Wesley Flannigan v. Department of the Air Force ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WESLEY FLANNIGAN AND DOCKET NUMBERS
VANESSA GASKIN, DC-0752-13-0367-I-4
Appellants, DC-0752-13-0354-I-4
v.
DEPARTMENT OF THE AIR FORCE, DATE: March 11, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rachelle S. Young , Esquire, Washington, D.C., for the appellants.
Shane McCammon , Esquire, and Avis McAllister , Esquire, Joint Base
Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellants have filed petitions for review of the initial decisions in the
above-captioned appeals, which sustained their removals. Generally, we grant
petitions such as these only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 the petitioners’ appeals, we
conclude that the petitioners have not established any basis under
section 1201.115 for granting the petitions for review. Therefore, we DENY the
petitions for review. 2 We AFFIRM the initial decisions, except as expressly
MODIFIED to: (1) VACATE the administrative judge’s finding that the
appellants committed plagiarism in failing to attribute a quotation to its source,
(2) set forth the proper standard for evaluating an affirmative defense of
retaliation for protected equal employment opportunity (EEO) activity; and
(3) VACATE the administrative judge’s finding that the agency showed by clear
and convincing evidence that it would have removed Gaskin in the absence of any
protected whistleblowing activity.
BACKGROUND
The appellants formerly served as civilian employees assigned to the
11th Force Support Squadron, Education and Training, located at the agency’s
Joint Base Anacostia Bolling (JBAB). Flannigan v. Department of the Air Force,
MSPB Docket No. DC-0752-13-0367-I-1, Initial Appeal File ( Flannigan IAF),
Tab 7 at 16, Tab 8 at 57; Gaskin v. Department of the Air Force, MSPB Docket
No. DC-0752-13-0354-I-1, Initial Appeal File (Gaskin IAF), Tab 8 at 14, 69.
Flannigan served as Chief of Education and Training, GS-1740-13, and Gaskin
served as an Education Services Specialist, GS-1740-11. Flannigan IAF, Tab 7
2
Because the petitions for review raise virtually identical issues regarding the initial
decisions, we have issued a single decision addressing both petitions for review.
3
at 16, Tab 8 at 57; Gaskin IAF, Tab 8 at 14, 69. In December 2012, the agency
proposed the appellants’ removals for alleged misconduct arising from their
completion of exams during their enrollment in the Air Command and Staff
College, and in the case of Flannigan, for additional misconduct. Flannigan IAF,
Tab 8 at 57-59; Gaskin IAF, Tab 8 at 69-71. Specifically, the agency proposed
Flannigan’s removal for conduct unbecoming of a Federal employee, falsifying
official documents, and lack of candor; and it proposed Gaskin’s removal for
conduct unbecoming of a Federal employee. Flannigan IAF, Tab 8 at 57-59;
Gaskin IAF, Tab 8 at 69-71. Each appellant provided an oral and written reply to
their respective proposed removal. Flannigan IAF, Tab 7 at 21-22, 34-105, Tab 8
at 3-55; Gaskin IAF, Tab 8 at 28-67. In February 2013, the agency removed the
appellants, effective February 19, 2013. Flannigan IAF, Tab 7 at 16, 18-19;
Gaskin IAF, Tab 8 at 14, 16-17.
The appellants timely appealed their removals to the Board and requested a
hearing. Flannigan IAF, Tab 1; Gaskin IAF, Tab 1. During the proceedings
below, the appeals were consolidated, and a joint, bifurcated hearing was held
over 3 days. Flannigan and Gaskin v. Department of the Air Force , MSPB
Docket No. DC-0752-15-0041-I-3, Consolidated Appeal File (I-3 CAF), Tab 35,
Hearing CD (HCD) 1, Tab 61, HCD 2. On March 1, 2017, the administrative
judge held a joint hearing concerning the appellants’ affirmative defense of due
process violations in the agency’s removal proceedings, and he subsequently
issued an order finding no due process violations. I-3 CAF, Tab 42. On
July 18-19, 2017, the administrative judge held a second joint hearing concerning
the merits of the removals and the appellants’ remaining affirmative defenses; he
subsequently severed the appeals and issued separate initial decisions sustaining
the appellants’ removals. Flannigan v. Department of the Air Force , MSPB
Docket No. DC-0752-13-0367-I-4, Appeal File (Flannigan I-4 AF), Tabs 2-3;
Gaskin v. Department of the Air Force, MSPB Docket No. DC-0752-13-0354-I-4,
Appeal File (Gaskin I-4 AF), Tabs 2-3. Specifically, the administrative judge
4
found that, in each case, the agency proved its charges, that a nexus existed
between the misconduct and the efficiency of the service, and that the penalty of
removal was reasonable. Flannigan I-4 AF, Tab 3, Initial Decision (Flannigan
ID) at 5-25, 29; Gaskin I-4 AF, Tab 3, Initial Decision (Gaskin ID) at 5-19, 23.
The administrative judge also found that neither appellant proved the affirmative
defense of retaliation for protected EEO activity, and Gaskin did not prove her
affirmative defense of whistleblower retaliation. Flannigan ID at 25-29; Gaskin
ID at 19-23.
The appellants have timely filed petitions for review challenging the initial
decisions. Flannigan v. Department of the Air Force , MSPB Docket No. DC-
0752-13-0367-I-4, Petition for Review (Flannigan PFR) File, Tab 5; Gaskin v.
Department of the Air Force, MSPB Docket No. DC-0752-13-0354-I-4, Petition
for Review (Gaskin PFR) File, Tab 5. The agency has opposed the petitions.
Flannigan PFR File, Tab 7; Gaskin PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency did not violate the
appellants’ right to due process.
On review, the appellants argue that the administrative judge erred in
finding that they did not show that the agency denied them due process, as the
agency provided them with insufficient information about the charge of conduct
unbecoming a Federal employee for them to provide a meaningful response to the
notices of proposed removal. Flannigan PFR File, Tab 5 at 14-22; Gaskin PFR
File, Tab 5 at 15-23; see I-3 CAF, Tab 42. An employee must receive advanced
written notice stating the specific reasons for the proposed adverse action in
sufficient detail to allow the employee to make an informed reply to the action.
Smith v. Department of the Interior, 112 M.S.P.R. 173, ¶ 5 (2009); see 5 U.S.C.
§ 7513(b)(1); Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546
(1985) (explaining that the essential requirements of constitutional due process
for a tenured public employee are notice of the charges against him, with an
5
explanation of the evidence, and an opportunity for the employee to present his
account of events prior to the deprivation of his property right to continued
employment). The Board will not consider or sustain charges that are not
included in the proposal notice. Smith, 112 M.S.P.R. 173, ¶ 5.
Although the notices of proposed removal provided little information as to
the specific conduct underlying the charge of conduct unbecoming a Federal
employee, the administrative judge properly concluded that the notices and
supporting documentation provided sufficient information to convey the agency’s
allegations that the appellants improperly conspired in answering an essay exam
and six multiple choice exams, and the basis for those allegations. I-3 CAF,
Tab 42 at 3; see Flannigan IAF, Tab 8 at 57-203, Tab 9, Tab 10 at 3-76; Gaskin
IAF, Tab 8 at 69-80, Tab 9, Tab 10 at 3-158, 162-68. We agree with the
administrative judge that the lack of specific information as to how the appellants
accomplished cheating on the exams did not deprive the appellants of a
meaningful opportunity to respond to the charges, as the agency’s charges relied
upon circumstantial evidence, which it provided to the appellants. I-3 CAF,
Tab 42 at 3-4; see Creer v. U.S. Postal Service, 62 M.S.P.R. 656, 659-60 (1994)
(holding that circumstantial evidence may be used to satisfy an agency’s burden
of proof); see also Lewis v. Department of Agriculture, 268 F. App’x 952, 958
(Fed. Cir. 2008) (nonprecedential) (observing that it may be inherent in the nature
of the charge that great specificity is not possible). 3 Additionally, the record
supports the administrative judge’s finding that the appellants’ replies reflected
that they understood the charges and provided specific responses to them.
I-3 CAF, Tab 42 at 4; see Yinat v. Department of the Army, 101 M.S.P.R. 328,
¶ 15 (2005) (providing that, when an appellant comes forward and refutes a
charge made against him, the Board cannot find that he was not given notice of
3
The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department
of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
6
the charge). Accordingly, we affirm the administrative judge’s conclusion that
the appellants were afforded sufficient due process.
The administrative judge properly considered witness testimony in finding that
the agency proved its charges.
On review, the appellants argue that the administrative judge erred in
relying on the agency’s expert witness testimony in finding that the agency
supported its charges of conduct unbecoming a Federal employee. Flannigan
PFR File, Tab 5 at 22-28; Gaskin PFR File, Tab 5 at 23-29. The appellants assert
that the agency’s expert testimony was not reliable because the sample size he
used to compare the appellants’ answers on each multiple choice exam to those of
other test-takers was too small, and the approach he used to compensate for a
small sample size deviated from the traditional statistical approach and was not
published or peer-reviewed. Flannigan PFR File, Tab 5 at 24-28; Gaskin PFR
File, Tab 5 at 24-29. The administrative judge acknowledged these factors, but
he concluded that the expert witness presented strong, highly credible evidence in
support of his methodology. Flannigan ID at 11-18; Gaskin ID at 10-17.
The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002). Although the Board may decline to defer
to an administrative judge’s credibility findings that are abbreviated, based on
improper considerations, or unsupported by the record, Redschlag v. Department
of the Army, 89 M.S.P.R. 589, ¶ 13 (2001), it may not overturn an administrative
judge’s demeanor-based credibility findings merely because it disagrees with
those findings, Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1372
(Fed. Cir. 2016).
The appellants offer no support for their assertion that the principles set
forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
pertaining to the admissibility of expert testimony, are binding on the Board, and
7
we can find none. See Flannigan PFR File, Tab 5 at 23; Gaskin PFR File, Tab 5
at 24. The Federal Rules of Evidence are used as nonbinding guidance by the
Board. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 35 (2010),
aff’d, 635 F.3d 526 (Fed. Cir. 2011), and overruled on other grounds by
Department of Health and Human Services v. Jarboe , 2023 MSPB 22. The
factors espoused by the U.S. Supreme Court in Daubert are based on its
interpretation of the Federal Rules of Evidence and are similarly not binding on
the Board. 4 See Daubert, 509 U.S. at 586-95 (finding that the adoption of the
Federal Rules of Evidence superseded the “general acceptance” test for
determining the admissibility of expert opinion based on a scientific technique
formulated in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), and
interpreting Rule 702 of the Federal Rules of Evidence). Based upon our review
of the record, the administrative judge properly accorded weight to the expert
testimony, consistent with the Federal Rules of Evidence, particularly where the
4
Moreover, Daubert and its progeny apply to the admissibility of evidence, whereas the
appellants’ arguments go to the weight of the expert testimony. Nevertheless, the
difference between admissibility and weight is in many instances a close question, and
our reviewing court has held that when the reliability of expert testimony has been
raised, in assigning weight to the testimony, a trial court acting as a fact finder should
ordinarily take into account, among other considerations which may bear on the
reliability of expert testimony, factors which have been authoritatively identified as
important. Libas, Ltd. v. United States, 193 F.3d 1361, 1366-67 (Fed. Cir. 1999).
Federal Rule of Evidence 702, amended in response to Daubert and its progeny, states
that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
Fed. R. Evid. 702; Fed. R. Evid. 702 advisory committee’s note.
8
expert witness’ methodology was derived from generally accepted statistical
techniques and designed to address the shortcomings of a small sample size, the
expert witness consulted with other experts in his field about his modified
methodology, and the administrative judge found his testimony to be highly
credible. HCD 2 (testimony of the expert witness); Flannigan ID at 11-18;
Gaskin ID at 10-17; cf. Summit 6, LLC v. Samsung Electronics Co., Ltd., 802 F.3d
1283, 1298 (Fed. Cir. 2015) (noting that the fact that methodology is not
peer-reviewed or published “does not necessitate its exclusion”). Moreover, the
record reflects that the administrative judge considered the totality of the
evidence in finding that the agency proved its charges of conduct unbecoming a
Federal employee. 5 Flannigan ID at 5-19; Gaskin ID at 5-18.
The appellants also appear to allege that the administrative judge erred in
crediting the testimony of an Air University official in finding that the appellants
collaborated on their essay exams because the official’s testimony that she did not
compare the appellants’ essays to those of other students conflicted with her
conclusion that the appellants inadequately explained the similarities in their
essays. Flannigan PFR File, Tab 5 at 28-29; Gaskin, PFR File, Tab 5 at 29; see
Flannigan ID at 7-11; Gaskin ID at 6-10. The administrative judge did not
address the Air University official’s testimony that she did not compare the
appellants’ essays to other essays; however, his failure to mention it does not
mean that he did not consider it in crediting the official’s testimony. Marques v.
Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
5
In particular, the administrative judge first compared the appellants’ essay exams
line-by-line and observed that the essays contained stunning parallels, including the use
of identical, atypical language at similar junctures in the essays. Flannigan ID at 7-11;
Gaskin ID at 6-10. The administrative judge then reviewed the appellants’ multiple
choice exams, noting that over the six exams upon which the appellants allegedly
cheated, the appellants posted 289 matching answers out of 300 total questions, and
most of the answers were identical, whether right or wrong. Flannigan ID at 11-19;
Gaskin ID at 10-18. For example, the administrative judge observed that on the third
multiple choice exam, each appellant missed the exact same 15 questions and provided
matching wrong answers, and that a similar pattern repeated itself throughout the
exams. Flannigan ID at 13; Gaskin ID at 12.
9
776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, this testimony did not conflict
with other aspects of her testimony; rather, it was evidence to be weighed in
assessing the strength of her conclusions. HCD 2 (testimony of the Air
University official). While such a comparison would have strengthened her
conclusions, the official nevertheless provided a detailed assessment of the
similarities between the appellants’ essay exams and based her conclusions on her
experience in testing and having read 60 to 100 other student essay exams during
her tenure at Air University. Id. Accordingly, we find no error in the
administrative judge’s findings crediting her conclusions that the appellants
collaborated on their essay exams.
The appellants further allege that the administrative judge precluded them
from presenting evidence regarding the standard practices and procedures for
testing at JBAB and subsequently relied on inaccurate assumptions about testing
procedures. Flannigan PFR File, Tab 5 at 29-30; Gaskin, PFR File, Tab 5 at 30.
Our review of the July 18, 2017 hearing record does not reflect that the
administrative judge excluded such evidence, and the appellants have not cited to
the record to support their allegation; thus, we cannot conclude that an error
occurred. HCD 2 (testimony of the Air University official, test control officer,
expert witness, and former test control officer). Moreover, as the appellants
acknowledge in their petition, they presented the testimony of a former test
control officer, who testified at length about testing procedures. 6 Flannigan PFR
File, Tab 5 at 29; Gaskin PFR File, Tab 5 at 30. The appellants do not explain
how additional testimony would have affected the administrative judge’s finding
that Flannigan’s failure to sign a paper log-in sheet for his multiple choice exams
was unusual and inappropriate, which we find to be supported by the record.
6
The only evidence that the administrative judge excluded during the former test
control officer’s testimony was a testing standard operating procedure to which the
agency objected as irrelevant. HCD 2 (testimony of the former test control officer).
The administrative judge sustained the objection but informed the appellants’ counsel
that she could reintroduce the document should the agency raise the issue to which it
was relevant later in the proceedings. Id.10
Flannigan ID at 12-13; Gaskin ID at 11-12. Accordingly, we find that the
administrative judge properly sustained the charge of conduct unbecoming a
Federal employee brought against both appellants. 7
On review, the appellants do not dispute the administrative judge’s findings
that the agency proved the remaining charges against Flannigan of falsifying
official documents and lack of candor, and they do not dispute that the agency
proved that there was a nexus between the grounds for the appellants’ removals
and the efficiency of the service, and the penalties of removal fell within the
tolerable limits of reasonableness, and we discern no reason to disturb these
findings. Flannigan ID at 19-25; Gaskin ID at 18-19; 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 on the issue of
credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge’s discussion of the appellants’ prima facie case of EEO
retaliation is modified to reflect the correct standard for evaluating an affirmative
defense of retaliation for protected EEO activity.
The appellants do not challenge the administrative judge’s findings that
neither appellant proved their affirmative defense of retaliation for protected EEO
7
In concluding that the agency proved its charge of conduct unbecoming a Federal
employee, the administrative judge also found that the appellants violated Air Force
Instruction (AUI) 36-2309 when they failed to attribute a quotation to its source in each
of their essay exams. Flannigan ID at 11; Gaskin ID at 10. The agency did not identify
this specific violation in support of the charge of conduct unbecoming a Federal
employee, and it appears to have been first identified as a potential violation of the AUI
during hearing testimony. See Flannigan IAF, Tabs 7-10; Gaskin IAF, Tabs 8-10;
HCD 2 (testimony of the Air University official and the appellants). As the agency did
not include this violation in its charge of conduct unbecoming, and the appellants did
not have notice of the violation, to the extent that the administrative judge concluded
that this constituted another violation of AUI 36-2309 in support of the charge of
conduct unbecoming a Federal employee, his findings were in error, and we vacate this
section of the initial decision. See Smith, 112 M.S.P.R. 173, ¶¶ 6-7 (concluding that the
administrative judge improperly considered a specification that was not set forth in the
proposed removal or decision sustaining the removal).
11
activity. Flannigan ID at 25-29; Gaskin ID at 19-23. However, we modify the
administrative judge’s findings on the appellant’s EEO retaliations claims to
apply the standards as set forth in recent law. An appellant may prove a claim of
discrimination based on age, race, color, religion, sex, or national origin under
the motivating factor standard, in other words, by proving that prohibited
discrimination played “any part” in the contested action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 20-22. Claims of retaliation for
opposing discrimination in violation of Title VII are analyzed under this same
framework. Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 32; Pridgen,
2022 MSPB 31, ¶ 30. However, a but-for causation standard is applicable to
Americans with Disabilities Act (ADA) retaliation claims. Desjardin,
2023 MSPB 6, ¶ 33. An appellant may prevail on such a claim by showing that
retaliation was a but-for cause of the agency’s action. Desjardin, 2023 MSPB 6,
¶ 33; Pridgen, 2022 MSPB 31, ¶ 44-47. The but-for standard is more stringent
than the motivating factor standard. Desjardin, 2023 MSPB 6, ¶ 31; Pridgen,
2022 MSPB 31, ¶ 47.
Here, appellant Flannigan claimed that the agency retaliated against him for
engaging in activity protected under the ADA. He has not challenged the
administrative judge’s finding that, based on the evidence as a whole, he failed to
meet the lesser burden of proving that his protected activity was a motivating
factor in his removal. Because we agree with the administrative judge’s finding
that the appellant failed to meet this lesser burden, we also find that he failed to
meet the more stringent but-for standard that applies to his retaliation claim. See
Desjardin, 2023 MSPB 6, ¶ 33.
It is not clear whether appellant Gaskin’s EEO retaliation claim was
grounded in activity protected by Title VII or whether, like in Flannigan’s case,
her retaliation claim was based on protected ADA activity, in which case she
would be required to show that retaliation was a but-for cause of the agency’s
decision to remove her. However, as in Flannigan’s case, she does not challenge
12
on review the administrative judge’s finding that she failed to meet the lesser
motivating factor standard. Therefore, even if the more stringent but-for standard
applied in her case, her failure to meet the lesser motivating factor standard
means she also failed to meet the more stringent but-for standard that would
apply if her claim were an ADA retaliation claim. See Desjardin, 2023 MSPB 6,
¶ 33. Accordingly, we conclude that both appellants failed to prove this
affirmative defense, as modified to incorporate the correct standard identified in
Pridgen and Desjardin.
The administrative judge’s finding that the agency proved that it would have
removed Gaskin in the absence of any protected whistleblowing activity
is vacated.
On review, Gaskin does not challenge the administrative judge’s finding
that she did not show that her disclosure to the agency Inspector General was a
contributing factor in her removal. Gaskin ID at 21, 21 n.16. Given the
administrative judge’s conclusion that the appellant did not make the requisite
showing, it was improper for him to determine whether the agency would have
taken the same action in the absence of the appellant’s alleged whistleblowing
activity. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19
n.10 (2014) (stating that the Board may not proceed to the clear and convincing
test unless it has first determined that the appellant established her prima facie
case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the
administrative judge’s finding that the agency proved by clear and convincing
evidence that its removal was taken for legitimate reasons. 8 ID at 21 n.16.
8
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
13
NOTICE OF APPEAL RIGHTS 9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation 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:
9
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
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
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If you are interested in securing pro bono representation for an appeal to
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entitled to representation by a court-appointed lawyer and to waiver of any
15
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
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Alternatively, you may request review by the Equal Employment
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If you submit a request for review to the EEOC by regular U.S. mail, the
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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
16
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. 10 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
17
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.