Danny Lee v. Social Security Administration ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANNY LEE, DOCKET NUMBER
Appellant, SF-0752-18-0753-I-1
v.
SOCIAL SECURITY DATE: February 23, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Danny Lee , Poway, California, pro se.
Chantal Jenkins , Baltimore, Maryland, for the agency.
BEFORE
Cathy Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant challenges the administrative judge’s finding that his
resignation was not involuntary, indicates that he has new evidence in the form of
emails from agency officials supporting his assertion that he was subject to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
constant harassment, and reasserts his arguments that the agency’s charges in the
removal proposal are “false,” that he was not allowed to read the documents
supporting his proposed removal, that he was denied a union representative, that
he was denied requested reasonable accommodations, that he did not receive
information concerning his right to appeal the agency’s decision disqualifying
him from telework eligibility, and that his supervisor “perjured” himself.
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
Regarding the appellant’s challenge to the administrative judge’s findings
concerning the voluntariness of the appellant’s resignation decision, we find no
reason to disturb the administrative judge’s findings on review. As the
administrative judge observed, an employee is not guaranteed a stress -free
working environment. Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 15,
aff’d, 469 F. App’x 852 (Fed. Cir. 2011); Miller v. Department of Defense,
85 M.S.P.R. 310, ¶ 32 (2000); see Initial Appeal File (IAF), Tab 27, Initial
Decision (ID) at 16. Dissatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions are generally not
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so intolerable as to compel a reasonable person to resign or retire. Brown,
115 M.S.P.R. 609, ¶ 15; Miller, 85 M.S.P.R. 310, ¶ 32. Based on the totality of
the circumstances, the administrative judge determined that the appellant failed to
make a nonfrivolous allegation that the agency deprived him of freedom of choice
or made his working conditions so difficult or unpleasant that a reasonable person
would have felt compelled to resign or retire. ID at 22-23.
On review, the appellant has merely restated his allegation that he felt
compelled to resign based on these disagreements. Petition for Review (PFR)
File, Tab 1 at 5-6. Aside from general workplace dissatisfaction and ongoing
disagreements with agency management, the appellant did not describe work
conditions that are sufficiently unpleasant or intolerable that they would compel a
reasonable employee to resign. Accordingly, we agree with the administrative
judge’s conclusion that such disagreements do not rise to the level of being so
intolerable as to compel a reasonable person to resign. ID at 22-23; see Brown,
115 M.S.P.R. 609, ¶ 15; Baldwin v. Department of Veterans Affairs, 109 M.S.P.R.
392, ¶¶ 19-20 (2008) (explaining that allegations of being assigned to onerous
tasks, being unjustifiably threatened with discipline, and being subjected to
unnecessary investigations did not suffice to make a nonfrivolous allegation of
jurisdiction over an involuntary resignation based on coercion); Miller,
85 M.S.P.R. 310, ¶ 32.
The appellant also takes issue with the allegations contained in the
agency’s proposed removal and challenges the merits of that determination. PFR
File, Tab 1 at 4-5, Tab 5 at 4-5. To the extent the appellant is suggesting that he
had no choice but to resign in the face of the notice of proposed removal, we find
no merit to that argument. See Garcia v. Department of Homeland Security ,
437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc); Axsom v. Department of Veterans
Affairs, 110 M.S.P.R. 605, ¶ 17 (2009) (finding that the appellant failed to prove
that a reasonable person in his position would have felt compelled to resign where
he had the option to stand and fight the alleged discrimination, harassment, and
4
retaliation rather than resign). If the appellant believed that the proposed removal
was unjustified or unsupported by the evidence, he could have stayed and
challenged the proposal instead of resigning. See Baldwin, 109 M.S.P.R. 392,
¶ 12 (stating that an employee being faced with the unpleasant choice of either
resigning or opposing a potential adverse action does not rebut the presumed
voluntariness of her ultimate choice of resignation).
Alternatively, to the extent the appellant is arguing that the agency knew
that its threatened removal action could not be substantiated, the administrative
judge considered and rejected this theory. ID at 23-24. On review, the appellant
reasserts his argument that the agency’s charges are “false,” which could be
understood as a claim that the agency knew or should have known that the
proposed removal action could not be substantiated. PFR File, Tab 1 at 4-5,
Tab 2 at 5-6, Tab 5 at 4. As the administrative judge observed, an appellant may
show that a resignation was based on coercion when the resignation is induced by
a threat to take disciplinary action that the agency knows could not be
substantiated or when the agency takes steps against an employee, “not for any
legitimate agency purpose but simply to force the employee to quit.” Staats v.
U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996); see ID at 23-24.
However, the doctrine of coerced involuntariness is “a narrow one.” Staats,
99 F.3d at 1124. It does not apply if the employee resigns because he “does not
want to accept [measures] that the agency is authorized to adopt, even if those
measures make continuation in the job so unpleasant . . . that he feels that he has
no realistic option but to leave.” Id. Here, the appellant has not provided
sufficient evidence to make a nonfrivolous allegation that the agency knew that
its penalty could not be substantiated. The appellant’s blanket assertion that the
agency’s charges are “false,” and that he did not hang up the phone on a claimant
as the agency detailed in the proposal and as described in significant detail by an
agency supervisor, are insufficient to meet his high burden of showing that the
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agency knew the action could not be substantiated. PFR File, Tab 1 at 4-5, Tab 2
at 5-6, Tab 5 at 4; see IAF, Tab 1 at 11-19, Tab 14 at 16-17.
The appellant also argues that he was denied a number of reasonable
accommodations. PFR File, Tab 1 at 5. To the extent he is suggesting that the
denial of reasonable accommodation constituted discrimination, as the
administrative judge correctly observed, at the jurisdictional stage, an allegation
of discrimination in the context of an involuntary adverse action appeal may only
be considered insofar as it relates to the issue of voluntariness. ID at 16, 20; see
Axsom, 110 M.S.P.R. 605, ¶ 12. Here, the administrative judge thoroughly
reviewed the appellant’s allegations and the record and concluded that, although
the agency did not grant the appellant all of his requested accommodations, a
number of them were granted, and the appellant’s allegations of
non-accommodation lacked specificity and were conclusory, generalized,
“self-contradicting and exaggerated,” and implausible on their face. ID at 18-20.
Although the agency did not grant all of the appellant’s requested
accommodations, it did grant a significant number of effective alternative
accommodations, including a standalone printer to reduce prolonged walking or
standing, flexible breaks and liberal leave, a hard surface chair mat, a private area
to lay in a recumbent position when necessary, an ergonomic mouse and
keyboard, and assistance in lifting files weighing more than 5 pounds. Id.
at 53-55. Nothing in the record indicates that the agency failed to follow any of
the appellant’s specific medical restrictions, and therefore, we agree with the
administrative judge’s conclusion that the appellant’s generalized allegations of
discrimination based on the fact that he was denied accommodations similarly do
not support his claim that his resignation was involuntary. ID at 17 n.8, 19-21;
cf. Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶¶ 6-7 (2010)
(finding that the appellant nonfrivolously alleged that her resignation was
involuntary based on the agency’s denial of her request for a reasonable
accommodation (telecommuting) that, according to her doctor, would have
6
permitted her to continue to work full-time despite her medical condition); Swift
v. U.S. Postal Service, 61 M.S.P.R. 29, 32-33 (1994) (finding that an employee’s
contention that he was harassed at work, coupled with supporting medical
documentation that his depression and anxiety were aggravated by harassment he
was receiving from his supervisor, was sufficient to constitute a nonfrivolous
allegation of involuntariness regarding his resignation).
Regarding the appellant’s claim that he was denied a union representative
and the opportunity to review documents and contact witnesses at the meeting
where he received the proposed removal, the administrative judge acknowledged
this claim below in the context of assessing the voluntariness of the appellant’s
decision to resign, but ultimately concluded that the appellant had not met his
burden of making a nonfrivolous allegation that his resignation was coerced. See
ID at 12, 18-19. Additionally, as the agency observed, because the subject of the
meeting was merely to provide the appellant with the notice of proposed removal,
pursuant to the union agreement, it does not appear that the appellant was entitled
to union representation or a witness at the meeting. IAF, Tab 9 at 14-15, 20,
28-29; see National Labor Relations Board v. J. Weingarten, Inc. , 420 U.S. 251,
260 (1975) (concluding that private sector employees are entitled to union
representation at an investigatory interview that the employee reasonably believes
might result in disciplinary action); see also 5 U.S.C. § 7114(a)(2)(B) (providing
Federal employees Weingarten-type rights in the Civil Service Reform Act).
Regarding the appellant’s claim that he did not receive information concerning
his right to appeal the agency’s decision disqualifying him from telework
eligibility, the administrative judge also reviewed and rejected this allegation in
considering the voluntariness of the appellant’s resignation decision. See ID
at 4 n.3, 20. Further, although the appellant asserts that he was “not allowed to
read the termination papers,” he resigned from his position before the agency
issued a decision on the proposed removal, and he does not challenge the
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agency’s assertion that he received a copy of the proposed removal as well as the
evidence the agency relied on in proposing his removal. See IAF, Tab 11 at 7-15.
Although the appellant takes issue with the administrative judge’s
characterization of his reassignment to the position of Senior Case Technician as
a “promotion” and argues that the new position had greater physical demands, the
record reflects that his previous position was a GS-6 Legal Assistant/Case
Technician position and he was reassigned to a GS-8 Legal Assistant/Senior Case
Technician position; so, despite his assertion otherwise, the position was a
promotion. PFR File, Tab 1 at 4-5; see IAF, Tab 16 at 10, 14. Additionally, even
assuming the promotion position had greater physical demands, as previously
noted, the agency granted the appellant numerous reasonable accommodations,
and nothing in the record indicates that the appellant was required to work outside
of his physical restrictions.
Regarding the appellant’s assertion that he received a favorable decision
from the California unemployment office based on “constructive discharge,” and
his suggestion that this demonstrates that his resignation was involuntary, we
conclude that this does not provide justification for disturbing the initial decision.
PFR File, Tab 5 at 4. The Board has held that decisions by state unemployment
tribunals are not binding on the Board, and the award of such benefits does not
mean that the administrative judge erred in concluding that the appellant’s
resignation was not involuntary. See Herring v. U.S. Postal Service, 40 M.S.P.R.
342, 346-47 (1989) (concluding that decisions by state unemployment tribunals
are not given collateral estoppel effect). With respect to the appellant’s claim
that his former supervisor and the agency representative included personally
identifiable information (PII) in the removal proposal and in the agency file, the
appellant also raised this issue below but did not offer any explanation for why it
was relevant, or for how it related to the voluntariness of his resignation or his
jurisdictional burden in this case. PFR File, Tab 2 at 4-8; see IAF, Tab 1 at 5;
ID at 11.
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There is also no merit to the appellant’s claim that he was denied the
opportunity to conduct discovery. PFR File, Tab 1 at 4-5. Although the
acknowledgment order provided the appellant with basic discovery instructions
and directed him to the applicable regulations, the administrative judge issued an
order staying discovery regarding the merits of the appeal pending a decision on
the threshold jurisdictional issue in response to the agency’s motion to compel.
See IAF, Tab 2 at 6-7, Tab 21 at 1-2. Since the administrative judge ultimately
concluded that the appellant failed to meet his jurisdictional burden of proving
that his resignation was involuntary, he denied the request to lift the stay and
instead issued the initial decision dismissing the appeal for lack of jurisdiction.
See IAF, Tab 25. Because we agree with the administrative judge’s determination
that the appellant failed to demonstrate that his resignation was involuntary, we
agree that, absent a ruling on the threshold jurisdictional issue, he was not
entitled to conduct discovery, and so we conclude that the administrative judge
did not abuse his discretion in his discovery-related rulings. Vaughn v.
Department of the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013) (recognizing that 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). Further, regarding the appellant’s assertion that the “in lieu of
involuntary action” designation on his Standard Form (SF) 50 is making it
difficult for him to find another job, as the administrative judge noted and as the
record reflects, the appellant’s supervisor informed him at the time he stated that
he wanted to resign that his SF-50 would reflect the fact that his resignation was
in lieu of an involuntary action. PFR File, Tab 1 at 5; see IAF, Tab 10 at 12; ID
at 5, 27.
Additionally, in a supplemental filing to his petition for review, he appears
to suggest, for the first time, that the agency retaliated against him because of
protected whistleblowing activity, citing provisions from the Whistleblower
Protection Act of 1989, Pub. L. No. 101-12, 103 Stat 16 (1989), and the Follow
9
the Rules Act, Pub. L. No. 115-40, 131 Stat. 861 (2017). PFR File, Tab 2 at 4-8.
Specifically, the appellant appears to suggest that the agency proposed his
removal in reprisal for his refusal to falsify records (i.e., that it required him to
change his time and attendance records to reflect absence without lave (AWOL)
for periods of time he alleges he was not AWOL), and because of his insistence
on following the agency’s record management policies. Id. at 5-8.
Although the Board may exercise jurisdiction over constructive agency
actions as personnel actions in individual right of action (IRA) appeals, 5 U.S.C.
§ 1221(a); Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12
(2014) (finding that an involuntary resignation is cognizable as a personnel action
in an IRA appeal), such appeals first require exhaustion of administrative
remedies with the Office of Special Counsel (OSC), see Carney v. Department of
Veterans Affairs, 121 M.S.P.R. 446, ¶ 4 (2014) (stating that the first element to
Board jurisdiction over an IRA appeal is exhaustion by the appellant of his
administrative remedy before OSC). Nothing in the record indicates that the
appellant filed and exhausted his claims regarding these allegations, such that the
Board would have jurisdiction over these claims. Nevertheless, in an abundance
of caution, we have considered the appellant’s apparent whistleblower retaliation
claims to the extent they go to the ultimate question of coercion. See Coufal v.
Department of Justice, 98 M.S.P.R. 31, ¶ 24 (2004) (providing that, when an
appellant raises allegations of reprisal for whistleblowing activity in connection
with a constructive removal claim, evidence of reprisal goes to the ultimate
question of coercion). The administrative judge considered these claims and
determined that they were “self-contradicting and exaggerated” and “not plausible
on their face,” and the appellant has not offered any new evidence on review to
rebut these conclusions. ID at 20. Accordingly, we conclude that, to the extent
the appellant is alleging that he felt compelled to resign due to retaliation by
agency officials based on protected whistleblowing activity, we see no reason to
disturb the administrative judge’s findings and agree that the appellant has not
10
met his burden of making a nonfrivolous allegation of involuntariness. See Clay
v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions); Broughton
v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987)
(same).
Regarding the appellant’s allegation that his former supervisor committed
“perjury,” based on the fact that statements he made related to the removal
proposal are contrary to statements contained in the appellant’s disability
retirement appeal, there is no support for the appellant’s claim. PFR File, Tab 1
at 5 (citing Lee v. Office of Personnel Management, MSPB Docket No. SF-844E-
18-0754-I-1, Initial Appeal File). As an initial matter, the two decisions are not
inconsistent. The other appeal concerns the appellant’s application for a Federal
Employees’ Retirement System (FERS) disability retirement and is directed at the
Office of Personnel Management (OPM), while the instant appeal concerns his
involuntary resignation claim and is directed at the SSA, his former employing
agency. The administrative judge in the other appeal affirmed OPM’s
reconsideration decision denying the appellant’s disability retirement application,
and nothing in that decision is inconsistent with the decision reached by the
administrative judge in the instant appeal. See Lee v. Office of Personnel
Management, MSPB Docket No. SF-844E-18-0754-I-1, Initial Decision at 1,
28-29 (July 30, 2019). The appellant has filed a petition for review in that case,
which will be addressed in a separate decision. Additionally, aside from
generally reasserting that the supervisor “perjured” himself, the appellant has not
provided any elaboration or identified which statements he believes constitute
perjury, and so we see no reason to disturb the initial decision on this basis . See
PFR File, Tab 1 at 5.
Finally, regarding the purportedly new evidence the appellant submits for
the first time with his petition for review, he has not shown that any of this
11
information is both new and material. PFR File, Tab 1 at 7-142; see Okello v.
Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009) (noting that
under 5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for
the first time with a petition for review absent a showing that it is both new and
material). The emails are all dated from April 2014, through the date of the
appellant’s resignation, July 27, 2018, which is prior to the September 24, 2018
close of record in this case. PFR File, Tab 1 at 7-142; see IAF, Tab 2 at 5.
Additionally, the appellant concedes that these emails were not previously
unavailable, noting that he was in possession of them before the record closed
below and that he provided them to his attorney, but his attorney did not file them
with the Board. PFR File, Tab 1 at 3. Thus, the evidence is not new. The Board
has held that it generally will not consider evidence submitted for the first time
on review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980). Furthermore, regarding the appellant’s claim that his
representative failed to submit the emails, an appellant is responsible for the
errors of his chosen representative. Pacilli v. Department of Veterans Affairs ,
113 M.S.P.R. 526, ¶ 13, aff’d, 404 F. App’x 466 (Fed. Cir. 2010); Sofio v.
Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
The appellant also has not explained how these emails are “material.”
Okello, 112 M.S.P.R. 563, ¶ 10. On review, the appellant generally argues that
the emails show that he was subjected to repeated harassment by his former
supervisor. PFR File, Tab 1 at 4-6. Specifically, the appellant argues that he
reported his former supervisor to the agency’s harassment officers, but the
officers did nothing about his allegations, and he provides copies of email
exchanges with harassment officers. PFR File, Tab 1 at 4-5, 9-12, 39-54, 114-42.
The administrative judge considered, and rejected, this argument below, and the
appellant does not offer specific argument as to why the emails are material or
why they show that he has met his jurisdictional burden of demonstrating that his
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resignation was involuntary. See ID at 17-18. The appellant also argues that the
emails demonstrate that he did not engage in the misconduct alleged in the
removal proposal. PFR File, Tab 1 at 4-6. The administrative judge similarly
considered, and rejected, this argument in the context of addressing whether the
agency threatened a removal action that it knew could not be substantiated, but
determined that the appellant failed to make a nonfrivolous allegation that the
agency knew the removal could not be substantiated or that it had no reasonable
basis for taking the action, noting that the appellant provided nothing more than
generalized arguments rebutting the allegations contained in the proposed
removal. See ID at 23-24. The appellant merely restates these arguments on
review, and none of the emails the appellant has provided serve to undercut the
administrative judge’s finding in this regard. Thus, the emails are not material.
Accordingly, we have not considered them. 2
2
After the record closed on petition for review, the appellant filed a motion for leave to
submit additional evidence regarding his mid-year performance review and response,
and “harassment reports” purportedly in the agency’s possession. PFR File, Tab 7 at 3.
The reports appear to relate to the appellant’s general allegations of harassment by his
first-line supervisor during his employment and his objections to how those complaints
were handled during the agency’s internal harassment investigation process. See PFR
Fie, Tab 1 at 5, 39-54, 114-42. Although the appellant vaguely suggests that the reports
evidence “corruption” by his former agency, he has not specifically explained how the
reports are material or would provide evidence relevant to the involuntariness of his
resignation decision. See Okello, 112 M.S.P.R. 563, ¶ 10.
Regarding the appellant’s mid-year performance review and his response to it, although
he does not further elaborate in his new pleading, he referenced these documents in his
petition for review, indicating that his negative mid-year review would support his
claim that he had no choice but to leave his former position. PFR File, Tab 1 at 5. The
administrative judge considered this argument in the context of assessing the
voluntariness of the appellant’s resignation decision, but nevertheless concluded that
the agency’s actions did not rise to the level such that a reasonable person would have
felt compelled to resign or retire—a conclusion with which we ultimately agree. See ID
at 10, 23; supra pages 6-7. The appellant has not further explained what he expects the
mid-year review and responses to show or how the documents otherwise relate to the
involuntariness of his resignation decision. See Okello, 112 M.S.P.R. 563, ¶ 10.
Consequently, the motion is denied.
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NOTICE OF APPEAL RIGHTS 3
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.
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).
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
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,
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
15
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
(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
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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. 4 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.
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
4
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.
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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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.