Christine Stawniczy v. Office of Personnel Management ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINE STAWNICZY, DOCKET NUMBER
Appellant, NY-0845-16-0276-I-1
v.
OFFICE OF PERSONNEL DATE: July 18, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christine Stawniczy, Bayshore, New York, pro se.
Carla Robinson, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) finding that she had been overpaid Federal Employees’ Retirement System
(FERS) disability retirement benefits and denying her request for a waiver of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
collection of the overpayment. 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 appellant was without fault in
creating the overpayment, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant has appealed OPM’s reconsideration decision finding that she
received an overpayment of disability retirement benefits under FERS and she
was not entitled to a waiver of the overpayment. Initial Appeal File (IAF), Tab 1,
Tab 9 at 7-11. The appellant applied for disability retirement on December 29,
2005, at age 54 with approximately 15 years of Federal service. IAF, Tab 9
at 85-87. On May 17, 2006, OPM notified her by letter that it had approved her
retirement application. Id. at 96-98. The letter stated that the appellant would
have to confirm with OPM that she had applied for Social Security disability
benefits and that, if the Social Security Administration (SSA) grant ed such
benefits, she would have to immediately notify OPM of the amount and the
effective date of the monthly payments. Id. at 96-97. The letter also explained
the formula for the recomputation of the appellant’s FERS disability annuity once
3
she started to receive Social Security benefits and informed her that she sh ould
refrain from negotiating Social Security checks until her FERS benefit had been
reduced, as the checks would be needed to reimburse OPM for any overpayments
she received prior to the recomputation of her FERS annuity. Id. at 97.
¶3 The appellant asserted that she originally sought Social Security disability
benefits in 2006, as OPM instructed, but her application was denied. IAF, Tab 9
at 7, 99; see also Petition for Review (PFR) File, Tab 1 at 3. 2 On July 30, 2006,
OPM finalized the appellant’s FERS disability annuity with no reduction for
Social Security benefits because she had not yet started receiving such benefits.
IAF, Tab 9 at 99. OPM advised her that, if she were to receive Social Security
benefits in the future, she would have to inform OPM of that fact and she should
hold any retroactive payment received from SSA to repay OPM for the duplicate
benefits she had received. Id. The July 30, 2006 letter included instructions for
informing OPM if and when she started to receive Social Security benefits. Id.
at 99-100.
¶4 On March 14, 2010, SSA notified the appellant that she would receive
monthly disability benefits of $1,412.00 effective May 2008 and that she would
soon receive a retroactive payment of $20,888.50 for the period of May 2008
through February 2010. Id. at 101-06. The appellant asserted that, on March 18,
2010, she mailed OPM a copy of SSA’s award notice, and she called OPM several
times to follow up over the next few months. Id. at 18. She also emailed OPM
on August 12, 2010, to ascertain if that agency had reviewed her award notice
from SSA. Id. at 25-28. On September 16, 2010, OPM sent the appellant an
email message stating that her case was in its Washington, D.C. office for review
and a response would be forthcoming. Id. at 28. The appellant maintained that
2
The appellant accurately points out in her petition for review that any mention of her
2006 application for Social Security benefits had been omitted from the initial decision.
PFR File, Tab 1 at 3; IAF, Tab 36 at 4-6. We correct that omission here.
4
she heard nothing more from OPM until she received the September 21, 2013
notice of overpayment. Id. at 18.
¶5 The notice of overpayment states that the appellant was overpaid
$53,970.00 for the period of May 1, 2008, through August 30, 2013. Id. at 63-67.
The notice also states that OPM would collect the full amount of the overpayment
from her annuity in 294 monthly installments of $183.16 and a final installment
of $120.96. Id. On October 15, 2013, the appellant requested that OPM waive
collection of the overpayment. Id. at 18. In her request, she stated that any
decrease in her annuity would cause her great financial hardship. Id. The
appellant completed a Financial Resources Questionnaire (FRQ) at this time. Id.
at 19-21. The October 15, 2013 FRQ states that the appellant’s total monthly
income was $2,383.00 and her total monthly expenses were $2,603.00. Id. at 19.
¶6 On June 16, 2016, OPM requested updated information from the appellant
regarding her financial circumstances and gave her a new blank FRQ form to
complete. Id. at 15. On June 29, 2016, the appellant submitted an updated FRQ,
which showed her total monthly income as $2,764.00 and her monthly expenses
as $2,744.24. Id. at 12-14. Again, she requested waiver of collection of the
overpayment. Id. at 14. She stated that she was not at fault in creating the
overpayment, had difficulty meeting her other monthly obligations, and suffered
from mobility problems caused by her knees. Id.¶7 OPM rendered its reconsideration decision on August 8, 2016, affirming its
initial decision. Id. at 7-11. OPM denied the appellant’s request for waiver of
the collection of the overpayment and found that collection at the scheduled rate
of repayment would not cause her a financial hardship. Id. at 10. In doing so,
OPM examined the appellant’s claimed expenses and found that some of them did
not meet the ordinary and necessary criteria based on a standa rd of
reasonableness, including purchases and repairs that were infrequently made or
unlikely to recur during the period of recovery. Id. OPM retained the existing
5
collection schedule of 294 monthly installments of $183.16 with a final
installment of $120.96. Id. This appeal followed. IAF, Tab 1.
¶8 The administrative judge held a hearing at the appellant’s request. IAF,
Tab 25. The administrative judge found that OPM proved the existence and
amount of the overpayment and that the appellant was not entitled to a waiver of
the collection of the overpayment, i.e., she knew of her obligation to set aside the
SSA payments, but she failed to do so, and there were no exceptional
circumstances precluding OPM’s recovery of the overpaym ent. IAF, Tab 36,
Initial Decision (ID) at 7-8. She further found that the appellant was not entitled
to an adjustment in the recovery schedule. ID at 8-10. The administrative judge
specifically pointed out that, during the course of the appeal, the ap pellant sold
her home and moved in with one of her daughters. ID at 9. Although the
appellant paid her daughter $450 to $500 per month in rent, the move had reduced
her monthly expenses from $2,744.24 to $1,979.97 because she was no longer
paying a mortgage, utilities, or household maintenance expenses. ID at 9-10.
Additionally, the sale of her home left the appellant with liquid assets, including
balances of $80,058.09 in a savings account, $4,001.75 in a checking account,
and $1,205.63 in another checking account. ID at 9. The administrative judge
thus found OPM’s collection schedule to be reasonable. ID at 10. Should the
appellant’s expenses increase in the future, the administrative judge noted, she
could ask OPM to lower her payments or to compromise, suspend payment of, or
write off the debt. Id. The appellant has filed a petition for review. PFR File,
Tab 1.
ANALYSIS
¶9 We have considered the appellant’s arguments and find that the
administrative judge reached the correct conclusions in this ca se. A waiver of the
collection of an annuity overpayment may be granted when the annuitant is
without fault and recovery would be against equity and good conscience.
6
5 U.S.C. § 8470(b); 5 C.F.R. § 845.301. At the outset, we find that the
administrative judge made no direct finding as to whether the appellant was
without fault in her assessment of whether the appellant was entitled to a waiver
of collection of the overpayment. 3 A recipient of an overpayment is without fault
if she performed no act of commission or omission that resulted in the
overpayment. 5 C.F.R. § 845.302. One of the pertinent considerations when
considering whether the recipient of an overpayment is at fault is whether “she
accepted a payment that . . . she knew or should have known to be erroneous.”
5 C.F.R. § 845.302(a)(3). However, even an individual who accepts an
overpayment will automatically be found without fault, regardless of whether she
knew or should have known that the payment was erroneous, if she notified OPM
within 60 days of receiving the overpayment. Gulan v. Office of Personnel
Management, 86 M.S.P.R. 16, ¶ 8 (2000). Here, the appellant contacted OPM
within 4 days after she received her SSA award notice and periodically
recontacted OPM until an initial decision was issued. IAF, Tab 9 at 18, 25-28.
We thus find that the appellant was without fault. The remaining issue, therefore,
is whether she proved by substantial evidence 4 that recovery of the overpayment
is against equity and good conscience. See 5 U.S.C. § 8470(b); Hunter v. Office
of Personnel Management, 109 M.S.P.R. 514, ¶ 11 (2008), aff’d, 2009 WL
174169 (Fed. Cir. Jan. 27, 2009); 5 C.F.R. §§ 845.301, 1201.56(b)(2)(ii).
¶10 On review, the appellant reasserts her argument that OPM should waive
collection of the overpayment because the agency “did not respond in a timely
manner which caused additional overpayment from March 22, 2010 [,] thr[ough]
August 30, 2013.” PFR File, Tab 1 at 1. She asserts that she timely filed all
3
Without making an explicit finding, OPM’s reconsideration decision implied that the
appellant was at fault. IAF, Tab 9 at 9-10.
4
Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p).
7
required documents with OPM, including the March 14, 2010 SSA award notice,
but OPM “grossly neglected the handling of [her] case.” Id. She argues that
OPM caused an exceptionally lengthy delay in adjusting her annuity, failed to
reply within a reasonable length of time in response to her inquiries regarding
overpayment, failed to act expeditiously to adjust her annuity in the face of
specific notice, and was otherwise grossly negligent in the handling of her case.
Id. For these reasons, she asserts, she is entitled to a waiver. 5
¶11 The appellant’s arguments are unavailing. Generally, recovery is against
equity and good conscience in the following circumstances: (1) it would cause
financial hardship; (2) the annuitant can show that, because of the overpayment,
she relinquished a valuable right or changed positions for the wo rse; or
(3) recovery could be unconscionable under the circumstances. Zucker v. Office
of Personnel Management, 114 M.S.P.R. 288, ¶ 7 (2010); 5 C.F.R. § 845.303.
Individuals who know or suspect that they are receiving overpayments, however,
are expected to set aside the amount overpaid pending recoupment . Zucker,
114 M.S.P.R. 288, ¶ 7. Absent exceptional circumstances, i.e., where collection
would be unconscionable, recovery in these cases is not against equity and good
conscience. Id.¶12 The standard for finding collection to be unconscionable is high. Boone v.
Office of Personnel Management, 119 M.S.P.R. 53, ¶ 9 (2012) (citing Spinella v.
Office of Personnel Management, 109 M.S.P.R. 185, ¶ 7 (2008); Aguon v. Office
of Personnel Management, 42 M.S.P.R. 540, 549 (1989)). Because
5
The appellant appended three documents to her petition for review. PFR File, Tab 1
at 4-6. Copies of two of these documents are already contained in the record of this
appeal. Id. at 5-6; IAF, Tab 10, Items 3, 7. The third document, dated September 21,
2013, shows OPM’s computation of the amount of the annuity overpayment . PFR File,
Tab 1 at 4. A similar worksheet, dated August 19, 2016, is already in the record. IAF,
Tab 9 at 68. None of these documents contain information of sufficient weight to
change the outcome. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)
(holding that the Board will not grant a petition for review ba sed on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different from
that of the initial decision); 5 C.F.R. § 1201.115(a)(1).
8
unconscionability is generally defined in terms of broad, equitable considerations,
the Board will consider all relevant factors using a “totality-of-the-
circumstances” approach to determine whether recovery of an annuity
overpayment is unconscionable in a given case. Id. Such circumstances may
include, for example, the following: (1) there has been an exceptionally lengthy
delay by OPM in adjusting an annuity; (2) OPM failed to respond within a
reasonable length of time to an annuitant’s inquiries regarding an overpayment;
(3) OPM failed to act expeditiously to adjust an annuity in the face of sp ecific
notice; and/or (4) OPM is otherwise grossly negligent in handling the case.
Aguon, 42 M.S.P.R. at 550. The Board also will consider general principles of
equity and fairness, such as misinformation given to the annuitant or the
annuitant’s personal limitations such as lack of education, physical or mental
disability, or other factors that would make the collection of an overpayment
manifestly unfair. Id. Exceptional circumstances, however, do not include
financial hardship when an annuitant was required to set the overpayment aside .
Zucker, 114 M.S.P.R. 288, ¶¶ 6-8.
¶13 Here, the delay between the appellant’s notice of her SSA award and OPM’s
finalization of her annuity was 3 years and 6 months. The delay between he r
request for waiver and OPM’s reconsideration decision was 2 years and
10 months. 6 The appellant, however, had received advance notice from OPM
warning her that an overpayment would be possible in the event she started to
receive Social Security benefits. IAF, Tab 9 at 99. OPM instructed her to set
aside the amount overpaid pending recoupment. Id. at 97, 99. The appellant also
6
The appellant argued before the administrative judge that collection of her debt was
barred by the statute of limitations. On review, she argues that the administrative judge
never apprised her of the applicable statute of limitations that would bar collection of
her debt. PFR File, Tab 1 at 2. That is not the case. The administrative judge apprised
the appellant of the applicable time limitations for the collection of overpayment debts,
IAF, Tab 13 at 3, 5, and she later ruled that such limitations would not apply in this
case, IAF, Tab 21.
9
likely believed that she was receiving an overpayment because she contacted
OPM several times to request information about her overpayment status. Id.
at 18, 25, 28. However, she simply did not set aside funds to apply to the
overpayment as she had been instructed. Id. at 14, 21.
¶14 Although OPM’s delays here have been somewhat lengthy, they would not
trigger OPM’s Delay-in-Response Rule, wherein recovery would be deemed
inequitable automatically because OPM failed to issue a waiver or reconsideration
decision within 4 years of a without-fault debtor’s request for one. Newcomb v.
Office of Personnel Management, 42 M.S.P.R. 552, 558 (1989). OPM issued its
reconsideration decision less than 3 years after the appellant’s October 15, 2013
request for a waiver. IAF, Tab 9 at 7-11, 17-18. During the delay, moreover,
OPM communicated with the appellant, e.g., OPM asked her to update her FRQ.
Id. at 12-15. The appellant has offered no evidence of gross or egregious errors
or other exceptional circumstances in her case. Cf., e.g., Gordon v. Office of
Personnel Management, 689 F. App’x 977, 984-88 (Fed. Cir. 2017) (finding that
repayment was unconscionable and against equity and good conscience when the
annuitant was without fault, OPM delayed finalizing calculations for his annuity
for 3 years, followed by a nearly 4-year in responding to his reconsideration
request, and the delays affected his qualification for benefits from local and state
agencies, and the Veterans Administration for which he would have likely
qualified absent the overpayment). 7 Although the appellant described medical
limitations in her 2016 FRQ, including knee problems that require her to use a
walker, she has not submitted any evidence that her condition would increase her
living costs or otherwise affect her ability to repay the debt. IAF, Tab 9 at 14.
¶15 The appellant asserts that the administrative judge gave too much
consideration to the fact she had sold her home and too little consideration to her
7
The Board may follow unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds the reasoning persuasive. See Herring v.
Department of the Navy, 90 M.S.P.R. 165, ¶ 13 n.* (2001).
10
indebtedness and medical problems. PFR File, Tab 1 at 1-2. We find neither of
these arguments to be persuasive. OPM regulations require us to consider an
annuitant’s current ability to repay the overpayment, rather than just her net
worth. Fusco v. Office of Personnel Management, 42 M.S.P.R. 501, 505 (1989).
Financial hardship may be deemed to exist in, but is not limited to, those
situations when the annuitant needs substantially all of her current income and
liquid assets to meet current ordinary and necessary living expenses and
liabilities. 5 C.F.R. § 845.304. The Board considers liquid assets to be those
assets that are readily convertible into cash with little or no loss of value, such as
cash on hand, checking accounts, savings accounts, certificates of deposit, mutual
funds, and marketable securities. Fusco, 42 M.S.P.R. at 506 & n.5. Nonliquid
assets include retirement accounts, id., though real property also would be
challenging to convert into cash with little or no loss of value. Nonliquid assets
generally should not be considered as available for recovery. Id.; see, e.g.,
Martin v. Office of Personnel Management, 49 M.S.P.R. 134, 138 (1991)
(classifying the appellant’s cash and mutual funds to be liquid assets available for
recovery and his partnerships, insurance, and trust to be nonliquid ass ets
unavailable for recovery), aff’d, 960 F.2d 156 (Fed. Cir. 1992).
¶16 Here, the appellant’s sale of her home converted a nonliquid asset to
collectible liquid assets considerably in excess of the amount OPM considers
unavailable for debt repayment, while at the same time reducing her monthly
expenses by $764.27. ID at 9-10. When the appellant’s current ordinary and
necessary living expenses of $1,979.97 are subtracted from her current income of
$2,764.00, the appellant is left with a monthly surplus of $784.03. ID at 10.
Even after OPM deducts a monthly payment of $183.16, her monthly surplus is
$600.87. Id. In these circumstances, the record does not show that t he appellant
needs substantially all of her current income and liquid assets exceeding $85,000
to meet her current ordinary and necessary living expenses. Cf., e.g., Martin,
49 M.S.P.R. at 138-39 (finding that, although the appellant had a negative
11
monthly balance of $21.62, there was no evidence in the record that he needed all
of his $41,200 in liquid assets to meet his current ordinary and necessary living
expenses).
¶17 As for the appellant’s allegation that the administrative judge failed to
consider the personal information she listed on the 2016 FRQ, it is true that the
administrative judge did not mention her knee problems described in Section X.
IAF, Tab 9 at 14. Nevertheless, the appellant has not offered medical or other
evidence that would show these problems increased her monthly expenses. Cf.,
e.g., Boone, 119 M.S.P.R. 53, ¶ 10 (rejecting an appellant’s argument that
collection would be unconscionable given her medical condition in part be cause
she “provided limited medical evidence below and no such evidence on review”). 8
¶18 The appellant also argues that OPM reduced the number of payments to
99 monthly installments of $183.16 in its reconsideration letter and that the initial
decision does not reflect this reduction. PFR File, Tab 1 at 2. Her assertion is
incorrect. The reconsideration letter shows 294 monthly payments of $183.16,
and a final installment of $120.96. IAF, Tab 9 at 10. Accordingly, we find that
the appellant’s arguments on review are unpersuasive. 9 She has failed to show
that the administrative judge erred in finding that there were no exceptional
circumstances precluding OPM’s recovery of the overpayment and that she was
not entitled to an adjustment in the recovery schedule. 10 We thus affirm the
initial decision. 11
8
The appellant also asserts that the sum of her income on the 2016 FRQ includes the
amount she was being overpaid. PFR File, Tab 1 at 3. She has not offered any
evidence proving that assertion to be accurate.
9
Although at one point it appeared that the parties’ may have reached a settlement
agreement that would resolve her appeal, the appellant subsequently elected to move
forward with the adjudication of her appeal. IAF, Tabs 18, 21.
10
After the close of the record on review, the appellant filed an add itional pleading,
asserting that OPM deducted a repayment installment from her June 2017 annuity
payment, despite the fact that her appeal was still pending before the Board. PFR File,
Tab 5. She explains that she notified OPM of the error. Id. The appellant has not
12
NOTICE OF APPEAL RIGHTS 12
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 appro priate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
explained how such a deduction is a basis for disturbing the initial decision. OPM
corrected a similar error when this appeal was pending before the administrative judge.
IAF, Tab 33, Tab 34 at 2.
11
OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other credit ors
in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management, 124 M.S.P.R. 103, ¶ 13 (2016).
12
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisio ns. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
(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
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
14
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (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:
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:
15
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. 13 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
13
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 o f Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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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 li nk below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.