the appellant as a GS-9 Polysomnographic 

Technician. Initial Appeal File (IAF), Tab 6 at 26. On August 16, 2016, he was 

arrested for misdemeanor sexual battery in connection with an alleged incident at 

his non-Federal part-time job. Id. at 66, 104. In October 2016, the agency’s 

assistant security manager informed him that the Department of Defense 

Consolidated Adjudication Facility required information about his arrest to make 

a security clearance determination and requested that he provide “all details about 

the sexual battery charge, to include what led to this charge (the story behind the 

incident), fines, imprisonment, rehabilitation, disposition, etc.” Id. at 62-64, 118. 

The appellant provided a copy of the arrest warrant and a letter from his attorney 

stating that his case was scheduled for trial on November 4, 2016, in the 

Chesapeake General District Court. Id. at 65-66, 118; IAF, Tab 14, Hearing 

Compact Disc (HCD) (testimony of the assistant security manager). On 

November 4, 2016, the district court found him guilty and sentenced him to 

365 days incarceration with 325 days suspended. IAF, Tab 6 at 105, 120. The 

appellant, through his attorney, appealed the district court judgment to the circuit 

court. Id. at 72, 104; HCD (testimony of the appellant).

¶3 Between November 2016 and June 2017, while the circuit court appeal was 

pending, the assistant security manager emailed the appellant at least five times 

requesting information and documentation regarding his court date. IAF, Tab 6 

at 67-71. The appellant went to the assistant security manager’s office 

approximately eight to ten times during this period to discuss his court case, but 

he did not disclose that he had been convicted by the district court or that he had 

filed an appeal to the circuit court; instead, he repeatedly stated that his trial had 

been rescheduled and was “continued” or “continuing.” HCD (testimony of the 
3

appellant and the assistant security manager). He testified that he asked the 

assistant security manager to contact his criminal defense attorney for 

information because he did not understand the situation but that the assistant 

security manager did not do so. HCD (testimony of the appellant). In June 2017, 

the assistant security manager searched the district court’s online case 

information system and discovered that the appellant had been found guilty and 

sentenced on November 4, 2016, and that he had appealed the judgment to the 

circuit court. HCD (testimony of the assistant security manager); IAF, Tab 6 

at 120. The assistant security manager also looked at the circuit court’s online 

docket and discovered that the appellant’s trial was scheduled for July 11, 2017. 2 

HCD (testimony of the assistant security manager); IAF, Tab 6 at 72. In a 

June 2017 meeting with the appellant, his supervisor, and the assistant security

manager, the appellant stated that his court date had been postponed multiple 

times, but he did not disclose that he had been found guilty or that he had filed an 

appeal. HCD (testimony of the appellant, his supervisor, and the assistant 

security manager). Although the appellant invited them to contact his criminal 

defense attorney for information, they testified that it was his burden to provide 

information about his criminal case and that it was not their responsibility to 

contact his lawyer for information. HCD (testimony of the appellant, his 

supervisor, and the assistant security manager). The agency placed the appellant 

on administrative leave pending an investigation into his conduct on June 30, 

2017. IAF, Tab 6 at 134-35.

¶4 After a July 11, 2017 trial, the Circuit Court for the City of Chesapeake 

dismissed the charge against the appellant. IAF, Tab 6 at 106. In February 2018, 

the circuit court granted his petition to have all records of the criminal charge 

expunged from his record. IAF, Tab 10 at 12-13. 

 

2

The docket report reflects that the appellant’s circuit court trial was rescheduled four 

times. IAF, Tab 6 at 72. 
4

¶5 On December 13, 2017, the agency proposed to remove the appellant on the 

basis of one charge of failing to provide information regarding his arrest 

supported by the following narrative specification: 

On August 16, 2016, you were arrested for sexual battery of a 

woman you administered a sleep study to at an outside sleep 

laboratory. Upon your return to work, I asked you about the status 

of your arrest and you told me that the arrest was a misunderstanding 

and you were taking care of it. In October 2016, the assistant 

security manager requested details about the arrest and disposition in 

order for the Defense Consolidation Adjudication Facility 

(DODCAF) to make a determination about your security clearance. 

In October 2016, you provided him a letter from your lawyer 

indicating a November 4, 2016 court date. Upon further requests 

from me and the assistant security manager for information about the 

outcome of your November 4, 2016 court date, you failed to disclose 

that on November 4, 2016 you were convicted in Chesapeake 

General District Court of sexual battery and sentenced to 365 days of 

confinement, with 325 of those days suspended. Instead you 

repeatedly told me and the assistant security manager that your 

November 4, 2016 court date had been continued. After conducting 

a search of the Virginia Courts Case Information system in mid-June 

2017, the assistant security manager learned that you had been 

convicted of sexual battery on November 4, 2016 and that you were 

scheduled for another trial on July 11, 2017. When you were asked 

by the assistant security manager in late-June 2017 about what he 

found, you denied going to trial and having been found guilty. 

Additionally, in your statement during the command’s July 2017 

fact-finding investigation, you wrote that you were not told that you 

were guilty or not guilty, despite court records from November 2016, 

to the contrary. To date, the only documentation you provided to the 

assistant security manager was the arrest warrant and an October 5, 

2016 letter from your lawyer stating the hearing was scheduled for 

November 16, 2016. You also provided a June 8, 2017 court order 

and a blank expungement petition to the investigating officer during 

the July 2017 fact-finding investigation.

IAF, Tab 6 at 96-97. The appellant provided an oral response to the proposed 

removal, insisting that he had been honest and that he had continually asked the 

assistant security manager to contact his lawyer for information. Id. at 90-94. In 
5

a March 1, 2018 decision letter, the deciding official found the charge supported 

by the evidence and removed the appellant effective March 9, 2018. Id. at 28-31.

¶6 The appellant timely appealed his removal to the Board, requested a 

hearing, and raised an affirmative defense of retaliation for equal employment 

opportunity (EEO) activity. IAF, Tab 1. In an order and summary of the status 

conference, the administrative judge informed the parties that he construed the 

agency’s charge as one involving lack of candor, set forth the appli cable law and 

burdens of proof, and stated that, if either party disagreed with the order and 

summary, they must file a written objection within 5 days. IAF, Tab 8. Neither 

party submitted an objection.

¶7 After holding a hearing by video teleconference, the administrative judge 

issued an initial decision finding that the agency failed to prove the charge, 

nexus, or the reasonableness of the penalty and reversed the agency’s action. 

IAF, Tab 16, Initial Decision (ID) at 8-15, 22. He also found that the appellant 

failed to prove his EEO reprisal affirmative defense. ID at 20-22. The agency 

has filed a petition for review of the initial decision, the appellant has responded, 

and the agency has replied. Petition for Review (PFR) File, Tabs 1, 3-4.3

 

3

It is undisputed that the agency provided interim relief. Specifically, the appellant 

submitted with his response a Standard Form 50 reflecting that the agency canceled his 

removal as of its effective date. PFR File, Tab 1, Tab 3 at 9, 11. The appellant argues 

that, because the agency canceled the removal in its entirety and began processing his 

back pay, the appeal must be dismissed as moot. PFR File, Tab 3 at 9. In its reply, the 

agency argues that it attempted in good faith to comply with the interim relief order and 

that, although it inadvertently exceeded the interim relief order, the appeal is not moot. 

PFR File, Tab 4 at 5-6. We find that the agency has exceeded the requirements of the 

interim relief order by canceling the removal rather than reinstating the appellant from 

the date of the initial decision. Although an argument could be made that the agency’s 

petition for review should be dismissed because canceling the action from its effective 

date rendered the petition moot, the Board has held that such an action does not require 

dismissal. See Nanette v. Department of the Treasury, 92 M.S.P.R. 127, ¶ 13 n.1 (2002) 

(declining to dismiss an agency’s petition for review as moot when the agency has in 

good faith and inadvertently exceeded the requirements of an interim relief order), 

aff’d, 155 F.3d 568 (Fed. Cir. 1998) (Table). Accordingly, the Board exercises its 

discretion not to dismiss the agency’s petition for review despite the fact that the 
6

ANALYSIS

The agency proved the charge by preponderant evidence.

¶8 As noted above, the administrative judge construed the agency’s charge of 

failure to provide information regarding the arrest and accompanying narrative 

specification as a charge of lack of candor. IAF, Tab 8 at 2. The parties have not 

challenged the administrative judge’s decision to construe the charge in this 

manner, and we agree that the charge and specification read together reasonably 

allege that the appellant lacked candor. See George v. Department of the Army, 

104 M.S.P.R. 596, ¶ 7 (2007) (providing that, in resolving the issue of how a 

charge should be construed, the Board examines the structure and language of the 

proposal notice and the decision notice, as well as the accompanying 

specifications and circumstances), aff’d, 263 F. App’x 889 (Fed. Cir. 2008); see 

also Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002) 

(stating that lack of candor is a flexible charge involving a failure to provide 

complete and accurate information but not requiring proof of intent). Therefore, 

we do not disturb the administrative judge’s decision to construe the charge as 

one of lack of candor. 

An agency alleging lack of candor must prove the following elements by a 

preponderance of the evidence: (1) that the employee gave incorrect or 

incomplete information; and (2) that he did so knowingly. 4 Gardner v. 

Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 23 (2016), clarified on other

grounds by Pridgen v. Office of Management and Budget, 2022 MSPB

31, ¶¶ 23-24. When, as here, the agency’s charge contains a narrative 

 

appellant submitted evidence showing that the agency exceeded the interim relief order. 

See, e.g., Lavette v. U.S. Postal Service, 96 M.S.P.R. 239, ¶¶ 12-15 (2004) (declining to 

dismiss the agency’s cross petition for review despite evidence that it exceeded the 

requirements of the interim relief order by canceling the action appealed).

4 A preponderance of the evidence is defined as the degree of relevant evidence that a 

reasonable person, considering the record as a whole, would accept as sufficient to find 

that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
7

explanation for the basis of its action, the agency may sustain its charge by 

proving one or more of the incidents described therein; proof of every incident is 

not required. See Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 204 (1997).

¶9 The administrative judge found that the agency’s narrative specification 

alleged the following three separate instances of lack of candor: (1) when the 

appellant failed to disclose that he was convicted on November 4, 2016, in district 

court of sexual battery and sentenced; (2) when, in June 2017, he “denied going 

to trial and having been found guilty”; and (3) when, in July 2017, he wrote that 

he was not told that he was “guilty or not guilty.” ID at 8-9. The administrative 

judge found that the agency did not prove that the appellant lacked candor by 

denying he was convicted or found guilty because, under Virginia state law 

governing misdemeanor prosecutions, an appeal to the circuit court annuls the 

judgment of the district court as if there had been no previous trial and entitles a 

defendant to de novo review in the circuit court. ID at 11-12. He also found that, 

even if the appellant expressly denied going to trial, there was no evidence that he 

knew such statement was incorrect given his unrefuted hearing testimony about 

his November 4, 2016 court appearance—namely, that he sat in a large courtroom 

while other proceedings were conducted, he was not allowed to testify or offer 

exculpatory video evidence, and his attorney told him not to worry and that there 

would be another proceeding before a new judge. ID at 12-13. He further found 

that the fact that the appellant offered to have the agency officials contact his 

attorney undermined the agency’s theory that he was attempting to obfuscate the 

existence of his district court proceeding and observed that the circuit court 

docket entries confirmed the appellant’s assertion that his court date had been 

rescheduled. ID at 13. Finally, he found that the appellant’s confusion about the 

proceedings and the proper terms to apply to them were reasonable in light of 

Virginia’s unique binary criminal trial process and the fact that he was not trained 

in the law. ID at 13-14. Thus, he did not sustain the charge. ID at 14.
8

¶10 On review, the agency argues that the Virginia law that annulled the 

appellant’s conviction upon appeal cannot supersede Executive Order 12968 and 

its implementing regulations, which require the appellant to provide any and all 

relevant information for the purposes of a security clearance determination , and 

that the administrative judge erred when he relied on state law to excuse the 

appellant from disclosing information required by the executive order. PFR File, 

Tab 1 at 9-18. The agency further argues that it proved the charge because it is 

undisputed that the appellant was convicted and sentenced at the November 4, 

2016 trial but that he failed to disclose the conviction to anyone at the agency at 

any time between November 2016 and June 2017. Id. at 18-25. The agency 

claims that, even if the appellant was confused about the November 4, 2016 

district court proceeding, he provided incomplete and inaccurate information to 

the assistant security manager when he told him that his case was continued 

rather than truthfully disclosing that there had been a court proceeding but that he 

was confused and did not understand the process. Id. at 20. The agency argues 

that the record establishes an element of deception on the part of the appellant 

because he knew he was obligated to provide information regarding his arrest and 

criminal proceedings for the purposes of a security clearance determination but, 

assuming as true that he was confused about the nature and outcome of his district 

court proceeding, he chose to remain ignorant, did not seek clarification from his 

attorney, and falsely denied going to court. Id. at 20-24. 

¶11 We disagree with the agency’s contention that the administrative judge 

erred in considering Virginia state law in determining whether the appellant 

provided incorrect or inaccurate information regarding his Virgini a state criminal 

proceedings and conviction. However, the fact that the appellant’s conviction 

was legally annulled upon the filing of an appeal does not establish that he 

provided complete and accurate information to the agency regarding his court 

case. While lack of candor need not involve an affirmative misrepresentation , it 

“may involve a failure to disclose something that, in the circumstances, should 
9

have been disclosed to make the statement accurate and complete.” O’Lague v. 

Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 13 (2016) (quoting Ludlum 

v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002)). 

¶12 Here, as noted above, the agency alleged that the appellant lacked candor 

when, although he was on notice that he was required to provide the agency 

information regarding his court case for purposes of a security clearance 

determination, he failed to disclose that he had been convicted, found guilty, or 

sentenced and instead repeatedly told the assistant security manager that his court 

date had been “continued.” IAF, Tab 6 at 96-97. Although we defer to the 

administrative judge’s determination based on hearing testimony that the 

appellant was confused about the nature and outcome of his district court 

appearance, we find that he failed to disclose information known to him that 

would have made his responses accurate and complete. Specifically, as his 

hearing testimony confirms, he was aware that he attended a court proceeding

regarding his misdemeanor charge of sexual battery on November 4, 2016, and 

that the judge rendered a decision at that time. HCD (testimony of the appellant). 

In addition, he testified that his attorney told him that the judge made the wrong 

decision and that he would have a second trial. Id. In failing to disclose this 

information and instead maintaining that his case was “continuing” or 

“continued,” the appellant knowingly provided incomplete and inaccurate 

information that gave the wrong impression about the status and progression of 

his court case. The fact that the appellant invited his supervisor and the assistant 

security manager to contact his criminal defense attorney for information does not 

negate the fact that he provided them incomplete and inaccurate information. 

Thus, we find that the agency proved that the appellant lacked candor and sustain 

the charge. See O’Lague, 123 M.S.P.R. 340, ¶ 13. 

The agency established nexus.

¶13 In addition to the requirement that the agency prove the charge it has 

brought against the appellant, the agency must also prove that there is a nexus, 
10

i.e., a clear and direct relationship between the articulated grounds for the adverse 

action and the appellant’s ability to satisfactorily accomplish his duties or some 

other legitimate government interest. Canada v. Department of Homeland 

Security, 113 M.S.P.R. 509, ¶ 10 (2010). In the initial decision, the 

administrative judge found that, even if he sustained the charge, it was unclear 

whether the appellant’s removal for failure to disclose an intermediate step in his 

criminal proceedings promoted the efficiency of the service. ID at 14 n.6. We 

disagree. An employer has a right to expect its workers to be honest, trustworthy, 

and candid, and lack of candor strikes at the heart of the employer-employee 

relationship and directly impacts the efficiency of the service. Ludlum v. 

Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000), aff’d, 278 F.3d 1280 (Fed.

Cir. 2002). Here, as discussed above, the appellant knowingly failed to provide 

complete and accurate responses to the agency’s requests for information 

regarding his criminal court proceeding for the purposes of a security clearance 

determination over the course of approximately 7 months. Accordingly, we find 

that the agency established a nexus between its action and the efficiency of the 

service. See id., ¶¶ 14-25, 28 (finding that the appellant’s failure to respond fully 

and truthfully during an administrative investigation directly impacted the 

efficiency of the service). 

The appellant failed to establish his EEO reprisal affirmative defense. 

¶14 To establish a claim of EEO reprisal, an appellant must show that the 

prohibited consideration was at least a motivating factor in the personnel action at 

issue. Pridgen, 2022 MSPB 31, ¶¶ 21-22. Here, the appellant argued that his 

removal was motivated by his prior EEO activity and, in support of this claim, 

pointed to the temporal proximity between the prior activity and the removal, the 

involvement of the deciding official in both proceedings, and the absence of a 

legitimate basis for his removal. HCD (closing argument by the appellant). In 

the initial decision, the administrative judge considered these arguments but 
11

found that the appellant failed to show that his removal was motivated by 

retaliatory animus. ID at 20-22. Specifically, he found that the 20-month lapse 

in time between the 2016 settlement agreement resolving the appellant’s EEO 

complaint and the December 2017 proposed removal weighed against finding that 

the EEO activity was causally connected to the adverse action. ID at 22 (citing 

Clark County School District v. Breeden, 532 U.S. 268, 273-74 (2001), which 

explained that temporal proximity between protected EEO activity and an adverse 

action “must be ‘very close,’” and an “[a]ction taken . . . 20 months later 

suggests, by itself, no causality at all”). He further found that the deciding 

official testified in a convincing manner that his personal involvement in the 

appellant’s prior EEO complaint had no bearing on his removal decision. ID 

at 22. We agree that a 20-month lapse of time does not suggest causality and 

discern no basis to disturb the administrative judge’s implicit demeanor-based 

determination that the deciding official credibly denied that he was motivated by 

retaliatory animus. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 

(Fed. Cir. 2002) (stating 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). Because 

we affirm the administrative judge’s finding that the appellant failed to show that 

any prohibited consideration was a motivating factor in the agency’s action, we 

need not resolve the issue of whether the appellant proved that retaliation was a 

“but-for” cause of the agency’s decision. See Pridgen, 2022 MSPB 31, 

¶¶ 20-22, 29-33. 

The penalty of removal is reasonable. 

¶15 When, as here, all of the agency’s charges are sustained, the Board will 

review the agency-imposed penalty only to determine if the agency considered all 

the relevant factors and exercised management discretion within the tolerable 

limits of reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 
12

(2010); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) 

(articulating a nonexhaustive list of 12 factors that are relevant in assessin g the 

appropriate penalty for an act of misconduct). In making this determination, the 

Board must give due weight to the agency’s primary discretion in maintaining 

employee discipline and efficiency, recognizing that the Board’s function is not 

to displace management’s responsibility, but to ensure that managerial judgment 

has been properly exercised. Ellis, 114 M.S.P.R. 407, ¶ 11. The Board will 

modify or mitigate an agency-imposed penalty only when it finds the agency 

failed to weigh the relevant factors or the penalty clearly exceeds the bounds of 

reasonableness. Id. 

¶16 In the initial decision, the administrative judge stated that, even if he had 

sustained the charge, he would find that the deciding official did not properly 

exercise his judgment because he improperly relied on the underlying nature of 

the misdemeanor charge against the appellant and his annulled conviction in his 

consideration of the Douglas factors. ID at 14-15. He also found that removal 

exceeded the tolerable limits of reasonableness given the de minimis nature of the 

offense and the specific facts surrounding the appellant’s criminal proceedings 

under Virginia law. ID at 16. The agency challenges these finding on review. 

PFR File, Tab 1 at 25-27. 

¶17 The record reflects that the deciding official carefully considered the 

relevant Douglas factors in determining the appropriate penalty. IAF, Tab 6 

at 32-35. Specifically, he found as aggravating factors the following: the nature 

and seriousness of the appellant’s failure to be truthful to avoid the possibility of 

losing his security clearance, which was a condition of his employment; 

management’s loss of trust and confidence in the appellant following his 

“prolonged concealment of information”; his May 24, 2016 letter of reprimand 

for disrespectful conduct; the notoriety of the offense; and the fact that the 

appellant was on notice of his obligation to provide information regarding any 

action taken as a result of his arrest for the purposes of a security clearance 
13

determination. Id. He appeared to consider as mitigating factors the appellant’s 

11.5 years of service and recent increase in productivity. Id. at 33. He also 

considered the appellant’s claim that his attorneys advised him not to discuss his 

case with anyone but found that there were times the appellant talked about his 

case and that he “conveniently picked and chose what [he] wanted to share” and 

was attempting to use his attorneys as a “shield” from his misconduct. Id. at 35. 

In addition, he considered the absence of comparator evidence, the table of 

penalties, and the adequacy and effectiveness of alternative sanctions but 

concluded that removal was the appropriate penalty. Id. at 32-35. 

¶18 We disagree with the administrative judge’s conclusion that the deciding 

official impermissibly relied on the underlying nature of the misdemeanor charge

or the district court conviction in determining the appropriate penalty. IAF, 

Tab 6 at 32-35. While the deciding official indicated on his Douglas factors 

worksheet that the appellant “failed to tell the command the result of [his]

November 4, 2016 court appearance in which [he was] convicted of sexual 

battery,” he also acknowledged that the appellant appealed the conviction, was 

later found not guilty, and had his record expunged. Id. at 32. Thus, it is clear 

that the deciding official did not consider the annulled conviction to b e the final 

disposition of the appellant’s criminal case. In addition, as discussed above, the 

agency proved that the appellant lacked candor when he failed to disclose 

important steps in the course of his criminal proceeding—specifically, that he 

attended a court proceeding, received a decision, and filed an appeal—and instead 

led the agency to believe that his court case had simply been continued. As such, 

the deciding official properly considered the appellant’s failure to be truthful 

about his court proceeding in his assessment of the appropriate penalty. 

Furthermore, although the deciding official mentioned the nature of the 

misdemeanor charge in his discussion of several of the Douglas factors, he 

emphasized that he had lost trust in the appellant because of his failure to be 

truthful, not because of the factual basis of the charge. Id. at 32-35.
14

¶19 In light of the foregoing, we find that the deciding official properly 

considered the relevant Douglas factors and properly exercised his managerial 

judgment in imposing the appellant’s removal. Moreover, we find that the 

penalty of removal does not exceed the tolerable limits of reasonableness for the 

sustained charge of lack of candor. See, e.g., Smith v. Department of the Interior, 

112 M.S.P.R. 173, ¶ 26 (2009) (finding the penalty of removal appropriate for 

lack of candor and unauthorized absences); Kamahele v. Department of Homeland 

Security, 108 M.S.P.R. 666, ¶¶ 2, 15 (2008) (finding the penalty of removal 

reasonable when the appellant demonstrated lack of candor and inappropriate 

conduct).

NOTICE OF APPEAL RIGHTS5

This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 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 and 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. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

 

5

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.
15

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 
16

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. 420 (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: 
17

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.6 The 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). 

 

6

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. 
18

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