Erik Van_Walden v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIK VAN WALDEN, DOCKET NUMBER
Appellant, SF-844E-18-0014-I-1
v.
OFFICE OF PERSONNEL DATE: March 12, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Erik Van Walden , Olympia, Washington, pro se.
Linnette Scott , Washington, D.C., 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
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) denying his application for disability retirement. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED as to the reason for finding certain medical evidence
unpersuasive, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed as a GS-13 Program Support Officer
with the Department of Agriculture’s U.S. Forest Service. Initial Appeal File
(IAF), Tab 5 at 44, 81. He resigned from Federal service effective
September 19, 2015, due to “medical reasons.” Id. at 70-73, 81. On April 12,
2016, he filed an application for a disability retirement annuity under the Federal
Employees’ Retirement System (FERS). Id. at 74-80. In his Applicant’s
Statement of Disability, he described his conditions as post-traumatic stress
disorder, major depression, mitral valve prolapse, blood pressure, syncope,
dysautonomia, mixed personal traits, and back injury. Id. at 42.
On January 11, 2017, OPM issued an initial decision denying the
appellant’s disability retirement application. Id. at 23-29. The appellant then
requested reconsideration, which OPM denied. Id. at 4-8. OPM concluded that
the submitted medical evidence failed to establish a disabling medical condition.
Id. at 4, 6. The appellant timely filed an appeal with the Board. IAF, Tab 1.
He did not request a hearing. Id. at 2.
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Based on the written record, the administrative judge affirmed OPM’s final
decision, finding that the appellant did not prove his entitlement to disability
retirement under FERS. IAF, Tab 17, Initial Decision (ID). The administrative
judge found that the appellant showed that he filed an application for FERS
disability retirement within the required timeframe; he had completed 18 months
of civilian service creditable under FERS; his medical condition, generally, was
expected to last for at least 1 year; and he had not declined a reasonable offer of
reassignment to a vacant, funded position at the same grade or pay level.
ID at 17-18. However, he then found that the appellant failed to establish by
preponderant evidence that, one, while employed in a position subject to FERS,
he became disabled because of a medical condition, resulting in a deficiency in
performance, conduct, or attendance, or if there was no such deficiency, the
disabling medical condition was incompatible with either useful and efficient
service or remaining in the position; and two, accommodation of his medical
conditions in the position he held was unreasonable. ID at 18.
The appellant timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. The appellant argues that the administrative judge improperly
weighed the medical evidence and that the evidence in support of his claim for
disability retirement is strong and unrefuted. Id. at 25-26. The appellant also
requests anonymity to protect his right to privacy. Id. at 27-29. The agency has
not filed a response to the appellant’s petition. 2
2
To the extent that the appellant’s pleadings suggest he lacks the capacity to pursue his
appeal on his own, we find no need to provide French procedures. IAF, Tab 11 at 17,
Tab 14 at 8; PFR File, Tab 1 at 29, Tab 4 at 4; see French v. Office of Personnel
Management, 810 F.2d 1118, 1120 (Fed. Cir. 1987) (requiring the Board to develop
procedures to address situations in which an incompetent appellant is proceeding
without assistance “to ensure the presence of a competent conservator or attorney if
possible”). The appellant received below, and continues to receive on review, the
assistance of an attorney. IAF, Tab 11 at 17, 28, Tab 14 at 8; PFR File, Tab 4 at 4.
Although this individual is not the appellant’s designated representative, he has
provided substantial and competent assistance. Thus, we determine that the appellant is
not entirely pro se such that Board intervention would be required. See Moses v. Office
of Personnel Management, 80 M.S.P.R. 535, 538 (1998) (explaining that the Board’s
4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s motion for anonymity is denied.
The Board has not adopted a rigid, mechanical test for determining whether
to grant anonymity, but instead applies certain general principles in making such
determinations. Ortiz v. Department of Justice, 103 M.S.P.R. 621, ¶ 10 (2006).
Those factors include whether identification creates a risk of retaliatory physical
or mental harm, whether anonymity is necessary to preserve privacy in a matter of
a sensitive and highly personal nature, or whether the anonymous party is
compelled to admit his intention to engage in illegal acts, thereby risking criminal
prosecution. Pinegar v. Federal Election Commission, 105 M.S.P.R. 677, ¶ 10
(2007). The Board also considers whether anonymity is necessary to prevent a
clearly unwarranted invasion of the privacy of a third party or whether anonymity
is necessary to preserve the appellant’s physical safety. Id. Other potentially
relevant factors include whether the appellant requested anonymity at the
commencement of the proceeding before the Board or immediately after the need
for anonymity became apparent, and which party placed the sensitive matter in
question at issue in the appeal. Id.A party seeking anonymity must overcome the presumption that parties’
identities are public information. Id., ¶ 11. Anonymity should be granted to
litigants before the Board only in unusual circumstances, and the determination
whether to grant anonymity must depend on the particular facts of each case. Id.A litigant seeking anonymity before the Board must present evidence establishing
that harm is likely, not merely possible, if his name is disclosed. Id. Even when
some harm is likely, the Board grants anonymity only if the likelihood and extent
of harm to the appellant significantly outweighs the public interest in the
disclosure of the parties’ identities. Id.Here, the appellant has requested anonymity to preserve the privacy of his
medical information. PFR File, Tab 1 at 27-28. In considering the
obligations under French exist only when the appellant is “entirely pro se”).
5
aforementioned factors, we find that the appellant filed the disability retirement
application at issue in the instant appeal, thus placing his medical condition at
issue. See Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 23
(2012) (granting the appellant’s request for anonymity when the agency’s actions
at issue resulted from improperly requiring the appellant to undergo a fitness for
duty medical examination, and thus, the agency placed her sensitive medical
information at issue); IAF, Tab 5 at 74-80. In addition, the appellant did not
request anonymity at the commencement of the proceeding before the Board but
waited until filing his petition for review. See Pinegar, 105 M.S.P.R. 677, ¶ 10.
Moreover, in requesting anonymity, the appellant has offered nothing more than
an allegation that he has an “implicit right to privacy,” he has not explained why
“harm is likely,” and he has not offered any evidence to support his allegation.
PFR File, Tab 1 at 27-29. While it is understandable that the appellant wishes to
preserve his privacy, he has failed to rebut the presumption that the parties’
identities are public information in Board cases. See Pinegar, 105 M.S.P.R. 677,
¶ 19 (explaining that medical conditions arise in many Board cases, and absent
information about the appellant’s condition that would cause extreme
embarrassment or exposure to public ridicule, does not warrant anonymity).
Therefore, we deny the appellant’s motion requesting anonymity.
The appellant failed to show by preponderant evidence that he qualifies for
disability retirement.
In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence. 3
Henderson v. Office of Personnel Management, 109 M.S.P.R. 529, ¶ 8 (2008);
5 C.F.R. § 1201.56(b)(2)(ii). To qualify for disability retirement benefits under
FERS, an individual must meet the following requirements: (1) the individual
3
Contrary to the appellant’s assertions on review, OPM’s failure to present medical
evidence contrary to that presented by the appellant is a factor for consideration but
does not automatically establish that the appellant has met his burden. PFR File, Tab 1
at 9; see Bridges v. Office of Personnel Management, 21 M.S.P.R. 716, 719 (1984).
6
must have completed at least 18 months of creditable civilian service; (2) the
individual, while employed in a position subject to FERS, must have become
disabled because of a medical condition, resulting in a deficiency in performance,
conduct, or attendance, or, if there is no such deficiency, the disabling medical
condition must be incompatible with either useful and efficient service or
retention in the position; (3) the disabling medical condition must be expected to
continue for at least 1 year from the date the disability retirement benefits
application is filed; (4) accommodation of the disabling medical condition in the
position held must be unreasonable; and (5) the individual must not have
declined a reasonable offer of reassignment to a vacant position. 5 U.S.C.
§ 8451(a), (c); Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R. § 844.103(a).
As the administrative judge observed, there is no dispute that the appellant
completed 18 months of creditable civilian service and that some of his medical
conditions had continued, or would be expected to continue, for more than a year
after his application for disability retirement. ID at 17. The administrative judge
also found that the appellant established that he had not declined a reasonable
offer of reassignment to a vacant position. ID at 17-18. Thus, as noted by the
administrative judge, the only issues in this appeal relate to the appellant’s
medical condition and its effects on his ability to perform in his former position,
i.e., eligibility criteria (2) and (4). 4 ID at 18.
We agree with the administrative judge’s finding that the appellant did not
show that his medical conditions resulted in a deficiency in performance,
conduct, or attendance. ID at 21. As thoroughly summarized by the
administrative judge, the appellant submitted medical documentation to support
his application for disability retirement. ID at 2-15; IAF, Tab 5 at 9-22, 42-69,
Tab 11 at 19-29. However, he noted that the only possible performance, conduct,
4
On review, the appellant argues that his medical condition was expected to last for at
least a year and that he was never offered reassignment. PFR File, Tab 1 at 22-24.
Because the administrative judge found in favor of the appellant on requirements
(3) and (5), which relate to these arguments, they provide no basis to grant review.
7
or attendance deficiency identified in the appellant’s disability retirement
application pertained to his attendance, which appeared to be as a result of his
resignation. ID at 21; IAF, Tab 5 at 44-45. The appellant’s supervisor submitted
a statement in connection with the appellant’s disability retirement application.
IAF, Tab 5 at 44-45. He indicated that the appellant had no performance or
conduct deficiencies prior to his resignation. Id. As for the appellant’s
attendance, he indicated it was not unacceptable but that the appellant was no
longer coming to work due to his “voluntary resignation for medical reasons
effective 9/19/15.” Id. at 45.
On review, the appellant argues that his attendance issues began before his
resignation. PFR File, Tab 1 at 16-17. He alleges that, due to his June 2015
syncopal episode, he was absent from his position until his resignation in
September 2015. Id. at 5 n.3, 12-13, 17. He also suggests that he has a history of
medically related attendance problems, as detailed in a letter from a psychiatrist
which indicates he received a cautionary letter in November 2013. Id. at 16-17.
However, because attendance issues standing alone do not establish entitlement to
disability retirement under FERS without some corroborating evidence showing
impaired performance of duties, the administrative judge correctly found that the
appellant failed to establish this element. See Harris v. Office of Personnel
Management, 110 M.S.P.R. 249, ¶ 17 (2008); Wilkey-Marzin v. Office of
Personnel Management, 82 M.S.P.R. 200, ¶ 11 (1999) (explaining that an absence
without a reasoned explanation of how an appellant’s medical condition
precluded her from performing her duties cannot alone support a finding of
disability).
Because the appellant’s disabilities did not result in a deficiency in his
performance, conduct, or attendance in his former position, the relevant question
is whether the appellant’s medical condition is incompatible with either useful
and efficient service or retention in his former position. See Henderson,
109 M.S.P.R. 529, ¶ 11. The administrative judge found that the appellant failed
8
to establish by preponderant evidence a disabling medical condition that was
incompatible with useful and efficient service or retention in his former position.
ID at 25. In reaching this determination, he evaluated the medical evidence and
found that the three medical opinions provided by the appellant in support of his
claim were unpersuasive. ID at 22-24.
On review, the appellant claims that the administrative judge applied an
erroneous legal standard in assessing the medical opinions, in violation of
Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034 (Fed. Cir.
2007). PFR File, Tab 1 at 9-10, 25-26. The appellant claims that he met his
burden because all three health care providers stated that he was “completely
disabled—unable to return to work in any capacity” without contradiction by
OPM, id. at 21, and that he is not required to prove a link between his disabilities
and an inability to perform his job duties, id. at 25 n.45. He also alleges that,
contrary to the administrative judge’s finding, his health care provider who has a
bachelor of medicine, bachelor of surgery (MBBS) degree is qualified and had
sufficient opportunity to observe the appellant. Id. at 15, 21-22. However, as
discussed below, we find that the administrative judge correctly weighed the
evidence to find that the appellant did not show that his medical conditions were
incompatible with either useful and efficient service or retention in his position.
ID at 25.
To establish an inability to render useful and efficient service, the appellant
must show that his medical condition is inconsistent with working in general,
working in a particular line of work, or working in a particular type of setting.
Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ¶ 16 (2012)
(articulating this standard in the context of an application for disability retirement
under the Civil Service Retirement System); see Jackson v. Office of Personnel
Management, 118 M.S.P.R. 6, ¶ 7 (2012) (finding that the holding in Henderson
applies to FERS disability retirement appeals). A determination of disability is
based on objective clinical findings, diagnoses and medical opinions, subjective
9
evidence of pain and disability, and evidence showing the effect of the
individual’s condition on his ability to perform the duties of his position.
Henderson, 117 M.S.P.R. 313, ¶ 19. The U.S. Court of Appeals for the Federal
Circuit concluded in Vanieken-Ryals, 508 F.3d at 1042, that it is a legal error for
OPM or the Board “to reject submitted medical evidence as entitled to no
probative weight at all solely because it lacks so-called ‘objective’ measures such
as laboratory tests.” Pursuant to Vanieken-Ryals, OPM and the Board may give
limited weight to medical evidence “in the face of factors such as doubts about
professional competence, contrary medical evidence, failure of the professional to
consider relevant factors, lack of particularity in relating diagnosis to nature and
extent of disability, etc.” 508 F.3d at 1042. In assessing the probative value of
medical opinions, the Board considers whether the opinion was based on a
medical examination, whether the opinion provided a reasoned explanation for its
findings as distinct from mere conclusory assertions, the qualifications of the
expert rendering the opinion, and the extent and duration of the expert’s
familiarity with the treatment of the appellant. Slater v. Department of Homeland
Security, 108 M.S.P.R. 419, ¶ 15 (2008), overruled on other grounds by Haas v.
Department of Homeland Security, 2022 MSPB 36, ¶ 14. When, as here, the
health care providers did not testify, the probative value of their reports depends
on the circumstances of the case. Id. (citing Borninkhof v. Department of Justice,
5 M.S.P.R. 77, 83-87 (1981)).
Here, the administrative judge thoroughly analyzed the medical opinions of
the appellant’s three health care providers but ultimately found that the reports
had little probative value. ID at 22-24; IAF, Tab 5 at 14-15, 46-50, 67, Tab 11
at 19-29. First, the administrative judge found that the medical opinion of the
appellant’s health care provider with an MBBS degree was unpersuasive due to
the lapse in time between the appellant’s resignation in September 2015 and the
provider’s two examinations of the appellant in August 2016 and December 2017,
of which each report largely consisted of his review of the appellant’s medical
10
records rather than his familiarity with the treatment of the appellant himself. ID
at 22. Contrary to the appellant’s argument, it was appropriate for the
administrative judge to assess the extent and duration of the provider’s familiarity
with the appellant and to observe that the record lacked information on the
provider’s qualifications. PFR File, Tab 1 at 15, 21 -22; ID at 22; see Slater,
108 M.S.P.R. 419, ¶ 15. The appellant also argues that the administrative judge
improperly required this and other health care providers to link the appellant’s
medical conditions with his specific job duties. PFR File, Tab 1 at 25 n.45. We
agree.
Nothing in the law mandates that a single provider tie all pertinent
evidence together. Henderson, 117 M.S.P.R. 313, ¶ 19. Further, an appellant is
not required to show that he cannot perform in his position and may prove
disability by showing he cannot work in any job. Vanieken-Ryals, 508 F.3d
at 1043; Henderson, 117 M.S.P.R. 313, ¶ 19. Thus, the administrative judge’s
reliance on the lack of evidence tying the appellant’s specific job duties to his
medical condition was improper. ID at 22. Nonetheless, we agree with his
finding that the reports of the appellant’s provider with an MBBS degree are
entitled to little weight because his qualifications to diagnose and treat medical
conditions are unclear. The appellant’s assertion on review that this provider is a
“specialist in family medicine and a full professor at the Fiji National
University’s School of Medicine” does not address these concerns. PFR File,
Tab 1 at 15. We also find that the probative value of this provider’s reports is
limited because it is unclear that the provider did, in fact, examine the appellant
at all. Specifically, he stated only that the appellant “presented” himself in
August 2016. IAF, Tab 5 at 14. Further, his December 2017 report does not
suggest that he examined the appellant. IAF, Tab 11 at 19-21. Absent any
evidence that this provider was either qualified to diagnose the appellant or even
examined him, we cannot give his report any weight.
11
Similarly, we agree with the administrative judge’s finding that the medical
opinion of a psychiatrist certified in psychosomatic medicine, IAF Tab 5 at 46-50,
Tab 11 at 25-29, was unpersuasive due to her lack of familiarity with and
treatment of the appellant, as she personally interacted with the appellant only
twice in 2015 and reviewed largely unproduced medical records and discovery
responses drafted by the appellant. See Slater, 108 M.S.P.R. 419, ¶ 15;
ID at 23-24. The administrative judge concluded that her opinion lacked
reasoned explanations. ID at 24. We agree. Although the appellant argues on
review that this psychiatrist treated him for 2 years, he does not dispute that the
only treatment she provided was two appointments in 2015. PFR File, Tab 1
at 22.
Finally, the administrative judge analyzed the medical reports from another
treating psychiatrist, IAF, Tab 5 at 67, Tab 11 at 22-24, but found them
inconsistent and improbable. ID at 24. Specifically, that psychiatrist’s July 2015
medical opinion, closest in proximity to a June 2015 syncopal episode that the
appellant suffered while working, simply states that the syncope was caused by
job-related stress. IAF, Tab 5 at 67. As noted by the administrative judge, it was
not until the December 2017 medical opinion that this psychiatrist stated that the
appellant was unable to perform his job without risking harm to himself or others
due to high levels of stress, post-traumatic stress disorder, and depression. IAF,
Tab 11 at 24; ID at 24. However, this assessment did not provide a reasoned
explanation of his findings, was inconsistent with his prior report, and was over
2 years removed from his treatment of the appellant. See Slater, 108 M.S.P.R.
419, ¶ 15; Borninkhof, 5 M.S.P.R. at 87 (observing that one of the relevant factors
in assessing the weight to be accorded to hearsay evidence is its consistency with
other evidence in the record).
Thus, despite all three health care providers arriving at the same
conclusion, we agree with the administrative judge’s determination that their
reports were ultimately unpersuasive. ID at 24-25. Accordingly, we agree with
12
the administrative judge that the appellant is not eligible for disability retirement
under FERS. 5
The appellant’s additional claims on review fail to provide a reason to disturb the
initial decision.
The appellant alleges that the administrative judge “gave an appearance of
bias” when he sua sponte suspended appeal processing for 21 days. 6 PFR File,
Tab 1 at 10 n.26; IAF, Tab 12. He also disputes some of the administrative
judge’s factual findings as demonstrating bias. PFR File, Tab 1 at 18, 20. In
making a claim of bias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Smets v. Department of the Navy, 117 M.S.P.R. 164,
¶ 15 (2011), aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012); Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). Administrative
judges have wide discretion to control the proceedings before them, and
dismissing an appeal without prejudice is a procedural option committed to their
sound discretion. King v. Department of the Army, 84 M.S.P.R. 235, ¶ 4 (1999).
We decline to infer bias on the administrative judge’s decision to suspend the
case or his other case-related rulings. Vaughn v. Department of the Treasury,
119 M.S.P.R. 605, ¶ 18 (2013).
5
Because a disability retirement applicant must establish that he meets all of the
eligibility requirements, and the appellant failed to establish that he was unable,
because of his medical conditions, to render useful and efficient service in his former
position, we need not consider whether he established the other eligibility requirements,
i.e., whether accommodation of the disabling medical condition in the position held was
unreasonable. Thus, we do not address the appellant’s arguments on review as to this
criterion. PFR File, Tab 1 at 12-13, 17-20, 23.
6
On review, the appellant also frames this issue as the administrative judge improperly
extending the deadline for OPM to submit its close of record submission. PFR File,
Tab 1 at 10 n.26. However, the order at issue suspended case processing for both
parties. IAF, Tab 12. Furthermore, both OPM and the appellant submitted their close
of record submissions on December 22, 2017, IAF, Tabs 10, 11, while the
administrative judge issued his order on December 26, 2017, IAF, Tab 12. Thus, this
argument does not provide a basis for review.
13
Additionally, the appellant contends that the administrative judge
improperly denied his motion to compel discovery. PFR File, Tab 1 at 10 n.26.
The Board will not find reversible error in an administrative judge’s discovery
rulings absent an abuse of discretion that prejudiced the appellant’s substantive
rights. White v. Government Printing Office, 108 M.S.P.R. 355, ¶ 9 (2008).
The appellant specifically argues that OPM failed to explain its reasoning as to
how his disabilities could be accommodated, as requested in the appellant’s
interrogatories nos. 1-3. PFR File, Tab 1 at 10 n.26; IAF Tab 7 at 14-15, 18.
We agree with the administrative judge that interrogatory no. 2, which asked
OPM whether it was accusing the appellant’s former employing agency of
submitting false or incorrect information when it certified he could not be
accommodated, was not relevant to this appeal or reasonably calculated to lead to
the discovery of admissible evidence. IAF, Tab 9 at 2, Tab 7 at 14; see
Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 10 (2013)
(explaining that relevant information, in the context of discovery, includes
information that appears reasonably calculated to lead to the discovery of
admissible evidence). As to interrogatories nos. 1 and 3, which asked OPM to
explain whether it disagreed with the employing agency’s determination that
accommodations were not possible and to detail what accommodation was
possible for each identified condition, we agree with the administrative judge that
OPM’s response, referring the appellant to its initial and reconsideration
decisions, was sufficient. IAF, Tab 9 at 1-2, Tab 7 at 14-15.
In any event, the decision in this appeal does not turn on whether the
appellant could be accommodated, and the administrative judge’s refusal to
compel responses to interrogatories on this topic does not affect the outcome
here. Thus, having reviewed the appellant’s arguments on review, we find that
the administrative judge did not abuse his discretion in denying the motion to
compel.
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NOTICE OF APPEAL RIGHTS 7
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:
7
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.
15
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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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,
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entitled to representation by a court-appointed lawyer and to waiver of any
16
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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and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
17
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. 8 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.
8
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.
18
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.