Michael Carroll v. Federal Deposit Insurance Corporation ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL S. CARROLL, DOCKET NUMBER
Appellant, DA-0752-16-0248-I-2
v.
FEDERAL DEPOSIT INSURANCE DATE: December 28, 2023
CORPORATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael S. Carroll , Plano, Texas, pro se.
Megan Borovicka , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his performance-based removal under 5 U.S.C. chapter 75. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, at footnote 5 below, with
regard to the standard for proving reprisal for prior equal employment
opportunity (EEO) activity based on disability discrimination, we AFFIRM the
initial decision.
BACKGROUND
On November 6, 2011, the agency appointed the appellant to the position of
CG-09 Mid-Career Compliance Examiner in its Division of Depositor and
Consumer Protection. Carroll v. Federal Deposit Insurance Corporation , MSPB
Docket No. DA-0752-16-0248-I-1, Initial Appeal File (IAF), Tab 23 at 74. A
Mid-Career Compliance Examiner is a developmental position designed to
familiarize the incumbent with bank examinations through work experience. IAF,
Tab 23 at 77-78. The goal is for the incumbent to acquire the knowledge and
experience required for advancement to the position of CG-11 Compliance
Examiner. Id. at 77. Promotion to the CG-11 Compliance Examiner position
requires the incumbent to obtain a commission from the agency. Id. The
agency’s decision on whether to award a commission is based on the incumbent’s
job performance and the results of a “technical evaluation”—a test designed to
measure a candidate’s ability to perform the duties of a commissioned CG -11
Compliance Examiner. IAF, Tab 23 at 52-62. Before taking the technical
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evaluation, a CG-09 Mid-Career Compliance Examiner is expected to meet
certain training and developmental benchmarks. Id. at 54-75. Prior to his
appointment, the appellant executed an agreement acknowledging that he must
obtain a commission within 30 months of his entry on duty. Id. at 75. He further
acknowledged that if he failed to do so, he would be given an additional 6-month
period, including a performance improvement plan (PIP), in which to take the
technical evaluation and perform the other tasks required for obtaining a
commission. Id. If he still failed to obtain a commission after that, he would be
separated from service. 2 Id.One of the developmental benchmarks that a Mid-Career Compliance
examiner must meet is to satisfactorily complete at least two jobs as an Acting
Examiner in Charge. Id. at 72. The appellant in this case began working on this
benchmark approximately 2 years into his appointment, but the agency
determined that his overall performance in this area was not successful. IAF,
Tab 22 at 111-29. Shortly thereafter, on April 23, 2014, the appellant had a
midyear performance meeting with his first-line supervisor, who told him that his
performance needed to improve. Id. at 63. He notified the appellant that if his
performance did not improve, it could affect his annual performance rating, he
might not be recommended for a commission, and he could be placed on a PIP.
Id.On June 9, 2014, the appellant’s second-line supervisor placed him on a
90-day PIP. Id. at 44-49. Under the PIP, the appellant was supposed to complete
several tasks, with the goal of improving his performance and meeting the
remainder of his CG-09 Mid-Career Compliance Examiner benchmarks. Id. On
October 9, 2014, the appellant’s second-level supervisor issued a memorandum
notifying the appellant that he failed to complete the PIP successfully. Id.2
Mid-Career Compliance Examiner could fairly be described as an “up-or-out”
position. See generally, e.g., Wright v. Department of Transportation , 900 F.2d 1541,
1544-45 (Fed. Cir. 1990), aff’d, 53 F.3d 346 (Fed. Cir. 1995) (Table).
4
at 22-28. On November 11, 2014, the agency issued the appellant his annual
performance evaluation, with a summary rating of “Unacceptable.” 3 Id. at 4-6.
On December 12, 2014, the appellant’s fourth-line supervisor proposed his
removal for unsatisfactory performance under 5 U.S.C. chapter 75. IAF, Tab 18
at 4-13. The charge was supported by 45 specifications of alleged unsatisfactory
performance during the PIP period. Id. at 5-12. After considering the appellant’s
response to the proposal, his fifth-line supervisor issued a decision sustaining 44
of the 45 specifications and removing him from service effective February 20,
2015. IAF, Tab 17 at 53-63, 110-12.
The appellant filed a formal complaint of discrimination, alleging that his
removal was discriminatory based on race, color, sex, disability, and age, as well
as retaliation for protected activity. IAF, Tab 16 at 60-61. On November 24,
2015, the agency issued a final decision finding no discrimination. IAF, Tab 8
at 23-42. The appellant then filed the instant Board appeal, contesting his
removal and raising affirmative defenses of whistleblower reprisal, uniformed
service discrimination, retaliation for union activity, retaliation for prior EEO
activity, and discrimination based on race, color, sex, age, and disability. IAF,
Tab 1, Tab 53 at 2.
During the course of the Board proceedings, a discovery dispute arose, and
the agency filed a motion to compel as well as a motion for sanctions due to the
appellant’s failure to respond to its discovery requests or to appear for a
scheduled deposition. IAF, Tabs 26-27. The administrative judge granted the
motion to compel in part, ordering the appellant to produce certain documents and
to appear for a deposition, but she denied the motion for sanctions. IAF, Tab 30.
Shortly thereafter, the appellant failed to join a scheduled status conference call,
and the administrative judge ordered him to show cause why sanctions should not
be imposed. IAF, Tab 31. The appellant responded, alleging that he had not
3
The appellant’s first-line supervisor was the rating official, and his second-line
supervisor was the reviewing official. IAF, Tab 22 at 4.
5
received the administrative judge’s order scheduling the status conference. IAF,
Tab 32. The agency then moved for sanctions again, in part because the appellant
had failed to comply with the order compelling discovery. IAF, Tab 33. The
administrative judge then issued another order, denying the request for sanctions,
informing the appellant that all correspondence had been sent to his address of
record, again directing him to respond to the agency’s discovery requests, and
warning him that continued failure to comply with her orders would result in
sanctions. IAF, Tab 34. Two months later, the agency moved for sanctions a
third time, alleging that the appellant had still failed to produce documents as
directed, failed to cooperate in arranging a deposition, and failed to respond
adequately to the administrative judge’s order on affirmative defenses. IAF,
Tabs 46, 48.
After a telephonic status conference, the administrative judge issued an
order imposing sanctions on the appellant. IAF, Tab 53 at 4-5. She ordered that
the appellant would be prohibited from introducing evidence concerning the
information that the agency sought during discovery, or from otherwise relying
upon testimony related to that information. Id. at 5. She advised the appellant
that he could still rely on the documentation that was already part of the record,
including the agency’s report of investigation (ROI) on the appellant’s
discrimination complaint, testify at the hearing on matters not covered by the
sanction, and submit any new and material evidence postdating the sanctions
order. Id. at 5 n.6. As a result of her sanctions order, the administrative judge
excluded 37 of the appellant’s proffered witnesses, as well as his 550 pages of
exhibits. Carroll v. Federal Deposit Insurance Corporation , MSPB Docket
No. DA-0752-16-0248-I-2, Appeal File (I-2 AF), Tab 13 at 2-4; Hearing
Transcript (HT),Volume 1 at 5.
6
After a hearing, the administrative judge issued an initial decision
sustaining the appellant’s removal. 4 I-2 AF, Tab 19, Initial Decision (ID). She
found that the agency proved all 44 specifications of unacceptable performance
underlying the removal, ID at 8-34, that the appellant failed to prove his
affirmative defenses, ID at 35-56, and that the removal penalty was reasonable,
ID at 56-59.
The appellant has filed a petition for review, disputing the administrative
judge’s conduct of the proceedings and contesting her findings on his affirmative
defenses. Petition for Review (PFR) File, Tab 1. The agency has filed a
response. PFR File, Tab 3.
ANALYSIS
The administrative judge did not abuse her discretion or show bias in conducting
the proceedings in this appeal.
On petition for review, the appellant argues that the administrative judge
failed to accommodate his disabilities so that he could adequately represent
himself without exacerbating his medical conditions. PFR File, Tab 1 at 1-2. We
disagree. An administrative judge has broad authority to control the proceedings
before her, and her procedural rulings are subject to an abuse of discretion
standard. O’Connor v. Small Business Administration, 60 M.S.P.R. 130, 132
(1993); 5 C.F.R. §§ 1201.41(b), 1201.115(c). In order to accommodate the
appellant’s disability related to his chronic degenerative osteoarthritis, the
administrative judge in this case limited the hearing to 4 hours per day, with
breaks as needed by the appellant. IAF, Tab 9 at 70, Tab 53 at 6 n.8; HT, Volume
1 at 12-15. The appellant has not explained what other accommodations he may
have required or how failure to provide further accommodations might have
affected his ability to participate in these proceedings. We therefore find that the
4
Although the appellant had been approved as a witness, both for himself and for the
agency, he declined to testify on his own behalf, and he refused to answer any of agency
counsel’s questions, despite the administrative judge’s warning that his refusal would
lead to an adverse inference. HT, Vol. 3 at 496-501.
7
appellant has not shown that the administrative judge abused her discretion in this
regard, much less that any abuse of discretion affected the outcome of the appeal.
The appellant also disputes the administrative judge’s ruling on sanctions.
He argues that he was justified in refusing to be deposed at a local agency facility
because the agency had previously denied him access to that facility and his
posttraumatic stress disorder (PTSD) would not allow for him to enter the facility
because he considered the location to be highly stressful, particularly with armed
security present. PFR File, Tab 1 at 9-11. He states that it would have been more
appropriate to conduct the deposition in a “neutral” location. Id. at 9-10.
We are not persuaded by the appellant’s argument. We find nothing
unreasonable about the agency deposing the appellant at its own field office close
to the appellant’s home. As the administrative judge accurately explained, there
is nothing unusual about this, or about the agency providing an escort. IAF,
Tab 49. Nor has the appellant shown that it is unusual at this facility for the
escort to be armed. Furthermore, nowhere in the record has the appellant
identified the alternative deposition sites that he allegedly found. Nor are we
persuaded that the appellant’s PTSD prevented him from appearing at the
agency’s field office. Not only is the appellant’s assertion in this regard unsworn
and unsupported by any medical documentation, but it also resembles a post hoc
justification for his failure to cooperate in the deposition process insofar as he
first raised it more than 6 months after he began avoiding deposition. IAF,
Tab 27 at 7, Tab 47; see Abatecola v. Veterans Administration, 29 M.S.P.R. 601,
607 n.3 (finding that a delay in raising an allegation undermined the credibility of
that allegation), aff’d, 802 F.2d 471 (Fed. Cir. 1986) (Table). Finally, we note
that the appellant’s failure to attend a deposition was not the only reason for the
sanctions. The other reason was the appellant’s failure to comply with the
administrative judge’s order on production of documents, which the petition for
review does not address. IAF, Tab 53 at 4-5. For these reasons, we find that the
appellant has not shown that the administrative judge abused her discretion in
8
imposing sanctions consistent with Board precedent for his failure to cooperate in
discovery. See Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 12 (2011),
aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012)
The appellant also argues that he was denied discovery. IAF, Tab 1
at 10-11. However, the appellant failed to file a timely motion to compel below
and is thus precluded from raising this issue on petition for review. Szejner v.
Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F.
App’x 217 (Fed. Cir. 2006).
At the prehearing conference, the administrative judge excluded several of
the appellant’s proffered witnesses on the basis that their expected testimony was
either precluded by the sanctions order or was irrelevant, immaterial, or
repetitious. IAF, Tab 53 at 5 & n.6; I-2 AF, Tab 13 at 3-4. On review, the
appellant argues that the administrative judge erred in excluding these witnesses
and by limiting his examination of the approved witnesses at the hearing. PFR
File, Tab 1 at 3-8, 14-16, 21-22. He explains the relevance of several excluded
witnesses, as well as testimony that the administrative judge excluded at the
hearing. Id. However, the expected testimony, as the appellant describes it,
appears to have been calculated to relate to his discrimination and reprisal claims,
and was thus properly excluded under the sanctions order. PFR File, Tab 1
at 4-8, 14-16; IAF, Tab 23 at 13-15, Tab 30, Tab 53 at 5 & n.6.
The appellant also disputes the administrative judge’s statement in the
initial decision that he refused to testify at the hearing. PFR File, Tab 1 at 12-13.
We have reviewed the relevant portions of the hearing transcript, and we find that
the administrative judge’s description of events was accurate. ID at 3; HT,
Volume 3 at 496-501. The appellant did, in fact, decline to testify on his own
behalf, and he refused to provide responsive answers to agency counsel.
The appellant further argues that the administrative judge was biased
against him. PFR File, Tab 1 at 12-14, 16-18, 22. Among other things, he argues
that her reliance on the agency’s ROI was “shocking and unorthodox behavior.”
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Id. at 12-13. He states that the administrative judge “threw a tantrum” when he
refused to testify and that her procedural rulings made it unnecessarily difficult
for him to prosecute his case. Id. at 13-14. He argues that the outcome of his
appeal was predetermined as evidenced by the administrative judge’s case-related
rulings, and her advice before the hearing that he would need to retain certain
documents to appeal her decision. Id. at 17-18. He asserts that the administrative
judge was influenced by the agency’s ex parte communications. Id. at 17. The
appellant also argues that the administrative judge assigned to mediate his case
was biased. Id. at 16-17.
Regarding the mediation administrative judge, even if she were biased as
the appellant alleges, this fact would only go the outcome of the mediation, and
not to the outcome of the initial decision. We therefore find that the appellant’s
arguments concerning the mediation process provide no basis to grant the petition
for review. See 5 C.F.R. § 1201.115. Regarding the administrative judge
assigned to adjudicate this appeal, an administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudication only if her comments
or actions evidence “a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358,
1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)). A party claiming bias or prejudgment by an administrative judge must
overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Higgins v. U.S. Postal Service, 43 M.S.P.R. 66, 68
(1989). To the extent that the appellant is relying on the administrative judge’s
case-related rulings to establish bias, we find that these are insufficient to
overcome this presumption. See Martinez v. Department of the Interior,
88 M.S.P.R. 169, ¶ 14 (2001). As for the alleged ex parte communications that
the appellant claims influenced the administrative judge, he does not explain why
he believes any such communications occurred, what the nature of them might
have been, or whether they may have been prohibited under 5 C.F.R.
10
§ 1201.101(a). Nor do we find that the administrative judge’s proscriptive advice
about appealing her decision indicates in any way that she prejudged this case.
HT, Volume 1 at 6. Rather, it would appear that she was attempting to protect
this pro se appellant’s substantive rights. Id. Finally, our review of the hearing
transcript and the accompanying recording does not support the appellant’s claim
that the administrative judge lost her temper when he refused to testify. Hearing
Audio Recording, Mar. 21, 2018 at 3:16:30-3:22:00; HT, Volume 3 at 495-501.
To the contrary, we find that the administrative judge conducted herself calmly
and judiciously during the hearing, as she did at each stage of the appeal below.
She afforded the appellant every opportunity to participate in his appeal, from
giving him multiple chances to comply with her orders, to giving him ample
warning of the possibility of sanctions, to ensuring that he understood the
consequences of refusing to testify. The case-related rulings that the appellant
complains about on review are a result of his own deliberate choices and are in no
way indicative of bias by the administrative judge.
The appellant has not established that the outcome of the initial decision was
based on adjudicatory error.
On petition for review, the appellant alleges that the agency’s investigation
into his discrimination complaint was biased and that the administrative judge
erred in relying on the ROI in reaching her decision. PFR File, Tab 1 at 11-12.
However, even if the investigation were biased as the appellant alleges, he has not
explained with specificity what information in the ROI is incomplete or incorrect,
or how this might have affected the initial decision. See Baney v. Department of
Justice, 109 M.S.P.R. 242, ¶ 7 (2008) (stating that a petition for review must state
objections to the initial decision that are supported by references to applicable
laws or regulations and by specific references to the record); Tines v. Department
of the Air Force, 56 M.S.P.R. 90, 92 (1992) (stating that a petition for review
must contain sufficient specificity to enable the Board to ascertain whether there
is a serious evidentiary challenge justifying a complete review of the record). We
11
have reviewed the initial decision, and we find that the administrative judge
limited her reliance on the ROI to evidence contained in four affidavits, including
the appellant’s. ID at 39-40, 44. We find no error in the administrative judge’s
consideration of these documents.
The appellant also argues the merits of his discrimination claims. He
argues that he is disabled, that the agency improperly denied his request for a
hardship transfer, that the agency mishandled his workers’ compensation (OWCP)
claim, and that the agency subjected him to a hostile work environment,
necessitating leave under the Family and Medical Leave Act of 1993 (FMLA).
PFR File, Tab 1 at 2-3. The fact that the appellant is disabled appears to be
undisputed, and his cursory statements about the hardship transfer are not a
sufficient basis to overturn the administrative judge’s thorough and well-reasoned
analysis of his disability discrimination claim, including his hardship transfer
requests. ID at 41-49. Regarding the appellant’s FMLA leave and his OWCP
claim, it is not clear how these allegations figure into his theory of the case, and
we find no error in the initial decision regarding these matters either.
Finally, the appellant argues that his first-level supervisor retaliated against
him for his grievance activity and that the agency prevented him from taking the
technical examination while allowing other similarly situated individuals to do so.
PFR File, Tab 1 at 18-21. However, as the appellant himself admits, he failed to
present any evidence to support his arguments. Id. at 21. The appellant attributes
this failure to the administrative judge’s sanctions order, id., but he has still not
made any proffer of evidence on review that would support his discrimination
claims. Therefore, even if the administrative judge had abused her discretion in
imposing sanctions, which she did not, there would still be no basis to grant the
petition for review because the appellant has not shown that any of the excluded
evidence would have affected the outcome of the case. See Thomas v. U.S. Postal
Service, 116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.115(c).
12
The appellant does not directly contest the administrative judge’s findings
that the agency proved its charge of unsatisfactory performance or that the
removal penalty was reasonable and promoted the efficiency of the service. ID
at 4-34, 56-59. We find no basis to disturb these findings. Nor does the appellant
appear to contest the administrative judge’s findings on his affirmative defenses
of whistleblower reprisal or uniformed service discrimination. ID at 52-56. We
find no basis to disturb these findings either. Finally, with respect to the
administrative judge’s findings on the appellant’s affirmative defenses of
retaliation for union activity and discrimination and retaliation under 5 U.S.C.
§ 2302(b)(1), although the appellant has registered his disagreement with some of
these findings, for the reasons explained above, he has not provided a sufficient
basis for us to disturb them. 5
NOTICE OF APPEAL RIGHTS 6
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
5
After the initial decision in this appeal was issued, the Board issued a precedential
decision finding that a but-for causation standard applies for proving retaliation under
the Rehabilitation Act. Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 44-47. In adjudicating the appellant’s EEO reprisal claim, which appears to have
been based on a prior complaint of disability discrimination, the administrative judge in
this appeal applied the less stringent “motivating factor” standard, consistent with
Board precedent at the time. ID at 35-41; IAF, Tab 9 at 7. However, the appellant’s
failure to prove this lower causation standard means per force that he failed to prove the
higher causation standard as well. We therefore modify the initial decision to find that
the appellant did not prove that his prior EEO activity was a but-for cause of his
removal. See Pridgen, 2022 MSPB 31, ¶ 48.
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
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.
(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
14
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 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,
15
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:
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. 7 The court of appeals must receive your petition for
7
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,
16review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510.
17
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.