Marcus James v. Department of Veterans Affairs ( 2024 )


Menu:
  •                       UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    MARCUS AURELIUS JAMES,                          DOCKET NUMBER
    Appellant,                          AT-3443-21-0251-I-1
    v.
    DEPARTMENT OF VETERANS                          DATE: April 8, 2024
    AFFAIRS,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Marcus Aurelius James , Miramar, Florida, pro se.
    Caroline E. Johnson , Esquire, St. Petersburg, Florida, for the agency.
    Kristin Ann Langwell , Hines, Illinois, 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
    dismissed for lack of jurisdiction his appeal alleging prohibited personnel
    practices surrounding an alleged hostile work environment, a higher-level detail
    assignment, and a non-selection for a permanent appointment.           Generally, we
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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; 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 address potential additional bases of jurisdiction raised
    by the appellant’s pleadings below and on review, we AFFIRM the initial
    decision.
    BACKGROUND
    The appellant is a veteran with a service-connected disability.         Initial
    Appeal File (IAF), Tab 7 at 81, 86. At the time he filed the instant appeal, he was
    employed by the agency as an Assistant Human Resources Officer, GS -13, in the
    Miami Veterans Affairs (VA) Healthcare System. IAF, Tab 1 at 1, 5, Tab 6 at 51,
    Tab 7 at 73.   From approximately October 2019 until February 2021, he was
    detailed to a GS-14 Human Resources Officer (HRO) position at the same
    location. IAF, Tab 1 at 5, Tab 7 at 73; Petition for Review (PFR) File, Tab 1 at 4.
    According to the appellant, he was entitled to, but did not receive, higher -level
    compensation during his detail. IAF, Tab 6 at 7-8.
    While he was detailed to the HRO position, in November 2019, the agency
    posted a vacancy announcement for the permanent GS-14 HRO position. IAF,
    Tab 7 at 27. The appellant competed for the permanent position but was not
    3
    selected. 
    Id. at 27, 65-72, 90
    . The agency advised him of his non-selection on
    February 20, 2020.        
    Id. at 90
    .    The appellant filed the instant appeal of the
    agency’s decision not to promote him to the HRO position and alleged that the
    agency engaged in several prohibited personnel practices while he performed the
    detail. IAF, Tab 1 at 5.
    The appellant argued below that the interview process for the HRO position
    was not conducted fairly because one of three interviewers, specifically the
    then-acting Associate Director (AAD) for the Miami VA Healthcare System, was
    not qualified to sit on the interview panel. IAF, Tab 6 at 6-7, 46. He reasoned
    that she was serving in an acting role, had been subjecting him to a hostile work
    environment based on race and perhaps other unspecified factors, and improperly
    scored him 9 out of 30 possible points, which deviated from the two other
    interviewers, who scored him at 15 and 18 points, respectively. 
    Id. at 4-7, 21-24
    .
    He also suggested that the AAD’s treatment of him, and scoring of his
    application, may have resulted from disclosures he made to her and others
    regarding her behavior. 
    Id. at 4-7
    . The appellant alleged that he did not receive
    supplemental compensation for the period during which he was detailed to the
    HRO position, even though he continued to perform his primary duties. IAF,
    Tab 1 at 5, Tab 6 at 7.
    The agency moved to dismiss the appeal for lack of jurisdiction.          IAF,
    Tab 7 at 10. Its motion explained that the Board generally lacks jurisdiction over
    non-selection claims.        
    Id. at 7
    .      It identified exceptions for claims of
    whistleblower reprisal, as well as those arising under the Uniformed Services
    Employment and Reemployment Rights Act of 1994 (codified as amended
    at 
    38 U.S.C. §§ 4301-4335
    )         (USERRA)    and   the   Veterans   Employment
    Opportunities Act of 1998 (VEOA). 
    Id. at 7-8
    . It pointed to what the agency
    viewed as deficiencies in the appellant’s allegations regarding these and other
    potential claims. 
    Id. at 8-9
    . The administrative judge then issued an Order to
    Show Cause, which also explained to the appellant that the Board generally lacks
    4
    jurisdiction over non-selection decisions and identified exceptions for claims of
    whistleblower reprisal, as well as USERRA and VEOA claims.            IAF, Tab 8
    at 2-3.   The administrative judge stated in her order that the Board lacks
    jurisdiction over the appellant’s claim that he was entitled to higher-level pay
    while detailed to the HRO position. 
    Id. at 2
    . The appellant did not respond to
    either the agency’s filing or the administrative judge’s order.
    The administrative judge issued an initial decision dismissing the appeal
    for lack of jurisdiction without holding the appellant’s requested hearing. IAF,
    Tab 1 at 2, Tab 9, Initial Decision (ID) at 1-3. She explained that, although the
    Board has jurisdiction to review an “adverse action” under chapter 75, it
    generally lacks jurisdiction to review a non-selection claim. ID at 3. She further
    found that, because the appellant failed to nonfrivolously allege Board
    jurisdiction over an otherwise appealable action, the Board did not have
    jurisdiction to review any prohibited personnel practice claims or other
    affirmative defenses raised by the appellant. 
    Id.
    The appellant has filed a petition for review, in which he reiterates his
    hostile work environment claim and argues that his appeal did not concern his
    non-selection, but rather what he asserts was the excessive length of his detail to
    the HRO position and his hostile work environment claim.          PFR File, Tab 1
    at 4-5; IAF, Tab 1 at 5. He includes for the first time on appeal what appear to be
    5
    his responses to an agency discovery request. PFR File, Tab 1 at 8-33. 2 The
    agency responded to the petition for review. PFR File, Tab 3.
    DISCUSSION OF ARGUMENTS ON REVIEW
    The Board’s jurisdiction is limited to those matters over which it has been
    given jurisdiction by law, rule, or regulation.         Maddox v. Merit Systems
    Protection Board, 
    759 F.2d 9
    , 10 (Fed. Cir. 1985). The Board generally lacks
    jurisdiction over an employee’s non-selection for a position.              Becker v.
    Department of Veterans Affairs, 
    107 M.S.P.R. 327
    , ¶ 5 (2007).            Similarly, a
    reassignment or detail without a reduction in pay or grade is not an adverse action
    appealable under chapter 75.     Dixon v. U.S. Postal Service, 
    64 M.S.P.R. 445
    ,
    450 n.3 (1994), aff’d sub nom. Scorcia v. U.S. Postal Service , 
    77 F.3d 503
     (Fed.
    Cir. 1996) (Table). Nor does the Board have independent jurisdiction over any
    claim of discrimination or other prohibited personnel practice the appellant may
    be attempting to raise in connection with his detail. Snow v. Department of the
    Air Force, 
    39 M.S.P.R. 582
    , 584 (1989).
    Despite the general lack of jurisdiction, however, an employee may be able
    to appeal an alleged hostile work environment or a detail under VEOA or
    USERRA, or through an individual right of action (IRA) appeal under
    whistleblower protection statutes.        See Becker, 
    107 M.S.P.R. 327
    , ¶ 5
    (recognizing that, despite the general lack of Board jurisdiction over a
    non-promotion, an appellant may appeal a non-promotion under VEOA or
    2
    Discovery requests and responses thereto generally are not to be filed in the first
    instance with the Board unless, as relevant here, they are submitted as part of the
    substantive evidence to be considered in the appeal. Boston v. Department of the Army,
    
    122 M.S.P.R. 577
    , ¶ 12 (2015); 
    5 C.F.R. § 1201.71
    . Therefore, we have reviewed the
    appellant’s responses to the agency’s discovery requests to determine whether they
    contain any information impacting the Board’s jurisdiction. See Pirkkala v. Department
    of Justice, 
    123 M.S.P.R. 288
    , ¶ 5 (2016) (considering the new evidence submitted by
    the appellant on review because it concerned the issue of Board jurisdiction, a matter
    that may be raised at any time during the Board proceedings). The appellant also
    includes numerous documents which are identical to those he filed below. PFR File,
    Tab 1 at 36-65; IAF, Tab 6 at 26-55. We have cited to those documents, when
    appropriate, at their location in the initial appeal file.
    6
    USERRA or through an IRA appeal); see also, e.g., Skarada v. Department of
    Veterans Affairs, 
    2022 MSPB 17
    , ¶¶ 13-16 (acknowledging that an alleged hostile
    work environment might be actionable in an IRA appeal); Petersen v. Department
    of the Interior, 
    71 M.S.P.R. 227
    , 235-39 (1996) (concluding that allegations of
    harassment may be actionable under USERRA); White v. Department of the Air
    Force, 
    63 M.S.P.R. 90
    , 94 (1994) (recognizing that a detail may be the subject of
    an IRA appeal). Therefore, although not directly addressed in the initial decision,
    we have considered the appellant’s claim, re-raised on review, that the AAD
    subjected him to a hostile work environment and that the agency’s handling of his
    detail was improper. See Ney v. Department of Commerce, 
    115 M.S.P.R. 204
    , ¶ 7
    (2010) (explaining that the Board would resolve jurisdictional issues that the
    administrative judge failed to address on petition for review because the issue of
    the Board’s jurisdiction is always before the Board and can be raised by the
    parties or sua sponte at any time).
    We have also addressed the appellant’s non-selection claim. Normally, the
    Board considers those issues raised by the parties on review. Special Counsel v.
    Coffman, 
    124 M.S.P.R. 130
    , ¶ 18 n.6 (2017); 
    5 C.F.R. § 1201.115
    . However, the
    Board reserves the authority to consider any issue in an appeal before it. 
    5 C.F.R. § 1201.115
    (e). Here, the appellant has asserted on review that he never intended
    to raise his non-selection. PFR File, Tab 1 at 4-5. This statement is belied by his
    submissions below. IAF, Tab 1 at 5, Tab 6 at 6, 19. In any event, we have
    exercised our authority to consider this claim in order to supplement the
    administrative judge’s reasoning as to why the Board lacks jurisdiction over this
    claim, as discussed below.
    We modify the initial decision to find that the appellant has failed to establish
    jurisdiction over his claims as either an IRA or a VEOA appeal.
    As indicated above, the appellant suggested during the proceedings before
    the administrative judge that his non-selection was in reprisal for disclosures he
    made to the AAD and others regarding her behavior. IAF, Tab 6 at 4-7. He also
    7
    raised claims relating to his detail as HRO and an alleged hostile work
    environment. IAF, Tab 1 at 5, Tab 6 at 4-7. He appears to re-raise these claims
    on review. PFR File, Tab 1 at 5-6, 16-19, 24. The record contains evidence that
    the appellant is preference eligible under 
    5 U.S.C. § 2108
    ; therefore, we are also
    considering    any   potential   VEOA      claim,   though    not   addressed    by   the
    administrative judge. IAF, Tab 7 at 86-87.
    To establish Board jurisdiction over a non-selection appeal brought under
    the VEOA, an appellant must, in pertinent part, make nonfrivolous allegations
    that in making its selection decision, the agency violated his rights under a statute
    or regulation relating to veterans’ preference. Alegre v. Department of the Navy,
    
    118 M.S.P.R. 424
    , ¶¶ 12-13, 15 (2012). The Board has jurisdiction over an IRA
    appeal if, as relevant here, the appellant exhausted his administrative remedies
    before the Office of Special Counsel (OSC).            Salerno v. Department of the
    Interior, 
    123 M.S.P.R. 230
    , ¶ 5 (2016). Although the administrative judge did
    not provide notice of these jurisdictional requirements, the agency’s motion to
    dismiss did so. IAF, Tab 7 at 8, Tab 8. 3
    The appellant did not allege below, and has not claimed on review, any
    violations of veterans’ preference regulations or statutes in connection with his
    non-selection.    Indeed, the appellant did not even assert he was preference
    eligible in his initial appeal. IAF, Tab 1 at 1. Further, as indicated above, he
    avers on review that he is not contesting his non-selection.          PFR File, Tab 1
    at 4-5. Therefore, we find the Board lacks VEOA jurisdiction over the appeal.
    3
    An appellant must receive explicit information on what is required to establish an
    appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 
    758 F.2d 641
    , 643-44 (Fed. Cir. 1985). However, an administrative judge’s failure to provide an
    appellant with proper Burgess notice can be cured if the agency’s pleadings contain the
    notice that was otherwise lacking. Harris v. U.S. Postal Service, 
    112 M.S.P.R. 186
    , ¶ 9
    (2009). Here, the administrative judge’s Acknowledgment Order did not provide the
    appellant with proper Burgess notice. However, the agency’s motion to dismiss the
    appeal cured this error by identifying the possible claims related to a non-selection over
    which the Board may have jurisdiction, as well as what the appellant needed to allege to
    establish those claims. IAF, Tab 7 at 7-10.
    8
    The appellant also failed to establish that he exhausted his OSC remedy as
    to any potential IRA appeal. On his initial appeal form, he denied having filed a
    whistleblowing complaint with OSC.          IAF, Tab 1 at 4.       The record briefly
    indicates that the appellant spoke with OSC and that an OSC investigator was
    apparently working on an initial determination of a complaint the appellant filed,
    but there is no evidence or allegation identifying the substance of that complaint,
    nor does the record show whether OSC terminated its investigation or that
    120 calendar days passed since he first sought corrective action.           IAF, Tab 7
    at 16-17, PFR File, Tab 1 at 19. In fact, it appears the appellant likely based his
    OSC complaint on claims of race and sex discrimination. IAF, Tab 7 at 16-18.
    Thus, there is no evidence that the appellant exhausted his administrative
    remedies as to claims of whistleblower reprisal. Because the appellant failed to
    meet at least one of the jurisdictional prerequisites for an IRA or a VEOA appeal,
    we find it unnecessary to determine if he met the other jurisdictional requirements
    for these types of appeals.
    The appellant has not alleged that the agency discriminated against him based on
    uniformed service in violation of USERRA.
    We have considered whether the appellant is raising a discrimination claim
    under USERRA because he is a veteran and has alleged he was detailed for too
    long, subjected to a hostile work environment, and not selected for a position.
    IAF, Tab 1 at 5, 7; PFR File, Tab 1 at 4-5; see Yates v. Merit Systems Protection
    Board, 
    145 F.3d 1480
    , 1485 (Fed. Cir. 1998) (finding that an appellant need not
    specifically mention USERRA to meet the Board’s USERRA jurisdictional
    requirements; it is sufficient to allege facts that invoke jurisdiction).
    To establish jurisdiction over a USERRA discrimination claim under
    
    38 U.S.C. § 4311
    (a), an appellant must nonfrivolously allege that: (1) he
    performed duty or has an obligation to perform duty in a uniformed service of the
    United States; (2) the agency denied him initial employment, reemployment,
    retention, promotion, or any benefit of employment; and (3) the performance of
    9
    duty or obligation to perform duty in the uniformed service was a substantial or
    motivating factor in the denial.    Hau v. Department of Homeland Security,
    
    123 M.S.P.R. 620
    , ¶ 11 (2016), aff’d sub nom. Bryant v. Merit Systems Protection
    Board, 
    878 F.3d 1320
    , 1325-26 (Fed. Cir. 2017). The agency noted in its motion
    to dismiss that the appellant had not alleged his non-selection was motivated by
    his uniformed service. IAF, Tab 7 at 7-8.
    Because the administrative judge did not make findings as to whether the
    appellant met his burden to raise nonfrivolous allegations of jurisdiction under
    USERRA, we modify the initial decision to do so here. We find the appellant’s
    allegations lacking. Although the appellant states on review that his uniformed
    service is “well documented,” he has not claimed that the AAD, or any other
    agency employee, expressed hostility toward his military service or treated him
    differently compared to other employees based on that service. PFR File, Tab 1
    at 5. Under these circumstances, the appellant has failed to nonfrivolously allege
    discrimination based on uniformed service. We therefore find that there is no
    basis for Board jurisdiction under USERRA.
    The appellant has failed to nonfrivolously allege that the agency violated the
    basic requirements for employment practices.
    The Board has jurisdiction over an employment practices appeal under
    
    5 C.F.R. § 300.104
    (a) when the following conditions are met: (1) the appeal
    concerns an employment practice that the Office of Personnel Management
    (OPM) is involved in administering; and (2) the appellant makes a nonfrivolous
    allegation that the employment practice violated one of the “basic requirements”
    for employment practices set forth in 
    5 C.F.R. § 300.103
    . Sauser v. Department
    of Veterans Affairs, 
    113 M.S.P.R. 403
    , ¶ 6 (2010). Employment practices can
    include practices affecting ranking and selection of applicants for promotion in
    the competitive service.   Meeker v. Merit Systems Protection Board, 
    319 F.3d 1368
    , 1372 (Fed. Cir. 2003) (citing 
    5 C.F.R. § 301.101
    ).            An agency’s
    misapplication of a valid OPM requirement may constitute an employment
    10
    practice, but an individual agency action or decision does not.               Sauser,
    
    113 M.S.P.R. 403
    , ¶ 7 (citing, inter alia, Prewitt v. Merit Systems Protection
    Board, 
    133 F.3d 885
    , 887 (Fed. Cir. 1998) (affirming the Board’s dismissal of a
    non-selection appeal for lack of Board jurisdiction because, as relevant here, the
    petitioner failed to identify any OPM regulation the agency implemented that
    resulted in the agency misidentifying the races of the applicants, as alleged).
    In its vacancy announcement, the agency identified the HRO position as
    being in the competitive service. IAF, Tab 7 at 27. Further, the appellant alleged
    below that the AAD improperly scored his application. IAF, Tab 6 at 6-7. He
    pointed to scoring charts completed by the three interviewers for the vacancy,
    asserting that the scores from the AAD were inconsistent with those from the
    other interviewers and that she improperly rated him as “0” on an element
    although the score range was identified on the chart as “1-5.” Id. at 6-7, 21-24.
    The administrative judge did not address any potential employment
    practices claim below. ID. The appellant does not re-raise his non-selection on
    review, although he does reference it in the discovery responses attached to the
    petition for review. PFR File, Tab 1 at 22-23. In any event, to ensure the initial
    decision is complete, we find the appellant failed to establish jurisdiction over an
    employment practice because his allegations relate solely to an individual agency
    action. He does not identify any OPM requirement or practice that concerned the
    score of his application. Id. Further, nothing in the record indicates that OPM
    was at all involved in administering or reviewing the qualification requirements
    that the agency considered in evaluating applicants for the HRO position. 4 In the
    absence of an otherwise appealable action, the Board lacks jurisdiction over the
    appellant’s prohibited personnel practice claims, such as his race and sex
    4
    As previously discussed, an appellant must receive explicit information on what is
    required to establish an appealable jurisdictional issue. Burgess, 
    758 F.2d at 643-44
    ;
    Harris, 
    112 M.S.P.R. 186
    , ¶ 9. The administrative judge failed to provide proper
    jurisdictional notice concerning the appellant’s employment practices claim, but the
    agency’s motion to dismiss cured this error by identifying what he must allege. IAF,
    Tab 7 at 8-9.
    11
    discrimination claims. IAF, Tab 7 at 16-18; see Wren v. Department of the Army,
    
    2 M.S.P.R. 1
    , 2 (1980), aff’d, 
    681 F.2d 867
    , 871-73 (D.C. Cir. 1982).
    Accordingly, we affirm the administrative judge’s initial decision as modified
    above.
    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.
    Court of Appeals for the Federal Circuit, which must be received by the court
    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.
    12
    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,
    and your representative receives this decision before you do, then you must file
    13
    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
    14
    (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.
    15
    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.
    

Document Info

Docket Number: AT-3443-21-0251-I-1

Filed Date: 4/8/2024

Precedential Status: Non-Precedential

Modified Date: 4/9/2024