UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KENNETH M. PEDELEOSE,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

AT-1221-14-0260-W-1

DATE: January 22, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kenneth M. Pedeleose, Acworth, Georgia, pro se.

Cleora S. Anderson, Smyrna, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

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 action (IRA) 

appeal. Generally, we grant petitions such as this one only when: the initial 

decision contains erroneous findings of material fact; the initial decision is based 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In 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

on an erroneous interpretation of statute or regulation or the erroneous application 

of the law to the facts of the case; the judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. See

Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, and based on the 

following points and authorities, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

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

this Final Order, we AFFIRM the initial decision.

BACKGROUND

¶2 On February 16, 2010, the agency issued the appellant a notice proposing to 

suspend him for 14 days from his GS-12 Industrial Engineer position with the 

agency’s Defense Contract Management Agency, Lockheed Martin Marietta

(DCMA LMM), in Marietta, Georgia, based on a charge of Insolent and 

Intimidating Behavior Toward Management Officials. Initial Appeal File (IAF), 

Tab 1, Attachment 2 at 1 of 7, Tab 18 at 4-7 of 28. The charge was supported by 

three specifications, each of which described a November 2009 incident between 

the appellant and a management official.

2

 IAF, Tab 18 at 5.

¶3 The first specification alleged that on the afternoon of November 17, 2009, 

the appellant became very upset when J.T. inquired about a meeting that he had 

asked the appellant to attend earlier that afternoon. See id. The specification 

 2 Two of the incidents involved the appellant’s second-level supervisor, J.T. See IAF, 

Tab 18 at 5. The other incident involved the C-5 Contracts Operations Supervisor, L.G. 

See id. 
3

alleged that the appellant responded to J.T.’s question by pointing at his clipboard 

and slamming his pen while insisting that he was not needed at the meeting. Id.

¶4 The second specification alleged that, during a meeting the following 

morning, 3 the appellant became agitated when L.G. asked him which afternoon 

sessions he would be attending, so they went into the hall. IAF, Tab 18 at 5. The 

specification alleged that the appellant then raised his voice and pointed his 

finger at L.G., even after L.G. asked him to calm down, and that the appellant 

continued yelling and threatened to file a complaint against L.G., the appellant’s 

supervisor, and the group chief. Id. The specification further alleged that L.G. 

felt threatened by the appellant’s behavior, which L.G. described as “totally 

unprofessional and out of control,” and that L.G. thought that the appellant was 

going to hit him. Id.

¶5 The third specification alleged that, immediately after his confrontation 

with L.G., the appellant went to J.T.’s office and loudly and repeatedly stated that 

he wanted to go home. See id. The specification further alleged that, when J.T.

asked the appellant to come into his office and talk to him, the appellant 

complained about covering another employee’s workload and loudly stated that 

L.G. had disrespected and embarrassed him. Id. The specification stated that J.T. 

described the appellant as red-faced and full of rage and that J.T. described the 

appellant’s conduct as “explosive” and “beyond anything [J.T.] ha[d] ever seen 

from [the appellant] before.” Id. J.T. also stated that, although he had seen the 

appellant react angrily to other minor supervisory directives in the past, he felt 

that the appellant’s behavior during this incident was especially flagrant and 

troubling. Id. 

¶6 The appellant submitted a written response to the proposed suspension, in 

which he denied the alleged misconduct and asserted that the proposed suspension 

 3 Due to an apparent typographical error, specification two of the notice of proposed 

suspension incorrectly states that the incident involving L.G occurred on the morning of 

November 17, 2009, rather than November 18, 2009. IAF, Tab 18 at 5.
4

was “whistleblower retaliation.” IAF, Tab 17 at 27-36 of 39. On April 21, 2010, 

DCMA LMM Deputy Commander H.S. issued a decision sustaining the proposed 

suspension. Id. at 17-20. The suspension was effective April 25, 2010, through 

May 8, 2010. IAF, Tab 1, Attachment 2 at 5-6.

¶7 In 2012, the appellant filed a complaint with the Office of Special Counsel 

(OSC) in which he alleged that the agency had suspended him in retaliation for 

disclosing violations of the Truth in Negotiation Act (TINA) and “other issues of 

fraud and abuse of authority.” IAF, Tab 1, Enclosure 2 at 1 of 77. After OSC 

closed its inquiry into his allegations, IAF, Tab 17 at 14-15, the appellant filed an 

IRA appeal with the Board, alleging that the agency had suspended him for 

14 days in retaliation for his whistleblowing activity, IAF, Tab 1.

¶8 In support of his appeal, the appellant asserted that, from October 7, 2009, 

to March 10, 2010, he made the following seven disclosures to the U.S. Air Force 

Office of Special Investigation (OSI): (1) an October 7, 2009 email expressing 

his concerns about Lockheed Martin Aeronautics’ (LM Aero) management of the 

Low Rate Initial Production (LRIP) program, price gouging, and DCMA 

management rewriting his reports to conceal negative information about 

LM Aero; (2) an October 8, 2009 email outlining the appellant’s talking points 

for a meeting with OSI the following day; (3) the appellant’s October 9, 2009 

meeting with OSI; (4) an October 13, 2009 email referencing “the fraud situation 

where Warner Robins said they had to do work that LM Aero billed for”; 

(5) a January 19, 2010 email in which the appellant stated that the LRIP Lot Four 

proposal was defective because its information was outdated and inflated costs; 

(6) two February 4, 2010 emails in which the appellant provided information he 

gathered regarding systemic contract overestimation by LM Aero and asked

whether the information constituted a TINA violation; and (7) a March 10, 2010 

email containing the appellant’s complaint against J.T. and J.T.’s edits to the 

appellant’s LRIP Lot Four evaluation, which included the removal of comments 

about LM Aero having “serious problems with their estimating system.” IAF, 
5

Tab 1, Enclosure 1 at 6, 29-48. The appellant initially requested a hearing, but 

subsequently withdrew that request. Id., Attachment 2 at 1, Tab 3.

¶9 Based on the parties’ submissions, the administrative judge issued an initial 

decision in which he found that the Board has jurisdiction over the appeal but 

denied the appellant’s request for corrective action. IAF, Tab 26, Initial Decision 

(ID). The administrative judge found that the appellant proved by preponderant 

evidence that all of his disclosures were protected but that the appellant could not 

prove that those disclosures were contributing factors in his suspension. ID 

at 5-8. The administrative judge further found that, even if the appellant could 

establish that the disclosures were contributing factors in his suspension, the 

agency proved by clear and convincing evidence that it would have suspended the 

appellant in the absence of the protected disclosures. ID at 8-11.

¶10 The appellant has filed a petition for review, which is supplemented with a 

written declaration and five attachments totaling approximately 300 pages. 4

 

Petition for Review (PFR) File, Tab 1. The agency has filed a response to the 

petition for review. PFR File, Tab 4. The appellant has filed a reply to the 

agency’s response. PFR File, Tab 5.

ANALYSIS

¶11 In an IRA appeal, after establishing the Board’s jurisdiction, 5 the appellant 

must then establish a prima facie case of whistleblower retaliation by proving by 

preponderant evidence that he made a protected disclosure that was a contributing 

factor in a personnel action taken against him. 5 U.S.C. § 1221(e)(1); Mattil v. 

Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If the appellant meets that 

 4 The appellant asserts on review that he has resubmitted his original case “in its 

entirety.” PFR File, Tab 1 at 1; see IAF, Tab 25. Because the documents the appellant 

submits on review are in the record below, they do not constitute new evidence, and we 

have not considered them. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 

256 (1980).

5 We discern no reason to disturb the administrative judge’s finding that the appellant 

established Board jurisdiction over this appeal. See ID at 1. 
6

burden, the Board shall order such corrective action as it considers appropriate 

unless the agency shows by clear and convincing evidence that it would have 

taken the same personnel action in the absence of the protected disclosure. 

5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the Interior, 116 M.S.P.R. 

17, ¶ 12 (2011). Clear and convincing evidence is “that measure or degree of 

proof that produces in the mind of the trier of fact a firm belief as to the 

allegations sought to be established.” 5 C.F.R. § 1209.4(d).

¶12 As noted above, the administrative judge found that the appellant proved by 

preponderant evidence that all of his asserted disclosures were protected. ID at 5. 

The agency has not filed a cross petition for review contesting this determination,

and we see no reason to reexamine it. Accordingly, we will proceed to the issue 

of whether the appellant proved that his protected disclosures were a contributing

factor in his suspension. 

The appellant proved by preponderant evidence that his protected disclosures 

were a contributing factor in his suspension.

¶13 The term “contributing factor” means any disclosure that affects an 

agency’s decision to threaten, propose, take, or not take a personnel action with 

respect to the individual making the disclosure. Usharauli v. Department of 

Health & Human Services, 116 M.S.P.R. 383, ¶ 31 (2011); 5 C.F.R. § 1209.4(c). 

The most common way of proving the contributing factor element is the 

“knowledge/timing test.” Wadhwa v. Department of Veterans Affairs, 

110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435 (Fed Cir. 2009). Under that test, 

an appellant can prove that his disclosure was a contributing factor in a personnel 

action through evidence that the official taking the personnel action knew of the 

whistleblowing disclosure and took the personnel action within a period of time 

such that a reasonable person could conclude that the disclosure was a 

contributing factor in the personnel action. Id. Once the knowledge/timing test 

has been met, the administrative judge must find that the appellant has shown that 

his whistleblowing was a contributing factor in the personnel action at issue even 
7

if, after a complete analysis of all of the evidence, a reasonable fact finder could 

not conclude that the appellant’s whistleblowing was a contributing factor in the 

personnel action. Rubendall v. Department of Health & Human Services, 

101 M.S.P.R. 599, ¶ 12 (2006), superseded on other grounds by statute, 

Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. 

No. 112-199, 126 Stat. 1465. Any contrary evidence regarding a contributing 

factor may be considered in the context of the agency’s burden to show clear and 

convincing evidence that it would have taken the adverse action notwithstanding 

the appellant’s protected disclosures. Wadhwa, 110 M.S.P.R. 615, ¶ 13.

¶14 It is undisputed that the appellant informed his immediate supervisor, N.N., 

of his disclosures during a meeting on February 3, 2010, and that N.N. issued the 

appellant the notice of proposed suspension on February 16, 2010. See IAF, 

Tab 18 at 4, Tab 23 at 8 of 47. Addressing the contributing factor element, the 

administrative judge found that, because the issuance of the notice of proposed 

suspension preceded the appellant’s March 10, 2010 disclosure, that disclosure 

was not “relevant to this case.” ID at 6.

¶15 We agree. Because the March 10, 2010 email to OSI postdates the proposed 

suspension, it could not have been a contributing factor in that action. See 

Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 26 (2007). While the 

March 10, 2010 email predates the issuance of the suspension decision, there is 

no evidence that the deciding official was aware of this email at the time she 

rendered her decision. Therefore, there is no basis for the Board to conclude that 

this disclosure was a contributing factor in the appellant’s suspension. See Reed 

v. Department of Veterans Affairs, 122 M.S.P.R. 24, ¶ 24 (2014).

¶16 As for the appellant’s other protected disclosures, the administrative judge 

stated, “At first blush it would seem that the appellant can establish the 

knowledge/timing test, as he received notice of the proposed suspension from 

[N.N.] only thirteen days after revealing to her that he made protected disclosures 

to OSI.” ID at 7. The administrative judge then considered contrary evidence 
8

regarding the contributing factor element, specifically the following statements 

made by N.N. or DCMA’s Director of Labor and Employee Relations, D.M., in 

their written declarations:

6 (1) N.N.’s statement that she decided before 

Thanksgiving to initiate disciplinary action against the appellant for his behavior 

in November 2009; (2) D.M.’s statement that N.N. first consulted a DCMA 

employee relations specialist regarding her decision to discipline the appellant in 

November 2009; and (3) D.M.’s statement that a suspension proposal often takes 

at least 2 weeks from the initial discussion of the incident with the employee 

relations specialist to the time the proposal is issued to the employee. ID at 7-8; 

see IAF, Tab 23 at 27, 35, 36. 

¶17 Based on these statements, the administrative judge found that the appellant 

had failed to meet his burden of proving that his disclosures were a contributing 

factor in the suspension. ID at 7-8. More specifically, based on the first two 

statements described above, the administrative judge found that the appellant 

could not prove that N.N. knew about his protected disclosures in 

November 2009, when she decided to discipline him for his misconduct and 

consulted with an employee relations specialist regarding that discipline. Id. 

Based on D.M.’s statement regarding the amount of time required to issue a 

proposed suspension, the administrative judge found that, even if N.N. contacted 

the employee relations specialist immediately after learning of the appellant’s 

disclosures on February 3, 2010, it is unlikely that the suspension proposal would 

have been finished in time to be issued to the appellant 8 business days later. ID 

at 7. Therefore, the administrative judge found, due to the timing of the proposed 

suspension, a reasonable person could not conclude that the disclosure was a 

contributing factor in the action. ID at 8.

 6 Although the administrative judge states that N.N. and D.M. made these statements in 

their depositions, see ID at 7, the administrative judge seems to be referring to the 

written declarations of N.N. and D.M, see IAF, Tab 23 at 24-29 and 33-36 of 47.
9

¶18 We find, however, that the appellant satisfied the knowledge/timing test by 

showing that the proposing official became aware of his protected disclosures on 

February 3, 2010, and issued the notice of proposed suspension on February 16, 

2010. Once the appellant satisfied the knowledge/timing test, he proved the 

contributing factor element of his claim, and it was therefore improper for the 

administrative judge to consider contrary evidence regarding that element. See 

Wadhwa, 110 M.S.P.R. 615, ¶ 13 (finding that, because the appellant satisfied the 

knowledge/timing test, the administrative judge should not have considered any 

further evidence on the contributing factor issue).

The agency proved by clear and convincing evidence that it would have 

suspended the appellant in the absence of his whistleblowing.

¶19 Because the appellant met his burden to establish a prima facie case of 

whistleblowing, the burden shifted to the agency to prove by clear and convincing 

evidence that it would have taken the suspension action in the absence of the 

appellant’s whistleblowing. 7 See Jenkins v. Environmental Protection Agency, 

118 M.S.P.R. 161, ¶ 16 (2012). In determining whether an 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 who were involved in the 

decision; and (3) any evidence that the agency takes similar actions against 

 7 The WPEA, Pub. L. No. 112-199, § 114(b), 126 Stat. 1465, 1472, amended 5 U.S.C. 

§ 1221(e)(2) to provide that the Board may not proceed to the clear and convincing 

evidence test unless it has first made a finding that the appellant established his prima 

facie case of reprisal for whistleblowing. The WPEA was effective as of December 27, 

2012, Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476, and thus is applicable to this 

appeal, which was filed on December 18, 2013. See IAF, Tab 1. The administrative 

judge acted inconsistently with the WPEA by reaching the clear and convincing 

evidence stage even after finding that the appellant failed to establish a prima facie 

case, but this error is of no consequence because of our finding that the appellant 

established a prima facie case. Thus, it was, in fact, proper and necessary for the 

administrative judge to determine whether the agency established by clear and 

convincing evidence that it would have suspended the appellant despite his protected 

activity.
10

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 factors as discrete elements, each of which the 

agency must prove by clear and convincing evidence. Rather, the Board will 

weigh the factors together to determine whether the evidence is clear and 

convincing as a whole. See, e.g., Yunus v. Department of Veterans Affairs, 

84 M.S.P.R. 78, ¶ 27 (1999), aff’d, 242 F.3d 1367 (Fed. Cir. 2001).

The strength of the agency’s evidence in support of its action

¶20 The appellant argues on review that he “did nothing wrong or improper,”

PFR File, Tab 1 at 1 (emphasis in original), and he asserts that the agency’s case 

against him is “ridiculous and without merit,” id. at 2. In particular, he asserts 

that if he had engaged in the alleged misconduct, the agency would have taken 

some action to determine whether he was a hazard to himself or others instead of 

issuing him a suspension notice, and he would not have received a 2009 year-end 

performance appraisal with three Outstanding ratings and two Fully Successful 

ratings. Id. at 4-7. He also contends that, because the alleged misconduct took 

place in a “heavily populated” building, individuals other than J.T. and L.G. 

would have witnessed his behavior. Id. at 6. 

¶21 We find unavailing the appellant’s apparent assertion on review that the 

agency’s evidence in support of his 14-day suspension was weak. In support of 

the charge, the agency submitted memoranda which were written by J.T. and L.G. 

on November 18, 2009, while the incidents of November 17 and 18, 2009, 

involving the appellant were still fresh in their minds. See IAF, Tab 18 at 12-14. 

The memoranda contained detailed descriptions of the incidents, including the 

appellant’s behavior and demeanor. Id.

¶22 Moreover, the record shows that the appellant’s 14-day suspension was not 

based on an isolated occurrence. The charge against the appellant was supported 

by three specifications, each describing an incident between the appellant and a 
11

supervisor during a period of less than 24 hours. Id. at 5. Further, as the 

administrative judge noted in the initial decision, during the year preceding the 

action at issue in this appeal, the appellant served a 1-day suspension for rude and 

disrespectful statements in June 2009, and he received two Letters of Warning 

and Instruction, one on September 29, 2009, directing him to carry out his job 

duties without threats and defiance, and the other on January 20, 2010, based on a 

complaint by another employee who alleged that the appellant had repeatedly 

made disparaging and unprofessional statements directed at management.

8 ID 

at 9; see IAF, Tab 18 at 8, 16-19. As the administrative judge also noted, 

according to the Table of Penalties in the DCMA Guidebook on Maintaining 

Discipline, the recommended penalty for a second offense of disrespectful 

conduct ranges from a 10-day suspension to removal. ID at 9-10; see IAF, Tab 23 

at 38. In light of these circumstances, we agree with the administrative judge’s 

finding that, given the appellant’s history of behavioral issues and his previous 

suspension for similar disrespectful conduct, a 14-day suspension was well within 

the agency’s purview to issue. ID at 10. 

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

officials who were involved in the decision

¶23 The second factor to consider in determining whether the agency met its 

burden of proving by clear and convincing evidence that it would have taken the 

action in the absence of the appellant’s whistleblowing is the existence and 

strength of any retaliatory motive on the part of the officials who were involved 

in the decision in question. See Carr, 185 F.3d at 1323-24. In this case, the 

agency officials involved in the decision to suspend the appellant are N.N. and 

 8 The appellant argues on review that the allegations underlying the January 20, 2010 

Letter of Warning and Instruction are also “ridiculous,” and he asserts that the agency 

had no evidence to support the “harassment charge.” PFR File, Tab 1 at 7-10. The 

sufficiency of the agency evidence to support the appellant’s prior discipline is 

immaterial to this appeal. 
12

H.S.; H.S. was selected to be the deciding official because of J.T.’s involvement 

in the November 2009 incidents. ID at 10; see IAF, Tab 23 at 9. 

¶24 Addressing this factor, administrative judge found that N.N. did not know 

about the disclosures when she initiated the disciplinary action in 

November 2009, and that, “even if she had delayed discipline for the 

November 2009 behavior until the appellant revealed his whistleblowing activity, 

it is unlikely that the administrative process would have allowed for issuance of a 

proposal letter only eight business days after an alleged infraction.” 9 ID at 10. 

¶25 We find, however, that one of the appellant’s protected disclosures arguably 

implicated N.N., and thus, she may have had a motive to retaliate against the 

appellant because of this disclosure.

10 As previously noted, in the appellant’s 

October 7, 2009 email to OSI, he raised concerns about management rewriting his 

reports to conceal negative information about LM Aero. IAF, Tab 1, Enclosure 1 

at 29. As the appellant’s supervisor, N.N. may well have been involved in the 

alleged wrongdoing, particularly in view of the following statement in the last 

paragraph of that email: “I expect that my supervisor will rewrite another one of 

my reports.” Id. Nevertheless, even if this disclosure implicated N.N. in the 

alleged wrongdoing and thereby provided her with a motive to retaliate against 

the appellant, considering the strength of the agency’s evidence, it appears, on 

balance, that N.N.’s primary motive for proposing the appellant’s 14-day 

suspension was her concern over his disrespectful and rude conduct rather than 

any animus or ill will. Accordingly, we find that any evidence of motive to 

 9 The administrative judge apparently intended to say “eight business days after N.N. 

learned of the appellant’s disclosures to OSI” rather than “eight business days after an 

alleged infraction.” ID at 10.

10 For purposes of our analysis, we are assuming that N.N. initiated the proposed 

suspension immediately after she learned of the appellant’s disclosure on February 3, 

2010, and that the administrative process allowed for issuance of the notice of proposed 

suspension by February 16, 2010. 
13

retaliate on the part of the relevant agency officials does not outweigh the 

strength of the evidence in support of the agency’s suspension decision.

Evidence that the agency takes similar actions against similarly-situated, 

nonwhistleblower employees

¶26 Addressing the third Carr factor, the administrative judge noted that both 

the appellant and the agency state that there are no similarly-situated employees. 

ID at 10. Because there is no evidence that a similarly-situated employee 

received a lesser penalty for the same misconduct, the third Carr factor is not a 

significant factor for the Board’s analysis in the instant appeal.

¶27 Weighing the three Carr factors against one another, and considering the 

record evidence as a whole, we agree with the administrative judge that the 

agency established by clear and convincing evidence that it would have 

suspended the appellant for 14 days even in the absence of his protected 

disclosures. ID at 11. Although N.N. arguably had a motive to retaliate, the 

agency had a strong basis to suspend the appellant for 14 days because of his rude 

and disrespectful conduct.

The appellant’s adjudicatory bias claim is unavailing.

¶28 The appellant also raises a claim of adjudicatory bias on review, alleging 

that the administrative judge was biased and “abdicated his responsibility as a 

[j]udge.” PFR File, Tab 1 at 1. 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. Oliver v. Department of 

Transportation, 1 M.S.P.R. 382, 386 (1980). Further, an administrative judge’s 

conduct during the course of a Board proceeding will warrant a new adjudication 

only if the administrative judge’s comments or actions evidence “a deep-seated 

favoritism or antagonism that would make fair judgment impossible.” Bieber v. 

Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky 

v. United States, 510 U.S. 540, 555 (1994)). The appellant’s bias claim does not 

involve extrajudicial conduct and the appellant has failed to identify on review 
14

any comment or action that reveals a deep-seated favoritism or antagonism 

against him. His conclusory statement on review that the administrative judge is 

biased is insufficient to overcome the presumption of honesty and integrity 

afforded the administrative judge. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision.

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the United States Court of Appeals 

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

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time. You may choose to request 

review of the Board’s decision in the United States Court of Appeals for the 

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek review in one court of appeals, you may be 

precluded from seeking review in any other court.
15

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information about the United States Court of Appeals for the Federal 

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular 

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is 

contained within the court's Rules of Practice, and Forms 5, 6, and 11. 

Additional information about other courts of appeals can be found at their 

respective websites, which can be accessed through 

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

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for a list of attorneys who have expressed 

interest in providing pro bono representation for Merit Systems Protection Board 

appellants before the Federal Circuit. The Merit Systems Protection Board 

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

attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board