Leah Pittman v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEAH C. PITTMAN, DOCKET NUMBER
Appellant, AT-0752-17-0393-I-3
v.
DEPARTMENT OF VETERANS DATE: March 20, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant.
Kimberly Kaye Ward , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. 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;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the administrative judge’s rulings during either the course of the appeal or the
initial decision were not consistent with required procedures or involved an abuse
of discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as a GS-13 Pharmacist at an agency medical
center in Charleston, South Carolina. Pittman v. Department of Veterans Affairs,
MSPB Docket No. AT-0752-17-0393-I-1, Initial Appeal File (IAF), Tab 1 at 4,
Tab 4 at 14. On November 4, 2016, the agency proposed her removal based on
the following charges: (1) delay in patient care (4 specifications); (2) failure to
timely respond to phone calls and/or other contacts (2 specifications);
and (3) failure to timely perform duties (4 specifications). IAF, Tab 4 at 63-66.
By letter dated March 3, 2017, the deciding official sustained the charges and
found that removal was an appropriate penalty. Id. at 31-35.
The appellant filed this appeal of her removal with the Board. IAF, Tab 1.
Following a hearing, the administrative judge issued an initial decision affirming
the removal action. 2 Pittman v. Department of Veterans Affairs, MSPB Docket
No. AT-0752-17-0393-I-3, Appeal File (I-3 AF), Tab 15, Initial Decision (ID).
She found that the agency proved all three charges. ID at 4, 6, 8. The
2
The administrative judge had previously dismissed the appeal twice without prejudice
to refiling. IAF, Tab 28, Initial Decision; Pittman v. Department of Veterans Affairs,
MSPB Docket No. AT-0752-17-0393-I-2, Appeal File (I-2 AF), Tab 22, Initial
Decision.
3
administrative judge also found that the appellant did not prove her affirmative
defenses of disability discrimination or violation of her due process rights. 3 ID
at 9, 14. The administrative judge further determined that the agency did not hold
the appellant to a higher performance standard than the standard that would have
been required under chapter 43. ID at 9-10. Finally, the administrative judge
found that the agency’s action promoted the efficiency of the service and that
removal was a reasonable penalty. ID at 14-16.
The appellant timely filed a petition for review, in which she challenges the
administrative judge’s findings that the agency proved its charges and that the
agency-imposed penalty was reasonable. Petition for Review (PFR) File, Tab 1
at 19-23. She also argues that the agency used chapter 75 to circumvent her
chapter 43 performance standards. Id. at 13. In addition, she reasserts her
affirmative defense of disability discrimination based on a failure to
accommodate. Id. at 5-7, 14-19. The agency has responded to the appellant’s
petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the agency proved its charges by
preponderant evidence.
On review, the appellant asserts that she was not solely to blame for the
incidents underlying the agency’s charges. PFR File, Tab 1 at 8-9, 19-20.
Specifically, she reasserts her argument that the malfunction of new telephone
equipment, poor organization within the department, and the outsourcing of the
processing of prescriptions were circumstances beyond her control which led to
the delays in performing her duties. Id. at 19-20; I-3 AF, Tab 12 at 18-19.
She does not link these assertions to the individual charges or specifications but
3
The appellant does not challenge the administrative judge’s finding that she did not
prove a due process violation. Because the appellant does not raise this issue on
review, and because we discern no basis for disturbing the administrative judge’s
determination that the agency did not violate the appellant’s due process rights, we do
not further address this affirmative defense.
4
generally argues that the agency failed to meet its burden because it could not
prove she was specifically at fault. PFR File, Tab 1 at 20. We are not persuaded.
The Board must give deference to an administrative judge’s credibility
determinations when they are based explicitly or implicitly on the observations of
witnesses testifying at hearing and may overturn such determinations only when it
has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge correctly
resolved the credibility determinations in accordance with the factors set forth in
Hillen. 4 She identified the factual questions in dispute, summarized the agency’s
charges, and then analyzed the evidence that the parties offered with respect to
the charges. ID at 2-8. For each charge, as discussed below, the administrative
judge stated that she believed the testimony of the agency’s witnesses over that of
the appellant, and explained why she found the appellant’s testimony less
credible. Id.Regarding the first charge, delay of patient care, the agency alleged that, on
four occasions, the appellant delayed faxing chemotherapy prescriptions to the
Specialty Pharmacy for dispensing which, in turn, caused patients to experience
delays. IAF, Tab 4 at 63-64. For the first specification, the administrative judge
found that the appellant testified that the delay in faxing the prescription was an
oversight on her part and, based on the appellant’s testimony, sustained the
specification. ID at 2. Regarding the second specification, the administrative
judge observed that, while the appellant admitted that her fax transmission of the
prescription was delayed, she attributed the delay to trouble with her fax machine.
4
To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version she believes, and explain in detail why she found the chosen version more
credible, considering such factors as (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) her character; (3) any prior inconsistent
statement by the witness; (4) her bias, or lack of bias; (5) the contradiction of her
version of events by other evidence or its consistency with other evidence; (6) the
inherent improbability of her version of events; and (7) her demeanor. Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987).
5
ID at 3. The administrative judge did not credit the appellant’s testimony and
instead credited the testimony of the appellant’s supervisor, who testified that the
appellant had access to three other fax machines in the pharmacy that could have
been used to timely fax the prescription. Id. In sustaining the third specification,
the administrative judge noted that the appellant did not deny that she delayed
transmitting the prescription. Id. While the administrative judge did not sustain
the fourth specification, she found that the three specifications she did sustain
were sufficient to sustain the delay of patient care charge. ID at 4. Given the
administrative judge’s explicit demeanor-based findings, we find that the
appellant has failed to provide a sufficiently sound reason to disturb the
administrative judge’s findings that the agency proved its first charge.
See Haebe, 288 F.3d at 1301.
As for the second charge, failure to timely respond to phone calls and/or
other contacts, the agency alleged that the appellant failed to respond to
voicemails from a patient regarding the status of his chemotherapy medication
refill and failed to respond to the Specialty Pharmacy regarding information
needed for a faxed prescription. IAF, Tab 4 at 64. The appellant alleges on
review that other factors may have interceded, such as malfunctions of newly
installed telephone equipment. PFR File, Tab 1 at 19-20. In sustaining this
charge, the administrative judge considered the appellant’s testimony that she did
not know that she had received any voicemails and that she purposefully had not
set up her voice mailbox to avoid being overwhelmed with voicemails, but did not
find the appellant’s testimony persuasive. ID at 5-6. The administrative judge
did not find it reasonable for the appellant to have assumed, without confirming,
that she had no voicemails, especially in light of the fact that she communicated
with other pharmacies via telephone. ID at 6. Thus, the administrative judge
considered the appellant’s argument regarding the telephone system below and we
find that the appellant has failed to provide a sufficiently sound reason to disturb
6
the administrative judge’s credibility determinations on review. See Haebe,
288 F.3d at 1301.
For the third charge, failure to timely perform duties, the agency alleged
that, on four occasions, the appellant failed to take actions that were needed to
ensure medications were filled or refilled. IAF, Tab 4 at 64-65. On review, the
appellant states that there was poor organization within her department, which
may have led to her inability to timely perform her duties. PFR File, Tab 1
at 19-20. As to specification one, the administrative judge found that the
appellant did not specifically deny that she delayed verifying a patient’s
information and that she neither offered testimony to refute the agency’s evidence
nor denied that it was her responsibility to verify such information. ID at 6.
The administrative judge further found that the appellant admitted, both in her
written reply and in her testimony, that specifications two, three, and four under
this charge were due to oversights on her part. ID at 7-8. We have considered
the appellant’s arguments on review concerning the administrative judge’s
weighing of the evidence for this charge, but we discern no reason to reweigh the
evidence or substitute our assessment of the record evidence for that of the
administrative judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
(1997) (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); see also Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same). Thus, the administrative judge
properly found that the agency proved its charges and sustained the removal
action.
The administrative judge correctly found that the agency did not hold the
appellant to a higher performance standard than that which would have been
required under chapter 43.
On review, the appellant reasserts her argument that the agency used
chapter 75 to circumvent her chapter 43 performance standards. PFR File, Tab 1
7
at 13; I-3 AF, Tab 12 at 8-13. Thus, she argues that the agency’s measurement of
her performance was not accurate and reasonable. PFR File, Tab 1 at 7-14.
We are not persuaded.
It is well settled that it is within the agency’s discretion to take action
against an appellant under chapter 75, governing adverse actions, rather than
under chapter 43, governing performance-based actions. See Lovshin v.
Department of the Navy, 767 F.2d 826, 842-43 (Fed. Cir. 1985) (en banc).
However, if the subject of an agency’s charge is covered by a performance
standard of the appellant’s position, the agency may not impose a different
standard in taking the chapter 75 action. McGillivray v. Federal Emergency
Management Agency, 58 M.S.P.R. 398, 402 (1993). The administrative judge
correctly considered this appeal as a chapter 75 action, and found that the agency
was not circumventing chapter 43 by charging the appellant under chapter 75. 5
ID at 9-10. She found that, because the charge of delay in patient care was
covered by a performance standard, the agency could not hold the appellant to a
higher standard by taking a chapter 75 action. Id. The administrative judge
further found that the agency did not hold the appellant to a higher performance
standard than would have been required under chapter 43. Id. The appellant’s
assertions on review fail to provide a basis for disturbing the administrative
judge’s findings. See Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R.
at 359.
The administrative judge properly found that the appellant failed to establish her
affirmative defense of disability discrimination based on a failure to
accommodate.
On review, the appellant reasserts her claim that the agency initially
granted her request to have an office with a window with natural light in October
2014, but that the accommodation was subsequently revoked. PFR File, Tab 1
at 5-7, 14-17; I-3 AF, Tab 12 at 5-6, 13-16. She also reasserts her argument that
5
The agency’s Standard Form 50 affecting the appellant’s removal states that the action
taken was a removal pursuant to chapter 75. IAF, Tab 4 at 14.
8
the agency failed to restructure her position or to conduct a job search for a
position suitable for reassignment. PFR File Tab 1 at 17-19; I-3 AF, Tab 12
at 16-18. We find these arguments without merit. 6
It is the appellant’s burden to prove her claim of disability discrimination
by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). An agency must
provide a reasonable accommodation to a qualified individual with an actual
disability or a record of a disability. Fox v. Department of the Army,
120 M.S.P.R. 529, ¶ 34 (2014). In order to establish a disability -based failure to
accommodate claim, an appellant must show that: (1) she is an individual with a
disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual
with a disability, as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed
to provide a reasonable accommodation. Miller v. Department of the Army,
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.2(o)(4).
Here, the administrative judge found that the appellant was an individual
with a disability who was granted a series of reasonable accommodations for her
sleep apnea and narcolepsy in 2014 and 2015. ID at 11. Neither party disputes
these findings on review. The administrative judge found, however, that the
appellant failed to establish that she was a qualified individual with a disability.
ID at 14. We agree.
To demonstrate that she is a qualified individual with a disability, the
appellant must show that she could perform the essential functions of her
position, with or without an accommodation, or that she could perform in a vacant
funded position to which she could have been assigned. See Clemens v.
Department of the Army, 120 M.S.P.R. 616, ¶ 11 (2014). The administrative
6
The appellant also alleges that the administrative judge did not allow her to raise
disability discrimination as an affirmative defense. PFR File, Tab 1 at 5. However, the
record reflects that the administrative judge listed disability discrimination based on a
failure to accommodate in the summary of the telephonic prehearing conference, to
which the appellant did not object. I-2 AF, Tab 6 at 3-5. Furthermore, as set forth
above, the administrative judge made findings on this issue. ID at 12-14. Thus, this
argument is without merit.
9
judge found that the appellant was not a qualified individual with a disability
because the appellant failed to demonstrate that she could perform the essential
functions of her position with or without a reasonable accommodation. ID at 14.
Specifically, the administrative judge found that the agency granted the appellant
every accommodation she requested, yet the appellant still had performance
deficiencies and was not able to perform some of the essential functions of her
position. Id. The administrative judge also found that the appellant did not
introduce any evidence that she requested that her position be restructured or
offer any evidence on how her position could have been restructured. ID at 10.
Furthermore, while the appellant argues that she made multiple efforts to be
reassigned to a different position, she did not offer any evidence in support of
such an assertion and, as the administrative judge observed, the record does not
reflect any position the appellant could have performed not involving patient
care. ID at 16; see Clemens, 120 M.S.P.R. 616, ¶ 17 (finding that the appellant
bears the ultimate burden of proving that there was a position the agency would
have found and could have assigned to her). Thus, we agree with the
administrative judge that the appellant failed to demonstrate that she was a
qualified individual with a disability. 7 ID at 14.
7
Additionally, even if we found that the appellant was a qualified individual with a
disability, we would affirm the administrative judge’s finding that the agency did not
fail to provide the appellant’s requested reasonable accommodations. ID at 14.
As observed by the administrative judge, the record reflects that the appellant was
provided the reasonable accommodations she requested. ID at 11; IAF, Tab 4 at 70-82.
On review, the appellant does not dispute that that these reasonable accommodations
were provided. PFR File, Tab 1 at 6-7. While she argues that her reasonable
accommodation of having an office with a window with natural light was subsequently
revoked when she was placed on a detail from her permanent position, id. at 5-7, 14-17,
the administrative judge found that the appellant testified that she had access to a
window with natural light while she was on detail, ID at 13. Thus, although the
appellant did not have a private office with a window, she still had access to, and was
allowed to work at, a workspace which included her needed accommodation.
See Miller, 121 M.S.P.R. 189, ¶ 21 (finding that the appellant was not entitled to the
accommodation of her choice and that the agency acted within its discretion to offer her
reasonable and effective accommodations).
10
The administrative judge correctly found that the agency met the nexus
requirement and that the penalty of removal was reasonable.
The nexus requirement, for purposes of determining whether an agency has
shown that its action promotes the efficiency of the service, means there must be
a clear and direct relationship between the articulated grounds for an adverse
action and either the employee’s ability to accomplish her duties satisfactorily or
some other legitimate Government interest. Scheffler v. Department of Army,
117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). The
administrative judge found that there was a nexus between the appellant’s
misconduct and the efficiency of the service. ID at 14-15.
The appellant alleges on review that her removal does not promote the
efficiency of the service due to her past satisfactory work performance and length
of service. PFR File, Tab 1 at 20-21. There is a sufficient nexus between an
employee’s conduct and the efficiency of the service when the conduct occurred
at work. Scheffler, 117 M.S.P.R. 499, ¶ 10. Here, the sustained misconduct
directly pertained to the appellant’s work for the agency. IAF, Tab 4 at 63-66.
Under the circumstances, the appellant has not shown that the administrative
judge erred in finding that nexus was established. Further, her arguments
regarding her past work performance and length of service were properly
considered as mitigating factors in the penalty analysis, as discussed below.
On review, the appellant alleges that the deciding official failed to consider
mitigating factors, including the impact of the appellant’s medical condition and
the agency’s failure to provide reasonable accommodations, her 10 years of
service with the agency, her past satisfactory work performance, her lack of prior
discipline, her potential for rehabilitation, and the agency’s failure to consider a
lesser punishment than removal. PFR File, Tab 1 at 21-23. When, as here, all the
agency’s charges have been sustained, the Board will review an agency-imposed
penalty only to determine if the agency considered all of the relevant Douglas
factors and exercised management discretion within tolerable limits of
11
reasonableness. 8 Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 25
(2014). In determining whether the selected penalty is reasonable, the Board
gives due deference to the agency’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency. Id. The Board will
modify a penalty only when it finds that the agency failed to weigh the relevant
factors or that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id.As the administrative judge found, the deciding official considered
aggravating factors, including the seriousness of the conduct and its impact on
patients, the deciding official’s loss of confidence in the appellant’s ability to
carry out her duties, the appellant’s failure to accept responsibility and/or express
remorse for her conduct, and the effect her actions had on the reputation of the
patient care among the veterans the medical center serves, in reaching his
decision that removal was the proper penalty. ID at 15-16; I-3 AF, Tab 6,
Hearing Recording (HR) (testimony of the deciding official); IAF, Tab 4
at 36-38. Further, the deciding official specifically took into consideration
relevant mitigating factors, such as the appellant’s length of service with the
agency, her lack of prior discipline, her past performance record, and the
appellant’s medical condition and reasonable accommodations, but determined
that these mitigating factors did not overcome the gravity of the charged
misconduct. ID at 15-16; HR (testimony of the deciding official); IAF, Tab 4
at 36-38. The deciding official also considered whether to impose an alternative
sanction but determined that an alternative penalty was not appropriate because
the serious nature of the appellant’s conduct rendered management unable to trust
her to maintain quality care for patients. HR (testimony of the deciding official);
IAF, Tab 4 at 38.
8
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
12
In light of the above, we agree with the administrative judge that the
deciding official correctly weighed the relevant Douglas factors, and that the
penalty of removal was reasonable. See L’Bert v. Department of Veterans Affairs ,
88 M.S.P.R. 513, ¶¶ 17-23 (2001) (finding removal to be an appropriate penalty
where the appellant failed to carry out her “preregistration” responsibilities by
not making patient contact, endangering their safety); Tobochnik v. Veterans
Administration, 9 M.S.P.R. 82, 83-85 (1981) (finding that the penalty of removal
did not exceed the bounds of reasonableness when the serious nature of the
employee’s misconduct could reasonably be expected to adversely affect cancer
patients).
NOTICE OF APPEAL RIGHTS 9
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.
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.
13
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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
14
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
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:
15
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 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
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.
16
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.
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.