UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2016 MSPB 38

Docket No. DA-0752-14-0353-I-1


### William R. Campbell, Appellant,

v. Department of the Army, Agency. November 2, 2016

William R. Campbell, El Paso, Texas, pro se. Russell Wardlow, Fort Blis s, Texas, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

OPINION AND ORDER
¶1 The appellant has filed a petition for re view of the initial decision, which sustained his demotion for negligent performance of duty and found that he did not prove his affirmative defe nse of reprisal for whistl eblowing. For the reasons set forth below, we DE NY the petition for review . Except as expressly MODIFIED by this Opinion and Order to supplement the admi nistrative judge’s analysis of the appellant’s whistleblower reprisal clai m, we AFFIRM the initial decision.2

BACKGROUND ¶2 The initial decision contains a lengthy di scussion of the facts in this appeal, but the essential facts are that the appell ant occupied a GS-15 position as Director of the agency’s Directorate of Plans, Training, Mobiliza tion, and Security (DPTMS) at Fort Bliss, Texas. Initial Appeal File (IAF), Tab 1 at 7-8. DPTMS is composed of several br anches, including the Range Op erations Branch (Range Branch). IAF, Tab 7 at 23. The appellant’s responsib ilities include d establishing and maintaining effective in ternal controls, which are the agency’s mechanisms and procedures for prot ecting agency resources. IAF, Tab 6 at 102. ¶3 In May 2012, several employees of th e Range Branch were arrested and charged with theft of Gove rnment property, in cluding furniture, which had been acquired for use in military training vi llages. IAF, Tab 37 at 4-68, Tab 38 at 4-68, Tab 19 at 50. As an outgrowth of the agency ’s investigation into the theft, the appellant also suspected wrongdoing in th e use of Government purchase cards (GPC) in the Range Branch. IAF, Tab 7 at 15. Fo llowing an internal review that led to some actions, the appellant request ed an external audit. Id

. The Garrison Commander then initiated an investigation of GPC use in the Range Branch pursuant to Army Regulation (AR) 15-6. Id. at 11. The AR 15-6 investigation found, among othe r things, that: manageme nt controls for the GPC program at the Range Branch were not in place; the appellant did not adequately monitor the GPC program at the Range Branch; the appellant did not clearly understand or communicate agency polic y and priorities regarding the GPC program; and the absence of management controls fo r the Range Branch’s GPC program caused the misu se of the program. Id. at 18. ¶4 Following the AR 15-6 investigation, the agency proposed the appellant’s removal based on a charge of ne gligent performance of duty. Id. at 4-6. The charge was supported by th ree specifications involvi ng the alleged absence of management controls in the Range Branch GPC pr ogram and the lack of management controls re garding the furniture. Id. at 4. After the appellant3

responded to the notice of proposed remova l, IAF, Tab 6 at 13-18, the deciding official sustained the char ge but mitigated the penalt y to a demotion to a GS-12 Workforce Development Specialist position, IAF, Ta b 1 at 11-13. ¶5 The appellant filed a Boar d appeal of his demotion, arguing that the charge against him was “unfounded” and that he had institu ted required policies and procedures and conducted required inspections. Id . at 5. He also raised an affirmative defense of reprisal for wh istleblowing activity, alleging that the agency demoted him in retaliation for hi s having reported to his superior his suspicion that employees we re engaging in theft of Government property and seeking an external investig ation of the GPC program. Id

. ¶6 After holding a hearing, the administrati ve judge issued an initial decision that affirmed the appellan t’s demotion. IAF, Tab 43, Initial Decision (ID) at 1, 38. The administrati ve judge found that: the ag ency proved the charge and each specification by preponderant evidence , ID at 5-32; the appellant did not prove his affirmative defe nse, ID at 32-35; and th e penalty of demotion was reasonable and promoted th e efficiency of the service, ID at 35-37. ¶7 The appellant has filed a petition fo r review, arguing that the agency applied outdated GPC program operating pro cedures in its investigation, he took immediate action once he lear ned of control issues with in the Range Branch, the control weaknesses in the Range Branch were not material, and other directors had accountability issues a nd were not demoted. Peti tion for Review (PFR) File, Tab 1 at 4-5. The agency has filed a response in opposition to the petition for review, and the appellant ha s filed a reply to the agen cy’s response. PFR File, Tabs 7-8.

ANALYSIS The administrative judge co rrectly found that the agen cy proved the charge by preponderant evidence. ¶8 In the initial decision, the admini strative judge thor oughly analyzed the hearing testimony and documentary evid ence and found that the agency proved4

the charge. ID at 5-32. The appellant challenges this finding on review, arguing that the investigators improperly used an outdated regulati on, AR 715-xx, in evaluating the GPC program. PFR File, Tab 1 at 4; see IAF, Tab 12 at 5, 9. The appellant asserts th at, although AR 715-xx required the billing official to maintain original documentation for GPC purchases, an updated regulation governing GPC purchases did not include such a requirement. PFR File, Tab 1 at 4. He contends that because they relied on an outdated regulation in finding that the management contro ls over the GPC program at the Range Branch were unsatisfactory, the investig ators provided the deciding official with incorrect information. Id

. ¶9 We find this argument unpe rsuasive. The audit c overed GPC transactions at the Range Branch from March 2011 thr ough August 2012. IAF, Tab 7 at 32. As the administrative judge correctly noted, the appellant ’s certificati ons of 2010 and 2011 reflect that the re gulation governing the GPC pr ogram at that time was AR 715-xx, and the updated GPC Standa rd Operating Procedure (SOP) was published on February 23, 2012. ID at 7 n.4 (citing IAF, Tab 8 at 61, 72; 1 IAF, Tab 18 at 56); IAF, Tab 17 at 39. Given the time period covered by the audit, we find that the agency investigators appr opriately relied on both the agency’s GPC SOP dated February 23, 201 2, and AR 715-xx in eval uating the GPC program at the Range Branch. IAF, Tab 7 at 32. ¶10 The appellant also argues on review th at once he learned of “accountability issues” in the DPTMS, he immediately took actions to remedy them. PFR File, Tab 1 at 4. As the admi nistrative judge found, however, the appe llant failed to implement adequate controls to prevent issues from ar ising in the first place and the weaknesses were materi al. ID at 15, 25-26, 30-32. In sum, we have considered the appellant’s arguments set forth above, and we find that he has not

1 The administrative judge inadvertently c ited to page 73 in stead of page 72.5

set forth a basis to dist urb the administrative judge ’s well-reasoned findings regarding the charge. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the ad ministrative judge’s findings when she considered the evidence as a whole, dr ew appropriate infe rences, and made reasoned conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). The agency proved by clear and convincing evidence that it would have taken the same action in the abse nce of the appellant’s protected disclosure. ¶11 In an adverse action appeal such as this, an appellant’s claim of whistleblower reprisal is treate d as an affirmative defense. Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221 , ¶ 21 (2014); Shibuya v. Department of Agriculture , 119 M.S.P.R. 537 , ¶ 19 (2013). In such instances, once the agency proves it s adverse action case by a preponderance of the evidence, the appellant must show by preponderant eviden ce that he engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the disclosure was a contributing factor in the agency’s personnel action. Shannon , 121 M.S.P.R. 221 , ¶ 21; Shibuya , 119 M.S.P.R. 537 , ¶ 19; 5 C.F.R. § 1201.56 (b)(2)(i)(C). ¶12 If an appellant meets this burden, th e burden shifts to the agency to establish by clear and convi ncing evidence that it w ould have taken the same action in the absence of th e protected disclosure. Shannon , 121 M.S.P.R. 221 , ¶ 22; 5 C.F.R. § 1209.4 (d). In determining whethe r the agency has met this burden, the Board will consider the followi ng factors: (1) the strength of the agency’s evidence in suppor t of its action; (2) the ex istence and strength of any motive to retaliate on the pa rt 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 1318 , 1323 (Fed. Cir. 1999). The Board does not view these factor s as discrete elemen ts, each of which th e agency must prove6

by clear and convincing evidence, but rath er, the Board will weigh the factors together to determine whether the eviden ce is clear and convincing as a whole. Phillips v. Department of Transportation , 113 M.S.P.R. 73 , ¶ 11 (2010). Our reviewing court has added that “[e] vidence only clearl y and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despit e the evidence that fa irly detracts from that conclusion.” Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012); Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 27 (2015). ¶13 The administrative judge found that the appellant proved that he made a protected disclosure and th at this disclosure was a contributing factor in the agency’s decision to demote him. 2ID at 34. The administrative judge further found, however, that the ag ency proved by clear and c onvincing evidence that it would have taken the same action in the absence of the appell ant’s disclosure. ID at 35. ¶14 Although the appellant does not ra ise this issue on review, the administrative judge di d not explicitly a ddress each of the Carrfactors in making her clear and convincing as sessment. ID 34-35. In stead, she focused on the second Carrfactor, i.e., the existe nce and strength of any mo tive to retaliate on the part of the agency officials involved in the decision. The administrative judge found that the proposing and deciding official s credibly testified that they had no motive to retaliate against the appellant based on his whistleblowing. ID at 35. In making this finding, the administrativ e judge noted that the deciding official stated that the misconduct th at was the subject of the appellant’s disclosure occurred before he took command of the garrison, thus implying that he was not directly implicated by the appell ant’s disclosures. ID at 34; see PFR File, Tab 7,

2The agency has not filed a cross petition for review challenging these findings, and we discern no reason to disturb them.7

Hearing Transcript (HT) at 134-35 (testimony of deciding official). 3 The appellant does not challenge the admini strative judge’s assessment of the proposing and agency official s’ motive to retaliate, and we discern no reason to disturb this portion of the in itial decision. However, because the administrative judge did not make any findings regarding the other two Carrfactors in her clear and convincing assessme nt, we find it appr opriate to supplemen t her analysis by addressing the othe r two factors. The agency’s evidence in suppor t of its action is strong. ¶15 The record evidence s hows that the agency had strong reasons for disciplining the appellant, as there was significant ev idence to support the charge and the consequences of the appellant’s negligence were very serious. As discussed above, the results of both the agency audit and the AR 15-6 investigation showed that the appellant failed to pe rform his duties of ensuring that management controls were in place to prevent misuse of the GPC program and theft of Government pr operty. The proposing offi cial testified that the investigation showed that there were systemic long-te rm issues with internal controls relating to pr operty accountability and the GPC program, HT at 21 (testimony of the proposing official), and he stated that the a ppellant failed to ensure that Range Branch personnel were aware of the requ irements governing property accountability and were following them, HT at 42 (testimony of the proposing official). ¶16 In addition, the deciding official test ified that the results of the agency audit were “alarming” and demonstrated a “complete failure” of management controls for the GPC program at the Range Branch. HT at 97 (testimony of the

3 The hearing transcript is included as part of the agency respon se to the petition for review, but our citations to the hearing tran script will be to the separately paginated hearing transcript and not the pa gination of the entire response.8

deciding official). He also testified that the AR 15-6 investigation “documented a number of abuses, likely crim inal activity, pilferage, th eft, fraud, waste, and abuse in the [GPC program], and rampan t [leadership] failu res at all echelons, including [the appellant] as the Director of DPTMS.” HT at 98 (testimony of the deciding official). He further noted th at both the agency audit and the AR 15-6 investigation illustrated that the appellan t had not made any efforts to rectify weaknesses and ensure that procedures were in pl ace to prevent them from recurring. HT at 112 (testimony of the d eciding official). The deciding official explained that he imposed the demotion b ecause the investigation revealed that the problems at the Range Branch were caused, in part, by the appellant’s inaction and lack of oversight. HT at 12 4 (testimony of the deci ding official). In sum, based on our review of the record, we find that the ev idence in support of the appellant’s demoti on is very strong.

The record does not reveal whether there are any employees who are not whistleblowers, but who ar e otherwise similarly sit uated to the appellant. ¶17 The agency did not pres ent any evidence showing that it took similar actions against employees who were not whistleblowers, but who were otherwise similarly situated to the appellant. See generally IAF, Tabs 36-38 (agency’s response to the administra tive judge’s affirmative defense order); HT. The appellant argues on review that there were property accountability issues in three other directorates; howeve r, he was the only director who was removed from his position. PFR File, Tab 1 at 5. In support of this ar gument, the appellant notes that the Logistics Management Sp ecialist who conducted Command Supply Discipline Program (CSDP) evaluations at Fort Bliss testified that other directorates also had account ability issues but the agency did not take any action against their directors. PFR File, Tab 8 at 3 (citing HT at 189) (testimony of the Logistics Management Specia list). The appellant furthe r notes that the proposing9

official, who is the Director of the agency’s Di rectorate of Family, Morale, Welfare, and Recreation (DFMWR) at Fort Bliss, 4testified that there had been property accountability issu es at DFMWR but no action was taken against him. Id . (citing HT at 67-70) (testim ony of the proposing official). ¶18 As the proposing official explained, however, on ce he became aware of property accountability issues in his directorate, he a ddressed them immediately, whereas the appellant did not. Specificall y, the proposing offici al testified that when an inventory of DFMWR revealed th at a number of items were missing, he began implementing safeguards within 30 days to ensure that property accountability issues would not recur. HT at 39-40, 69 (testimony of the proposing official). By contrast, the record evidence dem onstrates that the appellant did not adequately address th e property accountability issues in DPTMS once he became aware of them. For exam ple, a May 2011 evaluation showed that DPTMS was unsatisfactory in 6 of 9 areas and made recommendations for improvement; however, a follow-up evalua tion conducted in July and August of 2011 indicated that the prim ary recommendation had not be en implemented. IAF, Tab 23 at 20-23; see HT at 33-34 (testimony of the proposing official). In addition, as previously noted , the deciding official test ified that both the agency audit and the AR 15-6 investigation illust rated that the appellant had not made any efforts to rectify weaknesses and ensure that procedures we re put in place to prevent them from r ecurring. HT at 112 (testimony of the deciding official). Given these circumstances, we find that the proposing offici al is not a valid comparator employee for purposes of the appellant’s whistleblowing retaliation claim.

4At the time of the appellant’s proposed removal, the proposing official was serving a detail as Deputy to the Garrison Commander. HT at 15-16 (testimony of the proposing official).10

¶19 In his petition for review, the appell ant does not identify the other two directors (other than the proposing official), who he asserts were not disciplined for accountability issues, but he refe rs to the testimony of the Logistics Management Specialist, who identified the other dire ctorates in his hearing testimony. PFR File, Tab 8 at 3; HT at 188-89 (testimony of the Logistics Management Specialist). At no point, how ever, does the appella nt describe the specific circumstances su rrounding the accountability issues in those other directorates. The agency doe s not do so either. Thus, it is not possible, based on the evidence presented, to determine whether the directors who were not whistleblowers engaged in si milar misconduct and were not disciplined, or if they were not similarly situated to the appellant because their misconduct was not as serious. ¶20 In Whitmore , our reviewing court determined that “ Carrdoes not impose an affirmative burden on the agency to pr oduce evidence with re spect to each and every one of the three Carr factors to weigh them e ach individually in the agency’s favor.” Whitemore , 680 F.3d at 1374. Rathe r, “the absence of any evidence relating to Carrfactor three can effectively remove that factor from the analysis.” Id. ; see Runstrom v. Departmen t of Veterans Affairs , 123 M.S.P.R. 169 , ¶ 18 (2016) (finding that, due to lack of evidence that there were any employees similarly situated to the appellant, the third Carrfactor was not significant for the analysis of that case). This is the situation presented in the instant matter. Ac cordingly, we find that the third Carrfactor is insignificant due to the lack of evidence regardi ng similarly situated employees. ¶21 Weighing the three Carrfactors together, we fi nd that, given the strength of the agency’s evidence regarding its reason for demo ting the appellant and the absence of a motive to retaliate on th e part of the proposing and deciding officials, the agency demonstrated by clear and convi ncing evidence that it would have demoted the appellant even absent his protected disclosure. We therefore11

agree with the administrative judge’s determination that the appellant failed to prove his whistleblowe r reprisal claim. The administrative judge comp lied with the guidance in Whitmore regarding the clear and convincing evidence issue. ¶22 In reviewing this case, we also have considered the guidance in Whitmore regarding how the Board should anal yze the evidence in addressing a whistleblowing claim. As noted above, our reviewing court has stat ed that a proper analysis of the clea r and convincing evidence issu e requires that the Board evaluate all of the pertin ent evidence in determining whether an agency has met its clear and convincing burden. Whitmore , 680 F.3d at 1368. In Whitmore , the court found that, in analyz ing whether the agency me t this burden, the Board excluded or ignored eviden ce offered by the appellantthat was necessary to adjudicate his whistleblo wer reprisal claim. Id. at 1368-72. In particular, the court found that the administ rative judge in that case abused her discretion by excluding certain of the appe llant’s requested witnesse s, thereby admitting only testimony on the charges brought against the appellant and excluding witnesses offered to support his affirmative de fense of whistleblower reprisal. Id . at 1368-70. The court held that the ad ministrative judge “t reated the hearing as if it only functioned to examine the proof of the charges and the reasonableness of the penalty—not Wh itmore’s whistleb lower defense.” Id.
at 1363. ¶23 By contrast, the administrative judge in this case did not prevent the appellant from effectively presenting his whistleblowi ng defense. Not only did the administrative judge a pprove all 14 of the appell ant’s requested witnesses,

compare IAF, Tab 12 at 7-10, with IAF, Tab 33 at 2, but she also granted him an extension of time to submit a prehear ing submission, whic h consisted of 20 separate parts and thousa nds of pages, some of which pertained to his whistleblowing reprisal clai m, IAF, Tabs 12-31. Most importantly, her thorough12

initial decision shows that sh e closely listened to the te stimony of witnesses from both sides, including those w ho bolstered the appellant’s whistleblowing defense. The administrative judge co rrectly found that the agen cy established nexus and that demotion is a reasonable penalty. ¶24 In addition to the requirement that th e agency prove its charge against the appellant, the agency also must prove that there is a nexus, i.e., a cl ear and direct relationship between the arti culated grounds for the adve rse action and either the appellant’s ability to accompli sh his duties satisfactorily or some other legitimate government interest. Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 8 (2010). Here, the administrative judge found that nexus was established, see ID at 35, and we agree. There is a presumption of a nexus where the misconduct occurred in part at work. Parker v. U.S. Postal Service , 819 F.2d 1113 , 1116 (Fed. Cir. 1987). The appellant has not pr esented any argumentto the contrary, and thus we see no reason to disturb the administrativ e judge’s finding on nexus. ¶25 The Board will review an agency impos ed penalty only to determine if the agency considered all the relevant fact ors and exercised ma nagement discretion within tolerable limits of reasonableness. Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305-06 (1981). In making this de termination, the Board must give due weight to the agency’s primary discreti on in maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsib ility, but to ensure that managerial judgment has been properly exercised. Ellis , 114 M.S.P.R. 407 , ¶ 11; Douglas , 5 M.S.P.R. at 306. It is not the Board’s role to decide what penalty it would impos e, but, rather, to determine whether the pe nalty selected by the ag ency exceeds the maximum reasonable penalty. Lewis v. General Services Administration , 82 M.S.P.R. 259 , ¶ 5 (1999). ¶26 The decision letter and the deciding offi cial’s hearing testimony show that he appropriately cons idered the relevant Douglas factors in deciding to demote the appellant. IAF, Tab 1 at 11-13; HT at 111-21, 126 (testimony of the deciding13

official). Specifically, he consider ed the seriousness of the appellant’s misconduct and found that it was “quite serious” because the situation at the Range Branch was longstandi ng and pervasive and no ac tion was taken to address it. HT at 112 (testimony of the deciding official). The deciding official also considered that the appe llant’s conduct had caused him to lose faith and confidence in the appellant’s ability to serve as a director. HT at 115 (testimony of the deciding official). In addition, he considered the appellant’s potential for rehabilitation and determined that the appe llant could not functi on as a supervisor but could continue to serv e in a nonsupervisory role. HT at 120-21 (testimony of the deciding official). The deciding official considered as mitigating factors the appellant’s lengthy service (3 6 years), the statements he provided, his health, and his emotional state, and the deciding offici al testified that these factors caused him to mitigate the propos ed removal penalty to a demotion. HT at 126 (testimony of the deciding official). ¶27 In assessing the reasonableness of the penalty, the admi nistrative judge also considered the appellan t’s disparate penalty claim, noting that the appellant “complained that no other di rectors were demoted from their positions when there were problems within their directorates.” ID at 36. The consis tency of the penalty with those imposed upon other employees for the same or similar offenses is one of the factors to be considered under Douglas in determining the reasonableness of an agen cy-imposed penalty. Douglas , 5 M.S.P.R. at 305. To establish disparate penaltie s, the appellant must show that the charges and the circumstances surrounding the charged behavior are substa ntially similar to those in his comparator’s case. Voss v. U.S. Postal Service , 119 M.S.P.R. 324 , ¶ 6 (2013). Here, the administra tive judge properly rejected the appellant’s disparate penalty claim, noting that the appellant failed to id entify any director whose directorate had similar problems. ID at 36. ¶28 Finally, the administrative judge co nsidered as mitigating factors the appellant’s length of service, his commitment to the ag ency and its mission, his14

lack of any prior disciplin e, and the good records of other branches in DPTMS under his supervision, but found that th e sustained charge was serious and militated against mitigating the penalty. Based on her review of the record, the administrative judge found that the deci ding official prope rly exercised his discretion in determining that demotion wa s an appropriate penalty in this case and that the agency’s select ed penalty was not unreasonable. ID at 37. We see no reason to distur b this finding.

ORDER ¶29 This is the final decision of the Me rit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regul ations, section 1201.113(c) ( 5 C.F.R. § 1201.113 (c)).

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U.S. Court of Appeals fo r the Federal Circuit. The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be ve ry careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the d eadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you want to request review of th e Board’s decision concerning your claims of prohibited personnel practices under 5 U.S.C. § 2302 (b)(8), (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)( 9)(D), but you do not want to challenge the Board’s disposition of any other claims of prohib ited personnel practices, you may request the U.S. Court of Appeals fo r the Federal Circuit or any court of appeals of competent jurisd iction to review this fina l decision. The court of appeals must receive your peti tion for review within 60 days after the da te of this15

order. See 5 U.S.C. § 7703 (b)(1)(B) (as rev. eff. D ec. 27, 2012). If you choose to file, be very careful to file on time. You may choos e to request review of the Board’s decision in the U.S. Court of Appeals fo r the Federal Circ uit or any other court of appeals of compet ent jurisdiction, but not bot h. Once you choose to seek review in one court of appeals, you may be precluded from seek ing review in any other court. If you need further information about your right to appeal this decision to court, you should refer to the Federal law that gives you th is right. It is found in title 5 of the United St ates Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sect ions of the United States Code, at our website, http ://www.mspb.gov/appeal s/uscode/htm. Additional information about the U.S. Cour t of Appeals for the Federal Circuit is available at the court’s we bsite, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional information about other cour ts of appeals can be found at their respective websites, which ca n be accessed through http://www.uscourts.gov/Court_Lo cator/CourtWebsites.aspx. If you are interested in securing pro bo no 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 informa tion regarding pro bono representation for Merit Systems Protection Board appellants before th e Federal Circuit. The16

Merit Systems Protection Board neither endorses the servic es provided by any attorney nor warrants that a ny attorney will accept repres entation in a given case.

FOR THE BOARD:

________________ ______________ Jennifer Everling Acting Clerk of the Board Washington, D.C.