Terrol Prather v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERROL M. PRATHER, DOCKET NUMBER
Appellant, DC-0752-14-0327-B-1
v.
DEPARTMENT OF THE ARMY, DATE: November 22, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Deano C. Ware, Redford, Michigan, for the appellant.
Keith Bracey, Esquire and Judith A. Fishel, APO, AE, 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
sustained his removal. 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 in terpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 to
(1) VACATE the portion of the initial decision addressing the issue of retaliation
for equal employment opportunity (EEO) activity; (2) construe the first and
second charges as a single charge of failure to maintain a condition of
employment, and sustain that charge; and (3) find that the agency failed to prove
its third charge, we AFFIRM the initial decision.
BACKGROUND
¶2 Under Department of Defense (DOD) regulations, civilian employment in
the competitive service in foreign areas generally is limited to a period of
5 continuous years. DOD Instruction (DODI) No. 1400-25, Volume (Vol.) 1230,
¶ 4.h.(1) 2; see 10 U.S.C. § 1586 (generally authorizing the establishment of
rotation programs to facilitate the interchange of civilian DOD employees
between posts of duty in and outside the United States). An employee who is
covered by the 5-year limitation, and who does not have a statutory right to return
to a position in the United States, 3 must, as a condition of employment, agree to
2
Prather v. Department of the Army, MSPB Docket No. DC-0752-14-0327-I-1, Initial
Appeal File (IAF), Tab 5 at 23-35.
3
Generally, competitive service career and career-conditional employees who are
employed in the United States or another nonforeign area and who accept an assignment
in either a foreign area or in a nonforeign area different from the one where they are
3
register in the agency’s Priority Placement Program (PPP) before the end of the
5-year period or before the end of an approved extension. DODI No. 1400-25,
Vol. 1230, Enclosure (Encl.) 2, ¶ 5.a.(2). The employee also must agree that
failure or refusal to register in the PPP is a basis for separation. Id., Encl. 2,
¶ 5.a.(3)(c).
¶3 The DOD PPP Handbook, 4 which sets out standard operating procedures for
the PPP, provides that PPP registration will be denied when the registering
activity—in this case, the agency’s Civilian Personnel Advisory Center (CPAC) —
has knowledge of performance or conduct that directly and negatively affects the
employee’s qualifications, eligibility, or suitability for placement. DOD PPP
Handbook, chapter 3, ¶ C.16. In the case of “substantiated conduct or
performance problems,” regardless of whether formal disciplinary action is taken,
eligibility will be withheld for a period of time to ensure that the necessary
corrective measures have had their intended effect. Id., chapter 3, ¶ C.16.(a).
Local agency policy further specifies that when CPAC has knowledge of a
conduct or performance problem, PPP registration must be withheld for a period
of at least 90 days. Prather v. Department of the Army, MSPB Docket
No. DC-0752-14-0327-I-1, Initial Appeal File (IAF), Tab 5 at 107.
¶4 On September 29, 2008, the appellant received a career appointment to the
Supervisory Food Service Operations Specialist position in Wiesbaden, Germany.
IAF, Tab 5 at 22. Because the appellant was recruited in Germany, and therefore
did not have statutory return rights, the agency required him to sign a Department
of the Army Form 5370-R, Rotation Agreement – Employees Recruited Locally in
Foreign Areas. Id. at 36-37. The Rotation Agreement provided that his overseas
assignment was limited to an initial tour and any management-initiated extension
employed currently shall be granted statutory return rights. 10 U.S.C. § 1586(b); DODI
No. 1400-25, Vol. 1230, ¶ 4.i.
4
IAF, Tab 5 at 50-106. The PPP Handbook has since been updated, but we will refer
here to the version that was in effect at the time of the events at issue in this appeal.
4
thereof, and that he did not have a right to extensions beyond the initial tour.
Id. at 36. The Rotation Agreement further provided that, because he did not have
return rights, he would apply for assignment to the United States under the PPP
before completing his initial tour and any extensions thereof. Id. The appellant
acknowledged that failure to comply with the “conditions of employment”
described in the agreement could result in a proposal to remove him from Federal
service. Id.¶5 The appellant’s initial tour was limited to 24 months, endi ng September 28,
2010, but was subsequently extended to September 20, 2012, and again to
June 28, 2013. Id. at 37. The agency denied his request for an additional
extension, and he agreed to register for the PPP. Prather v. Department of the
Army, MSPB Docket No. DC-0752-14-0327-B-1, Remand File (RF), Tab 26
at 10. The appellant’s PPP registration was initially delayed due to his receipt of
a November 28, 2012 letter of reprimand, which rendered him ineligible for
90 days, but he successfully registered for the PPP on March 15, 2013, before the
end of his tour. IAF, Tab 5 at 48-49, 109-11. It is undisputed that the agency had
discretion to allow him to continue in his position beyond the end of his tour,
provided he remained registered in the PPP. IAF, Tab 34, Hearing Compact Disc
(HCD), Track 1 (testimony of Human Resource Specialist).
¶6 On October 9, 2013, the appellant had a confrontation with his second -line
supervisor concerning the supervisor’s instruction to keep his office door open.
The following day, two coworkers who witnessed the event provided written
statements relating that the appellant created a disturbance by yelling at the
supervisor, and then yelling at one of the coworkers. IAF, Tab 5 at 112-14. On
October 11, 2013, a Human Resource Specialist in the Wiesbaden CPAC
informed the appellant that he was being removed from the PPP “because of
misconduct determined by management.” IAF, Tab 9 at 10. Subsequently, on
October 22, 2013, the same supervisor proposed to remove the appellant based on
the following charges: (1) the expiration of his tour of duty; (2) his ineligibility
5
to remain in the PPP; and (3) his failure to abide by the terms of the Rotation
Agreement. Id. at 116-18. The proposing official explained that the appellant’s
removal from the PPP “was required because of your disrespectful conduct and
for causing a disturbance” on October 9, 2013. Id. at 116. The proposing official
proceeded to relate his own version of the events of that day, which corresponded
with the statements provided by the two coworkers. Id. at 117. The appellant
submitted a written response, in which he disputed the statements by the
proposing official and the two coworkers, alleged that the proposing official had
initiated the argument as a pretext for removing him, and contended that he was
unlawfully removed from the PPP without prior notice. Id. at 119-36. After
considering the appellant’s response, the deciding official sustained the proposed
action, and the appellant was removed effective December 20, 2013.
Id. at 137-43.
¶7 The appellant filed a timely Board appeal, which the administrative judge
initially dismissed for lack of jurisdiction. IAF, Tab 10, Initial Decision. The
full Board remanded the appeal for a jurisdictional hearing, and the
administrative judge determined on remand that the Board had jurisdiction over
the appellant’s removal. RF, Tabs 1, 15. Following a hearing, the administrative
judge issued an initial decision sustaining the action. RF, Tab 32, Remand Initial
Decision (RID). The administrative judge sustained all three charges, found that
the appellant had failed to establish an affirmative defense of retaliation for EEO
activity, and further found that the removal penalty was reasonable. Id. The
appellant filed the instant petition for review, to which the agency has responded.
Petition for Review (PFR) File, Tabs 2, 4. On Nove mber 4, 2016, the Board
issued an order directing the agency to submit additional information concerning
the PPP. PFR File, Tab 5. 5 The agency filed a timely response to the Board’s
order, and the appellant also responded. PFR File, Tabs 8 -9.
5
Specifically, the Board asked the agency to address the following topics:
6
ANALYSIS
The appellant’s removal from the PPP is not appealable to the Board under
5 C.F.R. § 330.214.
¶8 On review, the appellant first argues that his removal from the PPP is
appealable to the Board under 5 C.F.R. § 330.214, 6 which provides that
an individual who believes that his reemployment rights under subpart B of
5 C.F.R. part 330 have been violated may appeal to the Board. PFR File, Tab 2
at 7-10. Subpart B of 5 C.F.R. part 330 governs the operation of the
Reemployment Priority List (RPL), which is a required component of an agency’s
placement programs to assist current and former competitive-service employees
who will be or were separated by reduction in force (RIF) or who have recovered
from a compensable work-related injury after more than 1 year. 5 C.F.R.
§ 330.201(a). Subpart B also provides that an agency may operate an alternative
placement program, approved by the Office of Personnel Management (OPM), as
an exception to the RPL regulations, but this provision is limited in scope to
reemployment priority because of RIF separation. 5 C.F.R. § 330.201(d). Here,
regardless of whether the PPP was approved by OPM, the appellant has not
1. What is the purpose and historical origin of the [PPP]?
2. Under what legal authority, statutory or otherwise, was the appellant required
to maintain PPP registration as a condition of continued employment?
3. Does the agency’s implementation of the PPP, as pertinent to this case, diffe r
from or expand on [DOD] PPP policy? If so, how?
4. The DOD PPP Handbook provides that, in the case of “substantiated” conduct
or performance problems, eligibility for the PPP will be withheld for a period
of time to ensure that the necessary corrective measures have had their
intended effect. What does the term “substantiated” mean in this context, and
how does the agency measure what is/is not “substantiated”?
PFR File, Tab 5.
6
The appellant cites 5 C.F.R. § 330.209, where the Board appeal rights provision was
located prior to March 3, 2011. PFR File, Tab 2 at 8-9; see 5 C.F.R. § 330.209 (2010);
75 Fed. Reg. 67589-01 (Nov. 3, 2010) (revising and recodifying portions of 5 C.F.R.
part 330); see also Roberto v. Department of the Navy, 440 F.3d 1341, 1350-51
(Fed. Cir. 2006) (interpreting the predecessor regulation at 5 C.F.R. § 330.209).
7
alleged that the agency violated any reemployment rights arising from RIF
separation or recovery from a compensable injury. Thus, we find that his
challenge to the agency’s decision to remove him from the PPP is not within the
Board’s jurisdiction under 5 C.F.R. § 330.214.
The administrative judge erred in adjudicating an affirmative defense of
retaliation for EEO activity.
¶9 The appellant further contends on review that the administrative judge did
not apply an appropriate standard of review to his “disparate treatment” claim.
PFR File, Tab 2 at 10-11. He asserts that his intent was not to raise
an affirmative defense to the removal action, which he would have the burden of
proving, but rather to raise a disparate penalties claim in opposition to the
agency’s penalty determination, which is an issue on which the agency bears the
burden of proof. Id.¶10 The record supports the appellant’s assertion. In the summary of the
prehearing conference for the merits hearing, the administrative judge indicated
that the appellant had raised an affirmative defense of retaliation for EEO
activity. RF, Tab 3 at 3. The appellant did not file a written objection to the
summary, but at the hearing, his attorney explicitly stated that he was not raising
an affirmative defense to the removal action and that the appeal was not a mixed
case. HCD, Track 2 at 47:00 (statement of the appellant’s attorney).
Nonetheless, the administrative judge made a finding that the appellant’s removal
was not the result of retaliation for EEO activity, and provided notice of
mixed-case appeal rights. RID at 10-12, 16-17.
¶11 We agree with the appellant that the administrative judge should not have
adjudicated an affirmative defense the appellant indicated he did not wish to
pursue. Accordingly, we vacate the portion of the initial decision addressing the
issue of retaliation for EEO activity. We address the disparate penalties claim
below in our discussion of the agency’s penalty determination.
8
The agency has met its burden of proof on charges (1) and (2), which we construe
as a single charge of failure to maintain a condition of employment .
¶12 We find that charge (1), the expiration of the appellant’s tour of duty, and
charge (2), his ineligibility to remain in the PPP, together amount to a single
charge of failure to maintain a condition of employment. 7 When, as in this case, a
charge of failure to maintain a condition of employment is based on the
employing agency’s withdrawing or revoking its certification or other approval of
the employee’s fitness or other qualifications to hold his position, the Board’s
authority generally extends to review of the merits of that withdrawal or
revocation. Adams v. Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007),
aff’d, 273 F. App’x 947 (Fed. Cir. 2008). In conducting that review, the Board
determines whether, under the circumstances, the agency acted re asonably in
denying the required certification or approval. See id., ¶ 19. The Board has
recognized a narrow exception in cases in which the adverse action is based on
the withholding of a national security credential, such as a security clearance or
eligibility to occupy a sensitive position. Id., ¶ 11; see Department of the Navy v.
Egan, 484 U.S. 518, 530-31 (1988); Kaplan v. Conyers, 733 F.3d 1148, 1166
(Fed. Cir. 2013) (en banc). This is not such a case, however. Accordingly, in
order to determine whether the agency proved i ts charge, we will consider
whether, under the circumstances, the agency acted reasonably in removing the
appellant from the PPP. Adams, 105 M.S.P.R. 50, ¶ 19.
¶13 As discussed above, the agency’s policy provides that “[i]n the case of
substantiated conduct or performance problems,” an employee’s eligibility for the
PPP will be withheld for a period of time to ensure that the necessary corrective
measures have had their intended effect. DOD PPP Handbook, chapter 3,
¶ C.16(a). The PPP Handbook further explains that, for purposes of determining
7
As previously discussed, the end of the appellant’s tour of duty would not have
precluded his continued employment had he remained in the PPP. Similarly, his
enrollment in the PPP did not become a requirement for continued employment until his
tour of duty expired.
9
PPP eligibility in accordance with that provision, “conduct problems” include the
following: (1) attendance deficiencies such as recurring tardiness or unexcused
absence, or abuse of sick leave; (2) conduct on or off the job that could render the
employee unsuitable for Federal employment under 5 C.F.R. § 731.202; and
(3) any other conduct that adversely affects the productivity and efficiency of the
organization and could potentially require disciplinary action. DOD PPP
Handbook, chapter 3, ¶ C.16(c).
¶14 We find that, under the circumstances, the agency reasonably determined
that the appellant had substantiated conduct problems that required his removal
from the PPP. See IAF, Tab 9 at 10 (explaining that the appellant was being
removed from the PPP “because of conduct determined by management”). In
addition to the proposing official’s personal knowledge, the evidence available to
the agency included two written statements, one of them sworn, by disinterested,
firsthand witnesses to the October 9, 2013 incident. IAF, T ab 5 at 112-14. Both
witnesses related that the appellant created a disturbance by arguing with and
yelling at the proposing official, and then yelling at one of the coworkers. Id.While the appellant attempted to identify discrepancies in their stateme nts in his
response to the proposed removal, we find the two statements are consistent with
each other, as well as the recollection of the proposing official. Id. at 112-14,
117. Given the available evidence, it was reasonable for the agency to conclude
that the statements by the coworkers were accurate in their relevant details, and
that the appellant did in fact create a workplace disturbance. Cf. Borninkhof v.
Department of Justice, 5 M.S.P.R. 77, 87 (1981) (stating that the Board generally
assesses the probative value of hearsay by considering various factors that include
the availability of persons with firsthand knowledge to testify at the hearing,
whether the statements of the out-of-court declarants were sworn, whether the
declarants were disinterested witnesses to the events and whether their statements
were routinely made, the consistency of the out-of-court statements with other
statements and evidence, whether there is corroboration or contradiction in the
10
record, and the credibility of the out-of-court declarant). Moreover, even
accepting as true the appellant’s contention that the proposing official initiated
the argument, the appellant’s admitted participation was unnecessarily disruptive,
adversely affected the productivity and efficiency of the office, and could have
potentially required at least a minor disciplinary action. We conclude that, under
the circumstances present here, the agency reasonably determined that it had
knowledge of substantiated conduct problems, thus rendering the appellant
ineligible for the PPP, at a time when registration in the PPP was a condition of
his continued employment. See DOD PPP Handbook, chapter 3, ¶ C.16(c).
Accordingly, we sustain the charge of failure to maintain a condition of
employment.
Charge (3) is not sustained.
¶15 We construe charge (3), concerning the appellant’s alleged “[f]ailure to
abide by [the] terms” of the Rotation Agreement, as an alleged breach of contract.
Notwithstanding its title, however, the Rotation Agreement is not contractual in
nature, but rather serves a “notice function, to warn prospective overseas
employees of the restrictions on their employment.” Soper v. United States,
677 F.2d 869, 872 (Ct. Cl. 1982). Because the Rotation Agreement was not in
fact a contract, we do not sustain the charge.
The removal penalty is sustained.
¶16 The appellant also argues on review that the administrative judge failed to
analyze the agency’s penalty determination under the applicable Douglas factors.
PFR File, Tab 2 at 12-16; see Douglas v. Veterans Administration, 5 M.S.P.R.
280, 305-06 (1981) (listing 12 factors generally recognized as relevant for
consideration in determining the appropriateness of a penalty). We find,
however, that the penalty determination in this case is not subject to a typical
Douglas factors analysis. As our reviewing court has explained, the Douglas
mitigation analysis “reflects the general principle that penalties should be
11
proportional to misconduct.” Ryan v. Department of Homeland Security,
793 F.3d 1368, 1372 (Fed. Cir. 2015). Consistent with that principle, the
majority of the Douglas factors concern misconduct charges and have no
application to adverse actions taken for other reasons, such as failure to maintain
a condition of employment. Douglas, 5 M.S.P.R. at 305-06; see Munoz v.
Department of Homeland Security, 121 M.S.P.R. 483, ¶ 15 (2014) (holding that a
“traditional” Douglas factors analysis does not apply to an adverse action based
on inability to meet a condition of employment, because such an action is not a
“sanction or penalty for misconduct”).
¶17 In determining the appropriate penalty for a charge of failure to maintain a
condition of employment, the Board instead considers a more limited set of
factors, which generally include (1) the nature of the offense, (2) its effect on the
appellant’s performance of the job, and (3) the availability and effect of
alternative sanctions. 8 Penland v. Department of the Interior, 115 M.S.P.R. 474,
¶ 8 (2010). The first two considerations generally weigh in favor of removal,
because an employee who does not meet the conditions of employment cannot
perform his job. Id. As to the availability of alternative sanctions, the appellant
argues that, instead of removing him, the agency could have granted an additional
tour extension, thus permitting him time to correct any conduct issues and regain
eligibility for the PPP. PFR File, Tab 2 at 16-17. The deciding official testified
that he did consider the possibility of such an extension. HCD, Track 2
(testimony of deciding official). However, as the appellant acknowledged when
he signed the Rotation Agreement, extensions are not automatic a nd not a matter
of right. IAF, Tab 5 at 36. In addition, the proposing official provided
8
When an appellant is removed for failure to maintain a security clearance or eligibility
to occupy a sensitive position, or for failure to complete an “up-or-out” training
program, and there is no law or regulation granting the employee a substantive right to
reassignment, the Board will not inquire whether reassignment is a possible alternative
sanction. Munoz, 121 M.S.P.R. 483, ¶¶ 15-16; Radcliffe v. Department of
Transportation, 57 M.S.P.R. 237, 242 (1993). This is not such a case, however.
12
unrebutted testimony that, due to a change in mission, the appellant’s position no
longer needed to be filled. HCD, Track 2 (testimony of proposing official).
Under these circumstances, we find that it was not unreasonable for the agency to
remove the appellant instead of extending his tour.
¶18 Finally, we find no merit to the appellant’s claim of disparate penalties.
When an employee raises a disparate penalties claim, the proper inquiry is
whether the agency knowingly treated employees who engaged in the same or
similar offense differently “in a way not justified by the facts, and intentionally
for reasons other than the efficiency of the service. ” Singh v. U.S. Postal Service,
2022 MSPB 15, ¶ 14 (quoting Facer v. Department of the Air Force, 836 F.2d
535, 539 (Fed. Cir. 1988)). Here, the appellant has not identified any employees
whom he alleges were similarly situated. Consequently, his disparate penalties
claim does not undercut the agency’s showing that the removal penalty was
reasonable.
¶19 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 9
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 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
9
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.
13
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 cas e, 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).
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
14
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
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 secur ity. 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
15
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
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. 10 The court of appeals must receive your
10
The original statutory provision that provided for judicial r eview 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 judicia l 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.
16
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
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.