Mary Campbell v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY E. CAMPBELL, DOCKET NUMBER
Appellant, CH-1221-16-0284-W-1
v.
DEPARTMENT OF VETERANS DATE: December 6, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy A. Bridge , Wellston, Michigan, for the appellant.
Christopher P. McNamee , Hines, Illinois, for the agency.
Michael J. Klein , Baltimore, Maryland, 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
denied her request for corrective action in this individual right of action (IRA)
appeal. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 by
this Final Order to find that the Follow the Rules Act (FTRA), Pub. L.
No. 115-40, 131 Stat. 861 (2017), does not apply to this case, we AFFIRM the
initial decision.
BACKGROUND
¶2 The parties have stipulated to the following facts. The agency employed the
appellant as a GS-9 Program Specialist, pursuant to a 13-month term appointment,
not to exceed July 15, 2015. Initial Appeal File (IAF), Tab 53 at 2. She was
assigned to the Department of Veterans Affairs (VA) Information Resource
Center (VIReC), and her duties included providing administrative and program
support to VIReC personnel, timekeeping for VIReC staff, travel coordination,
ordering supplies, inventory control, workflow tracking, phone coverage,
reception, maintaining the calendar, and office operations. Id. Her duties also
included serving as a Purchase Card Holder for VIReC, subject to the rules and
regulations of the VA Government Purchase Card Program. Id. The appellant
successfully completed her probationary period and received fully successful
performance evaluations for the periods June 16 through September 30, 2014, and
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October 1, 2014, through September 30, 2015, and she was not subject to any
disciplinary action during her employment at VIReC. Id.¶3 At issue in this appeal is the appellant’s claim that she was terminated from
her position in retaliation for alleged whistleblowing disclosures and activity.
IAF, Tab 1. Specifically, on June 22, 2015, her supervisor, D.H., emailed the
appellant and asked her, in her role as Purchase Card Holder for VIReC, to use
the purchase card to buy various promotional items for a national conference
scheduled in Philadelphia, Pennsylvania on July 10, 2015. 2 IAF, Tab 6 at 37-44.
The appellant responded in an email to D.H. advising her that the VA
Government Purchase Card Program prohibited a purchase card being used for the
procurement of “promotional items in conjunction with a conference, such as
mementos, gifts, keepsakes, prize items, and other VA ‘logo’ or ‘message’ items
for distribution to VA and other [F]ederal employees.” IAF, Tab 4. The
appellant further advised D.H. to “speak with the budget office” if she still
wanted to order the promotional items, as it may have funding that allowed for
the purchase. Id. Within 2 hours, D.H. emailed the appellant asking her to obtain
the price of the items so that D.H. could purchase them with her personal charge
card. Id. After an email discussion regarding the items, the appellant advised
D.H. that, “[s]ince you will be using your credit card, once you decide what you
want you can enter your credit card information and order at the same time.” Id.D.H. notified the appellant on June 25, 2015, that she had confirmed that she was
permitted to purchase and donate the items to VIReC and she requested help from
the appellant in finalizing the order. IAF, Tab 6 at 37-44. On June 25, 2015,
after D.H.’s return to VIReC, she met with the appellant and the Office
Administrator and allegedly discussed the purchase issue. IAF, Tab 4 at 46. The
following day, the appellant contacted the VA’s Office of Resolution
Management (ORM) to file an equal employment opportunity (EEO) complaint
against D.H., alleging discrimination, retaliation, and the creation of a hostile
2
D.H. was in Utah, and not at the VIReC, when she emailed the appellant.
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work environment. IAF, Tab 56, Hearing Compact Disc 1 (HCD 1) (testimony of
the appellant). The appellant placed the order on June 29, 2015, the vendor
contacted D.H. directly with a price quote, and D.H. purchased the items with her
personal charge card. Id. On July 27, 2015, the appellant advised the Associate
Chief of Staff, S.J., that D.H. retaliated against her for refusing to violate
purchase card restrictions and threatened to fire her for raising her claims of a
hostile work environment before ORM. Id. S.J. resigned from his position as
Associate Chief of Staff on August 2, 2015. IAF, Tab 57, Hearing Compact
Disc 2 (HCD 2) (testimony of S.J.).
¶4 On September 15, 2015, after D.H. notified the appellant that she would
extend her term appointment from November 2015 to March 2016, but would
probably not extend it again after that, the appellant filed a Complaint of Possible
Prohibited Personnel Practice with the Office of Special Counsel (OSC). IAF,
Tab 1. The appellant’s “whistleblower disclosure” to OSC alleged the following:
On 6/25/15 [D.H.], Director, VA Information Resource Center,
Hines, VA, instructed me to use her VA purchase card to obtain
various promotional items in direct violation of [VA Government
Purchase Card Program] regulations . . . . After refusing this
directive, I have been subject to harassment, a hostile work
environment, removal of job responsibilities, and notice of
termination of my term employment status effective March, 2016. I
reported to [sic] [D.H.[’s]] unlawful directive to Dr. [S.J.], Chief of
Staff, on 7/27/15.
IAF, Tab 1, Exhibit (Ex.) E. The appellant’s complaint also alleged that her
disclosure of information evidenced a violation of law, rule, or regulation, gross
mismanagement, and an abuse of authority. Id. In addition, she alleged that,
following her report to S.J., the agency failed to investigate her complaint and
failed to take remedial measures to stop D.H.’s allegedly “retaliatory and
harassing conduct.” IAF, Tab 1.
¶5 On September 24, 2015, the appellant filed a formal complaint of
discrimination with the agency. IAF, Tab 1, Ex. C. By letter dated January 21,
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2016, D.H. notified the appellant that her appointment would be terminated
effective March 31, 2016. IAF, Tab 1, Ex. D. On January 29, 2016, OSC notified
the appellant that it was closing its file in the matter and that she had a right to
seek corrective action with the Board. IAF, Tab 1, Ex. F. The appellant then
filed this Board appeal. IAF, Tab 1.
¶6 Because there was a question on jurisdiction, the administrative judge
issued an order that directed the parties to submit evidence and argument showing
that the Board had jurisdiction over this appeal. IAF, Tab 3. The parties
provided several submissions in response to the order and participated in status
conferences. IAF, Tabs 4, 6, 9, 16. As a result of the parties requesting a
jurisdictional determination, the administrative judge issued a detailed Order on
Jurisdiction. IAF, Tab 20. She found that the appellant had exhausted her
administrative remedies concerning three alleged disclosures or activities and the
following personnel actions: failing to extend her term appointment; removing
her job responsibilities; requesting additional documentation; and subjecting her
to a hostile work environment. Id. at 7-8. As to the appellant’s first alleged
protected disclosure or activity, her communications with D.H., the administrative
judge found that, under 5 U.S.C. § 2302(b)(8), the appellant did not disclose to
D.H. a violation of a law, rule, or regulation, gross mismanagement, a gross waste
of funds, an abuse of authority, or a substantial and specific danger to public
health or safety. Id. Instead, the administrative judge found that the appellant
advised D.H. of what the regulations stated and then D.H. purchased the items
with her own funds. Id. at 8-9. The administrative judge found that identifying
that a requested action would be a potential violation is not the same thing as
disclosing that one of these violations actually occurred. Id.¶7 Concerning the appellant’s claim that her disclosure to D.H. was protected
activity under section 2302(b)(9), the administrative judge found that the
appellant’s argument was precluded by the U.S. Court of Appeals for the Federal
Circuit’s decision in Rainey v. Merit Systems Protection Board, 824 F.3d 1359,
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1361-62 (Fed. Cir. 2016), which held that the protection granted in
section 2302(b)(9) is limited to orders that are contrary to a statute and does not
encompass orders that are contrary to an agency’s rules or regulations. IAF,
Tab 20 at 9. Thus, the administrative judge found that the appellant’s activity
was not protected under section 2302(b)(9)(D). Id. at 10.
¶8 Regarding the appellant’s second alleged protected disclosure or activity,
the EEO complaint she filed against D.H. with ORM on June 26, 2015, the
administrative judge found that the underlying allegations in the appellant’s
complaint focused on claims of race and age discrimination, and that
section 2302(b)(9) does not establish jurisdiction over her claim in an IRA appeal.
Id. at 11.
¶9 Finally, regarding the appellant’s third alleged protected disclosure or
activity, her communications with S.J., the administrative judge found that the
appellant made a nonfrivolous allegation that her disclosure to S.J. was protected
because a disinterested observer could reasonably conclude that, when the
appellant disclosed D.H.’s conduct to S.J., the appellant believed that D.H.’s
alleged conduct constituted an abuse of authority. Id. at 14-15. The
administrative judge also found that the appellant nonfrivolously alleged that her
disclosure was a contributing factor in the agency’s decision not to extend her
term appointment. Id. The administrative judge thus found that the appellant
established that the Board has jurisdiction over her IRA appeal and that she was
entitled to a hearing on the merits. Id. at 16. However, she advised the parties
that she reserved the right to revisit the jurisdictional issue later, based on further
development of the record. Id. Although the appellant objected to these rulings,
the administrative judge issued an order overruling the appellant’s objections to
her jurisdictional order. 3 IAF, Tabs 21-22.
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The administrative judge also denied the appellant’s motion for certification of an
interlocutory appeal challenging the administrative judge’s rulings in the Order on
Jurisdiction and the “Order Overruling Appellant’s Objections to Order on
Jurisdiction.” IAF, Tabs 26-27.
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¶10 The administrative judge held a 2-day hearing and thereafter issued an
initial decision denying the appellant’s request for corrective action. IAF,
Tab 59, Initial Decision (ID). After considering the appellant’s supplemental
evidence and argument, the administrative judge affirmed her prior rulings
regarding the first and second alleged protected disclosures and activity,
concluding that the appellant presented no evidence to show that either was
protected. ID at 14-21. Regarding the appellant’s third alleged protected
disclosure or activity, the administrative judge found that, although the appellant
nonfrivolously alleged that she made a protected disclosure of an abuse of
authority to S.J. in July 2015, she failed to prove it by preponderant evidence. ID
at 21-24. The administrative judge thereafter found that, even if she were to
conclude that the appellant had met her burden as to the July 2015 disclosure to
S.J., there is no evidence that the disclosure was a contributing factor in any of
the alleged personnel actions at issue. ID at 24-26. Concluding, the
administrative judge found that, because the appellant had not shown by
preponderant evidence that she made one or more whistleblowing disclosures that
were a contributing factor in the personnel actions at issue in this appeal, she
could not prevail on her whistleblower claim. Consequently, the administrative
judge did not reach the issue of whether the agency could show by clear and
convincing evidence it would have taken the personnel actions absent the
appellant’s whistleblowing. ID at 27.
¶11 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 3. The agency has filed a response to the appellant’s petition.
PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶12 Under the Whistleblower Protection Act of 1989, as amended by the
Whistleblower Protection Enhancement Act of 2012 (WPEA), in reviewing the
merits of an IRA appeal in which the appellant alleges retaliation for protected
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disclosures or activity, the Board first considers whether the appellant has
established by a preponderance of the evidence that she made protected
disclosures under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), that were a contributing factor in an
agency’s personnel actions. Corthell v. Department of Homeland Security, 123
M.S.P.R. 417, ¶ 8 (2016). When the appellant is able to offer such proof, the
Board must order corrective action unless the agency can establish by clear and
convincing evidence that it would have taken the same personnel actions in the
absence of the disclosure or activity. Id.; see Whitmore v. Department of Labor,
680 F.3d 1353, 1367 (Fed. Cir. 2012).
The administrative judge properly found that the appellant’s first alleged
disclosure or activity was not protected.
¶13 On review, the appellant argues that the administrative judge erred in
finding that her disclosure to D.H. did not constitute a protected disclosure under
section 2302(b)(8). PFR File, Tab 3 at 7-9. In this regard, the appellant reasserts
that the administrative judge erroneously excluded this disclosure because of the
fact that she made it to her immediate supervisor and that the language in
section 2302(b)(8) specifically recognizes disclosures made to immediate
supervisors during the normal course of duties. Id. at 8-9.
¶14 However, the administrative judge addressed this argument in the initial
decision and found that it was a misstatement of her analysis. 4 ID at 16. We
agree. Specifically, the administrative judge explicitly stated that she was not
excluding the appellant’s statement simply because it was made to D.H., her
supervisor. Rather, the administrative judge found that the appellant’s alleged
disclosure was not a disclosure because she merely advised D.H. of what the
regulations stated, and not of a violation of the regulations. Thus, the
administrative judge found that no disclosure of a violation of a law, rule, or
4
The administrative judge also addressed this argument in the “Order Overruling
Appellant’s Objections to Order on Jurisdiction.” IAF, Tab 22.
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regulation, nor a disclosure of a potential violation, actually occurred. ID
at 14-15.
¶15 Additionally, the appellant contends that, under the analysis in Reid v. Merit
Systems Protection Board, 508 F.3d 674 (Fed. Cir. 2007), her disclosure to D.H.
was protected, whether or not the unauthorized purchase actually occurred, and
that the administrative judge erred in finding that an actual violation had to have
occurred before it was deemed a protected disclosure under section 2302(b)(8).
PFR File Tab 3 at 9-12. The appellant asserts that she had every reason to believe
that D.H.’s “directive was both ‘real and imminent’ and that she [would be]
potentially subjected to disciplinary action in the event she followed her
directives.” Id. at 9. Thus, the appellant argues that her disclosure satisfied
section 2302(b)(8) because she disclosed a potential violation in which she had a
reasonable belief that potential wrongdoing was real and imminent. Id. at 11.
¶16 However, as the administrative judge correctly found, the overwhelming
record evidence, including the hearing testimony, reflects that, once the appellant
told D.H. that VA regulations prohibit the purchase of promotional items using
the Government purchase card, D.H.’s almost immediate response was to state
that she would purchase the items on her own personal credit card. ID at 14-16;
IAF, Tab 7, Ex. 3 at 25-31; HCD 1; HCD 2. Further, while the appellant contends
that she disclosed an “imminent” potential violation of a law, to the extent that
she may be implying that this violation also might have involved a substantial or
specific danger to the public, we would disagree. The appellant’s disclosure
merely involved the purchase of mementos for a conference and thus there was no
imminent, much less a substantial or specific, danger to anyone. Cf. Miller v.
Department of Homeland Security, 111 M.S.P.R. 312, ¶¶ 15, 19 (2009) (finding
that the appellant had a reasonable belief that his disclosures would pose a
substantial and specific danger to public safety and an imminent threat when his
disclosures involved proposed changes to airport screening of bags and passenger
check points). Moreover, discussions between employees and supervisors
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regarding various courses of action are normal, and such communications can
actually help avoid potential violations of the law. See Reid, 508 F.3d at 678.
Therefore, we find no support for the appellant’s claim that potential wrongdoing
was imminent.
¶17 To the extent the appellant asserts for the first time on review that she
previously had been informed that using the Government purchase card for
promotional items had become a “past practice” under D.H.’s tenure as VIReC
Director, the appellant has made no showing as to why this claim was not raised
below. The Board generally will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
¶18 The appellant also challenges the administrative judge’s credibility
determinations regarding the finding that her June 2015 refusal to follow the
directive to purchase promotional items was not a protected disclosure. PFR File,
Tab 3 at 13. The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. See
Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002). We have
reviewed the record evidence and we discern no basis upon which to disturb the
administrative judge’s well-explained credibility determinations in this regard.
ID at 14-18.
¶19 When the appellant filed this appeal, 5 U.S.C. § 2302(b)(9)(D) made it a
prohibited personnel practice to take an action against an employee for “refusing
to obey an order that would require the individual to violate a law.” Here, the
appellant asserts that she engaged in protected activity when she refused to obey a
directive that would have required her to violate an agency regulation prohibiting
the purchase of promotional items with Government charge cards. PFR File,
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Tab 3 at 16-17. As the administrative judge properly explained, our reviewing
court held in Rainey that the protection in section 2309(b)(9)(D) extended only to
orders that would require the individual to take an action barred by statute.
Rainey, 824 F.3d 1359, 1361-62, 1364-65. Thus, under the law in effect at the
time this appeal was filed, the appellant’s claim—that she refused to follow a
directive that would have required her to violate an agency regulation—fell
outside the scope of section 2302(b)(9)(D). Id.¶20 On June 14, 2017, while this petition for review was pending before the
Board, the President signed into law the FTRA, which amended
section 2302(b)(9)(D) by inserting after the word “law” the words “rule or
regulation.” 131 Stat. at 861. Therefore, if the FTRA were to apply to pending
cases, the appellant’s claim that she disobeyed an order that would have required
her to violate an agency regulation would have fallen within the scope of
section 2302(b)(9)(D). The Board analyzed the retroactivity of the FTRA in
Fisher v. Department of the Interior, 2023 MSPB 11, ¶¶ 13-19, and found,
applying the test set forth by the U.S. Supreme Court in Landgraf v. USI Film
Products, 511 U.S. 244 (1994), that the FTRA did not apply to cases filed before
its enactment. Accordingly, we find that the appellant’s claim that the agency
retaliated against her for refusing to obey a directive that would have required her
to violate an agency regulation is outside the scope of section 2302(b)(9)(D) and
that, therefore, she failed to establish that she engaged in protected activity under
that section.
The administrative judge properly found that the appellant’s second alleged
disclosure or activity was not protected.
¶21 Reprisal for exercising a grievance or complaint right is a prohibited
personnel practice under 5 U.S.C. § 2302(b)(9). Specifically, section 2302(b)(9)
prohibits the taking or failing to take, or threatening to take or fail to take, “any
personnel action against any employee or applicant for employment because of—
(A) the exercise of any appeal, complaint, or grievance right granted by any law,
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rule, or regulation—(i) with regard to remedying a violation of paragraph [(b)](8);
or (ii) other than with regard to remedying a violation of paragraph [(b)](8).”
Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014).
However, the WPEA did not extend the Board’s jurisdiction to include retaliation
for an appellant’s filing of an EEO complaint that did not seek to remedy a
violation of (b)(8). See Young v. Merit Systems Protection Board, 961 F.3d 1323,
1329 (Fed. Cir. 2020) (explaining that the Board lacks jurisdiction in an IRA
appeal over claims of reprisal for EEO activity protected under
section 2302(b)(9)(A)(ii)); Mudd v. Department of Veterans Affairs, 120 M.S.P.R.
365, ¶ 7 (2013). Therefore, insofar as the appellant alleged that the agency took
personnel actions in reprisal for her having filed an EEO complaint with ORM,
the administrative judge correctly determined that the Board lacks jurisdiction to
consider such allegations in the context of this IRA appeal. Mudd, 120 M.S.P.R.
365, ¶ 7.
¶22 The appellant argues on review that the administrative judge misconstrued
the type of retaliation protected under section 2302(b)(9)(A)(i) and erred in
finding that she only asserted claims of race and age discrimination in her EEO
complaint. PFR File, Tab 3 at 15. Specifically, the appellant contends that her
EEO complaint was not limited to discrimination based on age and race and that
she also alleged that she was subjected to a hostile work environment based upon
“reprisal” for objecting to a violation of law, rule, or regulation. Id.¶23 However, the record reflects that the appellant did not specifically state in
her ORM complaint that her claim was based upon reprisal for objecting to a
violation of a law, rule, or regulation. IAF, Tab 1, Ex. C. Although her
complaint identifies the bases as race, age, and “reprisal (oppositional),” her
specific claims involve being shouted at by her supervisor, referred to as having
“act[ed] ghetto,” and being “isolated from her co-workers.” Id. Therefore, the
administrative judge properly found that the appellant’s allegations of EEO
reprisal failed to establish the Board’s jurisdiction over this alleged disclosure.
13
See, e.g., Horton v. Department of Veterans Affairs, 106 M.S.P.R. 234, ¶ 7 (2007)
(finding that the test of the sufficiency of an appellant’s charges of
whistleblowing to OSC is the statement that she makes in the complaint
requesting corrective action, not her post hoc characterization of those statements
before the Board).
The administrative judge properly found that the appellant’s third alleged
disclosure or activity was not protected.
¶24 At the outset, we note that the appellant has not challenged the
administrative judge’s determinations that she did not make a protected disclosure
to S.J. We have reviewed the administrative judge’s findings and discern no error
in this regard. Therefore, we affirm the administrative judge’s finding that the
appellant failed to show that her disclosure to S.J. was protected. ID at 21-24.
¶25 On review, it appears that the appellant may be arguing that the personnel
actions at issue in this appeal were proximate in time to her disclosure to S.J. and
that, thus, she established that her disclosure to S.J. was a contributing factor in
these personnel actions. PFR File, Tab 1 at 16-17. The appellant also appears to
argue that the administrative judge failed to address each of the alleged personnel
actions at issue. Id. However, because we find that the appellant did not show
that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), we need not
address either whether she showed that the personnel actions at issue constituted
personnel actions under 5 U.S.C. § 2302(a)(2)(A) or whether she showed that her
disclosures or activity were a contributing factor in those personnel actions. See,
e.g., Corthell, 123 M.S.P.R. 417, ¶ 8.
¶26 Similarly, it appears that the appellant may be arguing that the
administrative judge erred by failing to make a clear and convincing analysis.
PFR File, Tab 3 at 19-20. However, because the appellant failed to establish a
prima facie case of reprisal for whistleblowing, the burden did not shift to the
agency to prove by clear and convincing evidence that it would have taken the
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same personnel actions absent her whistleblowing. Scoggins v. Department of the
Army, 123 M.S.P.R. 592, ¶ 26 (2016). Therefore, we discern no error by the
administrative judge in not providing a clear and convincing analysis.
The appellant did not argue below that she was perceived as a whistleblower.
¶27 Finally, the appellant argues on review that the administrative judge failed
to address whether she was “perceived” as a whistleblower by the responsible
management officials. PFR File, Tab 3 at 17-19. However, the appellant failed to
raise this argument below, even after the administrative judge explicitly advised
her how to raise such a claim. IAF, Tab 3 at 5, Tab 4, Tab 12 at 4. Because the
appellant has not shown that her argument is based on new and material evidence
that she was unable to provide below despite her due diligence, we have not
considered it for the first time on review. Banks, 4 M.S.P.R. at 271.
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
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:
17
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. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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.