Alician Lott v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALICIAN LOTT, DOCKET NUMBER
Appellant, SF-0752-16-0490-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 10, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christina Quashie, Esquire, Alan L. Lescht, Esquire, and Barrett Kelly,
Esquire, Washington, D.C., for the appellant.
Dawn Dobbs and Captain James L. Paul, Schofield Barracks, Hawaii, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her 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 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 find that the deciding official made several mistakes, including
that (1) she inappropriately held the appellant to a higher standard of conduct,
(2) she wrongly concluded that the agency’s Criminal Investigation Command
determined that the appellant had committed an offense, (3) she erred to the
extent that she found that the appellant’s remorsefulness was not more mitigating
because the appellant also argued that similarly situated employees were not
similarly disciplined, and (4) she erred to the extent that she failed to give
considerable mitigating weight to the fact that the appellant’s mental impairment
played a part in her misconduct, we AFFIRM the initial decision.
BACKGROUND
¶2 The relevant background information is not in material dispute. As of
January 2014, the agency employed the appellant as a Workforce Management
Technician with its Tripler Army Medical Command in Hawaii. Initial Appeal
3
File (IAF), Tab 5 at 75. In that role, the appellant was responsible for managing
the organization’s performance evaluation system, awards, leave transfers, and
mandatory drug testing for civilian employees. IAF, Tab 16 at 14.
¶3 In or about late 2013 to early 2014, the appellant began to suspect that her
husband was having an affair with a soldier in his unit. IAF, Tab 5 at 20; Hearing
Transcript (HT) at 107 (testimony of the appellant). One reason for her suspicion
was that someone made telephone calls to her home but would hang up whenever
the appellant answered. IAF, Tab 5 at 20; HT at 107 (testimony of the appellant).
The appellant provided the caller’s telephone number to her friend, J.T., 3 so that
she could identify who the caller was. IAF, Tab 5 at 20; HT at 1 09 (testimony of
the appellant). J.T. informed the appellant that the caller was a soldier in the
appellant’s husband’s unit. IAF, Tab 5 at 20; HT at 114 (testimony of the
appellant).
¶4 On January 17, 2014, someone left a note for the appellant’s coworker to
print the caller’s Enlisted Record Brief (ERB), 4 which contains such personally
identifiable information (PII) as the person’s social security number, date of
birth, marital status, religion, and home address. 5 IAF, Tab 5 at 54-55, 71. The
3
The agency asserted that J.T. worked for the agency as a Human Reso urces Specialist
at a different facility from the appellant. IAF, Tab 17 at 6.
4
The ERB is a document that human resources professionals use when determining a
soldier’s assignments, promotions, advancements, and military schools. The ERB
contains a soldier’s personal data, provided on different sections of the form.
5
PII is defined as:
information which can be used to distinguish or trace an individual’s
identity, such as their name, social security number, biometric records,
etc. alone, or when combined with other personal or identifying
information which is linked or linkable to a specific individual, such as
date and place of birth, mother’s maiden name, etc.
Office of Management and Budget (OMB) Memorandum M-07-16, Safeguarding
Against and Responding to the Breach of Personally Identifiable Information, at 1 n.1
(May 22, 2007), available at https://www.whitehouse.gov/wp-
content/uploads/legacy_drupal_files/omb/memoranda/2007/m07 -16.pdf. “Safeguarding
[PII] in the possession of the government and preventing its breach are essential to
4
ERB printed out while the appellant was standing by the printer making copies of
her husband’s telephone calls to the soldier in question. Id. at 65-68. The
appellant saw on the ERB information that she viewed as further evidence that
they were having an affair. HT at 115 (testimony of the appellant). A copy of the
soldier’s Enlisted Distribution and Assignment System (EDAS) record 6 also
printed at that time. 7 IAF, Tab 5 at 65-68. The appellant placed these records in
a manila envelope and gave the envelope to J.T. during her lunch break. HT
at 116-17 (testimony of the appellant).
¶5 In or about September 2014, the appellant was selected for the position of
Human Resources (HR) Specialist with the Hawaii Civilian Personnel Advisory
Center. IAF, Tab 5 at 75. Around that same time, after the appellant and J.T. had
a falling out, J.T. turned the envelope over to a “responsible” organization. Id.
at 21, 44-45, 57.
¶6 The agency’s Criminal Investigation Command (CID) conducted an
investigation into allegations that the appellant and her coworker had exceeded
their authorized access and damaged the computer systems when obtaining the
soldier’s records. Id. at 48-74. Although CID found that it had probable cause to
believe the appellant committed the acts as alleged, i t determined that the
offenses were below the threshold set for Federal prosecution in Hawaii. Id.
at 50.
ensure the government retains the trust of the American public” and is a function of
applicable laws, such as the Privacy Act, 5 U.S.C. § 552a. OMB Memorandum
M-07-16, at 1.
6
The EDAS is an interactive automated system that supports the management of the
enlisted by providing information or assistance regarding such matters as assignment
instructions, deferments, and personnel records.
7
The evidence reflects that the appellant did not have access to the soldier’s ERB or
EDAS. IAF, Tab 5 at 20-21, 53-54. In her December 2015 response to the proposed
removal, the appellant denied having asked anyone to print the soldier’s ERB or EDAS.
Id. at 20-21. At hearing, she denied that she requested her coworker to print the ERB.
HT at 115 (testimony of the appellant).
5
¶7 In April 2016, the agency effected the appellant’s removal for unacceptable
and inappropriate conduct from an HR employee. Id. at 11-16. The appellant
filed a Board appeal, alleging, among other things, that the agency violated her
due process rights. IAF, Tab 1 at 7. After conducting a hearing, the
administrative judge found that the agency proved its charge, that the appellant
failed to prove her affirmative defense, and that the penalty of removal was
within the bounds of reasonableness. IAF, Tab 22, Initial Decision (ID) at 6-19.
¶8 The appellant has filed a petition for review arguing that the administrative
judge erred in determining that she failed to prove that the agency violated her
due process rights and erred in determining that the penalty of removal was
within the bounds of reasonableness. Petition for Review (PFR) File, Tab 5
at 5-6. The agency has filed a response opposing the petition. PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s due process rights were not violated.
¶9 The appellant asserts that the deciding official held her, as an HR employee,
to a higher standard of conduct than other Federal employees, even though the
proposal notice made no reference to this higher standard of conduct. PFR File,
Tab 5 at 8-9. The administrative judge found that the appellant was on notice that
she was being held to the standard of conduct applicable to an HR employee, and
that the deciding official therefore did not consider an aggravating factor about
which the appellant was not given notice. ID at 11. The appellant argues that for
the Board to accept the administrative judge’s finding would be to allow any
agency to frame a charge against an employee to include the employee’s position,
and then claim that the employee was on notice that they were being held to a
higher standard of conduct associated with their position. PFR File, Tab 5 at 9.
¶10 Pursuant to Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir.
2011), and Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368,
1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
6
rights when she relies upon new and material ex parte information as a basis for
her decision on the merits of a proposed charge or the penalty to be imposed.
Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 8 (2013). Our reviewing
court has found that, ultimately, an ex parte communication only requires a
reversal of an agency action when it “is so substantial and so likely to cause
prejudice that no employee can fairly be required to be subjected to a deprivation
of property under such circumstances.” Stone, 179 F.3d at 1377. The Board has
held that this analysis applies not only to ex parte communications introducing
information that previously was unknown to the deciding official but also to
information personally known and considered by the deciding official, if that
information was not included in the notice of proposed removal to the appellant.
Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 10 (2011).
¶11 Information that merely confirms or clarifies information already contained
in the record does not constitute new and material information. Blank v.
Department of the Army, 247 F.3d 1225, 1229 (Fed. Cir. 2001); Grimes v.
Department of Justice, 122 M.S.P.R. 36, ¶ 11 (2014). The appellant has the
burden of proving her affirmative defense by preponderant evidence. 8 5 C.F.R.
§ 1201.56(b)(2)(i)(C).
¶12 At the hearing, the deciding official answered affirmatively both when
asked if she believed that HR employees are held to a higher standard of conduct
than other Federal employees and when asked if she considered this an
aggravating factor in her decision to remove the appellant. HT at 41, 45
(testimony of the deciding official). But we find that the deciding official’s
determinations on these issues did not constitute new and material information
that was she was required to share with the appellant prior to issuing her decision.
See Blank, 247 F.3d at 1229. The proposal notice clearly informed the appellant
8
Preponderant evidence is the degree of relevant evidence that a reasonable person,
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. § 1201.4(q).
7
that the agency was proposing her removal for “unacceptable and inappropriate
conduct from a Human Resources (HR) employee.” IAF, Tab 5 at 44. We find
that the deciding official’s decision to hold the appellant to a higher standard of
conduct was based on this information, rather than on some set of facts not shared
with her.
¶13 Moreover, in her response to the proposed removal, the appellant argued
that she should not be held to the higher standard of conduct applicable to
supervisors. Id. at 24. Possibly being held to a higher standard is, accordingly,
an issue to which the appellant had an opportunity, and in fact did, respond. See
Wilson v. Department of Homeland Security, 120 M.S.P.R. 686, ¶¶ 10-11 (2014),
aff’d, 595 F. App’x 995 (Fed. Cir. 2015). The deciding official’s rejection of the
appellant’s argument did not violate her due process rights. See Grimes,
122 M.S.P.R. 36, ¶ 13. Accordingly, we find that no due process violation
occurred.
The penalty of removal is within the bounds of reasonableness.
¶14 The appellant argues that a number of factors weigh in favor of mitigating
the agency-imposed penalty of removal. PFR File, Tab 5 at 10-24. In Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305 (1981), the Board identified
12 factors that are generally relevant when determining the appropriateness of a
penalty. It is not the Board’s role to decide what penalty it would impose, bu t,
rather, whether the penalty selected by the agency exceeded the maximum
reasonable penalty. Arena v. U.S. Postal Service, 121 M.S.P.R. 125, ¶ 6 (2014),
aff’d per curiam, 617 F. App’x 996 (Fed. Cir. 2015).
¶15 The appellant argues that the deciding official inappropriately subjected her
to a higher standard of conduct. PFR File, Tab 5 at 10 -11. The agency argues
that it was appropriate to subject the appellant to a higher standard of conduct
because she had a responsibility not to use PII for her own personal reasons. PFR
File, Tab 7 at 6. Pursuant to the second Douglas factor, the Board has held that
law enforcement officers, supervisors, and employees who owe a fiduciary duty
8
toward their agency may be held to a higher standard of conduct than are other
employees. Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 26 (2012);
Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 12 (2003), aff’d,
104 F. App’x 155 (Fed. Cir. 2004); see Douglas, 5 M.S.P.R. at 305. The Board
occasionally has declined to hold other types of employees to this higher standard
of conduct. See, e.g., Boo v. Department of Homeland Security, 122 M.S.P.R.
100, ¶ 21 (2014); Fernandez v. Department of Agriculture, 95 M.S.P.R. 63, ¶ 15
(2003); Jackson v. Department of the Navy, 52 M.S.P.R. 1, 3-4 (1991).
¶16 The deciding official testified that she believed the appellant held fiduciary
responsibilities, despite not being entrusted with anything related to the agency’s
finances, by virtue of her access to employees’ personal information. HT at 44,
63 (testimony of the deciding official). She also stated as much in a Douglas
factors worksheet. IAF, Tab 16 at 172. However, an employee with fiduciary
responsibilities, for purposes of the second Douglas factor, refers to an employee
who is responsible for an agency’s finances in some capacity. See, e.g., Special
Counsel v. Lee, 114 M.S.P.R. 57, ¶ 39 (2010) (noting that a nonsupervisory HR
specialist had no fiduciary duties for purposes of a Douglas factors analysis),
rev’d in part on other grounds by Beatrez v. Merit Systems Protection Board,
413 F. App’x 298 (Fed. Cir. 2011); Myers v. Department of Agriculture,
88 M.S.P.R. 565, ¶¶ 34-35 (2001), aff’d, 50 F. App’x 443 (Fed. Cir. 2002);
Campbell v. Defense Logistics Agency, 37 M.S.P.R. 691, 696 (1988); but see
Holcombe v. Veterans Administration, 12 M.S.P.R. 68, 72 (1982) (finding that a
supervisor of clinic clerks had a fiduciary responsibility to make certain that his
subordinates did not improperly obtain medications or engage in forging
prescription forms), aff’d, 713 F.2d 865 (D.C. Cir. 1983). Accordingly, we find
that the deciding official erred in holding the appellant to a higher standard of
conduct by virtue of her position.
¶17 The appellant further argues that the deciding official wrongly concluded
that CID determined that she had committed an offense. PFR File, Tab 5
9
at 20-21. Both the proposing and deciding officials found that CID determined
that the appellant committed the offense of “Conspiracy; Exceeding Authorized
Access, and Damage to a U.S. Government Computer.” IAF, Tab 5 at 13, 44 -45.
In fact, CID only found that it had probable cause to believe the appellant
committed the titled offenses. Id. at 50, 61. Accordingly, we agree that the
deciding official also erred in assuming that CID determined that the appellant
actually committed the referenced offenses.
¶18 The appellant additionally asserts that the deciding official erred wh en she
concluded that the appellant’s remorsefulness was undercut by her attempt to,
among other things, place some blame for what happened onto J.T. and her
coworker who printed the PII at issue. PFR File, Tab 5 at 23-24. The deciding
official testified that she found the appellant to be remorseful and that she did not
find that the appellant’s representative’s arguments undermined the appellant’s
apology or potential for rehabilitation. HT at 36, 55-56 (testimony of the
deciding official). The administrative judge concluded, however, that the
deciding official apparently “found that the appellant’s apology was not more
mitigating because it was accompanied by finger pointing.” ID at 12 -13.
¶19 In her reply to the proposed removal, the appellant argued that J.T. and her
coworker had not been similarly disciplined. IAF, Tab 5 at 17, 22. As the
appellant states on review, it generally is inappropriate to use an employee’s
attempts to defend herself in disciplinary proceedings as an aggravating factor or
an indication that she lacked remorse. PFR File, Tab 5 at 23 ; Raco v. Social
Security Administration, 117 M.S.P.R. 1, ¶ 16 (2011).
¶20 The administrative judge essentially found that the deciding official did not
view the appellant’s “finger pointing” as an aggravating factor but instead merely
viewed it as a factor relevant to determining the degree of mitigation to warrant
her remorsefulness. ID at 13. However, to the extent that the deciding official
found that the appellant’s remorsefulness was not more mitigating because the
appellant also argued that similarly situated employees were not similarly
10
disciplined, we find that the deciding official inappropriately viewed the
appellant’s attempt to defend herself as an aggravating factor. See Raco,
117 M.S.P.R. 1, ¶ 16.
¶21 Next, the appellant notes that the Board has found that when mental
impairment played a part in misconduct, it will be given considerable weight as a
mitigating factor. PFR File, Tab 5 at 19 (citing Brown v. U.S. Postal Service,
64 M.S.P.R. 425, 434 (1994)). The appellant submitted evidence reflecting that
she was diagnosed with depression in April 2014, and that it was an active
problem as of October 2015. IAF, Tab 16 at 100. In response to the notice of
proposed removal, the appellant asserted that, at the time of her misconduct, she
was “extremely distressed” and that she made a “rash and impractical decision” as
a result. IAF, Tab 5 at 20, 27. The appellant testified that she suffered from
depression and insomnia at the time of the misconduct. HT at 132-33 (testimony
of the appellant).
¶22 Although the medical evidence does not appear to expressly show that the
appellant suffered from depression at the time of the misconduct, on January 17,
2014, the proximity in time supports an inference that she was suffering from
depression during that time period as well. See Bowman v. Small Business
Administration, 122 M.S.P.R. 217, ¶ 13 (2015). Accordingly, we find that the
appellant’s medical condition could have played a part in the charged conduct and
that this is entitled to considerable weight as a mitigating factor. Id.¶23 The appellant likewise asserts that the deciding official failed to consider
her poor emotional state at the time of the misconduct and points out that, in her
Douglas factors worksheet, the deciding official did not refer to the appellant’s
personal stressors or emotional distress. PFR File, Tab 5 at 15-20. There is no
requirement that the decision notice contain specific, detailed information
demonstrating that the deciding official considered the relevant mitigating
factors. Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 135 (1997).
Nonetheless, in the decision notice, the deciding official referenced the
11
appellant’s “significant marital problems.” IAF, Tab 5 at 12. She testified that
she considered the appellant’s marital difficulties and other stressors as
mitigating factors. HT at 58 (testimony of the deciding official). Accordingly,
we find that the agency demonstrated that the deciding official considered the
appellant’s emotional state at the time of the misconduct as a mitigating factor ,
although it is unclear whether she gave it “considerable weight.”
¶24 Even giving considerable weight to this mitigating factor, we find, as
discussed below, that removal was within the bounds of reasonableness. The
first, and most important, of the Douglas factors is the nature and seriousness of
the offense. Boo, 122 M.S.P.R. 100, ¶ 18. Among the considerations included in
this factor is the relationship of the offense to the employee’s duties, position,
and responsibilities, including whether the offense was intentional or was
frequently repeated. Id.¶25 Here, the appellant took records containing PII, to which she did not have
official access, and reviewed them before giving them to a third party. IAF,
Tab 5 at 65-66. The administrative judge noted the deciding official’s testimony
that she considered the appellant’s misconduct to be a serious offense that went to
the core of her duties as an HR employee. ID at 14; HT at 31 (testimony of the
deciding official). The appellant herself testified that, as an HR employee, she
was responsible for protecting PII. HT at 103, 125 (testimony of the appellant).
The administrative judge thus found the appellant’s miscondu ct to be serious. ID
at 15-16.
¶26 We recognize that a number of mitigating factors weigh in the appellant’s
favor. She had 15 years of Federal service, during which she consistently
received the highest performance ratings and received no discipline. IAF, Tab 16
at 4-34; HT at 48 (testimony of the deciding official). As discussed above, the
evidence indicates that the appellant’s depression may have played a part in the
misconduct, and it is apparent that difficulties in her marriage and personal life
played a central role in her decision to engage in the misconduct. HT at 104-113
12
(testimony of the appellant). She has also expressed remorse for her misconduct.
IAF, Tab 5 at 27; HT at 117, 125-26 (testimony of the appellant).
¶27 However, based in part upon the demeanor of the witnesses at hearing, the
administrative judge agreed with the deciding official that the appellant could not
be trusted to maintain her professional judgment in the event that she again
suffered difficulties in her personal life. 9 ID at 17. An administrative judge’s
credibility findings, when expressly or by necessary implication based on the
demeanor of witnesses, must be afforded special deference. Purifoy v.
Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (citing
Jackson v. Veterans Administration, 768 F.2d 1325, 1331 (Fed. Cir. 1985)). The
Board may overturn such findings only if it can articulate sound reasons for doing
so. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 25 (2010) (citing
Haebe v. Department of Justice, 288 F.3d 1288, 1300 (Fed. Cir. 2002)), aff’d,
635 F.3d 526 (Fed. Cir. 2011). We can discern no sound reason for overturning
the administrative judge’s finding that the appellant cannot be trusted to maintain
her professional judgment and protect sensitive information in the future.
¶28 The appellant argues that the agency failed to consider the adequacy of
alternative sanctions. PFR File, Tab 5 at 24. The proposing off icial concluded
that the appellant’s continued employment with the office would undermine the
9
In her petition for review, the appellant asserts that the administrative judge
considered her emotional state at the hearing as an aggravating factor. PFR File, Tab 5
at 15-16. To the extent the administrative judge found that the appellant’s “deep
emotional response” during the hearing makes it more likely she will lose her
professional judgment under difficult circumstances in the future, we agree that this
was improper. Character evidence adduced from conduct during Board proceedings
may not be considered to prove the conduct underlying an agency charge. See
Ibrahim v. Department of the Army, 30 M.S.P.R. 531, 536 (1986). We similarly find
that the appellant’s behavior during the hearing is not probative of her potential
behavior in the future. Nonetheless, it was not improper for the administrative judge to
consider the appellant’s demeanor in assessing the credibility of her testimony
regarding her potential for rehabilitation. Thus, we find that the appellant has failed to
show that any error the administrative judge made in considering h er emotional state
harmed her substantive rights. See Karapinka v. Department of Energy, 6 M.S.P.R.
124, 127 (1981).
13
office’s credibility with its customers. IAF, Tab 5 at 45. The deciding official
reached a similar conclusion and found that reassignment would not be feasibl e
because positions within the organization required access to HR systems. Id.
at 12-14. Thus, we find that the deciding official considered reassigning the
appellant as an alternative penalty but found that such a penalty would be
inappropriate in this case. Moreover, there is no requirement that the agency
consider alternative penalties; the agency is required to show only that the penalty
selected was reasonable. Thias v. Department of the Air Force, 32 M.S.P.R. 46,
49 (1989). After considering all the relevant Douglas factors, we find the
appellant’s removal to be within the bounds of reasonableness.
NOTICE OF APPEAL RIGHTS 10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
10
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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
15
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 security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
16
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. 11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
11
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
17
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.