UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILLIAM C. BENNETT, JR.,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

DE-1221-15-0461-W-1

DATE: November 21, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

William C. Bennett, Jr., Union, South Carolina, pro se.

Christopher H. Bonk, Esquire and Kevin L. Owen, Esquire, Silver Spring, 

Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

denied his request for corrective action. Generally, we grant petitions such as 

this one only in the following circumstances: the initial decision contains 

erroneous findings of material fact; the initial decision is based on an erroneous 

 

1A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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, despite 

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. Except as expressly 

MODIFIED by this Final Order to clarify the initial decision’s analysis of the 

clear and convincing evidence test, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant is employed by the agency as a GS-9 Air Tanker Base 

Manager in West Yellowstone, Montana. Initial Appeal File (IAF), Tab 9 at 6. 

On January 28, 2015, the Fire Center Base Manager (Base Manager) 2informed 

his crew, which included the appellant, that the base was under scrutiny for 

closure after the 2015 fire season due to the lack of infrastructure maintenance 

over the course of many years. The Base Manager asked the crew to provide him 

with “input and ideas” concerning possible ways to avoid a closure. IAF, Tab 1

at 5, Tab 39 at 51. In response, on February 3, 2015, the appellant provided a 

4-page opinion that alleged, among other things, that an arsenic water filter 

should have been installed at the base in 2012 when it was discovered that the 

well water contained over the maximum containment level of arsenic established 

by the Environmental Protection Agency, and the base should have maintained 

 

2

The job titles of the appellant and his supervisor are similar. To differentiate, when 

we refer to the appellant’ supervisor, we will use the title “Base Manager” and when we 

refer to the appellant’s position, we will use the title “Air Tanker Base Manager.”
3

the tarmac and ramp used by airplanes that carried smoke jumpers 3to and from 

fires and failed to resubmit funding requests for maintenance issues, such as 

repairing the ramp, “as required.” IAF, Tab 13 at 6-11. Nine days later, the Base 

Manager informed the appellant that he would no longer be allowed to jump or to 

participate in smoke jumper refresher training as a collateral duty because smoke 

jumping was not in the position description of the Air Tanker Base Manager 

position to which the appellant had been promoted. 

¶3 Thereafter, the appellant filed an individual right of action (IRA) appeal to 

the Board alleging that the Base Manager took away his smoke jumping duties in 

retaliation for the protected disclosures that he made in his 4-page opinion. IAF,

Tab 1. After conducting a hearing,4the administrative judge issued an initial 

decision, which found that the appellant nonfrivolously alleged that he made two 

protected disclosures in the 4-page opinion that were contributing factors in a 

personnel action (the agency’s rescission of his smoke jumper duties) and that he 

had exhausted his administrative remedies before the Office of Special Counsel as 

to those disclosures and that personnel action. IAF, Tab 50, Initial Decision (ID) 

at 2 n.3. Thus, the administrative judge found that the appellant made a 

nonfrivolous allegation that the Board has jurisdiction over his IRA appeal. 

¶4 The administrative judge found further that the appellant established by 

preponderant evidence that his disclosure regarding arsenic levels in the well 

water reasonably asserted a violation of law, rule, or regulation, or a substantial 

and specific danger to public health or safety and thus was a protected disclosure 

under the Whistleblower Protection Enhancement Act of 2012 (WPEA). ID

at 4-5. He also found that the appellant established by preponderant evidence that 

 

3

Smoke jumpers parachute into remote areas to combat wildfires. U.S. Department of 

Agriculture, Forest Service, Smokejumpers, https://www.fs.usda.gov/sciencetechnology/fire/people/smokejumpers (last visited Nov. 21, 2022). 

4

The hearing lasted 2 days, from May 24-25, 2016. We cite to the hearing transcript 

for the first day as “HT1” and for the second day as “HT2.” A copy of the transcript for 

both days is contained in the record. 
4

his disclosure that the ramp maintenance funding request had not been 

resubmitted as required constituted an allegation of a violation of law, rule, or 

regulation, which also raised the specter of a substantial and specific danger to 

public health or safety, and thus was a protected disclosure under the WPEA. 

ID at 5. Additionally, the administrative judge found that, under the 

knowledge/timing test, the appellant established by preponderant evidence that 

his disclosures were a contributing factor to having the smoke jumping collateral

duty rescinded from his overall duties. ID at 5-6. According to the 

administrative judge, the agency’s rescinding the appellant’s smoke jumping 

duties was a personnel action because it constituted an action concerning 

education or training that could be reasonably expected to lead to an appointment, 

a promotion, or a performance evaluation, 5and also was a significant change in 

the appellant’s duties, responsibilities, and/or working conditions. ID at 5. The

administrative judge, however, determined that the agency showed by clear and 

convincing evidence that it would have taken the same action in the absence of 

the appellant’s protected disclosures. ID at 7-15. 

¶5 In his petition for review, the appellant contests the administrative judge’s 

findings of fact and credibility determinations. For instance, he contends that the 

administrative judge failed to consider that the Base Manager “lied under oath.” 

Petition for Review (PFR) File, Tab 1 at 6-7. He further argues that the testimony 

of the Base Manager and an Employee Relations Specialist concerning telephone 

conversations that they said that they had about the appellant’s smoke jumping 

duties should be discounted because of its hearsay nature. Id. at 9. The appellant 

also contends that the administrative judge, in finding that the agency proved by 

clear and convincing evidence that it would have rescinded the appellant’s smoke 

 

5

Some evidence in the record suggests that smoke jumpers require a significant amount 

of costly training each year to keep them current. HT2 at 7 (testimony of the interim 

supervisor), 40 (testimony of the Base Manager). In his closing argument, the appe llant 

acknowledged that training for most individuals might cost thousands of dollars, but he 

stated that his training costs were minimal. IAF, Tab 49 at 12. 
5

jumping duties absent his whistleblowing, erred by not considering his testimony 

rebutting the agency’s evidence on that issue. Id. at 7-8. Finally, he argues that 

the administrative judge was biased against him. Id. at 11. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 After establishing the Board’s jurisdiction in an IRA appeal, which the 

appellant has done here beyond dispute, he must then establish a prima facie case 

of whistleblower retaliation by proving by preponderant evidence that he made a 

protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity 

under 5 U.S.C. § 2302(b)(9) that was a contributing factor in a personnel action 

taken against him. 5 U.S.C. § 1221(e)(1); Soto v. Department of Veterans Affairs, 

2022 MSPB 6, ¶ 6 (2022). If the appellant makes out a prima facie case, the 

agency must prove, by clear and convincing evidence, that it would have taken 

the same personnel action in the absence of the protected disclosure or protected 

activity. 5 U.S.C. § 1221(e)(1)-(2); Soto, 2022 MSPB 6, ¶ 6. 

¶7 As noted above, the administrative judge found that the appellant made two 

protected disclosures of either a violation of law, rule, or regulation, or of a 

substantial and specific danger to public health or safety, and that both protected 

disclosures were contributing factors to the rescission of his smoke jumping 

duties. ID at 4-6. Based on our review of the record and the fact that these 

findings are not challenged on review, we discern no reason to disturb them.

6

 

 

6 On review, the appellant challenges the administrative judge’s discussion of one of the 

points he raised in his 4-page opinion, which has been characterized as the “dorm 

incident” and concerns a spring 2015 inspection that revealed the presence of asbestos. 

PFR File, Tab 1 at 9-10; IAF, Tab 13 at 7. The administrative judge discussed this 

issue in his clear and convincing evidence analysis and concluded that, because the 

purported “disclosure” occurred after the agency took the personnel action and because 

agency officials did not have knowledge of any asbestos issues prior to rescinding the 

appellant’s smoke jumping collateral duties, the incident could not have triggered a 

motive to retaliate, which is a factor to consider when determining whether the agency 

met its clear and convincing burden. ID at 13-14. However, we believe that that 

discussion is misplaced because knowledge of a disclosure or activity and the timing of 

the personnel action in question are properly addressed in a contributing factor analysis 
6

See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) 

(finding no reason to disturb the administrative judge’s findings when she 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions). 

¶8 Because the appellant established a prima facie case of whistleblower 

reprisal, the relevant inquiry is whether the agency proved, by clear and 

convincing evidence, that it would have taken the same action even in the absence 

of the disclosures. Soto, 2022 MSPB 6, ¶ 18. The Board considers the following 

factors (“Carr factors”) in determining whether an agency has meet its clear and 

convincing burden: (1) the strength of the agency’s evidence in support of the 

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 employees who are not whistleblowers but 

who are otherwise similarly situated. Soto, 2022 MSPB 6, ¶ 11; see also Carr v. 

Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The 

appellant’s petition for review largely challenges the administrative judge’s 

evidentiary analysis, factual findings, and credibility determinations related to 

these factors. PFR File, Tab 1. However, as discussed below, we find that none 

of his challenges warrants a different outcome than that arrived at by the 

administrative judge. 

 

as a part of an appellant’s prima facie case. Mastrullo v. Department of Labor, 

123 M.S.P.R. 110, ¶ 18 (2015). Moreover, the administrative judge did not find that the 

appellant made a protected disclosure regarding the “dorm incident,” ID at 13, and, 

regardless, even if he had, the Board has held that a disclosure or activity that occurs 

after a personnel action is taken, such is the case here, cannot be a contributing factor to 

that action. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 27 

(2011). Further, no one, including the appellant, testified at the hearing of being aware 

of asbestos in the damaged dormitory until after the Base Manager rescinded the 

appellant’s smoke jumping duties. E.g., HT2 at 56-57 (testimony of the Base Manager). 

Thus, the purported disclosure, even if found to be protected, could not have been a 

contributing factor to the agency’s rescission of the appellant’s smoke jumping duties. 

The appellant’s arguments on review in this regard do not provide a basis to disturb the 

initial decision. 
7

The administrative judge properly analyzed Carr factor 1: the strength of the 

agency’s evidence in support of its action. 

¶9 In discussing the first Carr factor, the administrative judge provided a 

nearly 5-page discussion of the testimony from three of the appellant’s 

supervisors who testified collectively regarding the absence of smoke jumping 

duties from the appellant’s position description, the concerns surrounding his 

ongoing smoke jumping without it being a duty assigned to him, and the 

decision-making process behind the decision to end that collateral duty. ID

at 7-11. The administrative judge credited this testimony and gave significant 

weight to this factor. Id. Specifically, he credited the testimony of the 

appellant’s former supervisor, who said that the appellant had been a smoke 

jumper before he was promoted to an Air Tanker Base Manager position—a 

position that did not include smoke jumping duties—and that he had been allowed 

to smoke jump for a time after his promotion to that position because his duties at 

the base could be covered by others. ID at 8-9. He also credited the testimony of 

the appellant’s interim supervisor, who explained that he did not rescind the 

appellant’s smoke jumping duties before the arrival of the new Base Manager 

because he believed that a decision on the appellant continuing to serve a s a 

smoke jumper should be made by the permanent Base Manager. ID at 9. 

Additionally, the administrative judge credited the testimony that the Base 

Manager’s decision to rescind the appellant’s smoke jumping duties was made 

before the appellant submitted his 4-page opinion. ID at 11. The Base Manager 

postponed acting on the decision for the 2014 fire season because resources 

already had been spent getting the appellant trained and ready to smoke jump for 

that fire season, and the Base Manager timed his action to avoid the expense of 

recertifying the appellant for the upcoming 2015 fire season. ID at 9-11. Further,

the Base Manager, after discussing the matter with his supervisor, wanted to 

confirm what he should do with an agency Employee Relations Specialist, based 

in part on the Base Manager’s supervisor’s advice that he do so. ID at 10-11. 
8

Based on the foregoing, the administrative judge found that the agency met its 

burden by presenting overwhelming credible evidence in support of the personnel 

action to rescind the appellant’s collateral smoke jumper training and duties. ID 

at 7.

¶10 On review, the appellant challenges the administrative judge’s discussion of 

portions of the testimony. Specifically, he argues that the administrative judge 

failed to consider that the Base Manager contradicted himself when he said, 

at one point, that a written policy required that smoke jumping duties be part of 

the appellant’s position description, whereas he later said that there is no written 

policy stating that, to be able to perform smoke jumper duties, it must be included 

in a position description. Hearing Transcript 2 (May 25, 2016) (HT2) at 96-97 

(testimony of the Base Manager). This testimony relates to whether the Base 

Manager properly denied smoke jumper duties to employees whose position 

description did not include such duties. The Base Manager, in his testimony, 

clarified that the Inter-Agency Smokejumper Operating Guide addresses the 

annual requirements necessary for smoke jumpers, even though there is no 

particular language in the Guide directly linking qualifications or certifications 

for smoke jumpers to a position description. He explained that an agency policy 

existed, which he could not cite specifically, which states “that a position 

description needs to be 80 percent accurate to be valid.” He noted that, if the 

appellant were allowed to smoke jump, he would not be allowed to do that duty 

enough for it to be valid for his position description. HT2 at 96-99 (testimony of 

the Base Manager). The Base Manager also explained that allowing certain 

employees, such as the appellant, to engage in the risky activity of smoke 

jumping could expose the Government, the agency, and the employees to liability, 

given that the employees would be working duties not covered under their 

position descriptions. Likewise, he worried that the appellant could have a 

mid-air collision during a smoke jump, which could end in tragedy. HT2

at 99-100 (testimony of the Base Manager). We find that the Base Manager’s 
9

various explanations are not inherently inconsistent, as suggested by the 

appellant. In any event, we find that the appellant mistakenly asserts that the 

administrative judge did not consider the Base Manager’s varying explanations on 

this matter; in fact, the administrative judge explicitly noted the diff erences at the 

hearing. HT2 at 98-99 (comment by the administrative judge). 

¶11 Contrary to the appellant’s assertion, the record does not support a finding 

that the Base Manager was not truthful in testifying about whether smoke 

jumping duties were tied to an employee’s position description. Rather, the 

record supports the administrative judge’s finding that the Base Manager testified 

credibly that one of the fundamental reasons he did not allow the appellant to 

continue his smoke jumping duties was the absence of such duties from his 

position description. The Board defers to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on observing the 

demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so. 

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The

appellant has not presented sufficiently sound reasons to overturn the 

administrative judge’s credibility determinations. 

¶12 The appellant also objects to the testimony of the Base Manager and an 

Employee Relations Specialist, who both confirmed that they discussed over the 

telephone the possibility of rescinding the appellant’s smoke jumping duties 

before he made his disclosures, given the testimony’s supposed hearsay nature. 

PFR File, Tab 1 at 10. We disagree with the appellant that this testimony 

constituted hearsay evidence. Pursuant to the Federal Rule of Evidence, 801(c), 

hearsay is a statement, other than one made by the declarant while testifying at a

trial or hearing, offered in evidence to prove the truth of the matter asserted. See

Taylor v. U.S. Postal Service, 75 M.S.P.R. 322, 325 (1997); Fed. R. Evid. 801(c). 

Here, both witnesses, who testified under oath, had firsthand knowledge of these 

telephone conversations because they participated in them and related what they 
10

recalled about those conversations. Further, the record does not indicate that the 

statements offered into evidence were made by anybody other than the declarants. 

As such, we consider these statements to be direct testimony and believe that the 

administrative judge gave them the appropriate evidentiary weight. Accordingly, 

the appellant’s argument regarding hearsay is without merit.7 

¶13 The appellant contends, moreover, that the administrative judge ignored or 

did not consider his testimony rebutting the agency’s evidence regarding why the 

agency rescinded his smoke jumping duties. However, the administrative judge’s 

failure to mention all of the evidence of record does not mean that he did not 

consider it in reaching his decision. Marques v. Department of Health & Human 

Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) 

(Table). Therefore, the appellant’s argument in this regard is also without merit.

Based on the foregoing, we discern no reason to disturb the administrative 

judge’s analysis of the first Carr factor and agree that the agency presented 

strong evidence in support of its decision. 

The administrative judge properly analyzed Carr factor 2: the existence and 

strength of any motive to retaliate on the part of the agency officials who were 

involved in the decision. 

¶14 In discussing the second Carr factor, the administrative judge considered 

testimony from the Base Manager, who testified that he was indifferent to the 

appellant’s disclosures, that the disclosures were provided in response to his own 

request, and that the appellant had some good ideas but none were particularly 

noteworthy. ID at 11. The administrative judge also considered that the Base 

Manager’s testimony and “perspective” were consistent with the agency’s 

response to the health and safety issues raised by the appellant in his disclosures. 

Id. After considering and crediting the relevant testimony, the administrative 

 

7

In any event, hearsay is admissible in Board proceedings and its probative value 

depends on the circumstances of each case. Borninkhof v. Department of Justice, 

5 M.S.P.R. 77, 83-87 (1981). 
11

judge properly concluded, ID at 11-14, that the agency may have had some 

motive to retaliate based on the appellant’s submission of his 4-page opinion

criticizing the agency’s handling of safety issues and its decision to defer certain 

maintenance issues, cf. Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 

285, ¶ 33 (2013) (finding that, even if an appellant’s disclosures do not directly 

implicate or harm her superiors, her criticism reflecting on them both in their 

capacity as managers and employees is sufficient to establish a substantial 

retaliatory motive). Under the circumstances, we agree with the administrative 

judge that any motive to retaliate was not very significant. 

¶15 Moreover, although the appellant appears to challenge the findings 

regarding this factor by disputing the administrative judge’s discussion of a

“dorm incident,” PFR File, Tab 1 at 9; ID at 13-14, we find that discussion to be 

more relevant to a contributing factor analysis as a part of the appellant’s prima 

facie case, as discussed in footnote 6. Therefore, the appellant’s arguments on 

review do not provide a basis to disturb the initial decision with regard to this 

factor. 

We clarify that the burden of proof for Carr factor 3, any evidence that the 

agency takes similar actions against employees who are not whistleblowers but 

who are otherwise similarly situated, is on the agency and not on the appellant. 

¶16 In the initial decision, the administrative judge concluded that that “the 

appellant failed to provide credible evidence” that the agency took similar actions 

against employees who were not whistleblowers but who were otherwise similarly 

situated. ID at 14. The U.S. Court of Appeals for the Federal Circuit has 

recently reiterated that “the agency need not produce evidence with regard to each 

of the factors, nor must each factor weigh in favor of the agency for [it] to carry 

its burden,” Rickel v. Department of the Navy, 31 F.4th 1358, 1366 (Fed. Cir. 

2022), but regardless of whether evidence is produced, the burden remains with 
12

the agency.

8

 Accordingly, we clarify the initial decision that the burden was not 

the appellant’s. Id. 

¶17 The administrative judge does appear to have considered some of the 

agency’s evidence on this point when he discussed the Base Manager’s testimony 

that, when smoke jumping was not in an employee’s position description, he was 

consistent about denying the employee the opportunity to smoke jump and that he 

otherwise allowed safety officers to smoke jump when it was included in the 

position description, but not when such employees were on detail to a position 

that did not include those duties. ID at 14. However, it does not appear that the 

agency provided any more specifically relevant evidence regarding this factor, 

such as testimony regarding whether there were any similarly situated employees 

who were not whistleblowers but engaged in similar conduct. The Board has held 

that, when the agency fails to introduce relevant comparator evidence, the third 

Carr factor cannot weigh in favor of the agency. 9 Soto, 2022 MSPB 6, ¶ 18. 

 

8 Historically, the Board has been bound by the precedent of the Federal Circuit on this 

issue. However, as a result of changes initiated by the Whistleblower Protection 

Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, extended for 3 years in 

the All Circuit Review Extension Act, Pub. L. No. 113-170, 128 Stat. 1894, and 

eventually made permanent in the All Circuit Review Act, Pub. L. No. 115-195, 

132 Stat. 1510, appellants may file petitions for judicial review of Board decisions in 

whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. 

See 5 U.S.C. § 7703(b)(1)(B). We are aware of no other circuit courts which have 

considered this issue.

9 Although we find that the third Carr factor does not weigh in favor of the agency, we 

nonetheless address the appellant’s argument on review that the administrative judge 

failed to consider the evidence and testimony that other employees who previously 

encumbered the Air Tanker Base Manager position were allowed to smoke jump. PFR

File, Tab 1 at 10. This argument provides no basis to reverse the administrative judge’s 

finding that one of the fundamental reasons the agency denied the appellant’s smoke 

jumping duties was the absence of such duties from his position description. 

As discussed above, the agency presented sufficient rationale to justify why it took this 

action, including that it was limiting other employees to the duties outlined in their 

position descriptions as well. In addition, there is no evidence showing that other 

employees with collateral smoke jumper duties worked under the same position 

description as the appellant did, especially in light of the fact that he testified that his 
13

¶18 Nonetheless, the Board does not view the Carr factors as discrete elements, 

each of which the agency must prove by clear and convincing evidence, but rather 

weighs the factors to determine whether the evidence is clear and convincing as a 

whole. See Soto, 2022 MSPB 6, ¶ 13. On the whole, we find that the strength of 

the agency’s evidence in support of the action outweighs the very slight evidence 

of motive to retaliate on the part of the agency officials involved in the action and 

the dearth of evidence regarding how the agency treats similarly situated 

employees who were not whistleblowers. As such, we ultimately agree with the 

administrative judge’s conclusion that the agency proved by clear and convincing 

evidence that it would have rescinded the appellant’s base jumping collateral 

duties even in the absence of his disclosures. 

The appellant failed to show that the administrative judge was biased. 

¶19 Finally, the appellant asserts that the administrative judge was biased 

against him because the initial decision disregarded much of his evidence and 

arguments. We disagree. 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). The appellant’s allegations on 

review, which do not relate to any extrajudicial conduct by the administrative 

judge, neither overcome the presumption of honesty and integrity that 

accompanies an administrative judge nor establish that he showed a deep-seated 

favoritism or antagonism that would make fair judgment impossible. Scoggins v.

Department of the Army, 123 M.S.P.R. 592, ¶ 19 (2016). In any event, based on 

our review, we find that the administrative judge provided specific instances in 

his initial decision in which he clearly cited to and relied upon the appell ant’s 

evidence and testimony. 

 

position may have been reclassified in 2012. HT1 (May 24, 2016) at 52 (testimony of 

the appellant). 
14

¶20 Accordingly, we affirm the administrative judge’s decision to deny the 

appellant’s request for corrective action. 

NOTICE OF APPEAL RIGHTS10

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 may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation an d 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 

10 Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter. 
15

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

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

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

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

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

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

after your representative receives this decision. If the action involves a claim of 
16

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
17

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction. 11 The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

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

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

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

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

 

11 The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

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

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
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Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

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

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board