Cleophas Bradley v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLEOPHAS BRADLEY, JR., DOCKET NUMBER
Appellant, CH-1221-15-0517-B-1
v.
DEPARTMENT OF HOMELAND DATE: February 6, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Justin Randolph , Esquire, and Philip S. Holloway , Esquire, Chicago,
Illinois, for the appellant.
Robert Gerleman , Grand Prairie, Texas, for the agency.
Nicholas R. Hankey , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review and the agency has filed a
cross petition for review of the initial decision, which denied the appellant’s
request for corrective action in an individual right of action (IRA) appeal.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Generally, we grant petitions such as these 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 neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review. Except as expressly MODIFIED by this Final Order
concerning the appellant’s protected disclosures and to vacate the administrative
judge’s findings that the agency proved by clear and convincing evidence that it
would not have selected the appellant for the Regional Director position absent
his protected disclosures, we AFFIRM the initial decision.
BACKGROUND
During the relevant time period, the appellant was employed by the agency
as the Deputy Regional Director for Region 5 of the Federal Protective Service
(FPS) in Chicago, Illinois. Bradley v. Department of Homeland Security, MSPB
Docket No. CH-1221-15-0517-W-1, Initial Appeal File (IAF), Tab 1 at 1, 25. He
filed an IRA appeal alleging that, in reprisal for his protected disclosures, the
agency declined to select him for a promotion to Regional Director of Region 5 in
or around March and December 2014 in connection with two separate vacancy
announcements. IAF, Tab 1. The appellant’s disclosures relate to the discovery
of a backlog in suitability determinations by FPS for Protective Security Officers
3
(PSOs) working for contractor companies. Id. at 25-26. They also relate to an
incident in Detroit, Michigan, in which a contract PSO, who did not have an
up-to-date suitability determination, brought a suspicious bag containing an
improvised explosive device (IED) into a Federal building. Id. at 25. This
incident garnered national media attention and Congressional interest. Id.This appeal was initially dismissed for lack of jurisdiction. IAF, Tab 19.
However, on petition for review, the Board remanded the appeal, finding that the
appellant nonfrivolously alleged that he made protected disclosures that were a
contributing factor in his nonselections. Bradley v. Department of Homeland
Security, 123 M.S.P.R. 547 (2016); Bradley v. Department of Homeland Security,
MSPB Docket No. CH-1221-15-0517-B-1, Remand File (RF), Tab 1. The Board
found that the appellant nonfrivolously alleged that he made the following
protected disclosures between March and August 2011:
(1) On March 22, 2011, the appellant forwarded to his supervisor a list of
PSOs who did not have current suitability determinations and noted
that 10 of the 47 PSOs involved in the Detroit IED incident had not
received suitability determinations. The appellant’s supervisor
forwarded the email to the FPS Director and Deputy Director;
(2) On March 30, 2011, the appellant’s supervisor reported to the FPS
Deputy Director that he and the appellant had determined that
224 PSOs in Region 5 did not have current suitability determinations
and 172 of those 224 were improperly working on contracts in the
region;
(3) On May 10 and 18, 2011, the appellant’s supervisor reported to the
Assistant Director for Operations assigned to Region 5 (among others)
that he and the appellant had determined that 224 PSOs in Region 5
did not have current suitability determinations and 172 of those 224
were working on contracts in the region;
(4) On May 18, 2011, the appellant told the FPS Director that the Detroit
IED incident could not have occurred without some degree of
negligence by FPS employees in Region 5 and that an internal
investigation was being conducted;
(5) On July 13, 2011, the appellant commented to the Assistant General
Counsel that the FPS Director had just “lied to Congress about the
Detroit IED issue”; and
4
(6) On August 30, 2011, the appellant and his supervisor sent a
memorandum to the FPS Director describing the details and
chronology of the Detroit IED incident and the backlog of suitability
determinations.
RF, Tab 1 at 5-6.
On remand, after holding a 4-day hearing, the administrative judge issued a
remand initial decision, denying the appellant’s request for corrective action. RF,
Tab 41, Remand Initial Decision (RID). The administrative judge found that,
although the appellant proved that disclosures (1) and (4) were protected, RID
at 24-27, he failed to prove that they were a contributing factor in the agency’s
decisions not to select him as Regional Director, RID at 30-35. In particular, the
administrative judge found that the 3-year gap in time between the appellant’s
2011 disclosures and the 2014 nonselections was too remote to infer retaliation on
the agency’s part under the knowledge/timing test. RID at 31-32. She further
found that the appellant failed to prove contributing factor, considering the
strength of the agency’s reasons for its actions, whether the whistleblowing was
directed at the deciding officials, and whether the deciding officials had a motive
to retaliate. RID at 33-35. Alternatively, the administrative judge found that the
agency proved by clear and convincing evidence that it would not have selected
the appellant absent his protected disclosures. RID at 35-38.
The appellant has filed a petition for review, arguing that the administrative
judge erred in finding that disclosures (2), (3), (5), and (6) were not protected and
that he failed to prove that his disclosures were a contributing factor in his
nonselections. Petition for Review (PFR) File, Tab 1. The appellant also
challenges the administrative judge’s alternate finding that the agency proved by
clear and convincing evidence that it would not have selected him as Region 5
Regional Director absent his protected disclosures. Id. The agency has filed a
response to the petition for review and a cross petition for review, arguing that
the administrative judge erred in concluding that disclosures (1) and (4) were
5
protected. 2 PFR File, Tabs 3-4. The appellant has filed a reply to the agency’s
response to his petition for review and a response to the agency’s cross petition
for review. PFR File, Tabs 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the appellant failed to prove that
disclosures (2), (3), and (5) were protected disclosures.
To prove that a disclosure is protected, the appellant must prove by
preponderant evidence 3 that a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by him could reasonably
conclude that: the alleged conduct occurred; and the alleged conduct evidences
one of the categories of wrongdoing identified in 5 U.S.C. § 2302(b)(8)(A).
Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 28 (2014). 4 The
test for protected status is not the truth of the matter disclosed but whether it was
reasonably believed. Id.¶1 Regarding disclosures (2) and (3), the administrative judge found that the
appellant did not prove by preponderant evidence that he made these alleged
disclosures or that agency officials perceived him to be a whistleblower based on
such alleged disclosures. RID at 23-24. The administrative judge determined that
the appellant’s supervisor made the disclosures, and the appellant was not present.
RID at 24. On review, the appellant reiterates that disclosures (2) and (3) served
as continuing reminders of disclosure (1) and that the appellant’s supervisor was
simply passing on the same information from the appellant during his
conversations with the FPS Deputy Director and the Assistant Director for Field
2
In light of our disposition of this appeal, we need not address the agency’s arguments
on cross petition for review.
3
A 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).
4
We have reviewed the relevant legislation amending the whistleblower protection
statutory scheme enacted during the pendency of this appeal and have concluded that it
does not affect the outcome of the appeal.
6
Operations (ADFO). PFR File, Tab 1 at 12. The administrative judge, however,
found that the hearing testimony reflected that neither the FPS Deputy Director
nor the ADFO attributed either conversation or its substance to the appellant.
RID at 24. She further noted that, because the appellant withdrew his supervisor
as a witness, his supervisor did not testify as to the substance of his conversations
with the FPS Deputy Director and the ADFO. Id.The appellant’s conclusory arguments on review fail to address these
findings, and we discern no error in the administrative judge’s finding that the
appellant failed to prove that disclosures (2) and (3) were protected disclosures.
The administrative judge based her conclusion that the appellant failed to prove
that the FPS Deputy Director and the ADFO perceived him to be a whistleblower
at least in part on her assessment of their credibility and demeanor as witnesses,
and the appellant has not proffered a sufficiently sound reason to set aside such
findings. RID at 24; see Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002) (stating that the Board is required to give deference to an
administrative judge’s credibility determinations when, as here, they are based,
explicitly or implicitly, on witness demeanor and the Board may not overturn
such findings without sufficiently sound reasons for doing so); see also Rumsey v.
Department of Justice, 120 M.S.P.R. 259, ¶ 7 (2013) (stating that in “perceived
as” cases, the focus is not on the appellant’s perceptions or the disclosures
themselves but on the agency’s perceptions, i.e., whether the agency officials
involved in the personnel actions at issue believed that the appellant made
disclosures).
Disclosure (5) concerned the appellant’s comment to the Assistant General
Counsel that the FPS Director had “lied to Congress about the Detroit IED issue.”
IAF, Tab 1 at 29. According to the appellant, he believed that the FPS Director
had lied to Congress by indicating that only PSOs not FPS personnel were
responsible for the Detroit IED incident. Id. In particular, the appellant testified
that the FPS Director’s testimony was untruthful by omission because “he didn’t
7
mention at all anything about FPS having any culpability or any responsibility.”
RF, Tab 36, Hearing Transcript at 37. The administrative judge found that a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable to the appellant would not have concluded that the FPS Director lied
to Congress. RID at 29. She found that the FPS Director did not testify before
Congress that FPS bore no responsibility for the incident and his congressional
testimony was replete with instances in which he acknowledged and discussed
FPS issues and the need for improvement. Id.On review, the appellant asserts that an August 30, 2011 memorandum
from the appellant’s supervisor to the FPS Director, which outlines the
background and timeline of events regarding the Detroit IED incident, supports
the reasonableness of his belief that the FPS Director’s testimony was false. PFR
File, Tab 1 at 13. However, he fails to explain how the memorandum establishes
any error in the administrative judge’s findings or supports the reasonableness of
his belief at the time he made the alleged disclosure on July 13, 2011. Moreover,
the memorandum appears to support the FPS Director’s testimony before the
Board that he did not inform Congress that FPS employees were under
investigation because the investigation had not been completed at the time of his
testimony before Congress. RF, Tab 16 at 9; RID at 11. Thus, we find the
appellant has not provided a basis to disturb the administrative judge’s finding
that he failed to prove that disclosure (5) was protected.
The administrative judge erred in finding that the appellant failed to prove that
disclosure (6) evidenced protected disclosures.
Disclosure (6) is an August 30, 2011 memorandum from the appellant’s
supervisor to the FPS Director. RF, Tab 16 at 4. The appellant’s name was
included on the “ATTN” line. Id. The administrative judge found that the
appellant was not the author of the memorandum because it was clearly identified
as being from the appellant’s supervisor and the appellant’s signature next to his
name on the “ATTN” line reflected only that he had received the memorandum.
8
RID at 27. She further found that the entire memorandum was written as if it
were from the appellant’s supervisor, largely using “I” instead of “We.” Id. She
also credited testimony of the FPS Director and Deputy Director that they
perceived the memorandum to be from the appellant’s supervisor. RID at 28.
Thus, she found that any disclosures in the memorandum could not be attributed
to the appellant. RID at 28.
On review, the appellant argues that the administrative judge erred in
finding that disclosure (6) was not protected because it is inextricably intertwined
with his protected disclosures to the extent the memorandum served to summarize
all the events surrounding the Detroit IED incident. PFR File, Tab 1 at 13. We
agree with the appellant that his supervisor’s August 2011 memorandum to the
FPS Director referenced the appellant’s various actions in response to the Detroit
IED incident. To the extent the memorandum included a copy of the appellant’s
March 22, 2011 email in which the appellant noted that 10 of the 47 PSOs
involved in the Detroit IED incident had not received suitability determinations,
RF, Tab 16 at 50-51, this formed the basis of disclosure (1), which the
administrative judge properly found the appellant proved constituted a protected
disclosure, RID at 24-25. Thus, the same protected disclosure had previously
been communicated to the FPS Director and Deputy Director on March 23, 2011,
when the appellant’s supervisor forwarded it to them and was merely forwarded
again on August 30, 2011, as an attachment to the appellant’s supervisor’s
memorandum to the Director. Similarly, the August 2011 memorandum also
referenced the appellant’s disclosure (4), which pertained to the appellant’s
conversation with the FPS Director on May 18, 2011, during which the appellant
disclosed that the March 18, 2011 incident could not have occurred without some
fault on the part of FPS. RF, Tab 16 at 9. The administrative judge properly
determined that the appellant proved that disclosure (4) was a protected
disclosure. Thus, the administrative judge properly considered the substance of
9
protected disclosures (1) and (4), which were simply reiterated via the August 30,
2011 memorandum.
To the extent the appellant alleges that he disclosed that 224 PSOs in
Region 5 did not have current suitability determinations and 172 of those 224
were improperly working on contracts in the region, we find that, unlike his
alleged disclosures (2) and (3), the August 30, 2011 memorandum sufficiently
attributed such a disclosure to the appellant. RF, Tab 16 at 6-7. Moreover, for
the reasons explained by the administrative judge regarding the appellant’s
disclosure (1) that also related to PSOs not having up-to-date suitability
determinations and given the circumstances under which the PSO who placed the
IED in the Detroit facility was one of the 172 who had not received an
appropriate suitability determination and who should not have been working on
the contract, we find that such a disclosure evidences a reasonable belief of a
substantial and specific danger to public health and safety. RID at 25-27.
The administrative judge properly found that the appellant failed to show that his
protected disclosures were a contributing factor in his nonselection for the
Region 5 Regional Director position.
On review, the appellant does not dispute the administrative judge’s finding
that he failed to prove contributing factor via the knowledge/timing test, and we
discern no error in the administrative judge’s analysis. In particular, the
administrative judge found that the appellant’s March and December 2014
nonselections occurred approximately 3 years after the appellant’s March and
May 2011 disclosures, which was too remote to satisfy the knowledge/timing test.
RID at 31. Even considering the appellant’s disclosures in the August 30, 2011
memorandum, the relevant personnel actions were still too remote to satisfy the
knowledge/timing test. See, e.g., Salinas v. Department of the Army, 94 M.S.P.R.
54, ¶ 10 (2003) (finding an approximate 2-year gap between disclosures and
alleged retaliatory personnel actions too remote to satisfy the knowledge/timing
test). On review, the appellant contends that the administrative judge erred in
10
limiting her analysis solely to the knowledge/timing test. PFR File, Tab 1 at 14.
Contrary to the appellant’s assertion, however, the administrative judge
specifically considered additional factors such as the strength of the agency’s
evidence, whether the whistleblowing was personally directed at the deciding
official, and whether the deciding official had a motive to retaliate. RID
at 32-35. On review, the appellant also argues that the FPS Director’s reasons for
not selecting him, such as his failure to show a proper vision and that he had not
had an opportunity to work under a good mentor, were weak. 5 PFR File, Tab 1 at
15-16.
The administrative judge found that the agency’s evidence in support of its
decision not to select the appellant for the positions was strong because the
agency utilized a selection panel for both vacancies, neither panel recommended
the appellant as one of the top-five candidates for either vacancy, and although
the FPS Director and Deputy Director could have vetoed the selection by the
panel, all of the evidence presented at the hearing indicated that such a scenario
was extremely rare. RID at 33. Regarding the selection process, the
administrative judge found that a selection panel reviewed and rated resumes and
interviewed candidates and did not recommend the appellant for the position.
RID at 12-13. Nonetheless, the FPS Director and Deputy Director declined to
offer the position to the other candidates and thereafter elected to interview the
appellant and one other internal candidate, even though they were not
recommended by the selection panel. RID at 14. The FPS Director declined to
offer either of them the position, and the position was readvertised. Id. A second
selection panel reviewed resumes and conducted interviews, but they did not rank
the appellant among the most qualified and did not recommend him for the
position. RID at 15. The selection panel members for both vacancy
5
He also argues that his whistleblowing was directed at the deciding official because he
disclosed that the FPS Director was lying to Congress. PFR File, Tab 1 at 16.
However, as set forth above, we discern no error in the administrative judge’s finding
that the appellant failed to prove that this was a protected disclosure.
11
announcements all testified that they were not aware of the appellant’s protected
disclosures, with the exception of one panel member, who did not testify at the
hearing. RID at 12-15. The administrative judge credited their testimony and
concluded that the selection panel’s decision not to recommend the appellant for
either vacancy provided strong evidence in support of the agency’s reason for not
selecting him. RID at 13, 15-16, 33.
The administrative judge further found that neither the selection panel
members nor the FPS Director or Deputy Director evidenced a desire to retaliate
against the appellant, noting that the appellant did not uncover or expose the
backlog in suitability determinations and the record reflected that management
was receptive to the information contained in the appellant’s disclosures,
routinely thanked him for his efforts following the Detroit IED incident, and took
numerous steps to investigate the issues raised by the appellant and make changes
for the better. Id. at 18-19, 33-34. Additionally, she considered that the
appellant’s disclosures could have reflected poorly on the agency as a whole but
credited testimony of the FPS Director and Deputy Director that they wanted to
be kept abreast of the Detroit IED incident and the suitability backlog and
welcomed information on these topics. RID at 18-19, 34. The administrative
judge further found that the appellant’s whistleblowing was not directed at the
members of the selection panels, the FPS Director, or the Deputy Director but
rather, at the Region 5 employees who were under investigation as a result of the
Detroit IED incident. RID at 34. Finally, she found that, although the appellant
was not selected for the Regional Director position, he was offered a GS-15
Senior Advisor position in the spring of 2014, at the same time he claimed the
agency was retaliating against him. RID at 34-35. Thus, the administrative judge
concluded that the appellant’s self-serving testimony that management was out to
get him was inconsistent with the documentary evidence and the testimony of
every other witness, except one, whose testimony she found not credible. RID
at 20-21, 35.
12
As the initial decision reflects that the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions, we discern no reason to reweigh the evidence or substitute the
Board’s own judgment on credibility issues. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997) (stating that the Board will give due deference to
the credibility findings of the administrative judge and will not grant a petition
for review based on a party’s mere disagreement with those findings);
Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359
(1987) (same). We therefore defer to these reasoned and explained credibility
findings, which we find apply equally, even considering the appellant’s protected
disclosure (6). See Haebe, 288 F.3d at 1302. 6 Consequently, the administrative
judge properly determined that the appellant failed to prove that his protected
disclosures were a contributing factor in the agency’s decision not to select him.
Notwithstanding her determination that the appellant failed to prove that
his protected disclosures were a contributing factor in the agency’s decision not
to select him, the administrative judge alternatively found that the agency showed
by clear and convincing evidence that it would not have selected the appellant
absent his protected disclosures. RID at 35-38. Given her correct finding that the
appellant failed to prove his prima facie case, it was inappropriate for the
administrative judge to determine whether the agency proved by clear and
6
The appellant argues that the Board should not defer to the administrative judge’s
credibility determinations because she failed to resolve conflicting testimony regarding
when the FPS Director and Deputy Director became aware of his protected disclosures.
PFR File, Tab 1 at 14, 19-21. In particular, he contends that their testimony, in which
they denied having any knowledge of his whistleblowing complaint prior to the
nonselections at issue in this appeal, was inconsistent with his testimony that the
Deputy Director participated in a mediation concerning his whistleblowing complaint
less than 6 months prior to the first nonselection and the Director discussed his
whistleblowing complaint with him approximately 4 months prior the first nonselection.
Id. at 20. We find that these arguments do not constitute a sufficiently sound reason to
overturn the administrative judge’s credibility findings to the extent the administrative
judge found that the Director and Deputy Director were aware of the appellant’s
disclosures at the time they made their decisions not to select him. RID at 31.
13
convincing evidence that it would not have selected the appellant absent his
protected disclosures. See Clarke v. Department of Veterans Affairs ,
121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the
clear and convincing evidence test unless it has first determined that the appellant
established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).
Accordingly, we vacate the administrative judge’s findings that the agency
proved by clear and convincing evidence that it would not have selected the
appellant absent his whistleblowing.
Based on the foregoing, we affirm the initial decision, denying the
appellant’s request for corrective action.
NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
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
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
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
15
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
16
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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.