UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

FRANZ MULLER,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-0752-13-0151-I-2

DATE: February 13, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Stephanie L. Ayers, Esquire, and Thad M. Guyer, Esquire, Medford, 

Oregon, for the appellant

Chandra R. Postma, Esquire, Anchorage, Alaska, 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 

sustained his removal from service. Generally, we grant petitions such as this one 

only when: the initial decision contains erroneous findings of material fact; the 

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

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 The appellant held the position of Airplane Pilot (Law Enforcement) for the 

agency’s Fish and Wildlife Service (FWS), in Cold Bay, Alaska. MSPB Docket 

No. SF-0752-13-0151-I-1 (I-1), Initial Appeal File (IAF), Tab 4, Subtab 4 

(Standard Form (SF) 50 documenting removal), Subtab 4k (position description). 

Following a February 2010 accident involving his piloting of an FWS plane, the 

agency’s Office of Aviation Services (OAS) convened a Pilot Review Board 

(PRB) to determine what, if any, action to take regarding the appellant’s pilot 

authorization card.2

 See, e.g., I-1, IAF, Tab 12 at 13-28 (PRB report). The PRB 

considered the appellant’s accident, as well as several other incidents where he 

had reportedly failed to follow agency-specific piloting policies. Id. Ultimately, 

the PRB recommended that the agency reinstate the appellant’s pilot authorization 

card only if several conditions were met. Id. at 13-14. Among them, the PRB 

“strongly recommend[ed]” that the appellant be moved from his isolated position 

 2 The appellant’s position required that he hold both a pilot’s license, issued by the 

Federal Aviation Administration (FAA), and a pilot authorization card, issued by the 

OAS, which was previously known as the Aviation Management Directorate. See

MSPB Docket No. SF-0752-13-0151-I-2 (I-2), IAF, Initial Decision (ID) at 2; I-1, IAF, 

Tab 4, Subtab 4k at 6 (relevant portion of the position description).
3

in Cold Bay to one where he could receive “adequate oversight and supervision 

from an aviation knowledgeable supervisor and [could] be mentored within a 

positive [agency] safety culture atmosphere.” Id. at 14. The agency determined 

that it had no such positions available in the appellant’s region (Alaska). I-1, 

IAF, Tab 4, Subtab 4g at 2. Therefore, the associate director of OAS declined to 

reinstate the appellant’s pilot authorization card. I-1, IAF, Tab 4, Subtab 4f.

¶3 The agency removed the appellant for “Loss of [Agency] Pilot 

Authorization.” I-1, IAF, Tab 4, Subtab 4a (decision letter), Subtab 4e (proposal 

letter). The appellant appealed his removal to the Board. I-1, IAF, Tab 1. After 

holding the requested hearing, the administrative judge sustained the appellant’s 

removal. ID. The appellant has filed a petition for review. 3

 I-2, Petition for 

Review (PFR) File, Tab 1. The agency has filed a response, PFR File, Tab 3, and 

the appellant has replied, PFR File, Tab 6.4

The administrative judge properly found that the agency met its burden of 

proving the charge.

¶4 On review, the appellant argues that the administrative judge erred in 

sustaining the charge that he lost his pilot authorization. PFR File, Tab 1 at 

10-11, 18-19, 22-28, 31-32. We do not agree.

¶5 Generally, in an adverse action appeal, the agency must prove its charge by 

a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of 

the evidence is that degree of relevant evidence that a reasonable person, 

 3 The appellant’s petition did not contain any arguments as to the administrative judge’s 

findings on the affirmative defense of age discrimination or nexus. Accordingly, we 

will not revisit or disturb the judge’s well-reasoned analysis of those issues on review. 

See ID at 28-32.

4 In part, the appellant’s petition for review and reply improperly rely upon Board 

initial decisions for support. See PFR File, Tab 1 at 31-32 (citing “Steele v. DOI”), 36 

(citing “Sullivan v. DOT”), Tab 6 at 10 n.3 (citing “Mital v. Dep’t of Agric”). Because 

initial decisions are not precedential, we decline to consider them. See 5 C.F.R. 

§ 1201.113.
4

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. § 1201.56(c)(2).

¶6 Here, the administrative judge determined that the agency met its burden of 

proof as to the charge by showing the following: (1) the appellant held a position 

that required a pilot authorization; (2) the agency revoked that authorization; and 

(3) the agency acted reasonably in revoking the authorization. ID at 5-6; see 

generally Adams v. Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007) (when 

a charge consists of the employing agency’s withdrawal or revocation of its 

certification or other approval of the employee’s fitness or other qualifications to 

hold his position, the Board’s authority generally extends to a review of the 

merits of that withdrawal or revocation), aff’d, 273 F. App’x 947 (Fed. Cir. 

2008). On review, the appellant does not dispute the first two elements, but 

presents arguments as to the third—whether the agency acted reasonably in 

revoking his pilot authorization card. His arguments are not persuasive.

¶7 The appellant first asserts that because the administrative judge dismissed 

some of the incidents in the PRB report as unproven, he should have but failed to 

consider whether the remaining incidents5 still warranted the PRB’s 

recommendations, which ultimately resulted in the revocation of his pilot 

authorization card and removal for the same. PFR File, Tab 1 at 10-11. 

However, the administrative judge specifically addressed this question and found 

that the proven incidents were sufficient bases for the PRB’s recommendations. 

See ID at 5-6, 17-19. Among other things, the administrative judge concluded 

that the agency established multiple instances of the appellant violating 

agency-specific flying policies. ID at 17-18. Therefore, we find that the 

 5 The administrative judge found that the agency proved that the appellant: (1) violated 

agency policy by flying in “visual flight rules over-the-top” conditions on one occasion; 

(2) violated agency policy by flying over a body of water beyond gliding distance to

shore on one occasion; (3) violated agency policy by using his personal plane for 

official flights on at least two occasions; (4) failed to understand carburetor heat; and 

(5) failed to take responsibility for his accident. ID at 5-16.
5

administrative judge correctly found it reasonable for the PRB to conclude that it 

would help prevent further violations to have his pilot authorization contingent 

upon him being stationed in a location where he could be under direct supervision 

of an aviation-savvy manager and integrated into the agency’s culture and 

policies. ID at 17-18. 

¶8 The appellant next asserts that the administrative judge failed to consider 

evidence that he was a highly trained pilot with a vast array of experience. PFR 

File, Tab 1 at 18-19. We disagree. The administrative judge explicitly addressed 

the issue, concluding that while the appellant may have been “extremely well 

trained” as to flying generally, the agency had legitimate concerns as to his 

adherence to agency-specific flight policies. ID at 18.

¶9 The appellant also alleges that he reported far more specific and detailed 

bias in the PRB process than the administrative judge acknowledged. PFR File, 

Tab 1 at 22-25, 31-32. But again, the administrative judge adequately addressed 

this issue below. See ID at 18-19. The appellant’s bias argument is premised 

upon an assertion that his FWS regional aviation manager tainted the PRB 

process. See, e.g., PFR File, Tab 1 at 22-25; I-1, IAF, Tab 14 at 47 of 54. The

administrative judge considered this argument, finding that the FWS regional 

aviation manager emailed a PRB member prior to the start of its inquiry and that 

this contact was less than ideal, but that it did not taint the process. 6

 ID at 18-19. 

The administrative judge correctly reasoned that the PRB member provided 

testimony indicating that he was not influenced by the email, and the FWS 

regional aviation manager’s views were hardly secret since he was later 

interviewed as part of the PRB process. See ID at 18-19. The contact between 

the appellant’s supervisor and the prospective PRB member was relatively 

 6 The sender asked if the recipient would be willing to serve on the PRB. I-1, IAF, Tab 

14 at 47 of 54. In relevant portion, the message stated, “I have been involved in the 

investigation . . . and they do not want me to be on the board because I have already 

decided that he should not fly for us. We need an unbiased review.” Id.
6

innocuous on its face, and it merely provided an early indication of what the 

supervisor was likely to discuss later, when the full PRB interviewed him. While 

the appellant would have us find that it tainted the entire PRB process, we are not 

convinced that this one off-hand comment is of consequence. 

¶10 Finally, the appellant alleges that the PRB’s recommendations were a 

“decisional sham that [were] not in any meaningful sense a recommendations 

[sic] for saving appellant’s job.” PFR File, Tab 1 at 25-28. He seems to suggest 

that the PRB should have offered different conditions on the reinstatement of his 

pilot authorization, such as remote mentoring, which would have allowed him to 

retain his isolated position in Cold Bay. See id. at 26-27. However, the appellant 

has failed to present any evidence that the PRB was tasked with saving his job. 

Moreover, the administrative judge addressed the viability of alternative remedial 

measures below, finding that the agency had legitimate reasons for rejecting each. 

See ID at 19-21. We agree with that determination. The alternative mentoring 

methods the appellant has suggested differ from those recommended by the PRB 

in that they would have either not allowed for a similar degree of supervision or 

they would have required a significant and otherwise unnecessary burden to the 

agency, such as the relocation of other employees.

¶11 In sum, we find that the appellant has failed to present any reason to disturb 

the administrative judge’s conclusion that the agency proved his loss of agency 

pilot authorization. See Broughton v. Department of Health & Human 

Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the 

administrative judge’s findings where the administrative judge considered the 

evidence as a whole, drew appropriate inferences, and made reasoned 

conclusions).

The appellant’s argument that he was unfairly subjected to a PRB fails.

¶12 The appellant asserts, as he did below, that he was subjected to PRB review 

after just one accident, while other pilots had been involved in one or more
7

accidents without ever being subjected to a PRB. PFR File, Tab 1 at 28-31; I-1, 

IAF, Tab 35 at 23-25. We find no merit to the argument.

¶13 The administrative judge found that the PRB was convened not solely 

because of the February 2010 accident, but also because the investigation into 

that accident revealed that the appellant may have violated agency policy on other 

occasions. ID at 19. Citing testimony from agency officials, the administrative 

judge found that the accident played but a minor role in the PRB’s review. ID at 

19. The record supports this conclusion and the appellant has presented no 

evidence to the contrary. The administrative judge also found that, while the 

appellant had identified others who had similarly been involved in accidents, their 

circumstances were distinguishable. ID at 19. We agree with that finding. 

¶14 The appellant’s first comparator, D.S., was reportedly involved in three 

accidents without ever going before a PRB. See PFR File, Tab 1 at 28-29. 

However, the record does not establish that D.S. was at fault in those accidents, 

or that he engaged in a pattern of policy violations. See id.; Hearing Transcript 

(HT) at 85-90. The appellant’s next comparator, R.K., was reportedly involved in 

one accident and he erred in moving the airplane after that accident, but he was 

not brought before a PRB. PFR File, Tab 1 at 29-30. Again, the record does not

establish that R.K. engaged in a pattern of policy violations. See id.; HT at 

90-93. Accordingly, neither is a meaningful comparator to the appellant, who 

was involved in an accident and engaged in a pattern of policy violations. The 

appellant also identified two other comparators, M.M. and H.P. PFR File, Tab 1 

at 29-31. However, like the appellant, both M.M. and H.P. did appear before a 

PRB. See id.; HT at 194-202, 280. Therefore, they were treated the same as the 

appellant by being brought before the PRB. 
8

¶15 If the appellant intends this argument to be construed as one of disparate 

penalty,

7 it still fails. Where, as here, all of the agency’s charges are sustained, 

the agency’s penalty determination is entitled to deference and should be 

reviewed only to determine whether it is within the parameters of reasonableness. 

See Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). Among those 

factors the Board will review in determining the reasonableness of the penalty is 

its consistency with those imposed upon other employees for the same or similar 

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

The agency’s burden to prove consistency of penalties is triggered when there is

enough similarity between both the nature of the misconduct and other factors to 

lead a reasonable person to conclude that the agency treated similarly-situated 

employees differently. Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶¶ 20, 

24 (2012). Here, the record reflects that none of the employees identified by the 

appellant as comparators was engaged in similar policy violations or that any 

were similarly charged with losing their pilot authorization. See generally

Penland v. Department of the Interior, 115 M.S.P.R. 474, ¶ 11 (2010) (finding 

removal a reasonable penalty where the agency charged an Airplane Pilot with 

loss of pilot authorization and the charge was sustained).

The administrative judge properly found that the appellant failed to meet his 

burden of proving whistleblower retaliation as an affirmative defense.

¶16 The administrative judge concluded that the appellant failed to meet his 

burden because he did not prove that any of his alleged disclosures were 

protected for purposes of whistleblower retaliation. ID at 21-28 (citing Ryan v. 

Department of the Air Force, 117 M.S.P.R. 362, ¶ 12 (2012)). On review, the 

 7 Because the appellant has not claimed any sort of prohibited discrimination in 

connection with this claim, we have not considered his argument as one of disparate 

treatment. See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010)

(an allegation that the agency treated an appellant disparately to another employee, 

without claiming prohibited discrimination, is an allegation of disparate penalties to be 

proven by the appellant, but it is not an affirmative defense).
9

appellant presents several arguments. He asserts that the administrative judge 

incorrectly applied the Whistleblower Protection Act (WPA), instead of the 

Whistleblower Protection Enhancement Act of 2012 (WPEA), PFR File, Tab 1 at 

32-33; the administrative judge failed to consider his reports of maintenance 

issues immediately after his accident in 2010, id. at 19-22, and erred in finding 

that some of his disclosures were not protected, id. at 19-22, 33-37; and there was 

clear retaliatory animus in the PRB process due to his whistleblowing, id. at 

22-24. We find no merit to these arguments.

¶17 In an adverse action appeal, such as this, an appellant’s claim of 

whistleblower reprisal is treated as an affirmative defense. Shannon v. 

Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 21 (2014). Once the agency 

proves its adverse action case by a preponderance of the evidence, the appellant 

must show by preponderant evidence 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. A protected disclosure is a disclosure of 

information that the appellant reasonably believes evidences any violation of any 

law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse 

of authority, or a substantial and specific danger to public health or safety. 5 

U.S.C. § 2302(b)(8)(A); Shannon, 121 M.S.P.R. 221, ¶ 22. 

¶18 Here, the appellant first asserts that the administrative judge incorrectly 

applied the WPA, instead of the WPEA, concerning disclosures made in the 

normal course of duty. PFR File, Tab 1 at 32-33. However, this assertion is 

incorrect. ID at 22-23; see generally Day v. Department of Homeland 

Security, 119 M.S.P.R. 589, ¶¶ 12, 26 (2013) (finding that the WPEA simply 

clarified the term “disclosure” in the WPA). As properly noted by the 

administrative judge, the WPEA clarified that a disclosure made during an 

employee’s normal course of duties is not excluded from whistleblower 

protections. See ID at 22-23; see also 5 U.S.C. § 2302(f)(2). The administrative 
10

judge went on to state that the appellant had the burden of showing that the 

agency took the action in reprisal for his disclosure. ID at 23. This is consistent 

with Board precedent issued after the issuance of the initial decision in this case. 

See Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 15 (2014).8

 

¶19 The disclosures the appellant made in the normal course of duty were 

reports of maintenance issues before his accident with the agency aircraft he flew. 

See ID at 22. However, as the administrative judge noted, the record contains no 

evidence that he reported these issues outside the normal channels for doing so, 

and no evidence that these disclosures had any bearing on his removal. See ID at 

22. Instead, the record included testimony from agency officials emphasizing 

that it was crucial for pilots to identify and report potential safety problems. See

ID at 22. Hence, the administrative judge found that the appellant failed to meet 

his burden regarding his pre-accident disclosures of maintenance issues made in 

the normal course of duty. We agree.

¶20 Next, although the appellant asserts that the administrative judge failed to 

consider his claim of reprisal for his reports of maintenance issues immediately 

after his accident in 2010, PFR File, Tab 1 at 19-22, the initial decision reflects 

otherwise, ID at 24. Accordingly, we proceed to whether the judge rightly found 

that these were not protected disclosures. 

¶21 The appellant asserts that the administrative judge erred in finding that his 

“disclosures of lack of airworthiness to investigators and officials outside his 

 8 5 U.S.C. § 2302(f)(1) sets out several types of disclosures that shall not be excluded 

from the whistleblower protections of 5 U.S.C. § 2302(b)(8). By contrast, 5 U.S.C. 

§ 2302(f)(2) separately addresses disclosures made during the normal course of duty, to 

include additional language indicating that such a disclosure shall not be excluded from 

the whistleblower protections of 5 U.S.C. § 2302(b)(8) “if any employee who has 

authority to take, direct others to take, recommend, or approve any personnel action 

with respect to the employee making the disclosure, took, failed to take, or threatened 

to take or fail to take a personnel action with respect to that employee in reprisal for the 

disclosure.” Disclosures made in the course of duty are protected only if the employee 

also proves that the agency took the personnel action with an improper retaliatory 

motive. Benton-Flores, 121 M.S.P.R. 428, ¶ 15.
11

chain of command” were not protected. PFR File, Tab 1 at 34-37. Although the 

appellant failed to cite specific disclosures in his petition, we have construed his 

argument as implicating his February 18, 2010 letter and his March 12, 2010 

email, both of which expressed concerns about the crashed airplane’s brakes and 

carburetor, see I-1, IAF, Tab 14 at 6-8, 12-17 of 54, as well as the June 28, 2010 

email, in which he questions the absence of an aircraft maintenance log 

documenting that airplane’s inspections, see I-1, IAF, Tab 16 at 27 of 74.9

 He

seems to argue that the February 18 and March 12, 2010 correspondences were 

protected because the information related to a substantial and specific danger to 

public health or safety, and/or gross mismanagement, while the June 28, 2010 

correspondence was protected because it concerned the violation of a law, rule, or 

regulation. See PFR File, Tab 1 at 34-36. We disagree.

¶22 A protected disclosure is one that the appellant reasonably believed to 

evidence gross mismanagement, a gross waste of funds, an abuse of authority, a 

substantial and specific danger to public health or safety, or any violation of a 

law, rule, or regulation. 5 U.S.C. § 2302(b)(8). The test for determining if an 

employee’s belief concerning such a matter is reasonable is as follows: “could a 

disinterested observer with knowledge of the essential facts known to and readily 

ascertainable by the employee reasonably conclude that the actions of the 

government evidence [the wrongdoing in question]?” Lachance v. 

White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). 

¶23 In determining whether a disclosure is protected because of a reasonable 

belief that it evidenced a substantial and specific danger to public health or 

safety, the Board considers factors such as (1) the likelihood of harm resulting 

 9 Below, the administrative judge also considered several other disclosures, finding 

none protected. ID at 22-28. However, the appellant’s petition only directs our 

attention to “disclosures of lack of airworthiness to investigators and officials outside 

his chain of command.” PFR File, Tab 1 at 34-37. Accordingly, we will not revisit the 

administrative judge’s well-reasoned findings as to any alleged disclosures falling 

outside that purview. 
12

from the danger, (2) the imminence of the potential harm, and (3) the nature of 

the potential harm. Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197, 

¶ 14 (2011). Alternatively, gross mismanagement is action or inaction which 

creates a substantial risk of significant adverse impact upon the agency’s ability 

to accomplish its mission. Francis v. Department of Air Force, 120 M.S.P.R. 

138, ¶ 12 (2013).

¶24 Here, the appellant crashed the agency’s airplane on February 11, 2010, and 

he submitted correspondence to agency officials, expressing concerns about that 

plane’s brakes and carburetor, on February 18, 2010, and March 12, 2010. I-1, 

IAF, Tab 14 at 6-8, 12-17 of 54. However, the record reveals that the accident 

caused extensive damage to the airplane, such that it would not be in service 

anytime in the near future. See, e.g., id. at 3-4 of 54 (March 3, 2010 article about 

the accident with photos), 12 of 54 (letter from the appellant describing the 

damaged portions of the plane as including the wings, cowling, spinner, and 

propeller). Consequently, the administrative judge correctly determined that the 

appellant failed to prove that he had a reasonable belief that his post-accident 

maintenance disclosures were protected. See ID at 24. The appellant’s 

February 18, 2010 and March 12, 2010 correspondences did not disclose an 

ongoing threat to safety, nor did either identify gross mismanagement. See ID at 

24; cf. Parikh, 116 M.S.P.R. 197, ¶¶ 12, 15 (finding a disclosure protected where 

the appellant reasonably believed that he disclosed systematic problems of 

untimely and inadequate patient care that were likely to result in severe harm); 

see generally White v. Department of the Air Force, 95 M.S.P.R. 1, ¶¶ 38-40 

(2003) (finding that a disclosure, alleging that the agency was requiring 

adherence to unworkable and untenable standards, was not protected as a gross 

mismanagement disclosure), aff’d, 391 F.3d 1377 (Fed. Cir. 2004).

¶25 Similarly, the appellant’s June 28, 2010 email questioning whether

maintenance logs should be kept in agency airplanes was not protected. See ID at 

25-26; I-1, IAF, Tab 16 at 27 of 74. Below, and on review, the appellant has 
13

suggested that aircraft operators are required to have ready-access to maintenance

documentation. E.g., PFR File, Tab 1 at 34. As the administrative judge noted, 

the appellant made this assertion but failed to cite any law, rule, or regulation 

requiring that the agency keep maintenance logs in its airplanes. See ID at 25. 

Moreover, it is evident that the appellant knew that the documentation was 

readily available, albeit in a location he may not have preferred. See I-1, IAF, 

Tab 16 at 27 of 74 (the appellant’s June 28, 2010 email questioning whether the 

documentation should be in the airplane, and his supervisor’s response indicating 

that the log books were kept at a central location, where the appellant knew that 

he could review them as needed). Therefore, we agree with the administrative 

judge’s conclusion that the appellant did not have a reasonable belief that the 

June 28, 2010 email disclosed any violation of law, rule, or regulation.

¶26 Finally, because the appellant failed to show that he made any protected 

disclosure, we need not address his final argument, alleging clear retaliatory 

animus in the PRB process due to his whistleblowing. See PFR File, Tab 1 at 

22-24; see also Clark v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 

n.10 (2014) (an appellant must first establish a prima facie case that a protected 

disclosure was a contributing factor to a personnel action; otherwise the Board 

may not proceed to whether the agency meets its burden of showing that it would 

have taken the same action in the absence of the disclosure).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision. There are 

several options for further review set forth in the paragraphs below. You may 

choose only one of these options, and once you elect to pursue one of the avenues 

of review set forth below, you may be precluded from pursuing any other avenue 

of review. 
14

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination claims 

by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the 

United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit 

your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

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

days after receipt by your representative. If you choose to file, be very careful to 
15

file on time. 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.

Other Claims: Judicial Review

If you do not want to request review of this final decision concerning your 

discrimination claims, but you do want to request review of the Board's decision 

without regard to your discrimination claims, you may request review of this final 

decision on the other issues in your appeal by the United States Court of Appeals 

for 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 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 described in 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 by 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.

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 
16

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