Gerald J Bialas v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALD J. BIALAS, DOCKET NUMBER
Appellant, DC-831M-20-0138-I-1
v.
OFFICE OF PERSONNEL DATE: July 22, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gerald J. Bialas , Burke, Virginia, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
that he received an overpayment of retirement annuity benefits under the Civil
Service Retirement System (CSRS). Generally, we grant petitions such as this
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s finding that the Separation and Property
Settlement Agreement (PSA) is a court order acceptable for processing.
On petition for review, the appellant challenges the administrative judge’s
finding that the PSA is a court order acceptable for processing within the meaning
of 5 C.F.R. part 838. 2 Petition for Review (PFR) File, Tab 1 at 1-2, 10-11; Initial
Appeal File (IAF), Tab 20, Initial Decision (ID) at 5-6. 3 Based on our review of
the record, we find that the administrative judge properly interpreted the PSA as
effectively placing the sole responsibility on OPM for paying the appellant’s
former spouse an apportionment of his annuity. ID at 6. As correctly discussed
in the initial decision, the PSA specifically requires OPM to make direct
payments of a portion of the appellant’s annuity to his former spouse. ID at 2, 6;
IAF, Tab 16 at 66-67. The PSA only requires the appellant to make interim
2
The PSA was ratified by, and incorporated into, a Final Order of Divorce issued by the
Circuit Court of Fairfax County, Virginia. Initial Appeal File, Tab 16 at 52-55, 57-87.
3
With his petition for review, the appellant has included an annotated copy of the initial
decision. PFR File, Tab 1 at 6-27.
3
payments to his former spouse in the event of OPM’s delay in making direct
payments. ID at 2, 6; IAF, Tab 16 at 68-69. The PSA further provides that, in
the event the appellant’s former spouse receives payments from both OPM and
the appellant for the same month, she must reimburse him for such overpayment.
ID at 2, 6; IAF, Tab 16 at 69. Thus, the administrative judge considered the
appellant’s obligation to make interim payments, but she properly found that it
did not prohibit the PSA from being acceptable for processing. ID at 6; see
5 C.F.R. § 838.304(c). We discern no reason to disturb the administrative judge’s
finding that the PSA is a court order acceptable for processing based on the
appellant’s argument that the PSA assigned him payment responsibilities. PFR
File, Tab 1 at 1-2; ID at 5-6; see 5 C.F.R. § 838.304. In addition, we do not agree
with the appellant’s argument that OPM improperly has sought to modify the
terms of the PSA regarding his obligation to make interim payments. PFR File,
Tab 1 at 1.
The appellant further asserts that he did not respond to OPM’s briefing
regarding this issue because he did not receive a copy of OPM’s briefing. Id.
at 2, 11; ID at 5-6. We find that this conclusory assertion, without more, is
insufficient to rebut the presumption that he received OPM’s pleading by mail.
PFR File, Tab 1 at 2; ID at 5-6; IAF, Tab 17 at 11; see Butler v. Department of
Veterans Affairs, 119 M.S.P.R. 112, ¶ 5 (2013) (observing that the Board has
recognized a presumption that documents placed in the mail are received in
5 days). Moreover, the appellant has failed to explain how his substantive rights
were prejudiced by his alleged inability to respond to OPM’s briefing
(specifically, by describing how he was prevented from providing argument or
evidence that could have affected the outcome of the appeal). PFR File, Tab 1
at 2; see Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
(finding that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision).
4
We affirm the administrative judge’s findings that OPM proved the existence and
amount of the total overpayment of $18,919.34, and that the appellant has failed
to prove his eligibility for waiver of the overpayment.
As properly set forth in the initial decision, OPM bears the burden of
proving by preponderant evidence 4 the existence and amount of an annuity
overpayment. ID at 6; see Vojas v Office of Personnel Management,
115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 831.1407(a). An appellant bears the
burden of proving by substantial evidence 5 his eligibility for waiver of the
overpayment. ID at 11; see Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R.
§ 831.1407(b). 6
The erroneous refund of $11,242.93 in February 2018.
Regarding the overpayment of benefits to the appellant in a February 2018
refund, the administrative judge found that he failed to rebut OPM’s letters
explaining why that refund of survivor costs was erroneous. ID at 7; IAF, Tab 16
at 13-14, 17. We discern no reason to disturb this finding based on the
appellant’s mere disagreement on review that the refund was erroneous. PFR
File, Tab 1 at 2, 12; ID at 7. In particular, the PSA’s language, providing that the
4
Preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). This is a
lower standard of proof than preponderance of the evidence. Id.6
The administrative judge cited cases, such as Vojas, 115 M.S.P.R. 502, ¶ 10, which
involved overpayments under the Federal Employees’ Retirement System (FERS). ID
at 6, 11, 14. The Board may rely on case law developed under both CSRS and FERS in
deciding overpayment appeals because the CSRS and FERS regulations regarding the
recovery of overpayments are generally parallel. See James v. Office of Personnel
Management, 72 M.S.P.R. 211, 216 n.3 (1996); compare 5 C.F.R.
§§ 831.1401-831.1407, with 5 C.F.R. §§ 845.301-845.307. For similar reasons, we
discern no prejudice to the appellant’s substantive rights based on the administrative
judge’s citation of FERS, rather than CSRS, statutory and regulatory provisions
regarding the recovery of overpayments. ID at 6, 11-13; see Panter, 22 M.S.P.R.
at 282; compare 5 U.S.C. § 8346(b), with 5 U.S.C. § 8470(b).
5
appellant and his former spouse are to share the costs associated with a former
spouse survivor annuity, is consistent with OPM’s explanation that he is
responsible for a portion of survivor costs. ID at 7; IAF, Tab 16 at 13-14, 17, 67.
The appellant further disagrees with the administrative judge’s finding that
he was overpaid $11,242.93 because that was the gross amount of the refund from
which OPM withheld taxes. PFR File, Tab 1 at 2, 12; ID at 7. OPM is required
by law to withhold Federal income taxes from the benefit it pays and to remit that
amount to the Internal Revenue Service (IRS). Cebzanov v. Office of Personnel
Management, 96 M.S.P.R. 562, ¶ 11 (2004). Here, to the extent that the
adjustments in the appellant’s benefits and any resulting overpayment affect his
tax liability for past years, he must seek a remedy from the IRS. See id. Thus,
we find that OPM did not err by basing its overpayment calculations on the gross
amount of benefits paid to the appellant. ID at 7; IAF, Tab 16 at 5, 17, 30. For
the foregoing reasons, we affirm the administrative judge’s finding that OPM
proved the existence and amount of an $11,242.93 overpayment due to the
erroneous refund in February 2018. ID at 7.
The $7,676.41 overpayment of monthly CSRS annuity benefits from
June 2015 through August 2016.
The appellant challenges the administrative judge’s finding that OPM
proved the existence and amount of the overpayment of his monthly
CSRS annuity benefits that accrued during the 15-month period (from June 2015
through August 2016). PFR File, Tab 1 at 2, 14, 16; ID at 7-11. After reviewing
the record, we discern no reason to disturb the administrative judge’s finding.
Regarding the effective date of OPM’s obligation to make direct payments
of a portion of the appellant’s monthly CSRS annuity benefits to his former
spouse, the PSA simply states that OPM shall commence directly paying her “as
soon as administratively feasible after approval of this Agreement by OPM.”
IAF, Tab 16 at 67. Thus, we acknowledge that the PSA does not identify a
specific date on which OPM was required to begin making direct payments to the
6
former spouse. PFR File, Tab 1 at 2, 14. Nevertheless, we find that the
administrative judge properly interpreted the terms of the PSA in accordance with
the regulations set forth at 5 C.F.R. part 838, which are referenced in the PSA
itself. ID at 9; IAF, Tab 16 at 66. Under 5 C.F.R. § 838.231(a), “A court order
acceptable for processing is effective against employee annuity accruing
beginning the first day of the second month after OPM receives the court order.”
ID at 7.
In the appellant’s prior Board appeal concerning the overpayment at issue,
he submitted documentation indicating that OPM was mailed copies of the Final
Order of Divorce and the PSA on April 21, 2015. Bialas v. Office of Personnel
Management, MSPB Docket No. DC-831M-19-0146-I-1, Initial Appeal File,
Tab 3 at 13-15. Thus, it is presumed that OPM received the Final Order of
Divorce and the PSA in April 2015, and the parties have not argued otherwise in
this appeal. IAF, Tab 1 at 2, Tab 17 at 5, 8; see Butler, 119 M.S.P.R. 112, ¶ 5.
Therefore, we agree with the administrative judge’s finding that, pursuant to
5 C.F.R. § 838.231(a), the effective date of OPM’s obligation to make direct
payments to the former spouse was June 1, 2015. 7 ID at 2, 7-8; cf. Fiacco v.
Office of Personnel Management, 105 M.S.P.R. 193, ¶¶ 13-14 (2007) (finding
that, under 5 C.F.R. § 838.225(a), OPM properly gave effect to an amended court
order beginning on September 1, 2005, when OPM received the amended court
order on July 29, 2005); 5 C.F.R. § 838.225(a) (providing that an amended court
order is effective against employee annuity accruing beginning the first day of the
second month after OPM receives the amended court order). Further, because
OPM did not begin making direct payments to the former spouse (and reducing
the appellant’s annuity to provide such benefits to her) until September 2016, we
7
Although the administrative judge erroneously found that OPM received the Final
Order of Divorce and the PSA in March 2015, we discern no prejudice to the appellant’s
substantive rights because we agree with her ultimate finding that OPM’s obligation to
make direct payments to the former spouse began on June 1, 2015. ID at 8; see Panter,
22 M.S.P.R. at 282.
7
agree with the administrative judge’s finding that the appellant was overpaid
CSRS annuity benefits from June 2015 through August 2016. ID at 8.
In his petition for review, the appellant reasserts his argument that OPM
does not have an obligation to retroactively make direct payments to his former
spouse for the 15-month overpayment period because the PSA required him to
make interim payments to her during the same time period. PFR File, Tab 1 at 2,
14; ID at 8-9. For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant’s obligation to make direct
payments to his former spouse for the interim time period (from May 2015 until
the date OPM implemented direct payments to her) does not alter OPM’s
obligation to pay her a portion of his annuity benefits accruing from June 1, 2015.
ID at 8-9; IAF, Tab 16 at 66-69; see 5 C.F.R. § 838.222(d). We find that the
appellant has failed to provide a basis to disturb the administrative judge’s
well-reasoned finding. PFR File, Tab 1 at 2, 14.
Regarding the amount of the overpayment of CSRS annuity benefits from
June 2015 through August 2016, OPM clearly explained how it calculated the
apportionment of the appellant’s annuity in accordance with the PSA. ID at 8;
IAF, Tab 16 at 4-5, 66-67. OPM ultimately calculated that the former spouse was
due a total of $40,992.30 for the 15-month overpayment period and determined
that the appellant was overpaid this amount during the same time period. ID at 8;
IAF, Tab 16 at 5. OPM credited the appellant’s interim payments to his former
spouse during the 15-month overpayment period and reduced the $40,992.30
overpayment by $30,875.40, leaving $10,116.90 of the overpayment remaining. 8
ID at 9-10; IAF, Tab 16 at 5. During the pendency of this appeal, OPM further
8
The appellant challenges the administrative judge’s finding that a reasonable
interpretation of the PSA would assume that the appellant would remit a reimbursement
of his interim payments to OPM to satisfy an overpayment. PFR File, Tab 1 at 2, 14; ID
at 9. However, the administrative judge’s interpretation is immaterial to the outcome of
this appeal because OPM simply credited the appellant’s interim payments, which he
made to his former spouse during the 15-month overpayment period, towards the
overpayment amount without requiring him to seek a reimbursement from her. ID
at 9-10.
8
reduced the $10,116.90 overpayment by $2,440.49, resulting in an overpayment
amount of $7,676.41. 9 ID at 11; IAF, Tab 17 at 7-8.
Although the appellant does not expressly dispute the amount of the
$7,676.41 overpayment, he disagrees with the administrative judge’s finding that
OPM proved by preponderant evidence that he was overpaid $18,919.34 in total
(including the erroneous $11,242.93 refund in February 2018). PFR File, Tab 1
at 2, 16; ID at 11. Specifically, the appellant asserts that OPM did not provide
him with evidence of the overpayment. PFR File, Tab 1 at 2. He further argues
that the $18,919.34 total amount erroneously includes approximately $4,500 in
taxes withheld by OPM. Id. As we found above, the appellant has failed to rebut
the presumption that he received OPM’s pleadings by mail. IAF, Tab 16 at 100,
Tab 17 at 11; see Butler, 119 M.S.P.R. 112, ¶ 5. Moreover, the PSA defines the
appellant’s “self-only monthly annuity” under CSRS (a portion of which his
former spouse is entitled) as “the monthly annuity before reduction for any
purpose.” IAF, Tab 16 at 66. The PSA further provides, “Each party shall each
be required to pay Federal and State income taxes on that portion of the
retirement benefits which each receives.” Id. at 68. Thus, the PSA contemplates
that the apportionment of the appellant’s annuity benefits is based on the gross
amount of benefits before any withholdings for taxes. Therefore, we discern no
error in OPM’s calculation of the $7,676.41 overpayment.
In summary, we affirm the administrative judge’s finding that OPM proved
by preponderant evidence the existence and amount of a total overpayment of
$18,919.34. ID at 11. Next, we will address the appellant’s eligibility for waiver
of the overpayment.
9
OPM correctly has noted that the administrative judge made a typographical error in
stating that the remaining amount of the overpayment is $8,276.41. PFR File, Tab 4
at 4-5; ID at 11-12.
9
The appellant’s eligibility for waiver of the $18,919.34 total
overpayment.
The administrative judge found that, even if the appellant were without
fault regarding the entire $18,919.34 overpayment, he would not be eligible for
waiver because he has failed to meet his burden of proving by substantial
evidence that recovery of the overpayment would be against equity and good
conscience. ID at 11-15; see 5 U.S.C. § 8346(b); Vojas, 115 M.S.P.R. 502, ¶ 18;
5 C.F.R. §§ 831.1401, 831.1407(b). Specifically, the administrative judge found
that the appellant failed to prove by substantial evidence that recovery of the
overpayment would be against equity and good conscience because it would cause
him financial hardship or because it would be unconscionable under the
circumstances. 10 ID at 12-15; see Vojas, 115 M.S.P.R. 502, ¶ 22; 5 C.F.R.
§§ 831.1403(a), 831.1407(b). The appellant challenges these findings on
review. 11 PFR File, Tab 1 at 3, 18-19.
For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to provide substantial
evidence to prove his allegation of financial hardship. ID at 13-14; see 5 C.F.R.
§ 831.1404 (providing that financial hardship may exist when the annuitant needs
substantially all of his current income and liquid assets to meet current ordinary
and necessary living expenses and liabilities). For the first time on review, the
appellant has submitted evidence of a disbursement of an unidentified amount
10
The administrative judge noted that the appellant did not allege that recovery would
be against equity and good conscience because the overpayment caused detrimental
reliance. ID at 12-13; 5 C.F.R. § 831.1403(a)(2). The appellant has not argued
otherwise on review. PFR File, Tab 1 at 1-3, 18.
11
In addition, the appellant challenges the administrative judge’s finding that he
partially was at fault for the overpayment of his annuity benefits from June 2015
through August 2016. PFR File, Tab 1 at 2-3, 17; ID at 12. However, as discussed
below, we affirm the administrative judge’s alternative finding that, even if the
appellant were without fault, he would not be eligible for waiver because he has failed
to prove that recovery of the overpayment would be against equity and good conscience.
ID at 11-15; see 5 U.S.C. § 8346(b); 5 C.F.R. § 831.1401. Thus, the appellant’s
arguments on review regarding fault are immaterial to the outcome of the appeal. PFR
File, Tab 1 at 2-3, 17.
10
from his Thrift Savings Plan (TSP) to support his claim that he has been making
withdrawals from his TSP to fund his everyday expenses. PFR File, Tab 1 at 3, 5,
18; ID at 13. He has failed to explain why, despite his due diligence, he was
unable to provide such evidence prior to when the record before the
administrative judge closed. See Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980) (finding that the Board generally will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence).
In any event, we find such evidence is immaterial to the outcome of this appeal
because it does not provide any specific information about the appellant’s
financial situation (such as his current income, assets, expenses, and liabilities).
See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (finding that
the Board generally will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision); see also 5 C.F.R. § 831.1404.
Further, we discern no reason to disturb the administrative judge’s finding
regarding the alleged unconscionability of recovery based on the appellant’s
reassertion on review of the following circumstances: (1) there has been an
exceptionally lengthy delay of 4 years by OPM in adjusting his annuity; (2) OPM
failed to respond within a reasonable length of time to his inquiries regarding the
overpayment; (3) OPM has been negligent in handling his case, as demonstrated
by the number of apportionment adjustments and errors made by OPM; (4) OPM
took 4 years to provide a response to the overpayment issues raised in this case;
and (5) OPM did not begin to respond to his phone calls, emails, or letters
concerning the apportionment of his annuity until he requested assistance from a
member of Congress. PFR File, Tab 1 at 3; IAF, Tab 1 at 4-5, Tab 6 at 4-5, Tab 8
at 2; ID at 14-15.
We find that the administrative judge properly considered the totality of
these circumstances in determining whether recovery of the overpayment would
11
be unconscionable. ID at 14-15; see Aguon v. Office of Personnel Management,
42 M.S.P.R. 540, 550 (1989). Although the administrative judge did not
expressly discuss the appellant’s claim that OPM did not respond to his inquiries
until he sought assistance from a Congressman, we find that the administrative
judge correctly considered the relevance of the length of time it took for OPM to
respond to his disputes of OPM’s calculations. 12 ID at 15; IAF, Tab 16 at 4-20;
see Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132
(1984) (finding that an administrative judge’s failure to mention all of the
evidence of record does not mean that she did not consider it in reaching her
decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Based on the above, we affirm the administrative judge’s finding that the
appellant has failed to prove by substantial evidence his eligibility for waiver of
the total overpayment of $18,919.34 by establishing that recovery of the
overpayment would be against equity and good conscience. ID at 11-15.
Accordingly, we affirm the initial decision. 13
12
For the first time on review, the appellant has submitted a letter dated June 27, 2017,
supporting his claim that he sought assistance from a Congressman regarding OPM’s
calculation of his annuity. PFR File, Tab 1 at 3-4. The appellant has failed to explain
why, despite his due diligence, he was unable to provide this letter prior to when the
record before the administrative judge closed. See Avansino, 3 M.S.P.R. at 214.
Nevertheless, we find that the letter is immaterial to the outcome of this appeal because
the administrative judge correctly considered the relevance of the length of time it took
for OPM to respond to the appellant’s inquiries. ID at 15; see Russo, 3 M.S.P.R. at 349.
13
OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from his or her estate or other responsible party. A party responsible
for any debt remaining upon the appellant’s death may include an heir (spouse, child, or
other) who is deriving a benefit from the appellant’s Federal benefits, an heir or other
person acting as the representative of the appellant’s estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management, 124 M.S.P.R. 103, ¶ 13 (2016).
12
NOTICE OF APPEAL RIGHTS 14
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
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:
14
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
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
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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
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(2) Judicial or EEOC review of cases involving a claim of
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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
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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
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entitled to representation by a court-appointed lawyer and to waiver of any
14
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
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If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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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
15
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. 15 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.
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.
15
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
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.