Stern Chad v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHAD KADRI STERN, DOCKET NUMBER
Appellant, NY-1221-20-0098-W-1
v.
DEPARTMENT OF THE ARMY, DATE: April 5, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chad Kadri Stern , Pensacola, Florida, pro se.
Joseph A. Fedorko , Esquire, Washington, D.C., for the agency.
Lane Reeder , Fort Drum, New York, 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
denied his request for corrective action in his individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
(1) supplement the administrative judge’s analysis of the appellant’s hostile work
environment claim in light of recent Board precedent; (2) find that the appellant
established a prima facie case of retaliation for protected activity; and (3) find
that the agency proved by clear and convincing evidence that it would have
terminated the appellant’s authorization to telework in the absence of his
protected activity, we AFFIRM the initial decision.
The appellant filed a complaint with the Office of Special Counsel (OSC)
in 2019 in which he alleged that the agency had taken a number of personnel
actions in retaliation for his protected disclosures and activities. Initial Appeal
File (IAF), Tab 14 at 27-42. In December 2019, OSC informed the appellant of
its preliminary determination to close its investigation into his complaint. Id.
at 53-57. In February 2020, after the appellant had responded to its preliminary
determination, OSC issued a final determination letter closing its investigation
and notifying the appellant of his right to file an IRA appeal with the Board. Id.
at 58-60.
The appellant filed this IRA appeal in February 2020. IAF, Tab 1. He
initially requested a hearing, id. at 2, but he later withdrew that request and
instead requested a decision on the written record, IAF, Tab 40 at 3. The
3
administrative judge accepted the following three personnel actions for
adjudication in this appeal, to the exclusion of all others: (1) the incorrect
processing of the appellant’s probationary period; (2) the removal of the
appellant’s authorization to telework; and (3) a hostile work environment. IAF,
Tab 30 at 2. In the initial decision, the administrative judge found that any error
by the agency regarding the appellant’s probationary period was de minimis and
therefore not a covered personnel action. IAF, Tab 48, Initial Decision (ID)
at 6-7. She further found that the appellant’s allegations, even if taken as true,
did not reach the level of a hostile work environment that would constitute a
covered personnel action. ID at 7-8. She found that the discontinuation of the
appellant’s telework was a covered personnel action but that he failed to prove
that action was motivated by any protected disclosures or activities. ID at 8-14.
She therefore denied the appellant’s request for corrective action. ID at 14.
After successfully requesting an extension of time, the appellant filed a
petition for review of the initial decision. Petition for Review (PFR) File,
Tabs 1-3. He challenges a number of the administrative judge’s specific findings
in the initial decision. PFR File, Tab 3 at 7-19. The agency has responded in
opposition to the petition for review. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5
(2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans
4
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Once an appellant establishes
jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his
claim, which he must prove by preponderant evidence. Salerno, 123 M.S.P.R.
230, ¶ 5. If the appellant proves that his protected disclosure or activity was a
contributing factor in a personnel action taken against him, the agency is given an
opportunity to prove, by clear and convincing evidence, that it would have taken
the same personnel action in the absence of the protected disclosure or activity.
Id.; see 5 U.S.C. § 1221(e)(1)-(2).
The appellant established that he was subjected to a personnel action.
The administrative judge found that the removal of the appellant’s
authorization to telework was a personnel action but that neither the incorrect
processing of his probationary period nor the alleged hostile work environment
met the statutory standard. ID at 6-9. For the reasons set forth below, we agree
with the administrative judge’s findings.
Regarding the appellant’s probationary period, the agency initially coded
the appellant’s August 2019 conversion from the excepted service to the
competitive service in such a way that the Standard Form 50 (SF-50)
documenting that conversion indicated that he was required to serve an additional
2-year probationary period. IAF, Tab 46 at 4, Tab 14 at 10. After determining
that the appellant had in fact already completed his probationary period, the
agency issued a corrected SF-50 effective the same day as the original
conversion. IAF, Tab 46 at 4, Tab 14 at 13. The corrected document indicates
that the appellant is a permanent competitive service employee and that his
probationary period has been completed. IAF, Tab 14 at 13.
Under both the WPEA and its predecessor, the Whistleblower Protection
Act (WPA), a “personnel action” is defined to include, among other enumerated
actions not relevant here, “any other significant change in duties, responsibilities,
5
or working conditions.” 2 5 U.S.C. § 2302(a)(2)(A)(xii). We agree with the
administrative judge that the agency’s temporary failure to correctly document
the appellant’s completion of his probationary period does not meet the statutory
definition of a personnel action. The fact that the appellant’s SF-50 incorrectly
indicated that he was still required to serve a probationary period before it was
corrected retroactively does not constitute a significant change in his duties,
responsibilities, or working conditions.
Although the term “hostile work environment” has a particular meaning in
other contexts, the Board has clarified that such a claim can constitute a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii) when the components of the
claim amount to a significant change in duties, responsibilities, or working
conditions. Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 16.
Thus, although the “significant change” personnel action should be interpreted
broadly to include harassment and discrimination that could have a chilling effect
on whistleblowing or otherwise undermine the merit system, only agency actions
that, individually or collectively, have practical and significant effects on the
overall nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii). Skarada, 2022 MSPB 17, ¶ 16.
In the initial decision, the administrative judge, who did not have the
benefit of the Board’s decision in Skarada, relied, in part, on case law relevant to
establishing a hostile work environment under Title VII. ID at 7-8. In light of
Skarada, however, reliance on Title VII standards to determine whether agency
actions amount to a personnel action that may be the subject of an IRA appeal is
incorrect. See Skarada, 2022 MSPB 17, ¶ 16. Accordingly, we modify the
administrative judge’s analysis of the appellant’s hostile work environment claim
consistent with Skarada.
2
The relevant events occurred after the December 27, 2012 effective date of the WPEA.
Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the
WPEA to this appeal.
6
Although the administrative judge did not have the benefit of Skarada, we
find no basis to disturb her findings regarding the appellant’s hostile work
environment claim. Specifically, we agree with the administrative judge that the
essence of the appellant’s hostile work environment claim is that the agency
failed to adequately investigate allegations regarding a dispute between the
appellant’s wife and her employing agency, thereby creating a hostile work
environment for the appellant. ID at 7-8. We agree with the administrative judge
that these claims are insufficient to create an actionable hostile work
environment. 3
We see no reason to disturb the administrative judge’s finding that the
termination of the appellant’s authorization to telework was a personnel action.
ID at 8-9. We therefore turn to whether the appellant established that he made a
protected disclosure or engaged in protected activity that was a contributing
factor in that personnel action.
The appellant established that he engaged in protected activity that was a
contributing factor in the termination of his authorization to telework.
The administrative judge found that the appellant failed to prove that any
of his disclosures were protected under 5 U.S.C. § 2302(b)(8). ID at 9-14. We
see no reason to disturb those findings. However, we find that the appellant did
prove that he engaged in protected activity under 5 U.S.C. § 2302(b)(9).
Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity
when he discloses information to the agency’s Office of Inspector General (OIG)
(or any other component responsible for internal investigation or review) or OSC
“in accordance with applicable provisions of law.” Here, the record reflects that
the appellant filed a complaint with OIG in July 2018. IAF, Tab 12 at 5. The
3
Having found that the agency’s error regarding the appellant’s probationary period is
not itself a personnel action, we have considered whether it contributed to a hostile
work environment. However, we find that consideration of that additional action does
not alter our conclusion that the appellant failed to establish a hostile work environment
under Skarada.
7
record also reflects that the appellant filed an OSC complaint in October 2019.
IAF, Tab 14 at 27-52. 4 The Board recently held that, under the broadly worded
provision of 5 U.S.C. § 2302(B)(9)(C), any disclosure of information to OIG or
OSC is protected regardless of its content as long as such disclosure is made in
accordance with applicable provisions of law. Fisher v. Department of the
Interior, 2023 MSPB 11, ¶ 8. Thus, we find that the appellant established that he
engaged in activity protected under 5 U.S.C. § 2302(b)(9)(C) when he filed both
his July 2018 OIG complaint and his October 2019 OSC complaint. 5
The most common way for an appellant to prove that a protected disclosure
or activity was a contributing factor in the agency’s taking of a personnel action
is the knowledge/timing test. Scoggins v. Department of the Army, 123 M.S.P.R.
592, ¶ 21 (2016). That test requires the appellant to prove that the official taking
the personnel action knew of the protected disclosure or activity and took the
personnel action within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action. Id.Once the appellant has satisfied the knowledge/timing test, he has demonstrated
that a protected disclosure or activity was a contributing factor in a personnel
action, even if a complete analysis of all of the evidence would not support such a
finding. Gonzalez v. Department of Transportation, 109 M.S.P.R. 250, ¶ 20
(2008).
4
The copy of the OSC complaint in the record does not indicate the specific date on
which it was filed. The appellant indicated in his initial appeal that he filed the OSC
complaint on October 30, 2019. IAF, Tab 1 at 4. That date is consistent with other
evidence in the record. Specifically, the appellant sent an email to agency officials on
October 30, 2019, attaching his OSC complaint and some of the supporting
documentation he submitted to OSC. IAF, Tab 5 at 4-6. Additionally, in his
November 15, 2019 memorandum terminating the appellant’s telework status, the
deciding official indicated that the appellant had informed the deciding official on
November 4, 2019, that he had been in contact with OSC. IAF, Tab 14 at 72. The
appellant added the termination of his telework status to his OSC complaint on
November 15, 2019. IAF, Tab 7 at 6-8.
5
The portion of the appellant’s OSC complaint alleging reprisal for protected
disclosures also is protected under 5 U.S.C. § 2303(b)(9)(a)(i).
8
We find that the knowledge/timing test is satisfied with respect to the
appellant’s OSC complaint. In the November 15, 2019 memorandum terminating
the appellant’s telework status, the deciding official acknowledged that he was
made aware of the appellant’s contact with OSC less than 2 weeks earlier. IAF,
Tab 14 at 72. This is well within the amount of time the Board has recognized as
sufficiently short to satisfy the knowledge/timing test. See Schnell v. Department
of the Army, 114 M.S.P.R. 83, ¶ 22 (2010) (holding that a personnel action taken
within 1 or 2 years of a protected disclosure is sufficiently close in time to satisfy
the timing prong of the knowledge/timing test). Accordingly, we conclude that
the appellant has established a prima facie case that the termination of his
approval for telework was in retaliation for his OSC complaint.
The agency proved by clear and convincing evidence that it would have
terminated the appellant’s authorization to telework in the absence of his
protected activity.
Having found that the appellant failed to prove his prima facie case of
retaliation, the administrative judge did not address whether the agency proved by
clear and convincing evidence that it would have terminated the appellant’s
authorization to telework in the absence of his protected activity. Because the
record is fully developed and there was no hearing requiring demeanor -based
credibility determinations, the Board can determine whether the agency met its
burden without remand. See Forte v. Department of the Navy, 123 M.S.P.R. 124,
¶ 27 (2016).
In determining whether an agency has met its burden to prove that it would
have taken a personnel action in the absence of an employee’s protected activity,
the Board will consider all relevant factors, including the following: (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who do not engage in such protected activity, but who
9
are otherwise similarly situated. Alarid v. Department of the Army, 122 M.S.P.R.
600, ¶ 14 (2015); see Carr v. Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999). The Board must consider all the pertinent evidence in the
record, and must not exclude or ignore countervailing evidence by only looking at
the evidence that supports the agency’s position. Alarid, 122 M.S.P.R. 600, ¶ 14;
see Whitmore v. Department of Labor, 680 F.3d 1353, 1367-70 (Fed. Cir. 2012).
The Board does not view the Carr factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but rather weighs these
factors together to determine whether the evidence is clear and convincing as a
whole. Alarid, 122 M.S.P.R. 600, ¶ 14; Lu v. Department of Homeland Security,
122 M.S.P.R. 335, ¶ 7 (2015).
Because the personnel action at issue in this appeal is not disciplinary in
nature, Carr factor one does not apply straightforwardly to this case. Smith v.
Department of the Army, 2022 MSPB 4, ¶ 23. Instead, it is appropriate to
consider the broader question of whether the agency had legitimate reasons for its
action. Id. We find that the agency had legitimate reasons for its decision to
terminate the appellant’s authorization to telework. As the deciding official
noted, the appellant generally was not authorized to telework. IAF, Tab 14 at 73.
However, when the appellant raised safety concerns about reporting to work in
November 2019, his first-level supervisor authorized him to telework on an ad
hoc basis while the agency considered his concerns. Id. The appellant submitted
a memorandum dated November 4, 2019, setting forth his safety concerns. Id.
at 69-71. By memorandum dated November 15, 2019, the deciding official
informed the appellant that, although he was sympathetic to the appellant’s
concerns, he had not “describe[d] any reasonable, substantive information of an
actual threatening or unsafe condition” that would warrant his continued absence
from the workplace. Id. at 72. He therefore directed the appellant to return to the
workplace the following week. Id.10
We find that the deciding official’s decision was entirely reasonable in
light of the appellant’s memorandum. Many of the appellant’s claims therein are
vague, speculative, and do not raise concerns for the appellant’s physical safety
in the workplace. The appellant acknowledged in an email to OSC that the
deciding official had asked him to give specific reasons why he felt unsafe but
that he found it difficult to provide “a simple answer” to that inquiry. IAF, Tab 7
at 6. The most concrete claim the appellant made regarding physical safety in the
workplace involves a claim that a coworker of the appellant’s wife made
comments regarding carrying a concealed weapon at the workplace. However,
the appellant and his wife had raised that concern in 2017, and the agency had
investigated it at the time and could not substantiate any threat to the appellant or
his wife. Id. at 107-08, 112-13. We therefore find it is not a compelling reason
to permit the appellant to continue teleworking indefinitely in November 2019.
While the appellant genuinely may have felt unsafe in the workplace, we find that
he did not provide sufficient grounds for the agency to authorize him to telework
due to safety concerns. We therefore find that the first Carr factor weighs
strongly in favor of finding that the agency met its burden.
Turning to the second Carr factor, we find that although there was some
motive to retaliate against the appellant for his OSC complaint, such motive was
not particularly strong. In assessing this factor, we are mindful of the U.S. Court
of Appeals for the Federal Circuit’s instruction that the Board should avoid an
overly restrictive analysis and should fully consider whether a motive to retaliate
can be imputed to the agency officials involved and whether those officials
possessed a “professional retaliatory motive” because the whistleblower’s
disclosures implicated agency officials and employees in general. Robinson v.
Department of Veterans Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019); Whitmore,
680 F.3d at 1370. 6 We also must consider the appellant’s protected activity in the
6
Historically, the Board has been bound by the precedent of the Federal Circuit on this
issue. However, as a result of changes initiated by the Whistleblower Protection
Enhancement Act of 2012 (Pub. L. No. 112-199, 126 Stat 1465), extended for 3 years
11
context of the tense relationship between the appellant and the agency. See Soto
v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 16. The appellant had been
raising issues and filing various complaints for at least 2 years at the time the
agency terminated his authorization to telework, and that history may have added
to the agency’s retaliatory motive.
Nevertheless, the deciding official did not have a strong personal motive to
retaliate against the appellant. In his October 2019 OSC complaint, the appellant
identified a number of agency officials who he alleged were involved in
violations of law, rule, or regulation, IAF, Tab 14 at 47, and taking retaliatory
personnel actions, id. at 37. The official who terminated his authorization to
telework in November 2019 was not among those identified. Thus, although the
deciding official had some motive to retaliate based on his status as a
management official, that motive was not as strong as it might have been because
he was not personally implicated in the appellant’s OSC complaint. Accordingly,
we find that the second Carr factor weighs against finding that the agency met its
burden, albeit not particularly strongly.
The agency did not present any evidence regarding its treatment of
similarly situated non-whistleblowers. While the agency does not have an
affirmative burden to produce evidence concerning each and every Carr factor,
the Federal Circuit has held that “the absence of any evidence relating to Carr
factor three can effectively remove that factor from the analysis,” but that the
failure to produce such evidence if it exists “may be at the agency’s peril,” and
“may well cause the agency to fail to prove its case overall.” Whitmore, 680 F.3d
at 1374-75; Soto, 2022 MSPB 6, ¶ 18. Here, the deciding official indicated that
he “ha[d] not had the occasion to make a similar decision with respect to any
other employee.” IAF, Tab 46 at 7. Given the unusual nature of the personnel
(All Circuits Review Extension Act, Pub. L. No. 113-170, 128 Stat. 1894), and
eventually made permanent (All Circuits Review Act, Pub. L. No. 115-195, 132 Stat.
1510), we must consider this issue with the view that the appellant may seek review of
this decision before any appropriate court of appeal. See 5 U.S.C. § 7703(b)(1)(B).
12
action at issue in this case, we find it unsurprising that the agency has no
comparator evidence. Thus, although the absence of evidence regarding Carr
factor three means that factor cannot weigh in favor of the agency, Smith v.
General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019), we find
that Carr factor three is neutral in this case.
Considering the Carr factors as a whole, we find that the agency met its
burden to show by clear and convincing evidence that it would have terminated
the appellant’s authorization to telework in the absence of his protected activity.
We find that the strong justification for the agency’s action significantly
outweighs any retaliatory motive. We therefore deny the appellant’s request for
corrective action.
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.
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.
13
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:
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
14
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
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:
15
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
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).
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.
16
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.
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.