Ann Herringdine v. Office of Personnel Management ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANN M. HERRINGDINE, DOCKET NUMBER
Appellant, AT-0831-17-0179-I-1
v.
OFFICE OF PERSONNEL DATE: January 24, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas M. Leveille, Esquire, Knoxville, Tennessee, for the appellant.
Karla W. Yeakle, 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 by the Office of Personnel Management (OPM)
finding that she was not eligible for an increased survivor annuity. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision contains erroneous findings of material fact; the initial decision is based
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, 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 supplement the administrative judge’s
analysis of the appellant’s claim that her late husband’s election was invalid on
the basis of mental incompetence and to address her claim that her consent to his
election resulted from fraud in the inducement, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant’s late husband retired from the U.S. Postal Service under the
Civil Service Retirement System (CSRS) effective November 2, 2011. Initial
Appeal File (IAF), Tab 6 at 54. On her husband’s application for retirement,
Standard Form (SF) 2801, he chose a reduced annuity with a partial survivor
annuity for the appellant equal to 55 percent of $22 per year. 2 Id. at 45, 48. The
appellant signed a “Spouse’s Consent to Survivor Election” form, SF 2801-2,
before a notary public on October 7, 2011, indicating her consent to her
husband’s election of a partial survivor annuity for her of 55 percent of $22 per
2
The amount elected by the appellant’s husband, $22 per year, is the lowest dollar base
that may be elected for a survivor annuity. OPM Benefits Administration Letter,
No. 00-102 (Mar. 8, 2000). Fifty-five percent of $22 per year provides a survivor
benefit of $1 per month and allows the surviving spouse to continue Federal Employee s
Health Benefits coverage. Id.3
year. 3 Id. at 48. The appellant’s husband passed away on April 21, 2015 , and she
filed an application for death benefits with OPM. Id. at 18-23. OPM approved
the appellant’s application and began paying her a survivor annuity benefit in the
amount of $5 per month. 4 Id. at 6, 14.
¶3 On June 19, 2015, the appellant requested that OPM review its decision
regarding the amount of her monthly survivor annuity benefit. Id. at 16-17. She
stated that she was “totally shocked” by the amount of her monthly survivor
annuity and that she would not have signed the consent form if someone had
explained to her that she would only receive $5 per month after her husband’s
death. Id. at 16. She stated that her husband told her that, in the event of his
death, she would receive a gross monthly annuity of $2,647, as indicated on a
September 9, 2011 annuity estimate printout, or about half of his current monthly
annuity benefit. Id. at 16, 57. She further stated that her husband must not have
understood the effect of his election and that, in the years leading up to his
retirement and thereafter, he suffered from a number of medical conditions and a
“deteriorated” mental status. Id at 16-17. In a March 1, 2016 initial decision,
OPM found that, given the joint election of the appellant and her husband at the
time of his retirement, the rate of $5 per month was correct. Id. at 12.
¶4 The appellant requested reconsideration of OPM’s decision , again stating
that her late husband told her she would receive about half of his current monthly
gross annuity benefit after his death and that he suffered from a number of
3
The record also contains a signed and notarized SF 2801-2 dated September 16, 2011,
indicating the appellant’s consent to her husband’s election of a partial survivor annuity
in the amount of 55 percent of $22 per year. IAF, Tab 3, Exhibit 2 at 5. It appears that
the appellant’s late husband also checked the option for an insurable interest survivor
annuity on this form, which he then covered with his initials. Id. Although OPM
mentioned the September 16, 2011 form in its March 1, 2016 initial decision, IAF,
Tab 6 at 12, it based its reconsideration decision on the SF 2801 -2 executed on
October 7, 2011, id. at 6.
4
The record reflects that the appellant’s monthly annuity increased to $6 in
December 2016. IAF, Tab 6 at 15. It is unclear, however, why the appellant receives
$5 or $6 per month, given that 55 percent of $22 per year amounts to $1 per month.
4
physical and mental conditions around the time of his retirement. IAF, Tab 6
at 11. She further stated that her late husband showed her a retirement plan report
dated September 30, 2011, showing a gross monthly survivor annuity benefit of
$2,647, and that she signed the spousal consent form “without questioning how it
was computed.” Id. In a final decision dated November 15, 2016, OPM affirmed
its initial decision, stating that the appellant freely consented to her husband’s
election when she signed the SF 2801-2 on October 7, 2011, and that OPM had no
record that she contested her consent at any time between the date she signed it
before a notary and her husband’s death. Id. at 6-8. OPM further noted that it
had no record showing that her late husband was incompetent at the time of his
retirement and that, although he could have changed his election within
18 months of making it, OPM had no record of him attempting to do so. Id.¶5 The appellant timely appealed OPM’s final decision to the Board, arguing
as follows: she was “misinformed as to what [her] survivor benefit would be by
information [shown to her by her] husband”; her husband did not understand his
election due to his medical conditions; and she signed the spousal consent form
believing that, in the event of her husband’s death, she would receive half of his
monthly annuity benefit. IAF, Tab 1 at 3. The appellant submitted medical
records showing that, from 2010 through 2013, her husband suffered from a
number of serious medical conditions and underwent several surgeries, including
amputation of one of his toes followed by amputation of his entire left forefoot.
IAF, Tab 3, Exhibit 3. She also submitted a letter from her husband’s former
supervisor opining that the appellant’s husband “was becoming mentally
challenged at the end of 2010 . . . especially at retirement.” IAF, Tab 3,
Exhibit 8. In another submission, the appellant stated that “[y]es, I did sign the
retirement papers without my [sic] questioning the figures simply based on my
belief that what I was shown and told to be the truth. I would never h ave signed
anything had I known that all I would be eligible for was $5.” IAF, Tab 8.
5
¶6 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that the appellant’s consent was valid and that
OPM met its burden of showing that it sent the required notice to the appellant’s
late husband regarding his option to provide or increase a spouse’s survivor
annuity within 18 months of his retirement. IAF, Tab 11, Initial Decision (ID).
She further found that the evidence did not support the appellant’s assertion that
her husband was mentally incompetent when he retired. ID at 4 n.3. Thus, she
affirmed OPM’s final decision. ID at 7.
¶7 The appellant, now represented by counsel, has filed a petition for review of
the initial decision arguing that she and her husband did not make a valid joint
election of a partial survivor annuity because of the following: (1) her husband
was mentally incompetent at the time of his election; (2) her consent was induced
by fraud; and (3) the spousal consent form was confusing and fails to meet the
notice and consent requirements of the Spouse Equity Act. Petition for Review
(PFR) File, Tab 1. The agency has responded in opposition to the ap pellant’s
petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 The surviving spouse of a CSRS retiree is entitled to a survivor annuity in
the amount of 55 percent of the retiree’s annuity unless the retiree elected not to
provide a survivor annuity or to provide only a partial survivor annuity, and the
spouse consented to the election in writing. 5 U.S.C. §§ 8339(j)(1), 8341(b)(1);
Cerilli v. Office of Personnel Management, 119 M.S.P.R. 404, ¶ 5 (2013);
5 C.F.R. § 831.614. A retiree may, within 18 months after retirement, choose to
elect a survivor annuity for the spouse to whom he was married at retireme nt if he
did not previously do so or to increase the size of such an annuity. 5 U.S.C.
§ 8339(o)(1); Cerilli, 119 M.S.P.R. 404, ¶ 5; 5 C.F.R. § 831.622(b)(1).
¶9 Here, it is undisputed that the appellant’s late husband timely elected a
partial survivor annuity equal to 55 percent of $22 per year for the appellant and
6
that she signed a SF 2801-2 before a notary public on October 7, 2011, indicating
her consent to his election. IAF, Tab 6 at 45, 48. In addition, the appellant has
not challenged, and we discern no basis to disturb, OPM’s finding that the
appellant’s late husband did not seek to amend his survivor annuity election
during the 18 months following his retirement, despite being notified of his
opportunity to do so. 5 Id. at 7, 24-31. As noted above, however, the appellant
argues on review that she is entitled to an increased survivor annuity because she
and her late husband did not make a valid joint election of a partial survivor
annuity. PFR File, Tab 1.
¶10 The U.S. Court of Appeals for the Federal Circuit has held that t he
voluntary signing of a Government form for the purpose of evidencing agreement
with the terms of the form is binding, and the Government is entitled to rely on
the act of signing absent a showing of fraud, duress, or mental incompetence .
Braza v. Office of Personnel Management, 598 F.3d 1315, 1319 (Fed. Cir. 2010)
(en banc); Collins v. Office of Personnel Management, 45 F.3d 1569, 1573 (Fed.
Cir. 1995). The appellant, as the applicant for a survivor annuity and as the
individual seeking to change the annuity agreement of record , has the burden to
show her entitlement to the benefit she seeks by preponderant evidence. See
Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir.
1986); Dombeck v. Office of Personnel Management, 43 M.S.P.R. 43, 45-46
(1989). A preponderance of the evidence is that degree of relevan t evidence that
a reasonable person, considering the record as a whole, would accept as sufficient
5
OPM has a statutory obligation to notify annuitants annually that they have 18 months
after retirement to provide or increase a spouse’s survivor annuity. 5 U.S.C.
§ 8339(o)(6); Cerilli, 119 M.S.P.R. 404, ¶ 6. OPM bears the burden of proving that the
notice was sent as well as proving the contents of the notice. Cerilli, 119 M.S.P.R. 404,
¶ 6. The administrative judge found, and the appellant does not dispute on review, that
OPM met its burden of showing that it sent the required notice to the appellant’s late
husband regarding his option to change his survivor annuity election within 18 months
of his retirement. ID at 5-6. We have reviewed the record and discern no basis to
disturb this finding. See IAF, Tab 6 at 24-31.
7
to find that a contested fact is more likely to be true than untrue. 5 C.F.R.
§ 1201.4(q).
The appellant has not shown by preponderant evidence t hat her late husband was
mentally incompetent as to render his election invalid.
¶11 In the initial decision, the administrative judge found that the record
evidence was insufficient to establish that the appellant’s late husband was
mentally incompetent at the time of his retirement and survivor annuity election.
ID at 4 n.3. The appellant challenges this finding on review, arguing that the
administrative judge and OPM gave her argument “short shrift.” PFR File, Tab 1
at 12-16. She further argues that the record evidence establishes that her late
husband was mentally incompetent at the time of his survivor annuity election
and urges the Board to find that his election was not effective . Id. For the
reasons that follow, we agree with the administrative judge’s determination that
the appellant has not met her burden to show that her late husband’s survivor
annuity election was invalid on the basis of mental incompetence. However, we
modify the initial decision consistent with this section to further address the
appellant’s argument and the medical evidence.
¶12 Annuity elections are only valid if made by mentally competent individuals.
Dombeck, 43 M.S.P.R. at 45-46. Although such competency is presumed absent
challenge, the spouse can demonstrate that the annuitant lacked the requisite
capacity to make a valid election. Pooler v. Office of Personnel Management,
23 M.S.P.R. 51, 53 (1984). The relevant standard for mental incompetence is “an
inability to handle one’s personal affairs because of either physical or mental
disease or injury.” Rapp v. Office of Personnel Management, 483 F.3d 1339,
1341 (Fed. Cir. 2007); Magelitz v. Office of Personnel Management,
118 M.S.P.R. 472, ¶ 11 (2012). The Board requires medical evidence to
substantiate a claim of mental incompetence. See Thieken v. Office of Personnel
Management, 56 M.S.P.R. 192, 194, aff’d, 11 F.3d 1074 (Fed. Cir. 1993) (Table).
8
¶13 Here, as noted above, the appellant submitted medical evidence sho wing
that, in 2010, her husband had one of his toes amputated due to a diabetic ulcer
and later had his entire left forefoot amputated. IAF, Tab 3, Exhibit 3 at 2-8.
The records further show that, from 2010 through 2013, he suffered from type 2
diabetes, coronary artery disease, hypertension, sleep apnea, arthritis, kidney
disease, malnutrition, anemia, possible seizures, and light -headedness. Id. at 4-5,
10, 13, 16, 23, 25. In a February 28, 2012 consultation report, the medical
provider indicated that the appellant’s husband was hospitalized due to an acute
kidney injury following a “two day history of progressive changes in mental
status with predominant agitation.” Id. at 9-10. An August 15, 2012 mental
capacity assessment indicates, however, that he could “manage benefits in [his]
own best interest” and did not have any limitations in understanding and memory,
sustained concentration and persistence, adaptation, or social interaction. Id.
at 17-22.
¶14 The appellant also submitted a September 8, 2014 Social Security
Administration (SSA) decision finding her late husband disabled as of
November 1, 2011. IAF, Tab 3, Exhibit 4 at 8-15. The decision thoroughly
discussed his medical conditions and determined that his coronary artery dise ase,
end stage renal disease with dialysis, and insulin-dependent diabetes with
retinopathy and neuropathy resulting in amputation of toes on the left foot were
“severe.” Id. at 10. The decision noted that his primary care physician
prescribed him Sertraline, which was “effective in controlling [his] anger and
mood.” Id. at 12.
¶15 In addition, as noted above, the appellant submitted a letter from her
husband’s former supervisor in which he opined that the appellant’s late husband
was becoming “mentally challenged” in 2010. IAF, Tab 3, Exhibit 8. He further
indicated that he did “not think that [the appellant’s late husband] was mentally
capable of making a decision of such an important nature as properly thinking
9
through and signing his retirement paperwork [and that] in his ‘right mind’ he
would not have denied [the appellant] the full benefit of a spousal annuity.” Id.¶16 Although it is clear that the appellant’s late husband suffered from a number
of serious medical conditions in the years before and after his retirement, the
references in the record to his mental health issues —namely, that he suffered
from a 2-day period of “progressive changes in mental status with predominant
agitation” in 2012 and had mood and anger issues that were controlled with
medication—do not establish that he could not handle his personal affairs during
the relevant period. See Rapp, 483 F.3d at 1341. To the contrary, the August 15,
2012 mental capacity assessment specifically indicates that he could manage
benefits in his own best interest. IAF, Tab 3, Exhibit 3 at 19. Absent any
medical evidence showing that the appellant’s late husband was mentally
incompetent when he elected a partial survivor annuity in October 2011 or at any
time during the following 18 months, the subjective opinions of the appellant and
her late husband’s former supervisor that he was mentally incompetent are
unpersuasive. See Thieken, 56 M.S.P.R. at 194. Accordingly, we find no basis to
disturb the administrative judge’s determination that the appellant’s late
husband’s survivor annuity election may not be set aside on the basis of mental
incompetence.
The appellant has not shown by preponderant evidence that her consent to her late
husband’s election is invalid on the basis of fraud in the inducement.
¶17 The appellant next argues that, if her late husband was not mentally
incompetent, then he obtained her consent to his election to a partial annuity to
receive an increased annuity during his lifetime through fraud in the inducement
by assuring her that she would receive about half of his monthly annuity benefit
in the event of his death. PFR File, Tab 1 at 18-22. Although the appellant
invokes the term “fraud in the inducement” for the first time on review, she
asserts that she “clearly raised” this argument below when she alleged, among
other things, the following in her Board pleadings: her late husband showed her
10
the paperwork reflecting that she would receive a survivor annuity in the amount
of $2,647 per month and told her that she would receive approximately half of his
monthly annuity benefit as a survivor annuity; she received incorrect information
and was led “to believe that she would be taken care of with his ongoing spousal
annuity payments in the event of his death”; she felt she was greatly misled as to
her benefits; and she was given “misinformation” about what she would receive
in the event of her husband’s death. Id. at 18-20. We agree that she sufficiently
raised this argument below and so we consider it on review. See Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); IAF, Tabs 1, 3, 8. For
the reasons that follow, however, we find that the appellant has not shown that
her consent to her late husband’s election was invalid on the basis of fraud in the
inducement.
¶18 As stated above, the clear statutory language provides that the surviving
spouse of a CSRS annuitant is entitled to an annuity equal to 55 percent of his
annuity unless, at the time of his retirement, the annuitant elected to provide no
survivor annuity or a partial survivor annuity, and the spouse consented to the
election in writing. 5 U.S.C. §§ 8339(j)(1), 8341(b)(1); 5 C.F.R. § 831.614.
Thus, the relevant inquiry in determining whether the appellant met her burden of
proving her entitlement to an increased survivor annuity benefit is whether she
effected a valid waiver of her right to one when she consented in writing to her
husband’s election of a partial annuity in the amount of 55 percent of $22 per
year. See Luten v. Office of Personnel Management, 110 M.S.P.R. 667, ¶ 10
(2009). Although a “freely made choice” concerning a survivor annuity is not
voidable on the basis of a unilateral mistake, a waiver of annuity benefits may be
set aside as invalid if it resulted from fraud. See Braza, 598 F.3d at 1320;
Steele v. Office of Personnel Management, 57 M.S.P.R. 458, 464 (1993), aff’d,
50 F.3d 21 (Fed. Cir. 1995) (Table).
¶19 “Fraud in the inducement” is defined as “occurring when a
misrepresentation leads another to enter into a transaction with a false impression
11
of the risks, duties, or obligations involved; an intentional misrepresentation of a
material risk or duty reasonably relied on, thereby injuring the other party without
vitiating the contract itself.” Wofford v. Department of Justice, 115 M.S.P.R.
468, ¶ 7 (2010) (quoting Black’s Law Dictionary 671 (10th ed. 1999)). To
establish misrepresentation, the appellant must show that a reasonable person
would have been misled by the misinformation. Armstrong v. Department of the
Treasury, 110 M.S.P.R. 533, ¶ 12 (2009), aff’d in part, vacated in part, 591 F.3d
1358 (Fed. Cir. 2010).
¶20 Here, even if the appellant’s late husband intentionally misled her regarding
the effect of his election and her consent thereto, we cannot find that a reasonable
person would have been misled by the misinformation as to render her consent
invalid on the basis of fraud. The SF 2801-2, which the appellant signed before a
notary public on September 16, 2011, and October 7, 2011, is clear on its face
and sufficiently informed her of the effect of consenting to her late husband’s
election to provide her a partial annuity in the amount of 55 percent of $22 per
year. 6 IAF, Tab 3, Exhibit 2 at 5, Tab 6 at 48; see Braza, 598 F.3d at 1319-20(holding that a prior version of SF 2801-2 “provides sufficient notice to alert
readers to its consequences upon reasonable review and is explicit enough for the
act of signing the form to evidence agreement with the terms of the form ”).
Although the appellant was shown a printout reflecting that she would receive a
6
Specifically, the SF 2801-2 states in the instructions section that “[i]f you are married
and you do not elect a reduced annuity to provide a maximum survivor annuity for your
current spouse, complete Part 1.” IAF, Tab 6 at 48. The appellant’s late husband filled
out Part 1, electing the third option—“[a] partial survivor annuity for my current spouse
equal to 55% of $22.00 a year.” Id. Part 2 of the form indicates that it is to be
completed by the current spouse of the retiring employee and provides as follows: “I
freely consent to the survivor annuity election described in Part 1 . . . I also understand
that my consent is final (not revocable).” Id. Part 3 was completed by a notary public
who certified that the appellant presented identification, signed the form, and
acknowledged that her consent was freely given. Id. The general information section
of the form further provides that “[t]he law requires that a retiring, married employee
must elect to provide a survivor annuity for a current spouse unless the current spouse
consents to some other election by signing this form.” Id. (emphasis in original).
12
surviving spouse gross monthly annuity of $2,647, the printout—labeled “annuity
estimate as of pay period 18 of 2011”—clearly indicates it is an estimate. IAF,
Tab 1 at 11. Therefore, we find that the appellant has not shown that her consent
to her husband’s election was invalid on the basis of fraud in the inducement.
The appellant has not established any other basis to find that her consent to her
late husband’s election of a partial survivor annuity was invalid.
¶21 The appellant also argues on review that the SF 2801-2 was confusing and
failed to meet the notice and consent requirements of the Spouse Equity Act.
PFR File, Tab 1 at 22-26. Although she alleged below that she did not understand
the effect of giving her consent to her late husband’s election and that it was not
sufficiently explained to her, she did not challenge the language of the form
itself. IAF, Tabs 1, 3, 8. Therefore, we need not consider this argument raised
for the first time on review. See Cerilli, 119 M.S.P.R. 404, ¶ 11; Banks,
4 M.S.P.R. at 271. Nonetheless, as discussed above, we find that the SF 2801-2
sufficiently placed the appellant on notice of the consequence of giving her
consent to her husband’s election of a partial survivor annuity in the amount of
55 percent of $22 per year. IAF, Tab 6 at 48; see Braza, 598 F.3d at 1319-20.
Moreover, we find no merit to her argument that the SF 2801-2 falls short of any
notice and consent requirements contained in the Civil Service Retirement Spouse
Equity Act of 1984, Pub. L. No. 98-615 § 2, 98 Stat. 3195. That the appellant
signed the SF 2801-2 without reading it or without understanding it, instead
relying on her late husband’s assurances, “does not release her from the binding
effect of the waiver under controlling law” and does not invalidate her waiver of
her entitlement to a full survivor annuity. See Braza, 598 F.3d at 1321.
¶22 The appellant further argues that her late husband’s severe health issues and
the likelihood that his death “would occur relatively quickly” demonstrate “the
absolute absurdity of a knowing consent to a survivor annuity of $1.00 per
month.” PFR File, Tab 1 at 21. Although we sympathize with the appellant’s
situation, neither the Board, nor OPM, may grant retirement benefits on the basis
13
of equitable considerations when granting such benefits is not otherwise
permitted by law. See Office of Personnel Management v. Richmond,
496 U.S. 414, 416 (1990); Hamilton v. Office of Personnel Management,
69 M.S.P.R. 690, 694 (1996). Therefore, we find no basis to disturb the
administrative judge’s determination that OPM’s reconsideration decision must
be affirmed.
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 t he 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
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. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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
15
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
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 thei r 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 E mployment
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, th en 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
16
(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
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. 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.
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.
17
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the li nk below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.