Franz Muller v. Department of the Interior ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANZ MULLER, DOCKET NUMBER
Appellant, SF-0752-13-0151-I-2
v.
DEPARTMENT OF THE INTERIOR, DATE: February 13, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Stephanie L. Ayers, Esquire, and Thad M. Guyer, Esquire, Medford,
Oregon, for the appellant
Chandra R. Postma, Esquire, Anchorage, Alaska, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal from service. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
the erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant held the position of Airplane Pilot (Law Enforcement) for the
agency’s Fish and Wildlife Service (FWS), in Cold Bay, Alaska. MSPB Docket
No. SF-0752-13-0151-I-1 (I-1), Initial Appeal File (IAF), Tab 4, Subtab 4
(Standard Form (SF) 50 documenting removal), Subtab 4k (position description).
Following a February 2010 accident involving his piloting of an FWS plane, the
agency’s Office of Aviation Services (OAS) convened a Pilot Review Board
(PRB) to determine what, if any, action to take regarding the appellant’s pilot
authorization card. 2 See, e.g., I-1, IAF, Tab 12 at 13-28 (PRB report). The PRB
considered the appellant’s accident, as well as several other incidents where he
had reportedly failed to follow agency-specific piloting policies. Id. Ultimately,
the PRB recommended that the agency reinstate the appellant’s pilot authorization
card only if several conditions were met. Id. at 13-14. Among them, the PRB
“strongly recommend[ed]” that the appellant be moved from his isolated position
2
The appellant’s position required that he hold both a pilot’s license, issued by the
Federal Aviation Administration (FAA), and a pilot authorization card, issued by the
OAS, which was previously known as the Aviation Management Directorate. See
MSPB Docket No. SF-0752-13-0151-I-2 (I-2), IAF, Initial Decision (ID) at 2; I-1, IAF,
Tab 4, Subtab 4k at 6 (relevant portion of the position description).
3
in Cold Bay to one where he could receive “adequate oversight and supervision
from an aviation knowledgeable supervisor and [could] be mentored within a
positive [agency] safety culture atmosphere.” Id. at 14. The agency determined
that it had no such positions available in the appellant’s region (Alaska). I-1,
IAF, Tab 4, Subtab 4g at 2. Therefore, the associate director of OAS declined to
reinstate the appellant’s pilot authorization card. I-1, IAF, Tab 4, Subtab 4f.
¶3 The agency removed the appellant for “Loss of [Agency] Pilot
Authorization.” I-1, IAF, Tab 4, Subtab 4a (decision letter), Subtab 4e (proposal
letter). The appellant appealed his removal to the Board. I-1, IAF, Tab 1. After
holding the requested hearing, the administrative judge sustained the appellant’s
removal. ID. The appellant has filed a petition for review. 3 I-2, Petition for
Review (PFR) File, Tab 1. The agency has filed a response, PFR File, Tab 3, and
the appellant has replied, PFR File, Tab 6. 4
The administrative judge properly found that the agency met its burden of
proving the charge.
¶4 On review, the appellant argues that the administrative judge erred in
sustaining the charge that he lost his pilot authorization. PFR File, Tab 1 at
10-11, 18-19, 22-28, 31-32. We do not agree.
¶5 Generally, in an adverse action appeal, the agency must prove its charge by
a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of
the evidence is that degree of relevant evidence that a reasonable person,
3
The appellant’s petition did not contain any arguments as to the administrative judge’s
findin gs on the affirmative defense of age discrim ination or nexus. Accordingly, we
will not revisit or disturb the judge’s well-reasoned analysis of those issues on review.
See ID at 28-32.
4
In part, the appellant’s petition for review and reply improperly rely upon Board
in itial decisions for support. See PFR File, Tab 1 at 31-32 (citing “Steele v. DOI”), 36
(citing “Sullivan v. DOT”), Tab 6 at 10 n.3 (citing “Mital v. Dep’t of Agric”). Because
in itial decisions are not precedential, we decline to consider them. See 5 C.F.R.
§ 1201.113.
4
considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
¶6 Here, the administrative judge determined that the agency met its burden of
proof as to the charge by showing the following: (1) the appellant held a position
that required a pilot authorization; (2) the agency revoked that authorization; and
(3) the agency acted reasonably in revoking the authorization. ID at 5-6; see
generally Adams v. Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007) (when
a charge consists of the employing agency’s withdrawal or revocation of its
certification or other approval of the employee’s fitness or other qualifications to
hold his position, the Board’s authority generally extends to a review of the
merits of that withdrawal or revocation), aff’d, 273 F. App’x 947 (Fed. Cir.
2008). On review, the appellant does not dispute the first two elements, but
presents arguments as to the third—whether the agency acted reasonably in
revoking his pilot authorization card. His arguments are not persuasive.
¶7 The appellant first asserts that because the administrative judge dismissed
some of the incidents in the PRB report as unproven, he should have but failed to
consider whether the remaining incidents 5 still warranted the PRB’s
recommendations, which ultimately resulted in the revocation of his pilot
authorization card and removal for the same. PFR File, Tab 1 at 10-11.
However, the administrative judge specifically addressed this question and found
that the proven incidents were sufficient bases for the PRB’s recommendations.
See ID at 5-6, 17-19. Among other things, the administrative judge concluded
that the agency established multiple instances of the appellant violating
agency-specific flying policies. ID at 17-18. Therefore, we find that the
5
The administrative judge found that the agency proved that the appellant: (1) vio lated
agency policy by flying in “visual flight rules o ver-the-top” conditions on one occasion;
(2) vio lated agency policy by flying over a body of water beyond glidin g d istance to
shore on one occasion; (3) violated agency policy by using his personal p lane for
official flights on at least two occasions; (4) failed to understand carburetor heat; and
(5) failed to take responsibility for his accident. ID at 5-16.
5
administrative judge correctly found it reasonable for the PRB to conclude that it
would help prevent further violations to have his pilot authorization contingent
upon him being stationed in a location where he could be under direct supervision
of an aviation-savvy manager and integrated into the agency’s culture and
policies. ID at 17-18.
¶8 The appellant next asserts that the administrative judge failed to consider
evidence that he was a highly trained pilot with a vast array of experience. PFR
File, Tab 1 at 18-19. We disagree. The administrative judge explicitly addressed
the issue, concluding that while the appellant may have been “extremely well
trained” as to flying generally, the agency had legitimate concerns as to his
adherence to agency-specific flight policies. ID at 18.
¶9 The appellant also alleges that he reported far more specific and detailed
bias in the PRB process than the administrative judge acknowledged. PFR File,
Tab 1 at 22-25, 31-32. But again, the administrative judge adequately addressed
this issue below. See ID at 18-19. The appellant’s bias argument is premised
upon an assertion that his FWS regional aviation manager tainted the PRB
process. See, e.g., PFR File, Tab 1 at 22-25; I-1, IAF, Tab 14 at 47 of 54. The
administrative judge considered this argument, finding that the FWS regional
aviation manager emailed a PRB member prior to the start of its inquiry and that
this contact was less than ideal, but that it did not taint the process. 6 ID at 18-19.
The administrative judge correctly reasoned that the PRB member provided
testimony indicating that he was not influenced by the email, and the FWS
regional aviation manager’s views were hardly secret since he was later
interviewed as part of the PRB process. See ID at 18-19. The contact between
the appellant’s supervisor and the prospective PRB member was relatively
6
The sender asked if the recipient would be willing to serve on the PRB. I-1, IAF, Tab
14 at 47 of 54. In relevant portion, the message stated, “I have been invo lved in the
investigation . . . and they do not want me to be on the board because I have already
decided that he should not fly for us. We need an unbiased review.” I d.
6
innocuous on its face, and it merely provided an early indication of what the
supervisor was likely to discuss later, when the full PRB interviewed him. While
the appellant would have us find that it tainted the entire PRB process, we are not
convinced that this one off-hand comment is of consequence.
¶10 Finally, the appellant alleges that the PRB’s recommendations were a
“decisional sham that [were] not in any meaningful sense a recommendations
[sic] for saving appellant’s job.” PFR File, Tab 1 at 25-28. He seems to suggest
that the PRB should have offered different conditions on the reinstatement of his
pilot authorization, such as remote mentoring, which would have allowed him to
retain his isolated position in Cold Bay. See id. at 26-27. However, the appellant
has failed to present any evidence that the PRB was tasked with saving his job.
Moreover, the administrative judge addressed the viability of alternative remedial
measures below, finding that the agency had legitimate reasons for rejecting each.
See ID at 19-21. We agree with that determination. The alternative mentoring
methods the appellant has suggested differ from those recommended by the PRB
in that they would have either not allowed for a similar degree of supervision or
they would have required a significant and otherwise unnecessary burden to the
agency, such as the relocation of other employees.
¶11 In sum, we find that the appellant has failed to present any reason to disturb
the administrative judge’s conclusion that the agency proved his loss of agency
pilot authorization. See Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the
administrative judge’s findings where the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
The appellant’s argument that he was unfairly subjected to a PRB fails.
¶12 The appellant asserts, as he did below, that he was subjected to PRB review
after just one accident, while other pilots had been involved in one or more
7
accidents without ever being subjected to a PRB. PFR File, Tab 1 at 28-31; I-1,
IAF, Tab 35 at 23-25. We find no merit to the argument.
¶13 The administrative judge found that the PRB was convened not solely
because of the February 2010 accident, but also because the investigation into
that accident revealed that the appellant may have violated agency policy on other
occasions. ID at 19. Citing testimony from agency officials, the administrative
judge found that the accident played but a minor role in the PRB’s review. ID at
19. The record supports this conclusion and the appellant has presented no
evidence to the contrary. The administrative judge also found that, while the
appellant had identified others who had similarly been involved in accidents, their
circumstances were distinguishable. ID at 19. We agree with that finding.
¶14 The appellant’s first comparator, D.S., was reportedly involved in three
accidents without ever going before a PRB. See PFR File, Tab 1 at 28-29.
However, the record does not establish that D.S. was at fault in those accidents,
or that he engaged in a pattern of policy violations. See id.; Hearing Transcript
(HT) at 85-90. The appellant’s next comparator, R.K., was reportedly involved in
one accident and he erred in moving the airplane after that accident, but he was
not brought before a PRB. PFR File, Tab 1 at 29-30. Again, the record does not
establish that R.K. engaged in a pattern of policy violations. See id.; HT at
90-93. Accordingly, neither is a meaningful comparator to the appellant, who
was involved in an accident and engaged in a pattern of policy violations. The
appellant also identified two other comparators, M.M. and H.P. PFR File, Tab 1
at 29-31. However, like the appellant, both M.M. and H.P. did appear before a
PRB. See id.; HT at 194-202, 280. Therefore, they were treated the same as the
appellant by being brought before the PRB.
8
¶15 If the appellant intends this argument to be construed as one of disparate
penalty, 7 it still fails. Where, as here, all of the agency’s charges are sustained,
the agency’s penalty determination is entitled to deference and should be
reviewed only to determine whether it is within the parameters of reasonableness.
See Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). Among those
factors the Board will review in determining the reasonableness of the penalty is
its consistency with those imposed upon other employees for the same or similar
offenses. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
The agency’s burden to prove consistency of penalties is triggered when there is
enough similarity between both the nature of the misconduct and other factors to
lead a reasonable person to conclude that the agency treated similarly-situated
employees differently. Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶¶ 20,
24 (2012). Here, the record reflects that none of the employees identified by the
appellant as comparators was engaged in similar policy violations or that any
were similarly charged with losing their pilot authorization. See generally
Penland v. Department of the Interior, 115 M.S.P.R. 474, ¶ 11 (2010) (finding
removal a reasonable penalty where the agency charged an Airplane Pilot with
loss of pilot authorization and the charge was sustained).
The administrative judge properly found that the appellant failed to meet his
burden of proving whistleblower retaliation as an affirmative defense.
¶16 The administrative judge concluded that the appellant failed to meet his
burden because he did not prove that any of his alleged disclosures were
protected for purposes of whistleblower retaliation. ID at 21-28 (citing Ryan v.
Department of the Air Force, 117 M.S.P.R. 362, ¶ 12 (2012)). On review, the
7
Because the appellant has not claimed any sort of prohibited d iscrim ination in
connection with this claim, we have not considered his argument as one of disparate
treatment. See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010)
(an allegation that the agency treated an appellant disparately to another employee,
without claiming prohibited discrim ination, is an allegation of disparate penalties to be
proven by the appellant, but it is not an affirmative defense).
9
appellant presents several arguments. He asserts that the administrative judge
incorrectly applied the Whistleblower Protection Act (WPA), instead of the
Whistleblower Protection Enhancement Act of 2012 (WPEA), PFR File, Tab 1 at
32-33; the administrative judge failed to consider his reports of maintenance
issues immediately after his accident in 2010, id. at 19-22, and erred in finding
that some of his disclosures were not protected, id. at 19-22, 33-37; and there was
clear retaliatory animus in the PRB process due to his whistleblowing, id. at
22-24. We find no merit to these arguments.
¶17 In an adverse action appeal, such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Shannon v.
Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 21 (2014). Once the agency
proves its adverse action case by a preponderance of the evidence, the appellant
must show by preponderant evidence that he engaged in whistleblowing activity
by making a protected disclosure under 5 U.S.C. § 2302(b)(8) and that the
disclosure was a contributing factor in the agency’s personnel action.
Shannon, 121 M.S.P.R. 221, ¶ 21. A protected disclosure is a disclosure of
information that the appellant reasonably believes evidences any violation of any
law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health or safety. 5
U.S.C. § 2302(b)(8)(A); Shannon, 121 M.S.P.R. 221, ¶ 22.
¶18 Here, the appellant first asserts that the administrative judge incorrectly
applied the WPA, instead of the WPEA, concerning disclosures made in the
normal course of duty. PFR File, Tab 1 at 32-33. However, this assertion is
incorrect. ID at 22-23; see generally Day v. Department of Homeland
Security, 119 M.S.P.R. 589, ¶¶ 12, 26 (2013) (finding that the WPEA simply
clarified the term “disclosure” in the WPA). As properly noted by the
administrative judge, the WPEA clarified that a disclosure made during an
employee’s normal course of duties is not excluded from whistleblower
protections. See ID at 22-23; see also 5 U.S.C. § 2302(f)(2). The administrative
10
judge went on to state that the appellant had the burden of showing that the
agency took the action in reprisal for his disclosure. ID at 23. This is consistent
with Board precedent issued after the issuance of the initial decision in this case.
See Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 15 (2014). 8
¶19 The disclosures the appellant made in the normal course of duty were
reports of maintenance issues before his accident with the agency aircraft he flew.
See ID at 22. However, as the administrative judge noted, the record contains no
evidence that he reported these issues outside the normal channels for doing so,
and no evidence that these disclosures had any bearing on his removal. See ID at
22. Instead, the record included testimony from agency officials emphasizing
that it was crucial for pilots to identify and report potential safety problems. See
ID at 22. Hence, the administrative judge found that the appellant failed to meet
his burden regarding his pre-accident disclosures of maintenance issues made in
the normal course of duty. We agree.
¶20 Next, although the appellant asserts that the administrative judge failed to
consider his claim of reprisal for his reports of maintenance issues immediately
after his accident in 2010, PFR File, Tab 1 at 19-22, the initial decision reflects
otherwise, ID at 24. Accordingly, we proceed to whether the judge rightly found
that these were not protected disclosures.
¶21 The appellant asserts that the administrative judge erred in finding that his
“disclosures of lack of airworthiness to investigators and officials outside his
8
5 U.S.C. § 2302(f)(1) sets out several types of disclosures that shall not be excluded
from the whistleblower protections of 5 U.S.C. § 2302(b)(8). By contrast, 5 U.S.C.
§ 2302(f)(2) separately addresses disclosures made during the normal course of duty, to
include additional language indicating that such a disclosure shall not be excluded from
the whistleblower protections of 5 U.S.C. § 2302(b)(8) “if any employee who has
authority to take, direct others to take, recommend, or approve any personnel action
with respect to the employee making the d isclosure, took, failed to take, or threatened
to take or fail to take a personnel action with respect to that employee in reprisal for the
disclosure.” Disclosures made in the course of duty are protected only if the employee
also proves that the agency took the personnel action with an improper retaliatory
motive. Benton-Flores, 121 M.S.P.R. 428, ¶ 15.
11
chain of command” were not protected. PFR File, Tab 1 at 34-37. Although the
appellant failed to cite specific disclosures in his petition, we have construed his
argument as implicating his February 18, 2010 letter and his March 12, 2010
email, both of which expressed concerns about the crashed airplane’s brakes and
carburetor, see I-1, IAF, Tab 14 at 6-8, 12-17 of 54, as well as the June 28, 2010
email, in which he questions the absence of an aircraft maintenance log
documenting that airplane’s inspections, see I-1, IAF, Tab 16 at 27 of 74. 9 He
seems to argue that the February 18 and March 12, 2010 correspondences were
protected because the information related to a substantial and specific danger to
public health or safety, and/or gross mismanagement, while the June 28, 2010
correspondence was protected because it concerned the violation of a law, rule, or
regulation. See PFR File, Tab 1 at 34-36. We disagree.
¶22 A protected disclosure is one that the appellant reasonably believed to
evidence gross mismanagement, a gross waste of funds, an abuse of authority, a
substantial and specific danger to public health or safety, or any violation of a
law, rule, or regulation. 5 U.S.C. § 2302(b)(8). The test for determining if an
employee’s belief concerning such a matter is reasonable is as follows: “could a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee reasonably conclude that the actions of the
government evidence [the wrongdoing in question]?” Lachance v.
White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
¶23 In determining whether a disclosure is protected because of a reasonable
belief that it evidenced a substantial and specific danger to public health or
safety, the Board considers factors such as (1) the likelihood of harm resulting
9
Below, the administrative judge also considered several other disclosures, finding
none protected. ID at 22-28. However, the appellant’s petition only directs our
attention to “disclosures of lack of airworthiness to investigators and officials outside
his chain of command.” PFR File, Tab 1 at 34-37. Accordingly, we will not revisit the
administrative judge’s well-reasoned findings as to any alleged disclosures falling
outside that purview.
12
from the danger, (2) the imminence of the potential harm, and (3) the nature of
the potential harm. Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197,
¶ 14 (2011). Alternatively, gross mismanagement is action or inaction which
creates a substantial risk of significant adverse impact upon the agency’s ability
to accomplish its mission. Francis v. Department of Air Force, 120 M.S.P.R.
138, ¶ 12 (2013).
¶24 Here, the appellant crashed the agency’s airplane on February 11, 2010, and
he submitted correspondence to agency officials, expressing concerns about that
plane’s brakes and carburetor, on February 18, 2010, and March 12, 2010. I-1,
IAF, Tab 14 at 6-8, 12-17 of 54. However, the record reveals that the accident
caused extensive damage to the airplane, such that it would not be in service
anytime in the near future. See, e.g., id. at 3-4 of 54 (March 3, 2010 article about
the accident with photos), 12 of 54 (letter from the appellant describing the
damaged portions of the plane as including the wings, cowling, spinner, and
propeller). Consequently, the administrative judge correctly determined that the
appellant failed to prove that he had a reasonable belief that his post-accident
maintenance disclosures were protected. See ID at 24. The appellant’s
February 18, 2010 and March 12, 2010 correspondences did not disclose an
ongoing threat to safety, nor did either identify gross mismanagement. See ID at
24; cf. Parikh, 116 M.S.P.R. 197, ¶¶ 12, 15 (finding a disclosure protected where
the appellant reasonably believed that he disclosed systematic problems of
untimely and inadequate patient care that were likely to result in severe harm);
see generally White v. Department of the Air Force, 95 M.S.P.R. 1, ¶¶ 38-40
(2003) (finding that a disclosure, alleging that the agency was requiring
adherence to unworkable and untenable standards, was not protected as a gross
mismanagement disclosure), aff’d, 391 F.3d 1377 (Fed. Cir. 2004).
¶25 Similarly, the appellant’s June 28, 2010 email questioning whether
maintenance logs should be kept in agency airplanes was not protected. See ID at
25-26; I-1, IAF, Tab 16 at 27 of 74. Below, and on review, the appellant has
13
suggested that aircraft operators are required to have ready-access to maintenance
documentation. E.g., PFR File, Tab 1 at 34. As the administrative judge noted,
the appellant made this assertion but failed to cite any law, rule, or regulation
requiring that the agency keep maintenance logs in its airplanes. See ID at 25.
Moreover, it is evident that the appellant knew that the documentation was
readily available, albeit in a location he may not have preferred. See I-1, IAF,
Tab 16 at 27 of 74 (the appellant’s June 28, 2010 email questioning whether the
documentation should be in the airplane, and his supervisor’s response indicating
that the log books were kept at a central location, where the appellant knew that
he could review them as needed). Therefore, we agree with the administrative
judge’s conclusion that the appellant did not have a reasonable belief that the
June 28, 2010 email disclosed any violation of law, rule, or regulation.
¶26 Finally, because the appellant failed to show that he made any protected
disclosure, we need not address his final argument, alleging clear retaliatory
animus in the PRB process due to his whistleblowing. See PFR File, Tab 1 at
22-24; see also Clark v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19
n.10 (2014) (an appellant must first establish a prima facie case that a protected
disclosure was a contributing factor to a personnel action; otherwise the Board
may not proceed to whether the agency meets its burden of showing that it would
have taken the same action in the absence of the disclosure).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision. There are
several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
14
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination claims
by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the
United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit
your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
15
file on time. 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.
Other Claims: Judicial Review
If you do not want to request review of this final decision concerning your
discrimination claims, but you do want to request review of the Board's decision
without regard to your discrimination claims, you may request review of this final
decision on the other issues in your appeal by the United States Court of Appeals
for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or by any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
16
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.