Thasha Boyd v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THASHA A. BOYD, DOCKET NUMBER
Appellant, AT-1221-18-0295-W-1
v.
DEPARTMENT OF VETERANS DATE: December 6, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thasha A. Boyd , McMinnville, Tennessee, pro se.
Mary Bea Sellers , Montgomery, Alabama, for the agency.
Sophia Haynes , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
VACATE the administrative judge’s findings as to the retroactivity of the
Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 (Kirkpatrick Act), 2
and to apply the correct standard for analyzing the appellant’s hostile work
environment claim in the context of an IRA appeal, we AFFIRM the initial
decision’s dismissal of the appeal for lack of jurisdiction.
BACKGROUND
¶2 The agency employed the appellant as a Veterans Service Representative,
until it removed her effective April 24, 2017. Initial Appeal File (IAF), Tab 9
at 8. On November 8, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that the agency allowed her coworkers to
improperly access her medical and other records in September 2016 and
July 2017 in reprisal for filing complaints against the agency and Board appeals.
IAF, Tab 6 at 16-25. The appellant claimed, only generally, that the agency’s
failure to protect her information created a hostile work environment. Id. at 23.
In a January 2, 2018 letter, OSC notified the appellant that it had terminated its
investigation into her complaint. Id. at 16.
2
Pub. L. No. 115-73, § 103, 131 Stat. 1235, 1236.
3
¶3 The appellant filed a timely IRA appeal and declined a hearing. IAF, Tab 1
at 2, 4-11. The administrative judge issued an order apprising her of the
jurisdictional requirements for an IRA appeal and ordering the parties to submit
argument and evidence on jurisdiction. IAF, Tabs 2-4. Both parties submitted
responses. IAF, Tabs 6, 9. In her response, the appellant alleged that the agency
improperly accessed her medical records and subjected her to a hostile work
environment in reprisal for engaging in protected activity and because they
perceived her as a whistleblower. IAF, Tab 6 at 13-14. She further claimed that
the agency violated the Kirkpatrick Act. Id. at 14. She attached copies of her
OSC complaint, OSC’s preliminary determination and close out letters, and a
sworn statement explaining that she amended her OSC complaint to include
additional protected activity. Id. at 16-25, 32. She also submitted complaints she
had filed with the agency’s Office of General Counsel (OGC), emails concerning
a discovery request from a prior matter, and a portion of an initial decision from a
separate Board appeal. Id. at 26-31, 33-51.
¶4 After considering the parties’ submissions, the administrative judge issued
an initial decision, based on the written record, dismissing the appeal for lack of
jurisdiction. IAF, Tab 10, Initial Decision (ID) at 1, 3, 16. He found that, while
the appellant had exhausted her administrative remedies with OSC and
nonfrivolously alleged that she engaged in protected activity, she did not
nonfrivolously allege that the agency had taken or threatened to take a covered
personnel action against her. ID at 11-16. He found that the appellant’s
Kirkpatrick Act arguments were irrelevant because the Act did not apply
retroactively. ID at 16. He further found that the agency’s accessing of her
records, alone, was insufficient to constitute a nonfrivolous allegation of a
significant change in duties, responsibilities, or working conditions, especially
when the July 2017 incident occurred after the appellant had separated from
agency employment. ID at 12-15.
4
¶5 The appellant has filed a petition for review, alleging that she
nonfrivolously alleged jurisdiction over her IRA appeal, that she was not properly
apprised of her jurisdictional burden, and that she was denied her right to
discovery. Petition for Review (PFR) File, Tab 1 at 4-13. The agency has filed a
response. 3 PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 To establish Board jurisdiction over an IRA appeal, the appellant must have
exhausted her administrative remedies before OSC and make nonfrivolous
allegations of the following: (1) she made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). 4 Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). A nonfrivolous allegation is an assertion
that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).
The Board lacks jurisdiction over the appellant’s 5 U.S.C. § 2302(b)(14) claim.
¶7 On review, the appellant reasserts her contention that the agency allowed
unauthorized employees to improperly access her medical records in reprisal for
making protected disclosures and engaging in protected activities, in violation of
the Kirkpatrick Act. PFR File, Tab 1 at 7-8; IAF, Tab 6 at 14. She argues that
3
The agency filed a motion for leave to file a supplemental response addressing the
applicability of the Kirkpatrick Act. PFR File, Tab 3 at 7, Tab 4. Based on our
affirmance of the initial decision, as modified, we deny the agency’s motion.
4
During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law.
Section 1097 of the NDAA amended various provisions of Title 5 of the U.S. Code. We
have considered the NDAA amendments, but find that a different outcome is not
warranted.
5
she may raise such a claim because the Kirkpatrick Act applies retroactively. 5
PFR File, Tab 1 at 8-12.
¶8 We construe the appellant’s claim as an alleged 5 U.S.C. § 2302(b)(14)
violation. However, we need not reach a finding on the retroactivity of the
Kirkpatrick Act or consider the appellant’s argument and evidence on that issue
because, even assuming the retroactivity of that provision, section 2302(b)(14) is
not a basis for finding Board jurisdiction over this appeal. Prohibited personnel
practices under 5 U.S.C. § 2302(b) are not an independent source of Board
jurisdiction. Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d,
681 F.2d 867, 871-73 (D.C. Cir. 1982). Sections 1214(a)(3) and 1221(a), which
set forth the Board’s authority to review IRA appeals, grant the Board jurisdiction
over violations of 5 U.S.C. § 2302(b)(8) and § 2302(b)(9)(A)(i), (B), (C), or (D)
in the context of an IRA appeal. See Salerno, 123 M.S.P.R. 230, ¶ 5. Because a
section 2302(b)(14) violation is not an independent basis for finding jurisdiction
in an IRA appeal, and the appellant has not raised her claim in connection with an
otherwise appealable action, the Board lacks jurisdiction to consider it.
Accordingly, we vacate the administrative judge’s findings as to the retroactivity
of the Kirkpatrick Act.
The appellant has not proven that she nonfrivolously alleged a covered
personnel action.
¶9 The dispositive issue here is whether the appellant raised a nonfrivolous
allegation of a personnel action. 6 ID at 16; see Salerno, 123 M.S.P.R. 230, ¶ 5.
5
The Kirkpatrick Act was enacted on October 26, 2017. 131 Stat. at 1235. Section 103
(codified at 5 U.S.C. § 2302(b)(14)) amended section 2302(b) of Title 5 by making it a
new prohibited personnel practice to access an employee’s medical records “as a part
of, or otherwise in furtherance of” a prohibited personnel practice as defined by
5 U.S.C. § 2302(b)(1)-(13). 131 Stat. at 1236.
6
The administrative judge found that the appellant raised a nonfrivolous allegation that
she engaged in protected activity by filing a Board appeal, among other complaints. ID
at 11-12. In light of that finding, the administrative judge found it unnecessary to
address the appellant’s perceived whistleblower claims. ID at 12 n.9. The parties have
not challenged that finding, and we discern no basis for disturbing it. See 5 C.F.R.
§ 1201.115.
6
The appellant argues that the accessing of her medical records constitutes an
independent personnel action. PFR File, Tab 1 at 12-13. We disagree.
Accessing of medical records is not one of the twelve personnel actions expressly
listed under 5 U.S.C. § 2302(a)(2)(A).
¶10 Alternatively, the appellant argued that she nonfrivolously alleged that she
was subjected to a hostile work environment. PFR File, Tab 1 at 7-8, 11-12. The
administrative judge correctly construed the claim as an allegation that she was
subjected to a significant change in duties, responsibilities, or working
conditions, under 5 U.S.C. § 2302(a)(2)(A)(xii). ID at 12. However, in analyzing
whether the appellant nonfrivolously alleged a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii), he relied on case law relevant to establishing a hostile work
environment under Title VII. ID at 12-15. We find that his reliance on that
precedent was improper. See Skarada v. Department of Veterans Affairs,
2022 MSPB 17, ¶ 16. Accordingly, we modify the initial decision to apply the
correct analysis to the appellant’s hostile work environment claim.
¶11 Under both the Whistleblower Protection Enhancement Act (WPEA) and its
predecessor, the Whistleblower Protection Act (WPA), a “personnel action” is
defined to include, among other enumerated actions, “any other significant change
in duties, responsibilities, or working conditions.” 7 5 U.S.C. § 2302(a)(2)(A)
(xii). In Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015),
overruled in part on other grounds by Pridgen v. Office of Management and
Budget, 2022 MSPB 31, the Board stated that a hostile work environment itself
may constitute a covered personnel action under the WPA. In Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶ 16, the Board clarified that,
although the term “hostile work environment” has a particular meaning in other
contexts, allegations of a hostile work environment may constitute a personnel
action in an IRA appeal only if they meet the statutory criteria under 5 U.S.C.
7
The relevant events occurred after the December 27, 2012 effective date of the WPEA.
Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476 (2012). Therefore, we have applied
the WPEA to this appeal.
7
§ 2302(a)(2)(A), i.e., constitute a significant change in duties, responsibilities, or
working conditions. Thus, although the “significant change” personnel action
should be interpreted broadly to include harassment and discrimination that could
have a chilling effect on whistleblowing or otherwise undermine the merit system,
only agency actions that, individually or collectively, have practical and
significant effects on the overall nature and quality of an employee’s working
conditions, duties, or responsibilities will be found to constitute a personnel
action covered by section 2302(a)(2)(A)(xii). 8 Skarada, 2022 MSPB 17, ¶ 16.
¶12 The appellant has not identified any practical consequences to her daily
activities or working conditions that occurred, at the direction of any agency
official or otherwise, because of the alleged accessing of her records. PFR File,
Tab 1 at 6-10; IAF, Tab 6 at 9-10, 13-14, 21-22; see King v. Department of
Health and Human Services, 133 F.3d 1450, 1452-53 (Fed. Cir. 1998) (explaining
that an action must have “practical consequences” to constitute a “personnel
action” under 5 U.S.C. § 2302(a)(2)(A)). As to the July 2017 incident in
particular, there is no possible effect it could have had on her working conditions
because it allegedly occurred after her April 2017 separation from agency
employment. IAF, Tab 6 at 13-14, Tab 9 at 8. Also, in both instances, the agency
employees accessed her records in furtherance of her requests for assistance.
IAF, Tab 6 at 13. Accordingly, we find that the appellant’s record access claims
do not constitute a nonfrivolous allegation that she was subjected to a significant
change in duties, responsibilities, or working conditions.
8
Despite the administrative judge’s error in citing to Title VII case law, and any failure
to provide sufficient jurisdictional notice below, we find that the initial decision
properly identified the relevant statutory provisions for alleging a significant change in
duties, responsibilities, or working conditions, 5 U.S.C. § 2302(a)(2)(A)(xii), and
notified the appellant that a hostile work environment claim was a cognizable personnel
action if it met that statutory standard. ID at 12, 15; see Milam v. Department of
Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005) (finding that an administrative judge’s
failure to provide an appellant with proper jurisdictional notice can be cured if the
initial decision itself puts him on notice so as to afford him the opportunity to meet his
burden in the petition for review).
8
¶13 On review, the appellant alleges that, had the administrative judge also
considered those incidents described in her OGC complaint in addition to her
improper records access claims, he would have found that she met her
jurisdictional burden. PFR File, Tab 1 at 7-8. In her OGC complaint, the
appellant alleged that she was “removed” from working in the “Public Contact”
area. IAF, Tab 6 at 33-34. She further alleged that other employees laughed “as
she walked by,” did not greet her upon arrival at training, failed to order her
requested lunch item for an office lunch, scrutinized her for not attending various
social gatherings, discussed topics that made her feel uncomfortable, and filed
retaliatory complaints against her that led to unfair agency investigations. Id.
at 33-37. She also alleged that she felt threatened when, on one occasion, a
coworker sang explicit song lyrics in the training room and allowed a door to shut
on her, and that her coworkers harassed her based on her religion by asking her
why she did not eat pork, celebrate Thanksgiving, or want her picture taken,
without indicating whether any of her coworkers were aware of her religion. Id.
at 37-38. The administrative judge only considered the alleged unauthorized
access of her medical records in support of her hostile work environment claim.
ID at 12-15. The appellant has not shown that she notified OSC of the incidents
described in her OGC complaint or asserted that she submitted her OGC
complaint to OSC. Thus, she has not shown that she exhausted her remedy with
OSC as to these incidents, and the administrative judge correctly did not address
them. See Skarada, 2022 MSPB 17, ¶ 7 (explaining that to satisfy the exhaustion
requirement, the appellant must provide OSC with a sufficient basis to pursue an
investigation that might lead to corrective action).
¶14 Even assuming the appellant exhausted the claims raised in her OGC
complaint, we find that they do not provide a basis for finding jurisdiction over
this appeal. In describing her assignment to the Public Contact area, the appellant
does not assert that this work was a regular part of her normal duties or allege that
the loss of this assignment had a significant impact on her duties or
9
responsibilities. IAF, Tab 6 at 33-24; see Wagner v. Environmental Protection
Agency, 51 M.S.P.R. 326, 328 (1991) (finding that the appellant’s exclusion from
attending one conference was not a significant change in duties, responsibilities,
or working conditions). Similarly, the appellant’s claims about retaliatory
investigations were too vague to constitute a nonfrivolous allegation that the
agency took a personnel action against her. IAF, Tab 6 at 36, 38; Zimmerman v.
Department of Housing and Urban Development, 61 M.S.P.R. 75, 79-80 (1994)
(finding that allegations of “continuing reprisal” and “threats” were too vague to
constitute personnel actions). Finally, even if true and when viewed in the light
most favorable to the appellant, we find that the described cessation of office
pleasantries and other minor, occasional slights may have created some discord
between the appellant and other employees, but would not be significant enough,
either individually or collectively, to constitute a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii). Cf. Covarrubias v. Social Security Administration,
113 M.S.P.R. 583, ¶¶ 8, 15 n.4 (2010) (finding that the appellant nonfrivolously
alleged a significant change in working conditions when she alleged that her
supervisors harassed her about personal telephone calls, closely monitored her
whereabouts, followed her to the bathroom, and denied her an accommodation for
her spina bifida, which required her to self-catheterize), overruled on other
grounds by Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5
(2014). Accordingly, when considering her allegations individually and
collectively, we find that the appellant did not nonfrivolously allege a covered
personnel action and therefore has not met her jurisdictional burden.
The appellant has not shown that she was prejudiced by the denial of her right
to discovery.
¶15 The appellant also argues that the administrative judge erred in denying her
right to discovery. PFR File, Tab 1 at 6-7. She correctly argues that she was
entitled to request discovery of relevant materials to assist her in meeting the
burden of establishing jurisdiction. See Russo v. Department of the Navy,
10
85 M.S.P.R. 12, ¶ 8 (1999). Consistent with the Board’s regulations, the
administrative judge set forth the timeline for initiating discovery and notified the
parties of the close of the record. IAF, Tab 2 at 3, Tab 5; 5 C.F.R. § 1201.73(setting forth the Board’s discovery procedures). The agency filed a motion to
stay discovery, including its response to the appellant’s discovery request, and
submission of the agency file pending a ruling on jurisdiction. IAF, Tab 8. The
administrative judge issued the initial decision the following day, approximately 1
week before the close of the record, while the appellant’s discovery request
apparently was pending, and without allowing the appellant an opportunity to
respond to the agency’s motion or issuing a ruling on that motion.
¶16 Even if the administrative judge abused his discretion by not allowing the
appellant an opportunity for discovery, the Board will not consider that reversible
error absent a showing that it prejudiced her substantive rights. See Lynch v.
Department of Defense, 114 M.S.P.R. 219, ¶ 11 (2010). We discern no prejudice
to the appellant’s substantive rights because she has not identified any specific
item she sought in discovery that would have been relevant to or otherwise
assisted her in meeting her burden on the outstanding jurisdictional issue—
whether she nonfrivolously alleged that she was subjected to a covered personnel
action. 9 See Davis v. Department of Defense, 103 M.S.P.R. 516, ¶ 13 (2006)
(finding no reversible error in the administrative judge’s failure to rule on the
appellant’s motion to compel discovery before issuing the initial decision because
his discovery requests did not seek information pertinent to exhaustion, the
relevant jurisdictional issue); cf. Lynch, 114 M.S.P.R. 219, ¶¶ 6-11 (remanding
the appeal for further development of the record because the appellant showed
that the administrative judge’s error in issuing the initial decision before the close
of discovery prevented him from submitting relevant evidence he obtained during
9
The appellant did not submit or otherwise explain the nature of her discovery request
in this appeal. The appellant submitted emails entitled “Discovery Request”; however,
those emails predate the filing of this appeal and apparently were discovery requests
made in another matter. IAF, Tab 1 at 1, Tab 6 at 8-9, 26-30.
11
discovery). Therefore, the administrative judge’s discovery errors are not a basis
for reversing the initial decision.
¶17 Although the administrative judge also erred in issuing the initial decision
before the close of the record, the Board likewise will not consider that reversible
error absent a showing that it prejudiced the appellant’s substantive rights. ID
at 1; IAF, Tab 5; Crumpton v. Department of the Treasury, 98 M.S.P.R. 115, ¶ 8
(2004). The administrative judge issued the initial decision before the expiration
of the agency’s response period; however, the appellant’s period to respond to the
jurisdictional order had passed. ID at 1; IAF, Tab 5. To the extent that she was
improperly denied the opportunity to reply to the agency’s jurisdictional response
before the issuance of the initial decision, she was not prejudiced by that error
because we have considered all of her arguments that she raises on review. See
Crumpton, 98 M.S.P.R. 115, ¶ 9. Therefore, the administrative judge’s error in
this regard similarly is not a basis for review.
NOTICE OF APPEAL RIGHTS 10
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
10
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
within 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
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.
13
(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
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:
14
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. 11 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).
11
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
If you 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.