Kevin Burnett v. Federal Deposit Insurance Corporation ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN PATRICK BURNETT, DOCKET NUMBER
Appellant, DC-3330-19-0455-I-1
v.
FEDERAL DEPOSIT INSURANCE DATE: January 4, 2024
CORPORATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin Patrick Burnett , Stockton, California, pro se.
Scott David Cooper , Fairfax, Virginia, 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
denied him corrective action under the Veterans Employment Opportunities Act
(VEOA) of 1998. 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
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
During the relevant time period, the appellant, who is a preference-eligible
veteran, was employed as an NB-6 Community Reinvestment Act & Fair Lending
Compliance Policy Specialist for the Office of the Comptroller of the Currency.
Initial Appeal File (IAF), Tab 1 at 7. The agency issued an open competitive
vacancy announcement (2019-HQD-B0032) and a merit promotion vacancy
announcement (2019-HQ-B0030) for the position of CG-14/15 Senior Policy
Analyst. IAF, Tab 19 at 23-35, 47-57. The vacancy announcements stated, in
pertinent part, that applicants for the CG-14 position must have 1 year of
specialized experience equivalent to the Grade 13 level in the Federal service and
applicants for the CG-15 position must have 1 year of specialized experience
equivalent to the Grade 14 level in the Federal service. Id. at 27, 51. For the
Grade 14 level, applicants were required to have specialized experience in
“assisting in developing or analyzing policy related to financial services or
products, banking or financial institutions, and analyzing and evaluating existing
or proposed consumer protection laws and regulations related to the banking
industry.” Id. For the Grade 15 level, applicants were required to have
3
specialized experience “implementing, developing or analyzing policy related to
financial services or products, banking or financial institutions, and analyzing and
evaluating existing or proposed consumer protection laws and regulations related
to the banking industry.” Id.The appellant submitted an application for both vacancy announcements.
IAF, Tab 1 at 5, 8, Tab 3 at 8-10. After reviewing the appellant’s applications,
the agency deemed him not qualified for the CG-14 and CG-15 positions because
he lacked the 1 year of specialized experience equivalent to the Grade 13 or 14
levels in the Federal service. IAF, Tab 19 at 20-22, 60-62. On March 13, 2019,
the appellant was notified of his nonselection for both vacancies. IAF, Tab 1
at 3, Tab 10 at 7.
The appellant filed a timely complaint with the Department of Labor
(DOL). IAF, Tab 3 at 12, Tab 7 at 35-42. By letter dated April 4, 2019, DOL
notified him that it was closing his case because its investigation had determined
that he did not meet the eligibility requirements of the applicable provisions of
veterans’ preference statutes and regulations under Title 5. IAF, Tab 3 at 13.
Thereafter, the appellant filed an appeal with the Board, identifying only
the open competitive vacancy announcement (2019-HQD-B0032), and asserting
that the agency’s decision not to select him for the Senior Policy Analyst position
violated his veterans’ preference rights. IAF, Tab 1. The administrative judge
issued an order on VEOA jurisdiction, apprising the appellant of his burden of
proving Board jurisdiction over his appeal. IAF, Tab 9. After receiving the
appellant’s response, the administrative judge found that, regarding the open
competitive vacancy announcement (2019-HQD-B0032), he made a nonfrivolous
allegation of Board jurisdiction over this claim. IAF, Tab 18. During a close of
record conference, and over the appellant’s objection, the administrative judge
stated that an in-person hearing was not necessary and he would not hold the
appellant’s requested hearing. IAF, Tab 23 at 1.
4
The administrative judge issued an initial decision in which he denied the
appellant’s request for corrective action regarding the open competitive vacancy
announcement (2019-HQD-B0032). IAF, Tab 27, Initial Decision (ID). The
administrative judge found that, contrary to DOL’s determination, the appellant
was a preference-eligible veteran; he further found that the appellant made a
nonfrivolous allegation of Board jurisdiction over his claim that the agency did
not consider all of his qualifications. ID at 2-4. The administrative judge also
determined that the agency reviewed and considered the appellant’s experience;
thus, the appellant failed to prove by preponderant evidence that the agency failed
to consider his experience in violation of the VEOA. ID at 4-7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He asserts that the administrative judge did not consider the
evidence that he presented, which allegedly showed that the agency did not
consider his qualifications in the selection process. Id. at 4. He also asserts,
without explanation, that the administrative judge took a “narrow interpretation”
of the relevant case law. Id. He claims that the agency did not comply with the
administrative judge’s order to provide discovery materials, and the
administrative judge did not address his objection to the agency’s failure to do so
below. Id. at 3. The agency has filed a response. PFR File, Tab 3. After the
record closed on review, the appellant filed a motion for leave to file an
additional pleading, which we deny herein. 2 PFR File, Tab 6.
2
The appellant seeks leave to submit an additional pleading that “addresses and
provides evidence that the agency impermissibly found [him] unqualified for another
Senior Policy Analyst [p]osition, admitted to that error, and offered [him] a
noncompetitive appointment to a similar position around the time of the vacancy
disqualification which is the subject of this appeal.” PFR File, Tab 6 at 3. He also
asserts that this “additional information was provided by the Agency as late as
March 22, 2021,” after an agency internal review discovered the error. Id. He further
asserts that this evidence is relevant due to the “similarity in evaluative factors between
positions” and “the similarities in the errors that occurred.” Id. He also states that the
“ultimate qualification for the subsequent Senior Policy Analyst position refutes key
elements of the agency[’]s arguments for [his] disqualification for the position under
review in this appeal.” Id. We believe that the appellant is asking to file a pleading
5
On November 19, 2022, more than 2½ years after the record closed on
review, the appellant filed a request to join this matter with Burnett v. Federal
Deposit Insurance Corporation, MSPB Docket No. DC-3330-21-0421-I-2. PFR
File, Tab 8. The appellant asserts that “it is in the best interest of both parties
and the Board to process these cases concurrently.” Id. at 3. He states that he
explained why joinder is appropriate in his response to the agency’s petition for
review in the 0421 matter, but he did not offer any explanation in his joinder
request in this matter. Id. On December 22, 2023, the Board issued a Final Order
in Burnett v. Federal Deposit Insurance Corporation, MSPB Docket No. DC-
3330-21-0421-I-2. Accordingly, we deny the appellant’s motion to join these
matters as moot.
DISCUSSION OF ARGUMENTS ON REVIEW
Our interpretation of the appellant’s claims in this matter
As an initial matter, we wish to clarify our interpretation of the interplay
between the nature of the vacancy announcements and the appellant’s claims in
this matter. Federal agencies generally use two types of selection processes to fill
vacancies: (1) the open competitive examination process, and (2) the merit
promotion process. Joseph v. Federal Trade Commission, 505 F.3d 1380, 1381
(Fed. Cir. 2007). The open competitive examination process is used for
employees seeking to join the competitive service and often is used for reviewing
applicants outside the agency. Id. Under this process, agencies may examine
candidates using traditional competitive ranking or category rating procedures.
Launer v. Department of the Air Force, 119 M.S.P.R. 252, ¶¶ 6-7 (2013)
(explaining the key aspects of the two competitive examination procedures). By
contrast, the merit promotion process is used when the position is to be filled by
that incorporates information relating to the selection process and/or evidence discussed
in Burnett v. Federal Deposit Insurance Corporation, MSPB Docket No. DC-3330-21-
0421-I-2. We deny the appellant’s request because he proffers no evidence that the
agency admitted to an error in the selection process at issue in this matter or otherwise
committed an error in this matter that warrants corrective action.
6
an employee of the agency or by an applicant from outside the agency who has
“status” in the competitive service. Joseph, 505 F. 3d at 1382. In the open
competition process, preference-eligible veterans may be afforded various
advantages at the examination, rating, and selection stages, see, e.g., Joseph,
505 F. 3d at 1381-82; Launer, 119 M.S.P.R. 252, ¶¶ 6-7. However, when an
agency fills a vacancy via the merit promotion process, a preference -eligible
veteran does not receive any advantage beyond the ability to apply for and to be
considered for the position. Miller v. Federal Deposit Insurance Corporation,
818 F.3d 1357, 1359-60 (Fed. Cir. 2016); Montgomery v. Department of Health
and Human Services, 123 M.S.P.R. 216, ¶ 11 (2016). As noted above, vacancy
announcement 2019-HQD-B0032 was an open competitive announcement, and
vacancy announcement 2019-HQ-B0030 was a merit promotion announcement.
IAF, Tab 19 at 23-35, 47-57.
There are two different types of VEOA appeals. Pursuant to 5 U.S.C.
§ 3330a(a)(1)(A), a preference eligible who alleges that an agency has violated
his rights under any statute or regulation relating to veterans’ preference may file
a complaint with the Secretary of Labor. Pursuant to 5 U.S.C. § 3330a(a)(1)(B),
a veteran described in section 3304(f)(1) 3 who alleged that an agency has violated
such section with respect to such veteran may file a complaint with the Secretary
of Labor. Because the appellant is a preference-eligible veteran, he may file an
appeal pursuant to 5 U.S.C. § 3330a(a)(1)(A) and/or (a)(1)(B). Montgomery,
123 M.S.P.R. 216, ¶ 5.
It appears that the appellant made both claims below. See, e.g., IAF, Tab 7
at 20 (relying on 5 U.S.C. § 3311 and 5 C.F.R. § 302.302(d) to support his
argument that the agency failed to credit all of his experience), IAF, Tab 10 at 7
3
Pursuant to 5 U.S.C. § 3304(f)(1), “[p]reference eligibles or veterans who have been
separated from the armed forces under honorable conditions after 3 years or more of
active service may not be denied the opportunity to compete for vacant positions for
which the agency making the announcement will accept applications from individuals
outside its own workforce under merit promotion procedures.”
7
(stating that, “under 2019-HQ-B0030, [t]he failure to consider the full measure of
[his] experience also resulted in a violation of the opportunity to compete
guaranteed by 5 U.S.C. § 3304(f)”). We, therefore, understand the appellant to
have alleged below that (1) the agency violated 5 U.S.C. § 3311 and/or 5 C.F.R.
§ 302.302(d) by not properly considering his prior experience in the open
competitive vacancy announcement (section 3330a(a)(1)(A) claim), and (2) he
was denied the right to compete in the merit promotion vacancy announcement
(section 3330a(a)(1)(B) claim).
The appellant is not entitled to corrective action for his claim arising under
5 U.S.C. § 3330a(a)(1)(A). 4
To be entitled to relief, the appellant must prove by preponderant evidence
that the agency’s actions violated one or more of his statutory or regulatory
veterans’ preference rights in its selection process. Graves v. Department of
Veterans Affairs, 114 M.S.P.R. 209, ¶ 10 (2010). The Board may decide a VEOA
appeal on the merits, without a hearing, when there is no genuine dispute of
material fact and one party must prevail as a matter of law. Haasz v. Department
of Veterans Affairs, 108 M.S.P.R. 349, ¶ 9 (2008); see 5 C.F.R. § 1208.23(b)
(stating that “a hearing may be provided to the appellant”).
The single issue before the Board was whether the agency considered all of
the appellant’s experience in determining whether he was qualified for the
position at issue. IAF, Tab 23 at 1. We agree with the administrative judge that
because there is no genuine dispute of material fact, it was unnecessary to hold a
hearing. We further agree that the appellant did not prove by preponderant
evidence that the agency violated 5 U.S.C. § 3311 or 5 C.F.R. § 302.302(d).
4
Neither party challenges the administrative judge’s finding that the appellant
exhausted his remedy with DOL and made a nonfrivolous allegation of Board
jurisdiction over his claim that the agency failed to consider all of his qualifications
when he applied for the position through the open competitive vacancy announcement
(2019-HQD-B0032). IAF, Tab 18 at 1; ID at 3-4. We discern no reason to disturb the
administrative judge’s jurisdictional findings in this regard.
8
Pursuant to 5 U.S.C. § 3311(2), in examinations for the competitive service
in which experience is an element of qualification, a preference eligible is
entitled to credit “for all experience material to the position for which examined,
including experience gained in religious, civic, welfare, service, and
organizational activities, regardless of whether he received pay therefor.” The
language of 5 C.F.R. § 302.302(d) largely tracks this language. 5 Under 5 U.S.C.
§ 3311(2) and 5 C.F.R. § 302.302(d), the Board’s role is limited to determining
whether the hiring agency improperly omitted, overlooked, or excluded a portion
of the appellant’s experiences or work history in assessing his qualifications for
the vacancy, and it will not reevaluate the weight the agency accorded those
experiences in reaching its decision that the appellant was not qualified for a
position of employment. Miller v. Federal Deposit Insurance Corporation ,
121 M.S.P.R. 88, ¶ 12 (2014), aff’d, 818 F.3d 1361. Importantly, VEOA does not
empower the Board to reevaluate the merits of an agency’s ultimate determination
that a preference-eligible veteran is not qualified for a position with the agency.
Id. Rather, it would be inconsistent with the Board’s role under VEOA to engage
in a fact-based review of how an agency weighed and assessed a preference
eligible’s experiences in making its hiring decisions and determinations about a
preference eligible’s qualifications for a position. Id.The record reflects that various agency officials, including a Subject Matter
Expert (SME) and several Human Resources Specialists, reviewed the appellant’s
application package, including his resume for the open competitive vacancy
announcement (2019-HQD-B0032). ID at 5; see, e.g., IAF, Tab 19 at 7-77. The
SME made numerous handwritten comments in the margins of the appellant’s
resume indicating, among other things, that the appellant did not have any
experience in policy analysis and/or development. IAF, Tab 19 at 10-15. The
Human Resources Specialists considered all of the work experience described in
5
The Board has held that 5 U.S.C. § 3311 and 5 C.F.R. § 302.302(d) are a statute and a
regulation, respectively, relating to veterans’ preference. Miller v. Federal Deposit
Insurance Corporation, 121 M.S.P.R. 88, ¶ 7 (2014), aff’d, 818 F.3d 1361.
9
the appellant’s resume and agreed that he was not qualified because he did not
meet the specialized experience requirement. Id. at 61, 72-73. Thus, contrary to
the appellant’s assertion on review that the agency “clearly did not consider [his]
qualifications for the position,” PFR File, Tab 1 at 4, the record reflects that
multiple agency officials considered his application and qualifications for the
position of Senior Policy Analyst. Cf. Williams v. Department of Defense,
No. 2022-2246, 2023 WL 3575987 (Fed. Cir. May 22, 2023) (finding that the
agency violated the appellant’s rights under the VEOA when it failed to
independently assess his qualifications based on the materials included in his
application). Given the Board’s limited role in evaluating these claims, Miller,
121 M.S.P.R. 88, ¶ 12, we agree with the administrative judge that the appellant
is not entitled to corrective action, ID at 7-8. We also discern no error with the
administrative judge’s decision not to hold the appellant’s requested hearing
under the circumstances.
Even if we were to consider the appellant’s claim arising under 5 U.S.C.
§ 3330a(a)(1)(B), he would still not be entitled to corrective action.
The administrative judge’s order finding jurisdiction (which the appellant
did not contest below or on review) and the initial decision only discussed the
open competitive vacancy announcement (2019-HQD-B0032). IAF, Tab 18 at 1;
ID at 2. The administrative judge did not mention the merit promotion
announcement (2019-HQ-B0030) or any right-to-compete claim in the initial
decision, nor did the appellant raise these issues on petition for review. Even if
the administrative judge erred, any such adjudicatory error is not prejudicial to
the appellant’s substantive rights and provides no basis for reversal of the initial
decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
The 5 U.S.C. § 3304(f) opportunity-to-compete provision does not apply to
preference eligible and/or veteran applicants who are already employed in the
Federal civil service. Kerner v. Department of the Interior, 778 F.3d 1336, 1339
(Fed. Cir. 2015); Oram v. Department of the Navy, 2022 MSPB 30, ¶¶ 12-17.
10
Thus, because the appellant was a current Federal employee, he was not entitled
to recovery on any claim that he was denied an opportunity to compete under
5 U.S.C. § 3304(f) as a matter of law. Oram, 2022 MSPB 30, ¶ 17.
The administrative judge did not abuse his discretion in his discovery rulings.
The chronology of discovery issues in this matter is somewhat lengthy, so
we will identify the pertinent events before we analyze the appellant’s argument
on review. During the pendency of the appeal, the appellant filed a motion to
compel the agency’s responses to his interrogatories and document production
requests regarding, among other things, his application materials for the vacancy
announcements at issue, application materials from other applicants, and the
certificate case files. IAF, Tab 15 at 4, 6-12. The agency responded that the
nature of the appellant’s claims was unclear, he made no attempt to resolve the
discovery matter before filing the motion, and discovery was premature in the
absence of a jurisdictional finding. IAF, Tab 16 at 3. Following the
administrative judge’s order finding jurisdiction, the agency submitted its file,
which was responsive to some of the appellant’s discovery requests. IAF,
Tabs 18-19.
The appellant subsequently filed a motion for sanctions, asserting among
other things, that the agency had not produced all of the emails related to both
vacancy announcements and that the evidence produced by the agency was
fraudulent because the version of his resume the agency produced in response to a
Freedom of Information Act (FOIA) request differed from the version of his
resume that the agency produced during the appeal. IAF, Tab 21 at 5-11. He also
asked the administrative judge to compel further discovery. Id. at 25-26. The
agency objected to the sanctions request on the grounds that the application
materials provided to the appellant in response to his FOIA request were redacted
and the notations on such materials were exempt from disclosure under FOIA.
IAF, Tab 22 at 4-6, 9-10. Regarding the motion to compel, the agency noted
among other things that it had provided the appellant with all relevant documents
11
insofar as they related to the issue of whether the agency credited him with all
experience material to the Senior Policy Analyst position. Id. at 6-8.
Thereafter, the administrative judge granted in part and denied in part the
appellant’s motion to compel. IAF, Tab 23 at 2. Specifically, the administrative
judge ordered the agency to provide responses to certain interrogatories and
produce certain documents related to the review of the appellant’s application and
the hiring process for both vacancy announcements, but noted that the remaining
interrogatories and document production requests were either overbroad or
irrelevant to the issues in this appeal. Id. The administrative judge also denied
the motion for sanctions. Id. at 1. In response, the agency stated that it had
already provided the appellant with all relevant documents with the exception of
materials submitted by the other applicants for both vacancy announcements
because they contained personally identifiable information, are therefore barred
from release under the Privacy Act, and are not relevant to the issue of whether
the agency considered all of the appellant’s experience. IAF, Tab 24 at 4. The
appellant objected to the agency’s response and made a second request for
sanctions. IAF, Tab 25 at 4-6.
We believe that the appellant is alleging on review that the administrative
judge’s discovery rulings constituted an abuse of discretion. An administrative
judge has broad discretion in ruling on discovery matters, and absent an abuse of
discretion, the Board will not find reversible error in such rulings. Kingsley v.
U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). The abuse of discretion
standard is a very high standard and it allows for great deference. Pecard v.
Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010).
The appellant has not persuaded us that the administrative judge abused his
discretion. In the close of record conference, the administrative judge identified
the sole issue to be resolved as whether the agency considered all of the
appellant’s experience in determining whether he was qualified for the Senior
Policy Analyst position. IAF, Tab 23 at 1. Many of the documents and much of
12
the information subsequently requested by the appellant went beyond the scope of
that issue and was not reasonably calculated to lead to the discovery of admissible
evidence. 5 C.F.R. § 1201.72(a). Moreover, the agency provided information
and documentation that was responsive to his discovery requests and the material
facts on the sole issue before the Board are largely undisputed. Therefore, we
conclude that there was no abuse of discretion. To the extent that the
administrative judge failed to address the appellant’s second request for
sanctions, we deny that request herein.
NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of 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.
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
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
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,
14
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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
15
(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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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,
132 Stat. 1510.
16
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.