Robert Mulligan v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT MULLIGAN, JR., DOCKET NUMBER
Appellant, PH-1221-22-0154-W-1
v.
DEPARTMENT OF DEFENSE, DATE: May 10, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daniel P. Meyer , Esquire, Kaya C. Massey , Esquire, Washington, D.C., for
the appellant.
Allen Brooks , Esquire, Quantico, Virginia, 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 his individual right of action (IRA) appeal for lack of jurisdiction.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
clarify the nonfrivolous allegation standard and address the appellant’s arguments
of adjudicatory error, we AFFIRM the initial decision.
BACKGROUND
The appellant worked as a GS-7 Security Guard at the agency’s Defense
Counterintelligence and Security Agency (DCSA) from August 2020, until the
agency removed him in April 2021, prior to the completion of his 2-year trial
period. Initial Appeal File (IAF), Tab 1 at 1. The agency’s stated reason for
removing the appellant was “inappropriate behavior, failure to follow supervisor
instruction, and absence without leave.” IAF, Tab 6 at 48-50.
The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that the agency retaliated against him based on his protected disclosures,
among other alleged prohibited personnel practices. IAF, Tab 1 at 4.
Specifically, he alleged that, between August and October 2020, he repeatedly
informed his supervisors and human resources officials that the agency violated
various laws by failing to issue him a firearm. IAF, Tab 5 at 24. The appellant
also sent a letter to U.S. Senator Patrick Toomey regarding the same. Id.In December 2020, the appellant disclosed to his first-level supervisor concerns
related to COVID-19 quarantine and safety protocols. Id. at 25. Finally, in
3
March 2021, he reported safety concerns to his first-level supervisor, apparently
because he had not been issued a firearm. Id. at 26. OSC closed its investigation
and informed the appellant of his appeal rights with the Board. IAF, Tab 1 at 4-5.
The appellant timely filed this IRA appeal alleging that the agency
retaliated against him for reporting violations of law, rule, or regulation and a
substantial and specific danger to public health and safety. IAF, Tab 5 at 61-62.
The administrative judge did not inform the appellant of his burden to establish
Board jurisdiction over his IRA appeal but ordered him to produce additional
information so as “to properly assess [the appellant’s] Whistleblower claims.”
IAF, Tab 4 at 2. In response, the appellant submitted a narrative statement and a
copy of his complaint to OSC with attachments, which included a declaration and
chronology prepared by the appellant. IAF, Tab 5 at 4-110. The administrative
judge issued a second order to the appellant instructing him to identify the exact
law, rule, or regulation he alleged that the agency violated. IAF, Tab 8. The
appellant filed several documents in response to the order. IAF, Tabs 12-13.
The agency filed a motion to dismiss. IAF, Tab 14. The next day, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 16, Initial Decision (ID) at 1, 10. He found that the
appellant exhausted his administrative remedies with OSC, but that his
disclosures were not protected under 5 U.S.C. § 2302(b)(8). ID at 6-10.
Specifically, he found that the appellant failed to establish that he reasonably
believed that the agency violated a law, rule, or regulation when it failed to arm
him while on duty, that the appellant never made a disclosure concerning the
alleged violation of COVID-19 protocols, and that the report of unsafe working
conditions did not amount to a substantial and specific danger to public health or
safety. ID at 8-10.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. On review, the appellant disagrees with the
administrative judge’s findings and argues that the administrative judge violated
4
the appellant’s due process rights by issuing the initial decision 1 day after the
agency filed its motion to dismiss and dismissing the appeal before the appellant
had the opportunity to complete discovery. PFR File, Tab 1 at 8. The agency has
filed a response, and the appellant has filed a reply. PFR File, Tabs 3, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board jurisdiction over an IRA appeal, an appellant must show
that he exhausted his administrative remedies before OSC 2 and make nonfrivolous
allegations that (1) he made a protected disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity as specified in 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)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(a)
(1), (e)(1); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
Protected whistleblowing occurs when an appellant makes a disclosure that he
reasonably believes evidences a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health and safety. 5 U.S.C. § 2302(b)(8); Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶ 52.
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). Here, the administrative judge’s
orders did not provide the appellant with proper Burgess notice. IAF, Tabs 4, 8.
However, the agency’s narrative statement in its response to this appeal cured this
error by identifying what the appellant needed to allege to establish jurisdiction
over an IRA appeal. IAF, Tab 6 at 5-6; see Harris v. U.S. Postal Service,
112 M.S.P.R. 186, ¶ 9 (2009) (stating that an administrative judge’s failure to
2
The administrative judge determined that the appellant exhausted all of his alleged
protected disclosures. ID at 6. The parties do not dispute this finding and we discern
no basis to disturb it.
5
provide an appellant with proper Burgess notice can be cured if the agency’s
pleadings or the initial decision contain the notice that was otherwise lacking).
The initial decision also advised the appellant of his jurisdictional burden.
ID at 5-6. But it contained errors. Specifically, the administrative judge
suggested that if the appellant made nonfrivolous allegations of jurisdiction,
he would be entitled to a hearing, at which he would have the burden of proving
jurisdiction by preponderant evidence. Id. The administrative judge also
indicated that the Board could consider the agency’s uncontradicted documentary
submissions to the extent they pertain to jurisdiction. ID at 6.
An appellant meets his jurisdictional burden in an IRA appeal and is
entitled to a hearing on the merits if, after exhausting his remedy with OSC,
he makes nonfrivolous allegations that he engaged in protected activity that was a
contributing factor in a personnel action. Graves v. Department of Veterans
Affairs, 123 M.S.P.R. 434, ¶ 22 (2016). An appellant is not entitled to a
jurisdictional hearing in an IRA appeal; he is only entitled to a hearing once
jurisdiction is established, and that hearing is on the merits. Id. In deciding
whether an appellant has made nonfrivolous allegations sufficient to establish
jurisdiction, the Board may not “credit[] the agency’s interpretation of the
evidence.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369
(Fed. Cir. 2020). To the extent that the administrative judge suggested that the
appellant was required to prove jurisdiction by preponderant evidence, was
entitled to a hearing on jurisdiction, or had to counter the agency’s evidence
concerning jurisdiction with evidence of his own, as opposed to making
nonfrivolous allegations, these statements of the law were incorrect.
We find that the administrative judge’s errors do not warrant reversal in
this instance. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984) (determining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision). The
appellant was not prejudiced by the error, because both the agency’s narrative
6
response and the initial decision contained the core information he needed. That
information was the requirement that he make nonfrivolous allegations that he
made a protected disclosure that was a contributing factor in a personnel action.
IAF, Tab 6 at 5; ID at 6. Further, we have reviewed the administrative judge’s
determinations and, applying the proper standards, we agree that the appellant
failed to establish jurisdiction, as further discussed below.
The appellant failed to nonfrivolously allege that the agency violated a law, rule,
or regulation by failing to issue him a firearm.
The administrative judge found that the appellant failed to nonfrivolously
allege that he reasonably believed that the agency violated a law, rule, or
regulation when it failed to provide him with a firearm on duty. ID at 8. The
administrative judge reasoned that there was no law, rule, or regulation requiring
the arming of agency Security Guards. Id. Although the appellant disputes this
determination, we are not persuaded. PFR File, Tab 1 at 9-10.
The proper test for determining whether an employee had a reasonable
belief that his disclosures were protected is whether a disinterested observer with
knowledge of the essential facts known to, and readily ascertainable by, the
employee could reasonably conclude that the actions evidenced a violation of a
law, rule, or regulation, or one of the other conditions listed in 5 U.S.C. § 2302(b)
(8). Pridgen, 2022 MSPB 31, ¶ 52. In support of his allegation that he
reasonably believed that the agency was required to arm him, the appellant
referenced Department of Defense Instruction (DODI) 5525.15, his position
description, and a Security Guard vacancy announcement. IAF, Tab 5 at 62, 77,
Tab 10. Because it was not clear that DODI 5525.15 created such a requirement,
the administrative judge ordered the appellant to identify the exact provisions
stating that a Security Guard must be equipped with a weapon while on duty.
IAF, Tab 8 at 1-2. The appellant did not respond to that portion of the
administrative judge’s order. IAF, Tab 12 at 4-5. The administrative judge found
that the appellant failed to identify any provision within DODI 5525.15, his
7
position description, or the vacancy announcement that required agency Security
Guards to be armed. ID at 8. Rather, he reasoned that they merely required that
incumbents be qualified to carry and use firearms. Id. The appellant has not
challenged these findings on review, and we see no reason to disturb them.
The appellant also quoted Army Regulation 190-56, Section 6-14(a) to
support his reasonable belief concerning this disclosure. IAF, Tab 12 at 4, 31;
PFR File, Tab 1 at 8. That regulation states, in relevant part, that
“security guards will be provided with the weapons, ammunition and security
equipment needed to perform their assigned duties.” IAF, Tab 12 at 4, 31;
PFR File, Tab 1 at 8. The administrative judge found that a disinterested
observer would not have reasonably concluded that the agency violated this
regulation by not supplying a firearm. ID at 8. He explained that the regulation
applied only to the Department of the Army, and not to the Department of
Defense. Id. On review, the appellant argues that he reasonably believed that the
Army regulation applied to him because the patch worn on his uniform, and worn
generally by agency staff, said “Department of the Army.” PFR File, Tab 1 at 9.
He has submitted copies of what he represents were his uniform patches. Id. at 9,
14-15. Even considering this new argument for jurisdictional purposes, we still
find that the appellant failed to nonfrivolously allege that he reasonably believed
that Security Guards were required to carry firearms. 3
The appellant’s reading of the Army Regulation is not reasonable. The
vacancy announcement and position description identified the DCSA as the
employing agency. IAF, Tab 5 at 33, Tab 10 at 5. The position description
explicitly describes DCSA as “a separate Agency of the Department of Defense
(DoD) under the direction, authority, and control of the Under Secretary of
Defense for Intelligence.” IAF, Tab 5 at 3. Further, Executive Order 13869,
3
The appellant did not raise this argument or submit this evidence below. We have
considered the appellant’s new argument and evidence to the extent they implicate the
Board’s jurisdiction, because jurisdiction may be raised at any time during Board
proceedings. See Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016).
8
which established the DCSA, makes clear that the agency is “[s]ubject to the
authority, direction, and control of the Secretary of Defense.” Exec. Order No.
13869, § 2(c)(i), 84 Fed. Reg. 18125, 18125-26 (2019). No reasonable person in
the appellant’s position, having available such unambiguous information that he
was employed by the DCSA, could believe that the fact that he wore a
Department of the Army badge changed his employing agency. So, we agree with
the administrative judge that the appellant failed to nonfrivolously allege a
reasonable belief that Army Regulation 190-56, Section 6-4(a), applied to him.
The appellant failed to nonfrivolously allege that his supervisor violated a law,
rule, or regulation when she initially informed the appellant that “he could not
quarantine [after a secondary exposure to COVID-19] for staffing reasons.”
The appellant argued below and on review that the agency violated
COVID-19 safety protocols when it initially denied his request to quarantine for
14 days after he worked with a coworker who had been exposed to COVID-19,
even though the coworker had not tested positive for the virus. IAF, Tab 5 at 6;
PFR File, Tab 1 at 7. In support of this belief that quarantining was required, the
appellant pointed to the Centers for Disease Control (CDC) guidance, which
“recommends a quarantine period of 14 days” following contact with persons
“infected” with COVID-19. IAF, Tab 12 at 4-5, 54-55. The administrative judge
found that the CDC guidelines were not mandatory, that they only concerned
exposure to someone who had tested positive for COVID-19, and that the
appellant was never forced to report to work during the 14-day quarantine
period. 4 ID at 9. The appellant does not dispute these findings and we see no
reason to disturb them.
Further, the administrative judge correctly found that the appellant never
made a disclosure concerning the alleged violation of COVID-19 protocols.
4
Although the initial decision cited the reasonable belief test to determine whether the
appellant made a protected disclosure, the administrative judge does not appear to have
applied the test to this disclosure. ID at 7-9. We therefore modify the initial decision
to clarify the administrative judge’s findings according to this standard.
9
ID at 8. He reasoned that the appellant merely asked his supervisor “to contact
her supervisor for further direction” on whether he should quarantine after
working with the coworker. ID at 8-9. The appellant does not dispute the
administrative judge’s findings in this regard, and we discern no reason to disturb
them. PFR File, Tab 1 at 10, Tab 4 at 7-8. Moreover, when, as here, a disclosure
concerns a potential violation of law, as opposed to an event that has already
taken place, an appellant must prove that he reasonably believed the potential
wrongdoing was real and immediate. Covington v. Department of the Interior,
2023 MSPB 5, ¶ 38. The appellant has not alleged that, at the time he asked his
supervisor for further direction, he reasonably believed that his supervisor would
continue to insist he work despite his potential exposure.
Instead, the appellant argues that his supervisor’s response, i.e., that the
appellant “could not quarantine for staffing reasons,” was itself a violation and
that the supervisor’s retraction of that statement did not invalidate his disclosure.
PFR File, Tab 1 at 10. Again, the appellant has not alleged that he made any
disclosure regarding the COVID-19 protocols, and he has not alleged that
he disclosed that his supervisor’s statement violated the law. Therefore, we agree
that the appellant failed to nonfrivolously allege that he made a protected
disclosure regarding the COVID-19 protocols.
The appellant failed to nonfrivolously allege that the agency’s failure to provide
him with a firearm amounted to a substantial and specific danger to public health
or safety.
The appellant alleged below that he expressed to his supervisor that his
working conditions were unsafe because the agency failed to equip him with a
firearm. IAF, Tab 5 at 7, 25, 77. The administrative judge found that the
appellant did not disclose a substantial and specific danger to public health or
safety based on his concerns of a potential future incident in which he might be
unable to sufficiently protect agency employees from bad actors. ID at 9-10.
10
In support of this finding, the administrative judge reasoned that the likelihood of
harm was speculative rather than substantial and specific. ID at 10.
The Board has explained that disclosures regarding danger to the public
must be both substantial and specific to be protected. Schoenig v. Department of
Justice, 120 M.S.P.R. 318, ¶ 10 (2013). Factors to be considered in determining
whether a disclosed danger is sufficiently substantial and specific to be protected
include the likelihood of harm, when the alleged harm may occur, and the
potential consequences of the harm. Id. Disclosure of an imminent event is
protected, but disclosure of a speculative danger is not. Id.On review, the appellant argues that shootings on various military bases in
2009, 2013, and 2014 give rise to a likelihood of impending harm. PFR File,
Tab 1 at 10-11. In Mogyorossy v. Department of the Air Force, 96 M.S.P.R. 652,
¶ 16 (2004), the Board found that an appellant’s disclosure did not identify a
substantial and specific danger in similar circumstances. Specifically,
the appellant alleged that, due to the security threat after September 11, 2001,
Security Guards’ lives and the lives of those they protected could have been in
danger if they were attacked because their weapons were not fully loaded. Id.The Board reasoned that the appellant’s disclosure involved speculation that there
could possibly be danger at some point in the future, which was insufficient.
Id., ¶ 17. Here, we find that the appellant’s concern of unsafe working conditions
is indistinguishable from Mogyorossy and, therefore, too speculative to be
protected. Id. We are not persuaded by the appellant’s argument that, because
shootings occurred on military bases in 2009, 2013, and 2014, he reasonably
believed that there was an imminent risk of violence in 2021 that could be
lessened by giving him a firearm. Thus, we agree with the administrative judge
that the appellant failed to nonfrivolously allege that he disclosed a substantial
and specific danger to public health or safety.
11
The administrative judge did not violate the appellant’s due process rights.
The appellant argues on review that the administrative judge violated his
due process rights by issuing the initial decision 1 day after the agency filed its
motion to dismiss, which was 9 days before the appellant’s response was due.
PFR File, Tab 1 at 8. A party typically has 10 days to object to an opposing
party’s motion. IAF, Tab 2 at 3-4; 5 C.F.R. § 1201.55(b). Here, because the
agency’s motion to dismiss was filed 1 day prior to the issuance of the initial
decision, it is not clear to us that the administrative judge was aware of the
agency’s motion when he dismissed the appeal. He did not reference the
agency’s motion in the initial decision, nor indicate that he was granting any such
motion.
Nonetheless, it is error when, as here, an administrative judge issues
an initial decision without notifying the parties of the date when the record on
jurisdiction will close. IAF, Tab 2 at 2-3, Tabs 4, 7-8; Fidler v. U.S. Postal
Service, 53 M.S.P.R. 440, 442, 444 (1992). An administrative judge’s procedural
error is of no legal consequence unless it is shown to have adversely affected a
party’s substantive rights. Karapinka v. Department of Energy, 6 M.S.P.R. 124,
127 (1981). The appellant had the opportunity to file the instant petition for
review disputing both the initial decision and the agency’s motion to dismiss, and
we have considered all of his arguments and evidence on review. Therefore, the
administrative judge’s error does not provide a basis to reverse the initial
decision.
The appellant also argues that the administrative judge violated his due
process rights by dismissing the appeal before he had the opportunity to complete
discovery. PFR File, Tab 1 at 8. While the appellant asserts that “discovery was
in progress,” he does not indicate whether he made discovery requests to the
agency, or if it owed him responses. He also has not indicated what information
he was seeking, and there is no motion to compel in the record. Therefore,
we cannot discern whether any alleged error by the administrative judge
12
prejudiced the appellant’s rights. See Searcy v. Department of Commerce,
114 M.S.P.R. 281, ¶ 14 n.* (2010) (concluding that an administrative judge’s
failure to rule on an appellant’s motions regarding discovery was harmless
because the appellant did not indicate how the information contained in the
discovery sought was relevant and material to the dispositive jurisdictional issue).
In the absence of evidence of such prejudice, we discern no reason to reverse the
initial decision.
Accordingly, we affirm the administrative judge’s determination that the
Board lacks jurisdiction over this appeal, 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
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.
13
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
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
14
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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
15
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. 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
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.
16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.