UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

KEVIN ORTEGEL,

Appellant,

v

. NATIONAL AERONAUTICS AND SPACE ADMIN ISTRATION ,

Agency

. DOCKET NUMBER DC

- 0432

- 15

- 0715

- I

- 1

DATE: January 3, 2017



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nathaniel D. Johnson , Esquire, White Plains, Maryland, for the appellant

. Bryan R. Diederich
, Esquire, Washington, D.C., for the agency

.

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

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal for unacceptable performance pursuant to 5 U.S.C. chapter 43. Generally, we grant petitions such as this one only when: the initial
deci sion 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 contr ast, 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 administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despit e the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision . Because we agree with the administrative judge’s finding that the appellant did not make any whistleblow ing disclosures protected
und er 5 U.S.C. § 2302 (b)(8), we MO D IF Y th e initial decision to VACATE the administrative judge’s alternate finding that the agency proved by clear and convincing evidence that it would have removed the appellant in the absence of
h is alleged protected disclosures

.

BACKGROUND ¶2 The appellant serv ed as a GS

- 15 Workplace Planning Program Specialist in the agency’s Office of Human Capital Management. Initial Appeal File (IAF),
Tab 5 at 22

. On July 8 , 20 14, the appellant was issued a p erforma n ce p lan for the 2015 perfor man ce year, indicating that he would be evaluated based on four
critical elements

. Id. a t 183

. By letter dated October 23, 2014, his supervisor, the Division Director, notified him that he was performing at an unacceptable
level for two of the four criti cal elements of his position: “L abor P ricing
P rogram M anager; C enter l abor p ricing s tudy ” (critical ele ment 3), and “Workforce p lanning and h uman c apital r eports

— s tandard and ad hoc ” (critical
element 4). Id. at 203

- 04. His supervisor placed him on a 12

- we ek performance improvement p lan (PIP) to provide him an opportunity to raise his performance.3

Id. at 202. The PIP letter set forth specific tasks to perform and deliverables to submit at the end of the PIP period

. Id. at 205

. ¶3 At the conclusion of the PIP, the Division Director determined that, based

on a re view of the appellant’s deliverables, his performance remain ed

un acceptable

. Id. at 102. On February 9, 2015, the Division Director issued the appellant a n otice of p roposed r emoval based on his un ac ceptable performance in
the two elements noted as deficient in his PIP. Id. at 93

- 100. Following the appellant’s oral and written replies to the notice, the appellant’s second

- line supervisor issued a decision letter imposing his removal effective May 9, 2015.
Id. at 22, 24

- 26

. ¶4 The appellant filed this appeal
, challenging the removal and raising an
affirmative defense of whistleblower re prisal based on his disclosures concerning the potential for manipulating the employee viewpoint survey (EVS) online too 1 and alleged inconsistencies in his second

- line supervisor’s c ongressional testimony . I AF, Tab 1. The administrative judge held a hearing and issued an
initia l decision affirming the agency’ s removal a ction and denying the appellant’ s affirmat ive defense. IAF, Tab 84, Initial Decision (ID) . T he administrative judge
found that the agency proved all of the elements for taking a performance

- based
action under 5 U.S.C. chapter 43. ID at 3

- 18. He further found that the appellant
failed to establ ish by preponderant evidence that either of his alleged whistleblowing disclosures were protected disclosures under 5 U.S.C. § 2302 (b)(8) and, alternatively
, that the agency established by clear and convincing evidence that it would have taken the same personnel action in the
absence of the a lleged discl os ures. ID at 18

- 22

. ¶5 The appellant has filed a petition for review, contending that the administrative judge erred in finding that the agency proved all of the element s required to support a chapter 43 action and in failing to find whistleblower reprisal. Petition f or Review (PFR) File, Tab 3. The agency has filed a response4

in opposition, PFR File, Tab 5, to which the appellant has replied
, P FR File,
Tab 6

.

DISCUSSION OF ARGUME NTS ON REVIEW ¶6 To prevail in an appeal of a performance

- based removal under c hapter 43, the agency must establish the following by substantial evidence : (1) the Office of Personnel Management (OPM) approved its perform ance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and cr itical elements of h is position; (3) the appellant’ s performance standards were va lid under 5 U.S.C. § 4302 (b)(1); (4) the agency warned the appellant of the inadequacies of h is performance during the appraisal period and gave him a reasonable opportunity to dem onstrate acceptable performance; and (5) the appellant’ s performance remained unacceptable in one
or more of t he critical elements for which he was provided an opportunity to demonstrate acceptable performance. Lee v. Environmental Protection Agency
, 115 M.S.P.R. 533 , ¶ 5 (2010). Substantial evidence is the “degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reaso nable per sons might disagree.” 5 C.F.R. § 1201.4 (p)

. ¶7 On review, the appellant argues that the agency failed to meet its burden regarding elements 1, 3, and 4. PFR File, Tab 3 at 14

- 27

. In doing so, he claims that the administrative judge failed to make explicit credibility findings and “ignored” certain evidence supporting his theory of the case. Id. As discussed below, we have considered the appellant’s arguments and discern no reason to disturb the administrative judge’s findings

. 2

2 The appellant does not object to the administrative judge’s findings that the a gency established the second and fifth elements
, and we find no reason to disturb th o s e findings.5

OPM approv ed the a gency’s performance appraisal system

. ¶8 The appellant argues that the three

- tier rating system applied to him (i.e., “Subst antially Exceeds Expectations,” “Meets Expectations,” and “Fails to Meet Expectations”) was a significant change to the agency’s prior five

- tier system (used until the 2012

- 13 performance cycle) and was never approved by OPM. E.g. , PFR File, Tab 3 at 4

- 5, 16

- 17; IAF, Tab 5 at 189

- 200. W e a gree with the administrative judge ’s finding that the three

- tier rating system was within the parameters of the performance appraisal system that had been approved by OPM.
ID at 4

- 6. As correctly noted by the administr ative judge, the performance apprais al system approved by OPM in 199 6 was a “framework

- type overview”
similar to the one discussed in Salmon v. Social Security Administration
, 663 F. 3d
1 378 , 1384 (Fed. Cir. 2011), and not a “detailed implementation.” ID at 5

. OPM approved a system providing for employee performance plans that use a minimum of two levels to appraise each critical element but did not require a specific
number of levels to be used. IAF, Tab 5 at 237, 240. Because the three

- tier rating method under which the appellant was reviewed was consistent with the
OPM

- approved appraisal syst em, we find that the change to three

- tier ratings for
each element was not a significant change in the system requiring additional OPM
review. See Salmon
, 663 F.3d at 1384

. The appellant’s p erformance s tandards were valid

. ¶9 T he appellant asserts that the administrative judge erred in finding that the
three

- tier appraisal policy announ ced in the 20 13 personnel b ulleti n validly

supers eded an agency procedural requirement and that the agency intended for the policy to extend beyond the 2013

- 14 performance year . PFR File, Tab 3 at 17 ; IAF, Tab 10 at 41. We agree with the administrative judge that the agency’s use
of the three

- tier appraisal method was valid. ID at 8

- 9. The agency Human Resource Specialist who drafted the 2013 personnel bulletins testified that the

agency uses them as a tool to memoriali ze changes in policy pending update s in the agency’s national procedural r equirements (NPR); that it was the intent of6

herself, the labor

- management forum , and agency leadership that the agency would continue using three appraisal levels for each critical element in the
2014

- 15 performance cycle and beyond ; that she was tasked with updating the
NPR to reflect the new policy; and that she had not yet updated the NPR because other changes were also being processed and she wanted to input all the changes
at th e same time. Hearing Compact Disc (HCD) (testimony of the Human
Resource Specialist). ¶10 The appellant also argues that the performance standards w ere invalid because they were not realistic, reasonable
, and attainable

. PFR File, Tab 3

at 18

- 19; see Towne v. Department of the Air Force , 120 M.S.P.R. 239 , ¶ 21 (2013) (stating that standards must be reasonable, realistic, and attainable). We find, however, that the administra tive judge’s finding to the contrary is supported by the appellant’s supervisor ’s testimony that the duties described in the performance plan were consistent with the appellant’s high

- level po sition and position description, as well as his team leader ’s te stimony regarding the complexity and time requirements involved in the critical elements. H CD (testimony of the supervisor and the team leader). ¶11 We have considered the appellant’s contention that the administrative judge

“ ignor ed” certain evidence that the critical elements were too onerous and unattainable during the time provided. E.g. , PFR File, Tab 3 at 18

- 19. We find his arguments unavailing

. An administrative judge’s failure to mention all of the
evidence of record does not mean th at he did not consider it in reaching his
decision. See Marques v. Department of Health & Human Services
, 22 M.S.P.R.
129 , 132 (1984), aff’d
, 776 F. 2d 1062 (Fed. Cir. 1985). Further, w e find that the
mere fact that an assigned task previously has not been performed by an employee
or his coworkers does not establish that the task is un attainable

. Similarly, evidence that the appellant was assigned more subject matter areas than a
coworker does not demonstrat e that the standards were unreasonable
, especially when, as here, the record is devoid of evidence su ggesting that the appellant’s7

duties , as a whole, were more difficu lt or time

- consuming than his cow orker ’s
duties

. T he administrative judge considered the appellant’s timeline
, as well as
his unsuccessful efforts to c onvince his supervisor that h is workl oad was too
difficult , but found that, notwithstanding this evidence, the agency had proffered
substantial evidence that the standards were achievable. ID at 10

- 11

. Having considered the record and the appellant’s arguments, we agree with the administrative judge that the agency has proven by substantial evidence that the performance standards were valid. See Jackson v. Department of Veterans Affairs , 97 M.S.P.R. 13 , ¶ 14 (2004) (holding that an agency is free to set its performance standards as high as it thinks appropriate, so long as those standards are objective and meet the other e xpress requirements of section 4302(b)(1) )

. The agency afforded the appellant a reasonable opportunity to demonstrat e acceptable performance

. ¶12 In determining whether an agency has afforded an employee a reasonable opportunity to demonstrate acceptable p erformance, relevant factors include the nature of the duties and responsibilities of the employee’s position, the performance deficiencies involved, and the amount of time which is sufficient to enable the employee to demon strate acceptable performance. Lee , 115 M.S.P.R.
533 , ¶ 32. We agree with the administrative judge’s finding that the agency proffered substantial evidence that it afforded the appellant a reasonable opportunity to improve in the two criti cal elements at issue. ID at 11

- 18 . The appellant was a GS

- 15 , and his position description referenced, among other things, planning, organizing and conducting ground

- breaking studies, applying
advanced analytical t echniques, and preparing and contributing to reports and other presentations. IAF, Tab 5 at 230

- 31

.8

¶13 On review, the appellant contends that the agency failed to afford h im a reasonable opportunity to improve for several reasons. 3 First, he claims that t he PIP was premature and that his performance was satisfactory prior to its issuance.
See
, e.g. , PFR File, Tab 3 at 20

- 21

. It is well settled, however, that an agency need only prove that the appellant failed the PIP; it need not prove unacceptable performance prior to the PIP. See
, e.g. , Wright v. Department of Labor
, 82 M.S.P.R. 186 , ¶ 12 (1999); Brown v. Veterans Administration
, 44 M.S.P.R.
635 , 640 (1990). We thus find that evidence of the appellant’s performance immediately prece ding the PIP is immaterial to whether the agency met its burden under chapter 43

. ¶14 T he appellant also reasserts his claims that his supervisor modified his PIP task requirements during the regular progress meetings, thus failing to provide
him with a firm benchmark toward which to aim his performance. PFR File,
Tab 3 at 2 2

- 24 . We have reviewed the referenced meeting summaries and find
, however, that his supervisor’s comments constituted substantive feedback designed to help the appellant produce acceptab le deliverables rather than changes in the requirements of the PIP. IAF, Tab 5 at 159

- 68

. ¶15 We are also unconvinced by the appellant’s argument that he received
insufficient assistance during his PIP. PFR File, Tab 3 at 22

. The record reflects that, during the PIP, the agency provided the appellant with detailed oral and
written feedback during bimonthly meetings at which the appellant’ s supervisor and the appellant discussed his progress

. IAF, Tab 5 at 159

- 68, Tab 65. Furthermore, t he appellant testified that his team leader provided him reference
materials and answered hi s questions as they arose. HCD (testimony of the appellant)

. We therefore find that the agency met its obligation to offer

3 The appellant admitted during hi s hearing testimony that he did not satisfy th e requirements of the PIP. HCD (testimony of the appellant)

.9

assistance in improving his performance

. See G oodwin v. Department of the
Air Force , 75 M.S.P.R. 204 , 208

- 09 (1997) ; 5 C.F.R. § 432.104

. ¶16 Regarding the appellant’s claim that his supervisor denied him training related to his dashboard task, PFR File, Tab 3 at 22, we find that the referenced training was not necessary to complete the task. The evidence indicates that, on
December 3, 2014, the appellant requested permission to attend a 3

- day course on Visual Basic because he thought it would be helpful for the unit to have in

- house capability to write basic code, and it would help him learn the m ore sophisticated functions for dashboarding available in Excel. IAF, Tab 5 at 163, Tab 51. In rejecting his request, the appellant’s supervisor indicated that contractors would perform the coding and, thus, his focus during the PIP should be on the look and functionality of the dashboard. IAF, Tab 5 at 163. This was consistent with her prior instruction that he would be provided coding support as necessary. Id.

at 1 59. Moreover, the record indicates that the appellant asked to take the course
in late January, which would have been after his PIP period ended and, therefore, not helpful in completing his PIP assignments. IAF, Tab 51

. ¶17 We al so considered the appellant’s argument that he had insufficient time to complete his PIP tasks a nd find that this argument is belied by the evidence of
record. Although the appellant no w claims that he could not focus on the
labor

- pricing studies until mid

- December and his attempts at scheduling interviews was made difficult by the holiday schedules of the interview ees , P FR File, Tab 3 at 24 , t he notes from the appellant’s regular meetings with his supervisor reveal that in mid

- November, the appellant’s supervisor offered to help him get respon ses from the labor centers and that the appellant indicated he was on targ et to complete the labor

- pricing study by January 15

— the end of his
PIP , IAF, Tab 5 at 162. On December 3 and 15, the appellant informed h is supervisor that he had completed enough interviews, and he was “in good enough shape to start writing over the holidays.” Id. at 163

- 64 , 166. Finally, in a January 9 email, the appellant indicated that his only remaining PIP task was10

completing the labor

- pricing study, which he stated would be difficult but “doable.” IAF, Tab 40 at 75. Similarly, the appellant’ s c laim that he was forced to miss a week of work (January 5

- 9, 2015) during his PIP due to his wife’s
illness is also contradicted by the record

. PFR File, Tab 3 at 24. As he explained in an email dated January 9, he worked at home that week after reque sting and receiving permission from his supervisor to do so. IAF, Tab 40 at 75, Tab 77. Finally, as noted by the administrative j udge, the appellant admitted that he never asked for an extension of time to complete his PIP projects. HCD (testimony of
th e appellant)

. Accordingly, we agree with the administrative judge that the appellant had sufficient time to complete his tasks. ID at 18

. The appellant failed to meet his burden of proving that his disclosures were protected under 5 U.S.C. § 2302 (b)(8)

. ¶18 T he appellant argues that the administrative judge erred in f inding that he failed to prove his affirmative defense of retaliation for whistleblowing pursuant

to 5 U.S.C. § 2302 (b)(8)

. PFR File, Tab 3 at 27

. T o prove an affirmative defense of whistleblower reprisal, the appellant must show by preponderant evidence that
he en gaged in whistleblowing by m aking a protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the disclosure was a co ntributing factor in the agency’ s personnel action. Shannon v. Department of Veterans Affairs
, 121 M.S.P.R. 221 , ¶ 21 (2014). 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) ; Shannon
, 121 M.S.P.R. 221 , ¶ 22. To demonstrate that he had a reasonable belief that he made a protected disclosure, an appellant need prove only that a disinterested observer with kn owledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the agency’s actions evidenced one of the categories of wrongdoing listed in 5 U. S.C. § 2302 (b). Shannon
, 121 M.S.P.R. 221 , ¶ 22.11

¶19 T he appellant alleges that he made a protected disclosure in April 2014
when he notified agency management of a n alleged weakness in OPM ’s EVS
online tool and that he made a separate protected disclosure in a May 2014 email to agency management identifying s tatistical errors in hi s second

- line supervisor’s testimony before Congress. PFR File, Tab 3 at 6

- 7, 27

- 29

. We agree
with th e administrative judge that the appellant did not reasonably believe that
either of these disclosures evidenced one of the categories of wrongdoing listed in
5 U.S.C. § 2302 (b)(8)

. ID at 20

- 21

. ¶20 Regarding his first disclosure, the appellant alleged that , on April 10, 2014,
he told his first

- and second

- line supervisor s that he had discovered a weakness in
OPM’s EVS online t ool wherein , under certain circumstances, managers with

access to the tool could learn the identit y of cert a in survey respondents by conducting a series of searches with filters and comparing the results of those
searches. IAF, Tab 8 at 6 , Tab 10 at 88

. The appellant described the alleged
weakness in a subsequent emai l and made a recommendation that he believed
would resolve the issue. IAF, Tab 10 at 88

. Although the appellant testified that
he was unaware of anyone who actually had used this technique, HCD (testimony of the appellant) , he stated that he was concerne d that one of the approximately
100 agency managers with access to the t ool c ould learn to replicate what he had
discovered and would use it in a manner that would jeopardize the confidentiality
of the survey results
, IAF, Tab 8 at 6. The appellant alleged that his second

- line supervisor initially told him to notify OPM but later changed her mind. Id. He
admits that this disclosure did not implicate his supervisors i n any improper behavior and that they were apparently “clueless” as t o the potential consequences of the alleged weakness. IAF, Tab 81 at 22. ¶21 W e find no reason to disturb the administrative judge’s finding that the appellant did not reasonably believe his disclosures about the EVS online tool
evidenced any of the situati ons specified in 5 U.S.C. § 2302 (b)(8). ID at 20

. On review, the appellant continues to argue that his disclosure evidenced a gross12

waste of funds, PFR File, Tab 3 at 27

- 28 , but the Board’s gr oss waste of funds analysis focuses on improper expenditures, Embree v. Department of the Treasury , 70 M.S.P.R. 79 , 85 (1996) , and the appellant failed to identify any such expenditures by the agency. To the extent that the appellant is alleging that the
disclosure evidences gross mismanagement, it is well settled that g ross mismanagement is more than de minimis wrongdoing or negligence; it means a management action or inac tion that creates a substantial risk of significant adverse impact on the agency ’ s ability to accomplish its mission. Swanson v.
General Services Administration
, 110 M.S.P. R. 278 , ¶ 11 (2008). The evidence here regarding this disclosure falls short of that standard. 4 See Webb v. Department of the Interior
, 122 M.S.P.R. 248 , ¶ 8 (2015) (holdi ng that policy disagreements with agency decisions or actions are not protected unless they separately constitute a protected disclosure of one of the categories of wrongdoing listed in section 2302(b)(8)(A) ). ¶22 We further agree with the administrative judge that the appellant has not proven that he had a reasonable belief that his disclosure about p erceived
weaknesses in the EVS o nline t ool evidence d an abuse of authority

. ID at 20.
The Board has defined abuse of authority as an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons. Chavez v. Department of Veterans Affairs
, 120 M.S.P.R. 285 , ¶ 22 (2013). As correctly noted by the administrative judge, the appella nt failed to identify who, if anyone, conducted the alleged abuse of authority related to the perceived weakness in the EVS online tool . ID at 20. On review, the appellant

4 The appellant’s claim that an OPM official testified that his disclosure evidenced a “very serious concern” is not supported by the record. PFR File, Tab 3 at 28; IAF, Tab 72 at 3. The transcript excerpt in the record contains no evidence that the OPM witness was asked about the appellant’s specific disclosure. IAF, Tab 72 at 3. In any event, such testimony would be of in sufficient weight to c hange the outcome.13

appears to argue that his supervisor s abused their authority after his April 10,
2014 disclosure in that they failed to notify OPM of his concerns. PFR File,
Tab 3 at 28. However, the disclosure at issue in this case is the appellant’s April 10, 2014 statement to his managers about the EVS o nline tool . There is no
evidence that the appellant made a dis closure regarding his supervisor s ’ failure to
take action after that conversation and , therefore, his claim has no merit

. ¶23 Regarding his second disclosure
, t he record indicates that, b y email dated May 22, 2014, the a gency’s Office of Legislative and Interagency Affairs asked the appellant’s office to verify the figures and information provided by his
second

- line supervisor as well as non agency witn esses who testified at the May 6 , 2014 c ongressional hearing , but noted that such substan tive statements could not be altered in the record. IAF, Tab 40 at 95

- 96

. An agency employee forwarded this email to the appellant and asked him to verify specific stateme nts made about
the EVS

. I d. at 94

- 95. In his May 27, 2014 email response, the appellant noted
that a certain non governmental witness ’s testimony contained some statistical

errors

. Id

. at 94, 189. He also noted that his second

- line supervis or s tated that EVS results indicated that 13% of the agency’s employees plan ne d to retire
within the next 5 years, when in fact the correct number was 23%. Id. at 94, 152. In a subsequent email, the appellant opined that his second

- line supervisor had probably been referring to the number of agency employees who intend ed to
retire within 3 years, which was 12.6%. I d. at 100. ¶24 On review, the appellant reasserts his argument that his May 27, 2014 email was protected under 5 U.S.C. § 2302 (b)

. 5 PFR File, Tab 3 at 29. We agree with

5 We also disagree with the appellant’s characterizing his email as a “Congressional disclosure.” PFR File, Tab 3 at 29. The appellant did not send his email to C ongress. Moreover, he had no reason to believe that the information provided in his email would be disclosed to Congress because t he email to which the appellant responded specifically indicated that only grammatical, typographical
, and spelling errors could be changed in th e remarks, not substantive remarks. IAF, Tab 40 at 95.14

the administrative judge that the appellant ’ s email d id not suggest that his
second

- line supervisor was intentionally decei tful in her testimony and that he failed to prove that he reasonably believe d his disclosure of this statistical error
evidenced a category of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8)(A)

. ID

at 21

. ¶25 Thus, we uphold the administrative judge’s finding that the appe llan t failed to prove whistleblower reprisal. 6

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS The initial decision, as supplemented by this Fin al Order, constitutes the Board’ s final decision in this matter. 5 C.F.R. § 1201.113

. You have the right to request review of this final decision by the U .S. C ourt of Appeals for the
Federal Circuit

. The court must receive your r equest 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

6 Because we have found that the appellant failed to prove that his disclosures were protected, it is unnecessary to decide whether the agency proved by clear and convincing evidence that it would h ave removed him in the absence of the disclosures. See Clarke v. Department of Veterans Affairs
, 121 M.S.P.R. 154 , ¶ 19 n.10 (2014) , aff’d
, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the administrative judge’s findings concerning whether the agen cy met its clear and convincing burden.15

may request review of this fina l decision by the U .S. 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 U .S

. 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

. If you need further information about your right to appeal this dec ision 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). Yo u 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 U .S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
with in 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 b e accessed through the link below: http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx

. If you are interested in securing pro bono representation for an appeal to
the U .S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/pro bono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The16

Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

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