Clara Dottino v. Department of the Treasury ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLARA DOTTINO, DOCKET NUMBER
Appellant, DC-0752-16-0869-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: February 8, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert J. Mulhern , Esquire, Chestertown, Maryland, for the appellant.
Noah Dottino , Arlington, Virginia, for the appellant.
Robert M. Mirkov , Esquire, 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 of the initial decision, which
sustained her removal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the appellant’s affirmative
defense of whistleblower reprisal, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant was employed as a Lead Management and Program Analyst,
GS-14, in the Criminal Investigation Division of the Internal Revenue Service.
Initial Appeal File (IAF), Tab 6 at 13. On December 8, 2015, the agency
proposed the appellant’s removal. IAF, Tab 7 at 101-04. The charges against the
appellant as set forth in the notice of proposed adverse action were as follows:
Reason 1: You committed an unauthorized access of personnel
records.
Specification 1: In approximately August 2014, you accessed a
folder on the Warrants and Forfeiture network drive which
contained subfolders of confidential personnel records of other
employees. You admitted you viewed the folders of [5 other
named agency employees]. You did not receive permission from
the employees to access their folders and had no official business
reason to browse the folders. You even attempted to access the
folders after the permissions were changed and the shortcut to the
folder no longer worked.
Specification 2: During an interview with Treasury Inspector
General for Tax Administration (TIGTA) on July 27, 2015, your
laptop was viewed by TIGTA and found to have a subfolder titled
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“07302014,” it contained confidential personnel folders of
approximately sixteen employees which had been copied directly
from an unsecure folder on the Warrants and Forfeiture network
drive. In approximately August 2014, you copied confidential
personnel files of other employees directly from the Warrants and
Forfeiture network drive knowing that the confidential personnel
records should not have been viewed and copied.
Reason 2: You were less than candid.
Specification 1: During an interview with TIGTA on July 27,
2015, you were questioned regarding unauthorized accesses of
confidential personnel records that were in a folder on the
Warrants and Forfeiture network drive. You confirmed the folder
contained subfolders of personnel files of certain personnel within
the Warrants and Forfeiture section which were not restricted
from view by other personnel. You stated you made copies of
your own folder and created a shortcut to the EPF folder on your
desktop. When TIGTA reviewed your laptop, they found a folder
titled “Desktop” on your desktop and then a subfolder titled
“07302014.” The Subfolder 07302014 contained personnel files
of sixteen employees which were similar to the Warrants and
Forfeiture folder on the server. You had advised the two TIGTA
agents that you only copied your own folder and created a
shortcut to the EPF on your desktop; however, personnel records
of sixteen employees were found in a folder on your desktop.
Specification 2: During an interview with TIGTA on July 27,
2015, you told TIGTA agents that you found receipts belonging to
your current supervisor, []. The receipts belonging to [your
current supervisor] were not saved in your personnel folder.
Id. at 101-02. The proposing official informed the appellant that he had reviewed
the agency’s Manager’s Guide to Penalty Determinations (Penalty Guide) and had
determined that Reason 1 constituted an Unauthorized Access/Browsing/Updates
of Records offense and that Reason 2 constituted a False or Misleading
Statements Offense. Id. at 102. The proposing official also cited several factors
that he considered aggravating, including the appellant’s past disciplinary record
consisting of a written counseling, a 7-day suspension, and a 14-day suspension.
Id.4
The appellant responded to the notice of proposed removal both orally and
in writing. IAF, Tab 6 at 19-45, 48-124; IAF, Tab 7 at 4-100. By letter dated
August 11, 2016, the agency informed the appellant of its decision to sustain both
charges and to remove her effective August 12, 2016. IAF, Tab 6 at 14-17. The
appellant timely filed this appeal challenging her removal on September 12, 2016.
IAF, Tab 1. She alleged that the agency violated her substantive and procedural
due process rights, as well as her free speech rights under the First Amendment.
She also alleged that the agency’s action was not in accordance with law and
inconsistent with merit systems principles. The appellant further alleged, inter
alia, that the agency committed harmful procedural error, that several agency
officials involved in her removal had “unclean hands,” and that the agency had
retaliated against her for whistleblowing. Id. She initially requested a hearing,
id., but she later withdrew that request and instead requested a decision on the
written record, IAF, Tab 44.
After giving the parties the opportunity to submit evidence and argument
prior to the close of the record, IAF, Tab 47, the administrative judge issued an
initial decision sustaining each of the agency’s specifications and charges and
affirming the appellant’s removal, IAF, Tab 59, Initial Decision (ID). The
administrative judge found that the appellant failed to prove any of her
affirmative defenses and that the penalty of removal was within the range of
reasonableness. ID at 14-33.
In her timely filed petition for review, the appellant argues that the
administrative judge erred in construing the charges and that the agency failed to
prove the charges as properly construed. Petition for Review (PFR) File, Tab 1
at 12-17. She also argues that the administrative judge erred in rejecting her due
process, harmful procedural error, and whistleblower reprisal claims. Id.
at 20-31. Finally, the appellant argues that the penalty was excessive. Id.
at 32-35. The agency has responded in opposition to the petition for review, PFR
File, Tab 6, and the appellant has filed a reply, PFR File, Tab 7.
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The administrative judge properly construed and adjudicated the charges.
An employee must receive advance written notice stating the specific
reasons for the proposed adverse action. 5 U.S.C. § 7513(b)(1); Smith v.
Department of the Interior, 112 M.S.P.R. 173, ¶ 5 (2009). To satisfy this notice
requirement, an agency is required to state the specific reasons for a proposed
adverse action in sufficient detail to allow the employee to make an informed
reply. Smith, 112 M.S.P.R. 173, ¶ 5. Because the appellant must have full notice
of the charges against him, the Board cannot consider or sustain charges or
specifications that are not included in the proposal notice. Id. However, the
Board will not technically construe the wording or specifications of a charge. Id.In resolving the issue of how a charge should be construed, the Board examines
the structure and language of the proposal notice and the decision notice, as well
as the accompanying specifications and circumstances. George v. Department of
the Army, 104 M.S.P.R. 596, ¶ 7 (2007), aff’d, 263 F. App’x 889 (Fed. Cir. 2008).
An agency is required to prove only the essence of its charge and need not prove
each factual specification supporting the charge. Hicks v. Department of the
Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995)
(Table).
Although the agency’s first charge appears under the label “Unauthorized
Access of Personnel Records,” the appellant argues that the Board should
construe the charge as actually alleging unauthorized access of confidential
personnel records and find that the agency failed to prove that charge because the
records in question were not confidential. PFR File, Tab 1 at 14-15. Upon
examination of the structure and language of the proposal and decision, we agree
with the administrative judge that the agency proved both specifications of the
unauthorized access of personnel records charge. In light of the label the agency
chose to apply to the first charge, we find that the confidential nature of the
records viewed by the appellant is not part of the essence of the charge; rather,
the essence of the charge is that the appellant accessed personnel records she was
6
not authorized to access. See Cole v. Department of the Air Force, 120 M.S.P.R.
640, ¶ 8 (2014) (citing the agency’s chosen label as a factor in determining the
essence of the charge). However, even if the appellant is correct that the essence
of the charge includes the agency’s assertion that the records in question were
confidential, we have no trouble concluding that records containing personally
identifiable information (PII) qualify as confidential personnel records. We also
reject the appellant’s argument, PFR File, Tab 1 at 17-19, that she was authorized
to access her coworkers’ files because she was a whistleblower or because those
files were mistakenly placed in an unsecured location. Neither the failure of
another employee to properly secure the documents nor the fact that the appellant
made a protected disclosure overrides the appellant’s obligation to protect PII.
Thus, we find no error in the administrative judge’s construction of the first
charge or her finding that the agency proved that charge.
As to the second charge, the appellant argues that the charge should be
construed as false or misleading statements, rather than lack of candor. PFR File,
Tab 1 at 13-14. In the proposal notice, the agency labeled the second charge,
“You were less than candid.” IAF, Tab 7 at 101. Nevertheless, the appellant
argues on petition for review that the second charge should actually be construed
as false or misleading statements because both the proposal notice and the
decision notice refer to the second charge as “a False or Misleading Statements
offense.” PFR File, Tab 1 at 13-14; IAF, Tab 6 at 14, Tab 7 at 102. However,
those statements were clearly part of the agency’s penalty determination, not in
reference to the charge itself. In both the proposal notice and the decision notice,
the agency referred to false or misleading statements in its discussion of the
Penalty Guide. IAF, Tab 6 at 14, Tab 7 at 102. Thus, the agency was informing
the appellant that, for purposes of its penalty determination, the offense listed in
the Penalty Guide most comparable to the second charge was False or Misleading
Statements. This was an entirely appropriate consideration in the penalty
determination and does not affect the charge itself. See Ware v. Department of
7
Veterans Affairs, 76 M.S.P.R. 427, 435 (1997) (in determining an appropriate
penalty, the agency properly considered “the offense closest to the charged
misconduct” in its table of penalties). We therefore find that the administrative
judge properly construed the second charge as lack of candor. 2
Lack of candor is a “broad[] and . . . flexible concept whose contours and
elements depend on the particular context and conduct involved.” Fargnoli v.
Department of Commerce, 123 M.S.P.R. 330, ¶ 16 (2016) (quoting Ludlum v.
Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002)). A lack of candor
charge may be based on “a failure to disclose something that, in the
circumstances, should have been disclosed in order to make a given statement
accurate and complete.” Id. (quoting same). Lack of candor requires proof that
the employee knowingly gave incorrect or incomplete information. Id., ¶ 17.
Applying those legal standards, we agree with the administrative judge that the
agency proved both specifications of lack of candor.
The appellant failed to establish a due process violation or harmful procedural
error.
Fundamental due process requires that notice of the charges must be
sufficiently detailed to provide a meaningful opportunity to be heard. Mason v.
Department of the Navy, 70 M.S.P.R. 584, 586-87 (1996). In analyzing a claim
of denial of due process, the Board will examine, among other things, whether
lack of specificity in the notice affected the appellant detrimentally or caused him
any surprise. Id. at 587. When an appellant comes forward and refutes a charge
made against her, the Board cannot find that she was not given notice of the
charge. Yinat v. Department of the Army, 101 M.S.P.R. 328, ¶ 15 (2005). Here,
although the appellant argues on review that the notice of proposed removal
“lacked specificity,” PFR File, Tab 1 at 20, we find that the notice was
2
Because we find that the administrative judge properly construed the second charge as
lack of candor, we need not address whether the agency proved a charge of false or
misleading statements.
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sufficiently detailed to allow the appellant to meaningfully respond, as evidenced
by her lengthy and substantive written and oral replies to the proposal.
The appellant also argues that the decision letter lacked the specificity and
resolution of factual disputes required by the agency’s internal rules. PFR File,
Tab 1 at 24-25. In addition to the protections afforded by the Constitution, public
employees are also entitled to “whatever other procedural protections are afforded
them by statute, regulation or agency procedure.” Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1378 (Fed. Cir. 1999). Under 5 U.S.C.
§ 7701(c)(2)(A), the Board will not sustain an agency decision if the appellant
“shows harmful error in the application of the agency’s procedures in arriving at
such decision.” The Board may not assume that an employee has been harmed by
a procedural error in the adverse action process; rather, the appellant bears the
burden of proving harm. Ward v. U.S. Postal Service, 634 F.3d 1274, 1281-82
(Fed. Cir. 2011). A procedural error is harmful where the record shows that the
error was likely to have caused the agency to reach a conclusion different from
the one it would have reached in the absence or cure of the error. Doe v.
Department of Justice, 118 M.S.P.R. 434, ¶ 31 (2012); 5 C.F.R. § 1201.56(c)(1).
We agree with the administrative judge that the appellant failed to establish either
that the agency violated its own procedures or that any such error was likely to
have caused the agency to reach a different conclusion. Accordingly, we find that
the appellant failed to prove either a due process violation or harmful procedural
error.
The appellant failed to prove whistleblower reprisal.
In an adverse action appeal such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Shannon v.
Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 21 (2014). In such
instances, once the agency proves its adverse action case by a preponderant
evidence, the appellant must show by preponderant evidence that she engaged in
whistleblowing activity by making a protected disclosure under 5 U.S.C.
9
§ 2302(b)(8) and that the disclosure was a contributing factor in the agency’s
personnel action. Id.
If an appellant meets this burden, the burden shifts to the agency to
establish by clear and convincing evidence that it would have taken the same
action in the absence of the protected disclosure. Shannon, 121 M.S.P.R. 221,
¶ 22. In determining whether an agency has met this burden, the Board will
consider the following factors: the strength of the agency’s evidence in support
of its action; the existence and strength of any motive to retaliate on the part of
the agency officials who were involved in the decision; and any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence, but rather, the Board will weigh the factors together to determine
whether the evidence is clear and convincing as a whole. Phillips v. Department
of Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). The U.S. Court of Appeals for
the Federal Circuit has added that “[e]vidence only clearly and convincingly
supports a conclusion when it does so in the aggregate considering all the
pertinent evidence in the record, and despite the evidence that fairly distracts
from the conclusion.” Whitmore v. Department of Labor, 680 F.3d 1353, 1368
(Fed. Cir. 2012); Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 27 (2015).
The administrative judge found that the appellant proved that she made a
protected disclosure when she disclosed to TIGTA that the agency had failed to
secure documents containing employees’ PII, ID at 15, and that her disclosure
was a contributing factor in the agency’s decision to remove her, ID at 15-17.
The administrative judge further found, however, that the agency proved by clear
and convincing evidence that it would have taken the same action in the absence
of the appellant’s disclosure. ID at 17-19.
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On review, the appellant challenges the administrative judge’s analysis of
the Carr factors. As to the strength of the agency’s evidence in support of its
action, the appellant restates the arguments she raised in connection with the
charges. PFR File, Tab 1 at 27-28. For the reasons set forth in our discussion of
the charges above, we do not find those arguments convincing and we agree with
the administrative judge that the agency had strong evidence in support of its
action.
As to the second Carr factor, the appellant argues that the administrative
judge improperly minimized the retaliatory motive of the officials involved in her
removal. PFR File, Tab 1 at 28-29. The administrative judge found that neither
the TIGTA agents whose investigation eventually led to the appellant’s removal
nor the deciding official who removed the appellant had any particular motive to
retaliate against her. ID at 18-19. The appellant argues that the administrative
judge’s analysis of the second Carr factor is inconsistent with our reviewing
court’s decision in Whitmore. PFR File, Tab 1 at 28-31. We agree that the
administrative judge’s view of the second Carr factor was overly restrictive, and
therefore we modify the initial decision to consider that factor more fully.
In Whitmore, the Federal Circuit cautioned the Board against taking an
unduly dismissive and restrictive view of retaliatory motive, holding that “[t]hose
responsible for the agency’s performance overall may well be motivated to
retaliate even if they are not directly implicated by the disclosures, and even if
they do not know the whistleblower personally, as the criticism reflects on them
in their capacities as managers and employees.” 680 F.3d at 1370. Thus, we find
that there was at least some motive to retaliate against the appellant, even if the
deciding official was not personally implicated in the appellant’s protected
disclosure.
When applying the second Carr factor, the Board will consider any motive
to retaliate on the part of the agency official who ordered the action, as well as
any motive to retaliate on the part of other agency officials who influenced the
11
decision. McCarthy v. International Boundary and Water Commission ,
116 M.S.P.R. 594, ¶ 62 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). The
appellant argues that the proposing official had a strong retaliatory motive that
should be imputed to the deciding official. PFR File, Tab 1 at 29. Although the
proposing official was in the appellant’s chain of command, there is nothing in
the record indicating that the proposing official was directly implicated in the
appellant’s protected disclosure or suffered any adverse consequences as a result
of her disclosure to TIGTA. Thus, there is nothing in the record to support the
appellant’s assertion that the proposing official had a particularly strong motive
to retaliate against her that could be imputed to the deciding official.
Accordingly, although we find that there was at least some motive to retaliate
against the appellant for her disclosure, we do not find that such motive was
particularly strong.
As to the third Carr factor, the appellant correctly notes that the
administrative judge failed to address that factor in the initial decision. PFR File,
Tab 1 at 31. We therefore do so here. The agency offered no evidence of its
treatment of similarly situated non-whistleblowers. “[T]he absence of evidence
relating to Carr factor three can effectively remove that factor from the analysis.”
Whitmore, 680 F.3d at 1374. Thus, the third factor does not weigh heavily in our
determination of whether the agency met its burden by clear and convincing
evidence. 3
Upon consideration of the record as a whole, including evidence that
detracts from the conclusion that the agency met its burden, we are left with the
firm belief that the agency would have taken the same action in the absence of the
appellant’s protected disclosure. We base this determination on the agency’s
3
We are mindful of the Federal Circuit’s warning in Whitmore that the failure to
produce all reasonably pertinent evidence relating to the third Carr factor “may be at
the agency’s peril.” 680 F.3d at 1374; see Miller v. Department of Justice, 842 F.3d
1252, 1262 (Fed. Cir. 2016) (finding that in the absence of evidence, the third Carr
factor “adds little to the overall analysis in this case, but if anything, tends to cut
slightly against the Government”).
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strong evidence in support of its action and the absence of a particularly strong
motive to retaliate. Accordingly, we agree with the administrative judge that the
appellant failed to prove her affirmative defense of whistleblower reprisal.
The penalty of removal was within the limits of reasonableness.
The appellant raises a few specific challenges to the administrative judge’s
penalty analysis. PFR File, Tab 1 at 32-34. When, as here, all of the agency’s
charges have been sustained, the Board will review an agency -imposed penalty
only to determine if the agency considered all of the relevant factors and
exercised management discretion within tolerable limits of reasonableness. Adam
v. U.S. Postal Service, 96 M.S.P.R. 492, ¶ 5 (2004), aff’d, 137 F. App’x 352 (Fed.
Cir. 2005); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In
doing so, the Board must give due weight to the agency’s primary discretion in
maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility but to ensure that
managerial judgment has been properly exercised. Adam, 96 M.S.P.R. 492, ¶ 5.
Thus, the Board will modify a penalty only when it finds that the agency failed to
weigh the relevant factors or that it clearly exceeded the bounds of
reasonableness in determining the penalty. Id. We agree with the administrative
judge that the agency properly considered the relevant factors in reaching its
penalty determination and that the penalty of removal is within the limits of
reasonableness for the appellant’s misconduct. ID at 30-33. For the reasons set
forth below, we find that the appellant’s arguments on petition for review do not
provide a basis for disturbing the agency’s penalty determination.
First, the appellant reiterates her argument as to the construction of the
second charge. PFR File, Tab 1 at 32. We have already rejected that argument in
connection with the charges, and we need not address it further here.
The appellant also argues that the penalty she received was “not consistent”
because no other employee who accessed the same files she did was removed.
PFR File, Tab 1 at 33. It is well settled that when an appellant alleges that an
13
agency treated her disparately as compared to other employees who committed
the same or similar offenses, she has the initial burden of showing that those
employees are proper comparators. See Archuleta v. Department of the Air
Force, 16 M.S.P.R. 404, 407 (1983) (holding that, to establish disparate penalties,
the appellant must show that the charges and the circumstances surrounding the
charged behavior are substantially similar). Here, the appellant’s bare assertion
that other employees accessed the same files she did fails to satisfy her initial
burden as to her disparate penalties claim. First, she has not established that
those other employees’ access was unauthorized. Additionally, she does not even
allege that any of those other employees also lacked candor. Thus, she failed to
show that those employees committed the same or similar offenses. See Bencomo
v. Department of Homeland Security, 115 M.S.P.R. 621, ¶¶ 2, 20 (2011) (holding
that the appellant failed to establish a disparate penalties claim where the alleged
comparators engaged in conduct similar to only some of the charges for which the
appellant was removed), aff’d, 468 F. App’x 986 (Fed. Cir. 2012). Accordingly,
the appellant’s disparate penalties claim does not provide a basis for mitigating
the penalty. 4
Finally, the appellant argues that the penalty of removal was inconsistent
with the Penalty Guide because the upper range of penalties in the Penalty Guide
for a first offense of Unauthorized Access/Browsing/Updates of Records offense
is a 5-day suspension. PFR File, Tab 1 at 34. An agency’s table of penalties is
only one factor to be considered in assessing the reasonableness of the penalty.
See Phillips v. Department of the Interior, 95 M.S.P.R. 21, ¶ 17 (2003), aff’d,
131 F. App’x 709 (Fed. Cir. 2005). Moreover, the Board and the Federal Circuit
have found that an agency’s table of penalties is merely a guide and is not
mandatory unless the agency has a specific statement making the table mandatory
and binding rather than advisory. Id.; see Farrell v. Department of the Interior ,
4
In Singh v. U.S. Postal Service, 2022 MSPB 15, ¶¶ 14-18, we overruled and clarified
the standards for disparate penalties claims. However, our analysis of the disparate
penalties claim in this case is not affected by Singh.
14
314 F.3d 584, 590-92 (Fed. Cir. 2002). Here, the Penalty Guide contains a
statement that it “should serve as a guide ONLY, not a rigid standard.” PFR File,
Tab 6 at 24 (emphasis in original). 5 Additionally, the appellant’s argument based
on the Penalty Guide fails to acknowledge that she was charged with two
specifications of unauthorized access as well as two specifications of lack of
candor. It also fails to account for the fact that she had previously been
suspended twice for misconduct that included, on both occasions, making a false
statement. IAF, Tab 8 at 41, 61-62. The Penalty Guide provides for removal as
the penalty for a third False or Misleading Statements offense. PFR File, Tab 6
at 34. Therefore, the appellant’s argument regarding the Penalty Guide does not
justify mitigating the penalty.
The appellant’s remaining arguments do not warrant a different outcome.
We have considered the appellant’s remaining arguments on appeal,
including but not limited to her arguments regarding unclean hands and violation
of her First Amendment rights. We agree with the administrative judge that those
arguments do not provide a basis for reversing the appellant’s removal.
NOTICE OF APPEAL RIGHTS 6
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
5
A copy of the Penalty Guide was in the record below. IAF, Tab 49 at 322-51.
However, some of the text of the Guide was cut off. The agency has submitted a more
legible copy of the same document on petition for review. PFR File, Tab 6 at 23-52.
6
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.
15
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:
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
16
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
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
17
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(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. 7 The court of appeals must receive your
7
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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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.
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.