Jose Ybarra v. Department of Justice ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE C. YBARRA, DOCKET NUMBER
Appellant, CH-0752-17-0422-I-2
v.
DEPARTMENT OF JUSTICE, DATE: March 21, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Chad Y. Tang , Esquire, Washington, D.C., for the agency.
Joy E. Williams , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal for off-duty misconduct. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 in paragraph 11 below regarding the issue of nexus, we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was a preference eligible GS-13 Special Agent for the
agency’s Federal Bureau of Investigation (FBI). Ybarra v. Department of Justice,
MSPB Docket No. CH-0752-17-0422-I-2, Appeal File (I-2 AF), Tab 5 at 16. The
appellant worked cases involving crimes against children and had done so for
10 years at the time of the events underlying this appeal. I-2 AF, Tab 13 at 23.
On February 15, 2017, the agency’s Office of Professional Responsibility (OPR)
proposed the appellant’s removal based on one charge of unprofessional off-duty
conduct. I-2 AF, Tab 7 at 17-38. The agency specified that, during the past year,
the appellant had made persistent and inappropriate advances toward two female
employees at two different stores (a cashier at a Meijer’s grocery store and a
service worker at a Dairy Queen), both of whom had separately complained to the
local police about the appellant’s conduct. Id. at 20-23, 27-28, 31-32. OPR
brought four other charges based on additional alleged misconduct, including the
appellant’s failure to report contact that he had with the police concerning the two
store employees, lack of candor with regard to these same incidents, several
unwanted sexual advances toward colleagues, profane outbursts during a firearms
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training session, the appellant’s role in a domestic disturbance between his son’s
mother and a female neighbor with whom the appellant was having a relationship,
and unauthorized use of an FBI database to obtain the telephone number of a
former female investigation subject. Id. at 18-20, 26-30. OPR, however, did not
consider these four other charges in proposing the appellant’s removal. Rather, it
considered these other charges individually, stating that it would have proposed
various levels of discipline for each of them but did not do so in light of the
proposed removal for unprofessional conduct off-duty. Id. at 32-35.
¶3 On May 19, 2017, after the appellant responded to the proposal, the
Assistant Director of OPR issued a decision removing the appellant. I-2 AF,
Tab 5 at 17-40. Consistent with the proposal letter, the deciding official
considered all of the alleged instances of misconduct in isolation, determining
that the inappropriate encounters with the store employees warranted removal,
and in light of that, the other alleged offenses did not warrant separate sanctions.
Id. at 34-37.
¶4 The appellant filed a Board appeal contesting the merits of the agency’s
action. Ybarra v. Department of Justice, MSPB Docket No. CH-0752-17-0422-
I-1, Initial Appeal File (IAF), Tab 1. Shortly thereafter, the administrative judge
dismissed the appeal without prejudice to allow the appellant to pursue an internal
appeal to the agency’s Disciplinary Review Board. IAF, Tabs 8-9. The
Disciplinary Review Board affirmed the removal, and the appellant refiled his
appeal. I-2 AF, Tab 1, Tab 5 at 8-10. He waived his right to a hearing. I-2 AF,
Tab 17 at 4.
¶5 After the close of the record, the administrative judge issued an initial
decision sustaining the removal. I-2 AF, Tab 22, Initial Decision (ID). She found
that the agency proved its charge of unprofessional conduct off-duty, ID at 11-14,
that the agency established a nexus between that conduct and the efficiency of the
service, ID at 14-17, and that the agency showed that the removal penalty was
reasonable, ID at 17-24. The appellant has filed a petition for review, disputing
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the administrative judge’s nexus and penalty analyses. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶6 In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency
bears the burden of proving by preponderant evidence that its action was taken for
such cause as would promote the efficiency of the service. MacDonald v.
Department of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(a)(1)
(ii). To meet this burden, the agency must prove its charge, establish a nexus
between the charge and the efficiency of the service, and demonstrate that the
penalty imposed was reasonable. Pope v. U.S. Postal Service, 114 F.3d 1144,
1147 (Fed. Cir. 1997). On petition for review, the appellant does not dispute that
the agency proved its charge of unprofessional conduct off-duty. For the reasons
explained in the initial decision, we agree with the administrative judge that the
agency proved its charge, and because the appellant does not challenge this
finding on review, we do not address it here. ID at 11-14; see Dobert v.
Department of the Navy, 74 M.S.P.R. 148, 150 n.1 (1997); 5 C.F.R. § 1201.114(b)
(“The Board normally will consider only issues raised in a timely filed petition or
cross petition for review.”). The appellant does, however, challenge that
administrative judge’s findings on nexus and penalty. We address those issues in
turn.
The agency established nexus.
¶7 Not every instance of off-duty misconduct bears a nexus to the efficiency of
the service. An agency may show nexus between off-duty misconduct and the
efficiency of the service by three means: (1) a rebuttable presumption in certain
egregious circumstances; (2) preponderant evidence that the misconduct adversely
affects the appellant’s or coworkers’ job performance or the agency’s trust and
confidence in the appellant’s job performance; or (3) preponderant evidence that
the misconduct interfered with or adversely affected the agency’s mission.
5
Hoofman v. Department of the Army, 118 M.S.P.R. 532, ¶ 16 (2012), aff’d,
526 F. App’x 982 (Fed. Cir. 2013).
¶8 In this case, the administrative judge found that the appellant’s off-duty
conduct was not sufficiently egregious to carry a presumption of nexus. ID at 15.
Nevertheless, she found that the agency established nexus because the appellant’s
misconduct contravenes the agency’s primary mission to protect people. ID at 16.
She found that this was particularly so given that the Dairy Queen Service worker
was 16 years old, and the appellant was specifically tasked with enforcing Federal
statutes to protect children under the age of 18. ID at 16. She further found that
the appellant’s misconduct adversely affected the trust and confidence of his
supervisors and that several local law enforcement agencies indicated that they no
longer wished to work with the appellant. ID at 17.
¶9 On petition for review, the appellant argues that his off-duty conduct
consisted of mere flirtation and was not so serious as to bear a nexus to his
employment. PFR File, Tab 1 at 10. As we read the appellant’s argument, it
appears to pertain to whether a presumption of nexus should arise. Id. at 9-10.
However, as explained above, the administrative judge already found that there
was no presumption of nexus. ID at 15. The appellant does not address the
connections that the administrative judge found between his misconduct and the
agency’s mission, the trust and confidence of his supervisors, or the agency’s
relationship with local law enforcement. ID at 16-17. We therefore find that the
appellant’s arguments provide no basis to disturb the initial decision.
¶10 Having reviewed the record and the administrative judge’s analysis,
we agree with her that the agency established a nexus between the appellant’s
off-duty misconduct and the efficiency of the service. First, we agree with the
administrative judge that the agency established nexus by showing that the
appellant’s conduct undermined his supervisors’ trust and confidence in him and
his ability to perform his duties as an FBI Special Agent. ID at 17; I-2 AF, Tab 7
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at 31-32; see Adams v. Defense Logistics Agency, 63 M.S.P.R. 551, 555-56
(1994); Royster v. Department of Justice, 58 M.S.P.R. 495, 499-500 (1993).
¶11 Second, we agree that the agency has established nexus by showing that the
appellant’s conduct adversely affected its mission. Specifically, the appellant’s
interactions with the two store employees came to the attention of the Charlotte,
Michigan Police Department, which expressed discomfort at continuing to work
with the appellant. ID at 17; I-2 AF, Tab 7 at 31, Tab 10 at 62-68. Thompson v.
Department of Justice, 51 M.S.P.R. 43, 50 (1991) (finding removal appropriate
where, among other things, the appellant’s off-duty misconduct adversely affected
the agency’s relationship with local law enforcement agencies). Furthermore, we
agree with the administrative judge that the appellant’s persistent and
inappropriate advances toward a 16-year-old Dairy Queen employee were directly
opposed to the agency’s mission of preventing the exploitation of minors. ID
at 16; see Kruger v. Department of Justice, 32 M.S.P.R. 71, 74 (1987) (finding
that off-duty misconduct that is directly opposed to the agency’s mission has a
nexus to the efficiency of the service on the basis that it adversely affects the
agency’s mission); see also Allred v. Department of Health and Human Services ,
786 F.2d 1128, 1131-32 (Fed. Cir. 1986) (finding nexus based on the appellant’s
conviction for off-duty child molestation, given that the mission of the agency
was to administer health and social services to disadvantaged persons like the
victim of the appellant’s offense). Finally, we modify the initial decision to add
that the appellant’s persistent and inappropriate advances toward the Meijer’s
cashier adversely affected the agency’s reputation because that individual was
aware that the appellant was an FBI agent. I-2 AF, Tab 10 at 66; see Jones v.
Government Printing Office, 13 M.S.P.R. 365, 369 (1982) (finding nexus where
the appellant’s off-duty misconduct affected the public reputation of the agency).
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The removal penalty is within the tolerable limits of reasonableness.
¶12 Because the agency’s only charge is sustained, the Board’s authority to
review the penalty is limited. Cantu v. Department of the Treasury, 88 M.S.P.R.
253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only
to determine if the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Id. 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, recognizing that the Board’s
function is not to displace management’s responsibility but to assure that
management judgment has been properly exercised. Id. Thus, the Board will
disturb an agency’s chosen penalty only if it finds that the agency failed to weigh
relevant factors or that the agency’s judgment clearly exceeded the limits of
reasonableness. Id.¶13 In this case, the administrative judge found that the appellant’s offenses
demonstrated a serious lack of judgment, especially considering that the appellant
harassed a 16-year-old service worker at the Dairy Queen a mere 3 months after
the local police had warned him about bothering a young cashier at Meijer’s.
ID at 18-19. In light of the agency’s mission to protect children, she considered
the Dairy Queen service worker’s age to be an aggravating factor. Id. She also
found that the damage that the appellant’s conduct caused to the agency’s
relationship with local law enforcement was an aggravating factor and that the
appellant’s status as a law enforcement officer weighed heavily against him. ID
at 19. The administrative judge further found that the appellant had been
repeatedly warned about such behavior in the past, to include a 45-day suspension
in 2003, for, among other things, making sexually inappropriate remarks to
female colleagues. ID at 19-21; I-2 AF, Tab 11 at 82-88. She found mixed
evidence relating to the appellant’s rehabilitative potential, including on the one
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hand the appellant’s acknowledgment of wrongdoing and expressions of remorse,
and on the other hand the absence of any concrete steps to amend his behavior
and his attempt to deflect responsibility for his own misconduct onto the
16-year-old Dairy Queen service worker and her mother. ID at 21-23.
Considering these facts together, the administrative judge concluded that the
appellant had poor rehabilitative potential. ID at 23. She also found that removal
fell within the prescribed range for the charged offense, according to section 5.21
of OPR’s Offense Code, which covers off-duty misconduct. ID at 20. The
administrative judge acknowledged the appellant’s 18 years of service with the
agency, his excellent job performance, and the difficult personal circumstances
that he was facing at the time, but she found that the deciding official considered
these mitigating factors and that they did not provide a sufficient basis to disturb
the penalty determination. ID at 19-20, 23-24.
¶14 On petition for review, the appellant notes that, although the agency
charged him with a number of offenses, it based its action solely on the charge
relating to his interactions with the two female store employees. PFR File, Tab 1
at 5. In other words, “[a] separate selected penalty was imposed for each offense
code violation, and the sanction of removal was selected only for the Offense
Code 5.21 violation.” Id. He asserts that the administrative judge failed to
address this argument below. Id. The appellant asserts that the standard penalty
for a 5.21 violation is a 5-day suspension and that the agency imposed the
removal penalty because it considered a 45-day suspension 14 years prior to
constitute “serious aggravation.” He argues, however, that this prior discipline
was too remote in time to constitute an aggravating factor. PFR File, Tab 1
at 5-6; I-2 AF, Tab 5 at 32-33. He argues that the deciding official considered
that his behavior occurred over an extended period of time and that there was a
concern about the appellant’s reputation with the local law enforcement
community, but she did not consider these other factors to be “serious.” Id. at 7.
The appellant also emphasizes the mitigating factors in this case, particularly his
9
excellent performance history, and argues that his past performance constitutes
evidence of his rehabilitative potential. Id. at 8.
¶15 As an initial matter, we agree with the appellant that the agency in this case
took an unusual approach to its disciplinary action. PFR File, Tab 1 at 5. As far
as we are aware, the universal practice in Federal employee discipline has always
been to consider multiple charges in the aggregate. See, e.g., Brownell v. United
States, 164 Ct. Cl. 406, 407 (1964); Elchibegoff v. United States, 123 Ct. Cl. 709(1952); Lellmann v. United States, 37 Ct. Cl. 128, 131-32 (1902); Bartlett v. U.S.
Postal Service, 12 M.S.P.R. 225, 226 (1982); Fargnoli v. Department of
Commerce, 123 M.S.P.R. 330, ¶ 3 (2016). The agency in this case took the
opposite approach, assessing each charge in isolation and proposing the
appellant’s removal based solely on what it considered to be the most serious one.
See supra ¶ 2. Notwithstanding, the Board is required to review the agency’s
decision in an adverse action solely on the grounds invoked by the agency; the
Board may not substitute what it considers to be a more adequate or proper basis.
Byers v. Department of Veterans Affairs, 89 M.S.P.R. 655, ¶ 22 (2001). Because
the agency has expressly chosen to overlook the large majority of misconduct
alleged in its notice of proposed removal, we base our decision solely on the
single charge of unprofessional conduct off-duty. That being said, we disagree
with the appellant that the administrative judge failed to consider this in reaching
her decision. PFR File, Tab 1 at 5. The administrative judge explicitly noted that
the four remaining charges did not figure into the removal. 2 ID at 3-9. Nor is
there any indication that the administrative judge or the agency considered these
2
The administrative judge stated that the agency imposed separate suspensions based on
the four remaining charges. ID at 4, 6, 8-9. This finding does not appear to be
supported by the record, given that OPR stated that it “would normally propose”
suspensions for the other four charges, but was “not imposing a separate sanction” in
this case in light of the proposal to remove. IAF, Tab 7 at 32-35. In any event, we find
that this issue is immaterial because the only matter before the Board is the appellant’s
removal.
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matters in their penalty analyses. ID at 17-24; IAF, Tab 5 at 32-37, Tab 7
at 30-35.
¶16 We next address the agency’s table of penalties as contained in OPR’s
Offense Code. Despite its heavy use of the Offense Code in structuring this
adverse action, the agency has not submitted a copy of it for the record.
Nevertheless, the agency’s description of what the Code contains does not appear
to be in dispute. According to the agency, section 5.21 of the Offense Code
provides that an employee is prohibited from:
[e]ngaging in conduct, while off duty, which dishonors, disgraces, or
discredits the FBI; seriously calls into question the judgment or
character of the employee; or compromises the standing of the
employee among his peers or his community.
IAF, Tab 7 at 27. The Code further states that the “standard penalty” for violating
section 5.21 is a 5-day suspension, although the full range of penalties, from oral
reprimand to removal, is available depending on the circumstances. Id. at 31.
The appellant is correct that the Offense Code is written so as to make a 5-day
suspension the baseline penalty for section 5.21 off-duty misconduct. PFR File,
Tab 1 at 5-6. However, we do not find this generic provision or its 5 -day
“standard penalty” particularly instructive as to what penalty is appropriate under
the specific facts of this case. The Board will review an agency -imposed penalty
only to determine if the agency considered all the relevant factors and exercised
management discretion within tolerable limits of reasonableness . See Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 307 (1981) (finding that agency tables
of penalties should not be applied so inflexibly as to impair consideration of other
factors relevant to the individual case). We do find, however, that because the
removal penalty is available for a section 5.21 violation, the agency is not
constrained by the Offense Code from removing the appellant.
¶17 Regarding the appellant’s disciplinary record, the administrative judge
acknowledged but rejected the appellant’s argument that his 2003 suspension
was too remote in time to be considered an aggravating factor in his
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2017 removal. ID at 19. On petition for review, the appellant disputes this
finding, relying on Kehrier v. Department of Justice, 27 M.S.P.R. 477 (1985), and
Bennett v. Department of Transportation, 15 M.S.P.R. 686 (1983), for the
proposition that discipline more than 10 years old is not probative in a penalty
analysis. PFR File, Tab 1 at 6 7. In Kehrier, the presiding official found that the
appellant’s suspension 10 years prior was too remote in time to be considered in
assessing the penalty for the adverse action under appeal. 27 M.S.P.R. at 479-81.
In addressing this issue, the Board stated that the suspension “may have been
deemed too remote in time” but that the issue of prior discipline was immaterial
to the outcome of the appeal. Kehrier, 27 M.S.P.R. at 480 n.1. Thus, the Board
in Kehrier did not directly address whether the appellant’s prior discipline was, in
fact, too remote in time to consider, and we find that this case lends weak support
to the appellant’s argument. In Bennett, the appellants argued that they were
treated disparately from individuals who committed similar misconduct 10 years
prior, but the Board found that the prior incident was too remote in time to
constitute a substantially similar situation. 15 M.S.P.R. at 687. We find that
Bennett is inapposite because it concerns a different penalty factor than the one at
issue here, i.e., disparate penalty rather than disciplinary record. See generally
Douglas, 5 M.S.P.R. at 305-06.
¶18 The agency counters the appellant’s argument, relying on Lewis v.
Department of the Air Force, 51 M.S.P.R. 475 (1991). PFR File, Tab 3 at 11-12.
In Lewis, the administrative judge found that a suspension that occurred
2 1/2 years prior was too remote in time to be considered an aggravating penalty
factor, but the Board disagreed. 51 M.S.P.R. at 485. The Board explained that it
would discount prior discipline if there were an agency rule prohibiting
consideration of such matters beyond a certain period of time, but the applicable
rule in that case only barred consideration after 3 years. 3 Id. We agree with the
3
There does not seem to be any agency rule in this case that would prohibit
consideration of the appellant’s 2003 suspension.
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agency that the language in Lewis seems to suggest that passage of time can never
be a sufficient reason by itself to discount prior discipline, but we also agree with
the appellant that Lewis is distinguishable from the instant appeal on the facts
because a much greater amount of time had passed since the suspension at issue
here than the one at issue in Lewis. PFR File, Tab 1 at 7.
¶19 Having considered the parties’ arguments and the relevant case law, we find
that it was permissible for the agency to consider the appellant’s 2003 suspension
as an aggravating factor but that the passage of time lessens its import. Although
none of the case law seems to bar consideration of prior discipline due merely to
passage of time, we find that passage of time may go to the weight that the prior
discipline should be accorded, along with the severity of the prior discipline and
whether the current disciplinary action is being taken for similar reasons. See
Boscoe v. Department of Agriculture, 54 M.S.P.R. 315, 326 (1992) (noting that
the appellant had been suspended “[j]ust six months prior to the offenses involved
in this appeal”); Gleason v. Department of the Army, 38 M.S.P.R. 547, 549 (1988)
(affirming the initial decision in which the administrative judge found that the
seriousness of the appellant’s offense was greatly aggravated by his recent prior
disciplinary record for similar misconduct); Griffin v. Department of the Army,
15 M.S.P.R. 738, 740 (1983) (noting that the appellant had been suspended twice
within the previous 5 months for the same offense). In this case, we find that the
appellant’s prior discipline was serious – a 45-day suspension with an explicit
warning that it was his “second and final notice that offensive interpersonal
interactions will not be tolerated by the Bureau.” I-2 AF, Tab 11 at 82, 85. In
addition, the prior suspension was based largely on the same general type of
behavior underlying the removal at issue here, i.e., inappropriate comments to
female coworkers. Id. at 83-84. Therefore, notwithstanding the significant
passage of time, we agree with the administrative judge that the agency did not
abuse its discretion in giving the appellant’s 2003 suspension significant weight
as an aggravating factor.
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¶20 Regarding the remaining penalty factors, although we agree with the
appellant that he has had excellent work performance, we do not agree that
this speaks strongly to his rehabilitative potential. PFR File, Tab 1 at 8; see
McCreary v. Office of Personnel Management, 27 M.S.P.R. 459, 462 (1985)
(finding that, although the appellant had good work performance, he lacked
rehabilitative potential). The charged offense does not relate to the appellant’s
performance in his position, but rather to his interpersonal conduct outside the
workplace. IAF, Tab 7 at 27-28, 31-32. For the reasons explained in the initial
decision, we agree with the administrative judge that the appellant has exhibited
poor rehabilitative potential. ID at 21-23. In particular, we find the appellant’s
response to the notice of proposed removal to be disturbing where he suggests
that, had the Dairy Queen service worker’s mother called him instead of the
police, he would have known whether this girl was having issues that were
causing her to “engage superfluously” with him and he could perhaps have been
recruited as a father figure or “standby babysitter.” ID at 22-23; IAF, Tab 5
at 29, 56. This response exhibits deflection, denial, and the appellant’s latent
wish that he could have continued to pursue a relationship with this girl, none of
which bode well for his rehabilitative potential. It also exhibits the appellant’s
lack of appreciation for the seriousness of his misconduct. He continues to
characterize his actions as “off-duty flirtation,” PFR File, Tab 1 at 10, but based
on the undisputed facts as set forth in the relevant police reports, his behavior
seems more akin to stalking or harassment, a fact that he still does not seem to
understand. 4 IAF, Tab 10 at 85-89.
¶21 In light of all the pertinent penalty factors, including the troubling and
repeated nature of the appellant’s offenses, their relationship to the appellant’s
duties and responsibilities, the appellant’s multiple warnings about his
inappropriate conduct towards women, his status as a law enforcement officer, the
4
We note that even unwanted “flirtation” does not typically result in the recipient
seeking protection from the police, as occurred twice in this case within the space of a
few months.
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effect of the appellant’s conduct on the reputation of the agency and its
relationship with the local law enforcement community, the appellant’s personal
stresses and good performance history, and the deciding official’s consideration
of the same, we agree with the administrative judge that there is no basis to
mitigate the penalty. ID at 17-24; IAF, Tab 5 at 32-34; see Douglas, 5 M.S.P.R.
at 306.
NOTICE OF APPEAL RIGHTS 5
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.
5
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
16
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
17
(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. 6 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.
6
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
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.