Corey Ogden v. Office of Personnel Management ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COREY D. OGDEN, DOCKET NUMBER
Appellant, PH-844E-18-0305-I-1
v.
OFFICE OF PERSONNEL DATE: January 27, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Corey D. Ogden, Rawlings, Maryland, pro se.
Albert Pete Alston, Jr., Washington, D.C., 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
affirmed the final decision of the Office of Personnel Management (OPM)
denying his application for disability retirement under the Federal Employees’
Retirement System (FERS). For the reasons discussed below, we GRANT the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 ad ministrative 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
appellant’s petition for review, REVERSE the initial decision, and DO NOT
SUSTAIN OPM’s final decision.
BACKGROUND
¶2 The appellant served as a FERS-covered Social Insurance Specialist
(Claims Representative) for the Social Security Administration from
July 19, 2009, to July 18, 2012, and again beginning March 23, 2014.
Initial Appeal File (IAF), Tab 6 at 127, 130. The duties of this position include
adjudicating applications for Social Security benefits and providin g guidance and
assistance to applicants. Id. at 111. On or about October 3, 2016, the appellant
filed an application for disability retirement with a claimed condition of bipolar
disorder. Id. at 67-72. On April 30, 2018, OPM issued a final decision denying
the appellant’s disability retirement application on the basis that the appellant had
not shown that he was disabled from working. Id. at 5-11.
¶3 The appellant filed a Board appeal challenging OPM’s decision.
IAF, Tab 1. After a hearing, the administrative judge issued an initial decision
affirming OPM’s final decision. IAF, Tab 16, Initial Decision (ID). He agreed
with OPM that the appellant had not made the requisite showing of disability.
ID at 7-8. The administrative judge acknowledged the ap pellant’s history with
bipolar disorder, but he found that the appellant failed to provide sufficient
medical documentation to show that he was disabled from working as a Claims
Representative. ID at 4-8.
¶4 The appellant has filed a non-substantive petition for review, expressing
frustration with the disability retirement application and appeals process.
Petition for Review (PFR) File, Tab 1. OPM has not filed a response.
ANALYSIS
¶5 The petition for review provides no basis to disturb the initial decision.
See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980)
(recognizing that mere disagreement with an administrative judge’s findings of
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fact and conclusions of law does not warrant full review by the Board);
see generally 5 C.F.R. § 1201.115 (setting forth the regulatory bases for granting
a petition for review). To the extent that the appellant is arguing that the
administrative judge’s decision was discriminatory, his unsupported assertion of
discrimination is insufficient to rebut the presumption of honesty and integrity
that accompanies the administrative judge. See Bieber v. Department of the
Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002). The mere fact that the
administrative judge ruled against the appellant does not establish bias.
Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 29 (2015).
Nevertheless, considering the appellant’s pro se status, his psychological
conditions, and the strong interest in reaching the correct result in this disability
retirement appeal, we have conducted a full review of the record. See Wutke v.
Office of Personnel Management, 67 M.S.P.R. 523, 527-28 (1995) (declining to
decide a retirement appeal against an appellant based on “strict application of the
adversarial model of adjudication”).
¶6 An applicant for disability retirement benefits bears the burden of proving
his entitlement to those benefits by preponderant evidence. Henderson v. Office
of Personnel Management, 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R.
§ 1201.56(b)(2)(ii). To qualify for disability retirement benefits under FERS, an
individual must meet the following requirements: (1) he must have completed at
least 18 months of creditable civilian service; (2) he, while employed in a
position subject to FERS, must have become disabled because of a medical
condition resulting in a deficiency in performance, conduct, or attendance, or if
there is no such deficiency, the disabling medical condition must be incompatible
with either useful and efficient service or retention in the position;
(3) the disabling medical condition must be expected to continue for at least
1 year from the date the disability retirement benefits application is filed;
(4) accommodation of the disabling medical condition in the position held must
be unreasonable; and (5) he must not have declined a reasonable offer of
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reassignment to a vacant position. 5 U.S.C. § 8451(a); Henderson, 109 M.S.P.R.
529, ¶ 8; 5 C.F.R. § 844.103(a). In determining an appellant’s entitlement to
disability retirement, the Board will consider all pertinent evidence, including
objective clinical findings, diagnoses and medical opinions, subjective evidence
of pain and disability, and evidence relating to the effect of the appellant’s
condition on his ability to perform the duties of his position. Dunn v. Office of
Personnel Management, 60 M.S.P.R. 426, 432 (1994).
¶7 In this case, it is undisputed that the appellant satisfies the first and fifth
requirements for a FERS disability retirement. ID at 7; see IAF, Tab 6 at 52-53,
115-116. The administrative judge, however, found that the appellant failed to
show that he satisfies the second requirement because he failed to establish that
he became disabled resulting in deficiencies in performance, conduct, or
attendance, or that his bipolar disorder is incompatible with either useful and
efficient service or retention in his position. ID at 7. However, the record shows
that the appellant was exhibiting conduct and attendance deficiencies at the time
of his disability retirement application. Specifically, the Supervisor’s Statement
submitted as part of the appellant’s disability retirement package indicates that
the appellant’s conduct became unsatisfactory in April 2015, based on such
behavior as using inappropriate language, slamming doors, having outbursts, and
staring out the window talking to himself. IAF, Tab 6 at 6 3-64. In addition, the
agency issued the appellant a letter of reprimand on September 21, 2016, for
continued disruptive behavior and failure to follow management directives. Id.
at 97-100. The Supervisor’s Statement also indicates that the appellant’s
attendance became unacceptable in March 2016, and that his excessive absences
have increased other employees’ workloads and affected the agency’s service to
the public. Id. at 63. Furthermore, it appears to be undisputed that the appellant
was continuously absent from work since September 22, 2016, and that the
agency issued him a notice of proposed removal for failure to be regular in
attendance. Hearing Recording (HR) at 3:30, 6:20 (testimony of the appellant).
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Based on these facts, we find that the appellant has exhibited significant conduct
and attendance deficiencies in his employment. 2
¶8 The administrative judge acknowledged the appellant’s service deficiencies,
but he found that the appellant failed to establish the requisite connection
between these deficiencies and his bipolar disorder. ID at 3, 7. Specifically, the
administrative judge found that none of the appellant’s proposed disability onset
dates, March 31, 2016, September 23, 2016, or March 31, 2017, corresponded
with the onset of his service deficiencies, which according to the Supervisor’s
Statement were April 2015, for conduct and March 8, 2016, for attendance.
ID at 7; IAF, Tab 6 at 5-6, 63-64, 68; HR at 55:00 (testimony of the appellant).
The administrative judge further noted that the appellant’s service deficiencies
did not begin until well after he was first diagnosed with bipolar disorder in June
2013. ID at 7; IAF, Tab 7 at 19-20.
¶9 However, considering the evidence as a whole, we find that the appellant’s
medical history does roughly correlate with his service and attendance
deficiencies. As an initial matter, we find that the various dates of onset that the
appellant provided are not particularly probative, as he expressed some confusion
about how to determine the appropriate date. HR at 54:45 (testimony of the
appellant). Far more probative is the medical documentation, which
unambiguously shows that the appellant’s psychiatric problems first presented on
or about June 14, 2013, when he was involuntaril y committed to a hospital for
5 days, displaying psychotic symptoms that manifested as emotional volatility,
depressed mood, paranoia, and delusions. IAF, Tab 7 at 4-30. Upon discharge,
2
There is insufficient evidence for us to conclude that the appellant experienced a
performance deficiency. The supervisor’s narrative statements on the appellant ’s rating
and performance documents reflect that the appellant had been counseled repeatedly for
disruptive and otherwise inappropriate behavior. IAF, Tab 6 at 117, 120. However, the
most recent performance evaluation in the record (fiscal year 2015) ref lects a summary
rating of “Successful Contribution,” with the same successful rating in all critical
elements, including “Interpersonal Skills.” Id. at 120.
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the appellant was diagnosed with cannabis dependence and bipolar disorder,
mixed. 3 Id. at 19-20. Shortly thereafter, on July 30, 2013, the appellant was
involuntarily committed again for 1 week, exhibiting similar symptoms.
Id. at 42-88. Notably, these two episodes occurred during the appellant’s break in
service between July 28, 2012, to March 23, 2014. Tab 6 at 127, 130.
Because the appellant was not employed in Federal service at the onset of his
bipolar disorder, there is unsurprisingly no corresponding service deficiency.
¶10 After the appellant’s first admission to the hospital, he fo llowed up with
outpatient psychiatric treatment, where he was prescribed medication and
diagnosed with cannabis dependence and bipolar I disorder. Id. at 31-41.
After the appellant’s second admission to the hospital, he was prescribed new
medications and continued to follow up regularly in an outpatient setting, during
which his prescribed medication was changed again. Id. at 85, 89-100.
The period that followed appears to have been a good one for the appellant;
the Social Security Administration reinstated him during this time, and his
medical records indicate that he was compliant with treatment, relatively stable,
and doing much better overall. IAF, Tab 6 at 127, Tab 7 at 89 -100.
However, this all changed on June 9, 2015, when the appellant, having gone off
his medications, was admitted to the hospital for the third time, this time
displaying suicidal ideation and “bizarre behavior.” Id. at 101-14, 125.
This acute episode, the first since the appellant’s March 23, 2014 reinstatement,
roughly corresponds with the April 2015 onset of his conduct deficiency as
reported by his supervisor. IAF, Tab 6 at 64. We further note that the
Supervisor’s Statement itself strongly suggests that the appellant’s conduct
deficiency was the product of mental illness. According to the supervisor, around
3
At the hearing, OPM questioned the appellant about certain medical documentation in
an attempt to elicit testimony that the appellant’s symptoms were caused by cannabis
abuse. HR at 1:01:25 (testimony of the appellant). However, our review of the
documentation shows that the treating physician ruled out substance-induced mood
disorder due to cannabis. IAF, Tab 7 at 124.
7
April 2015, the appellant’s demeanor changed, with occasional outbursts, crying,
inability to remain at work, inability to control his emotions, walking around,
talking to himself, and speaking loudly. Id. Both the sudden onset and the nature
of this behavior, which appears to be a more mild form of the behavior that led to
the appellant’s eventual June 9, 2015 hospitalization, suggest to us that his
conduct deficiency was most likely the product of his bipolar disorder.
IAF, Tab 6 at 64, Tab 7 at 101-02, 104, 113.
¶11 There is nothing in the record to suggest that the appellant availed himself
of outpatient treatment between his June 15, 2015 discharge and his next
hospitalization on March 27, 2016, during which he displayed manic symptoms
with suicidal and homicidal ideation. IAF, Tab 7 at 117. The medical
documentation does show that the appellant had not taken his medication for
more than a year at that point because he did not think that he needed it.
Id. at 125. The appellant was discharged 3 days later, with instructions to resume
his medication and to follow up with outpatient primary and psychiatric care.
Id. at 124, 126. Just as the beginning of the appellant’s conduct deficiency
roughly correlates with his June 2015 hospitalization, the beginning of his
attendance deficiency roughly correlates with his March 2016 hospitalization.
IAF, Tab 6 at 63. The record shows that, between March 8 and October 14, 2016,
the appellant used 228 hours of annual leave, 152 hours of sick leave, and
10 hours of leave without pay, although the exact dates and reasons for the leave
are not a part of the record. Id. Nevertheless, given the timing involved, we find
that the appellant’s excessive absences were, more likely than not, at least partly
attributable to his bipolar disorder.
¶12 After the appellant was discharged from his fourth hospitalization,
it appears that he resumed regular psychiatric outpatient care and was compliant
with his medications, right up until he stopped coming to work on
September 22, 2016. IAF, Tab 7 at 127-28. It appears that the appellant’s
avoidance of work was occasioned by his receiving the September 21, 2016
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written reprimand for disruptive behavior, which included pacing, speaking
loudly, talking to himself, and using profanity. IAF, Tab 6 at 97 -100.
Nevertheless, the appellant continued to be compliant with treatment with the
same psychiatrist after that date, until December 2016, when he moved out of
state and had to change doctors. IAF, Tab 7 at 129-33. The appellant then sought
the services of a new psychiatrist, who believed that the appellant would benefit
from a change in medication. Id. at 135-38. The appellant refused, stating that
psychiatry was invented by Nazis for brainwashing, and that he would only take
the medication that he was currently prescribed. Id. at 135. Because the
appellant and this psychiatrist could not agree on a treatment plan, the appellant
was given a list of other providers, one of whom he began seeing on
March 27, 2017. Id. at 135, 141. It appears that the appellant’s symptoms began
to improve at this time. His new psychiatrist opined that he was doing well on his
current medications and that these medications as well as therapy should be
continued. Id. at 141-43, 150, 153. There is no indication of noncompliance with
this psychologist’s recommendations. 4
¶13 Although, as explained above, we find a causal connection between the
appellant’s service deficiencies and his bipolar disorder, the Board has long held
that evidence of the degree to which symptoms can or cannot be controlled is also
relevant in determining the existence of a disabling condition. See Wilkey-Marzin
v. Office of Personnel Management, 82 M.S.P.R. 200, ¶ 15 (1999); Jolliffe v.
Office of Personnel Management, 23 M.S.P.R. 188, 190 (1984), aff’d, 785 F.2d
320 (Fed. Cir. 1985) (Table). Voluntary refusal to accept facially reasonable
treatment will bar entitlement to a disability retirement annuity. Johnson v.
Office of Personnel Management, 87 M.S.P.R. 192, ¶ 22 (2000). In this regard,
we note that the appellant’s condition seems to be amenable to medication, at
least to a degree, as it appears that he does better while on medication and has not
4
It would appear that the appellant changed his opposition to medication because this
new psychiatrist eventually made some adjustments. IAF, Tab 7 at 143.
9
needed to be hospitalized during periods of compliance. See supra, ¶¶ 9-12.
However, even after the appellant began taking his medicine again following his
hospitalization in March 2016, his conduct and attendance deficiencies continued.
IAF, Tab 6 at 63-64, 97-99, 102-03. Although his behavior during this latter
period has not been sufficiently severe to warrant further hospitalization, it
remains unacceptable for the workplace. Id. at 97-99, 102-03.
¶14 The evidence described above is consistent with the appellant’s
psychiatrist’s statement for the appellant’s social security disability application,
in which he rated the appellant’s impairment in responding appropriately to
changes in the workplace and interacting appropriately with coworkers as
“moderate” and his impairment in interacting appropriately with supervisors and
the public as “extreme.” Id. at 30. Although the psychiatrist’s assessment could
perhaps have been more comprehensive, nothing in the law requires that a single
provider tie all of the evidence of disability together. Henderson v. Office of
Personnel Management, 117 M.S.P.R. 313, ¶ 19 (2012). When, as here, there is a
significant amount of medical evidence from various providers, subjective
testimony from the appellant, and documentation by officials from the appellant’s
employing agency all consistently pointing to pervasive behavioral impairments
attendant to the appellant’s claimed and well-documented disability, the record is
sufficient for the Board to conclude that his condition precludes him from
rendering useful and efficient service in his position. See id., ¶¶ 19-20. There is
no suggestion that the appellant is a malingerer, and the evidence is consistent
that his bipolar disorder causes conduct problems that are wholly inappropriate
for the workplace, particularly in a customer service setting. See id., ¶ 21.
¶15 In finding that the appellant failed to establish that he suffers from a
disabling condition, the administrative judge considered notes that an agency
official took at a February 1, 2017 reasonable accommodation meeting,
which reflect that the appellant told the agency official that his psychiatrist did
not recommend any accommodations and wanted him just to do his job. ID at 7;
10
IAF, Tab 6 at 115-16. However, assessing this triple-hearsay evidence according
to the factors set forth in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87
(1981), we find that it is highly unreliable. 5 First, we find no indication that
either the agency official who wrote these notes or the psychiatrist who
supposedly instructed the appellant to return to work were unavailable to testify. 6
Second, the notes are unsworn, and they were not signed by the official who
wrote them. IAF, Tab 6 at 115-16. Third, OPM gave no explanation for failing
to obtain a signed, sworn statement, although to be fair, it is the appellant’s
burden on this matter and these notes do not appear to have been a key part of
OPM’s case. Regarding the fourth factor, there is no indication that the agency
official conducting the interview had any bias one way or the other. As to the
fifth, sixth, and seventh Borninkhof factors, the idea that the appellant was
capable of “just do[ing] his job” is inconsistent with the great weight of the
evidence described above, and the psychologist’s alleged statement to this effect
is nowhere reflected in her notes of the appointment during which she allegedly
said it. IAF, Tab 7 at 135-37. Regarding the eighth and final factor, there is no
reason to doubt the credibility of the agency official at the time she recorded the
appellant’s statement, but the appellant’s credibility at the time is highly suspect,
considering that earlier that day he had refused adjustments to his med ication out
of paranoia about Nazis and brainwashing. IAF, Tab 6 at 116, Tab 7 at 135.
Moreover, even putting all this serious and well-founded doubt aside and
assuming that the psychiatrist actually made the statement attributed to her,
we would find that it is of little weight because she only saw the appellant one
time during a single brief and acrimonious office visit. IAF, Tab 6 at 115-16;
HR at 1:03:05 (testimony of the appellant); see Tan-Gatue v. Office of Personnel
5
Borninkhof factors aside, triple hearsay is, by its very nature, “attenuated and highly
unreliable.” Cooper v. United States, 639 F.2d 727, 730 (Ct. Cl. 1980).
6
The appellant himself was available and did testify at the hearing, but not as to the
truth or accuracy of these notes.
11
Management, 90 M.S.P.R. 116, ¶ 11 (2001) (finding that medical conclusions
based on long familiarity with a patient are of greater weight th an those based on
a brief association or single examination), aff’d, 52 F. App’x 511 (Fed. Cir.
2002). For these reasons, we find it inappropriate to assign any serious weight to
this evidence.
¶16 The administrative judge also noted that the appellant’s curr ent psychiatrist
is of the opinion that the appellant himself is the best arbiter of when he is ready
to return to work. ID at 7-8; HR at 34:20 (testimony of the appellant).
However, we do not interpret this as a clinical opinion that the appellant is,
in fact, ready to return to work at this time or as a prognosis that he will be ready
to do so at any ascertainable date in the future.
¶17 Finally, at the hearing, OPM identified several notes from doctors’
appointments, reflecting that the appellant was doing well on the dates of the
appointments. HR at 1:02:25 (testimony of the appellant); IAF, Tab 7 at 135 -38,
141. As an initial matter, although the appellant might have been doing well on
those dates relatively speaking, we do not read these appointment notes as
reflecting an opinion that the appellant was doing well enough to return to work.
Furthermore, bipolar I disorder is episodic in nature. American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders , 123-31
(5th ed. 2013) (DSM V). The mere fact that the appellant might have lacked the
most severe symptoms of his condition on a given date does not mean that he had
recovered from his condition or was otherwise not currently disabled. See Group
v. Office of Personnel Management, 109 M.S.P.R. 5, ¶ 12 (2008). Considering
the record as a whole, we find that the appellant has shown by preponderant
evidence that he suffers from a disabling condition that resulted in a deficiency in
conduct and attendance.
¶18 Regarding the third element for a FERS disability retirement claim, there is
no evidence in the record that any of the appellant’s doctors expect a perma nent
recovery at any time. As noted above, bipolar I is episodic; more than 90% of
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individuals who have a single manic episode go on to have recurrent mood
episodes. DSM V at 130. We therefore find that the appellant’s condition would
have been expected to last for more than a year from the date of his
October 3, 2016 disability retirement application.
¶19 Finally, regarding the fourth element of the appellant’s disability retirement
claim, our review of the record shows that there was no reasonable
accommodation for his bipolar disorder. The agency attempted to accommodate
the appellant by providing him frequent breaks, generous leave approval, access
to its Employee Assistance Program, and headphones to block out noise, but these
accommodations proved to be ineffective. IAF, Tab 6 at 63-64; HR at 57:25
(testimony of the appellant). At the hearing, OPM went through several of the
appellant’s medical documents and noted that his psychiatrists did not
recommend accommodations for him. HR, at 1:01:00, 1:09:3 0 (testimony of the
appellant); IAF, Tab 7 at 117-26, 135-38, 153. To the extent that OPM is
suggesting that the appellant’s doctors failed to recommend accommodations
because they believed that he could work without them, we find that such an
interpretation is unwarranted. The more likely explanation, based on the record
before us, is that they did not believe that the appellant’s condition could be
accommodated at all. In any event, the record shows that the appellant’s
employing agency offered him several accommodations and that that the appellant
used those accommodations to no avail. There is no indication that the appellant
ever declined any accommodation offered, no doctor or agency official has
suggested any accommodation that has not been tried, and no such potential
accommodations are apparent to us. Mindful of the difficulties inherent in
proving a negative, we find that the record in this case is more than sufficient to
show that reasonable accommodation of the appellant’s bipolar disorder was not
possible. See Detwiler v. Office of Personnel Management, 90 M.S.P.R. 77, ¶ 13
(2001); see also Chavez v. Office of Personnel Management, 6 M.S.P.R. 404, 416
(1981) (finding it “usually impractical” for a party to prove a negative).
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¶20 For the reasons explained above, we find that the appellant meets all of the
criteria for a FERS disability retirement and that his application must therefore be
granted.
ORDER
¶21 We ORDER OPM to grant the appellant’s application for disability
retirement. OPM must complete this action no later than 20 days after the date of
this decision.
¶22 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
¶23 No later than 30 days after OPM tells the appellant that it has fully carried
out the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes that OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
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You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 7
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 and 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).
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. 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 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
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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues, 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. 8 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
8
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.