Rory C Flynn v. Securities and Exchange Commission ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RORY C. FLYNN, DOCKET NUMBER
Appellant, DC-1221-20-0215-W-3
v.
SECURITIES AND EXCHANGE DATE: November 14, 2024
COMMISSION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bruce Bettigole , New York, New York, for the appellant.
Laura Walker and James V. Blair , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as barred by the doctrine of
res judicata. Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. We VACATE the initial decision and DISMISS the appeal
based on adjudicatory efficiency.
BACKGROUND
¶2 The Securities and Exchange Commission (Commission) appointed the
appellant to the position of Associate General Counsel (Adjudication) in its
Office of General Counsel (OGC) effective August 12, 2012, subject to a 2 -year
trial period. Flynn v. Securities & Exchange Commission, MSPB Docket No. DC-
1221-14-1124-W-1 (1124 IRA Appeal), Appeal File (1124-W-1 IAF), Tab 27 at
5. On May 6, 2013, the agency terminated the appellant during his trial period,
citing poor performance, lack of professional judgment, and an inability to work
cooperatively with senior-level managers. 1124-W-1 IAF, Tab 16 at 23, 25-27.
¶3 As Associate General Counsel, the appellant headed OGC’s Adjudication
Practice Group, which drafted decisions on appeals to the Commission from
decisions issued by the Commission’s administrative law judges and by
self-regulatory organizations. 1124-W-1 IAF, May 19, 2015 Hearing Transcript
(5/19/15 HT) at 24, 41-43, 70 (testimony of the appellant). 2 The Commission’s
2
The hearing transcript is in a condensed format such that four pages of transcript
appear on each page. To avoid confusion and to be consistent with the administrative
3
regulation at 17 C.F.R. § 201.900, also known as “Rule 900,” provides guidance
for these appeals. A portion of the regulation, referenced to here as Rule 900(a),
provides “[g]uidelines for timely completion of proceedings.” 17 C.F.R.
§ 201.900(a)(1)(iii) (2015). 3 Another portion of the regulation, referred to here as
Rule 900(b), provides for “[r]eports to the Commission on pending cases,” (also
known as “900(b) reports”). 17 C.F.R. § 201.900(b) (2015). This portion of the
regulation directs that OGC submit “confidential status reports” regarding
“adjudicatory proceedings” to the Commission. Id. For matters not concluded
within 30 days of the deadlines set forth in Rule 900(a), OGC “shall specifically
apprise the Commission of that fact, and shall describe the procedural posture of
the case, project an estimated date for conclusion . . . , and provide such other
information as is necessary to enable the Commission to determine whether
additional steps are necessary to reach a fair and timely resolution of the
matter.” Id.¶4 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision in the 1124 IRA Appeal, denying the appellant’s request
for corrective action. 1124-W-1 IAF, Tab 128, Initial Decision at 1, 15 (1124-
W-1 ID). He found that the appellant did not meet his burden to prove his prima
facie case of whistleblower reprisal by preponderant evidence because he did not
prove that his disclosures were protected as possible allegations of a violation of
law, rule or regulation, or gross mismanagement. Id. at 6-16. Rather, he found
that the appellant disputed the agency’s policy decision not to comply with what
he concluded were discretionary guidelines in Rule 900. Id. at 14-15. The
judge’s initial decision, we have cited to the page numbers assigned by the court
reporter and not the Board’s numerical pagination.
3
The current version of Rule 900 became effective on September 27, 2016.
Amendments to the Commission’s Rules of Practice, 81 Fed. Reg. 50,212-01, 50,241-42
(July 9, 2016) (codified at 17 C.F.R. § 201.900). The current version of Rule 900(a)(1)
(iii) contains different timeframes, i.e., 8 and 10 months from the completion of
briefing, for timely completion of proceedings. Accordingly, all citations to “Rule 900”
refer to the earlier version of the rule that was in place at the time of the events giving
rise to this case. See 17 C.F.R. § 201.900 (2015).
4
appellant filed a petition for review of the initial decision, but the two Board
members could not agree on the disposition of the petition and the initial decision
therefore became the final decision of the Board. Flynn v. Securities & Exchange
Commission, MSPB Docket No. DC-1221-14-1124-W-1, Order (Sept. 1, 2016).
¶5 The appellant then sought review of the Board’s final decision in the 1124
IRA Appeal in the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit).
In December 2017, the Fourth Circuit issued a decision affirming the Board’s
finding that the appellant’s disclosures alleging violations of the agency’s Rule
900(a) were not protected. Flynn v. Securities & Exchange Commission, 877 F.3d
200, 205-06 (4th Cir. 2017). It also found that the appellant had waived his claim
that violation of Rule 900(a) evidenced gross mismanagement. Id. at 206 n. 3.
However, because the court found that the Board failed to fully consider whether
the appellant made protected disclosures alleging violations of Rule 900(b), it
remanded the 1124 IRA Appeal to the Board for further consideration of whether
the appellant’s Rule 900(b) disclosures were protected. Id. at 207-08.
¶6 While his 1124 IRA Appeal was pending before the Board, on December 6,
2019, the appellant filed the instant IRA appeal. Flynn v. Securities & Exchange
Commission, MSPB Docket No. DC-1221-20-0215-W-1, Initial Appeal File
(0215-W-1 IAF), Tab 1. In this second IRA appeal, the appellant alleged that the
agency terminated him during his probationary period because he disclosed that
the agency violated a 2003 policy memorandum that the Commission issued to
the agency’s then-General Counsel, G.P., (referred to interchangeably as the
“2003 Policy Memorandum” or the “G.P. Memorandum”), which was itself a
“rule” within the meaning of section 2302(b)(8)(A)(i). Id. at 52-54. He also
alleged that he reasonably believed that the agency’s failure to comply with Rule
900 and its related procedures evidenced gross mismanagement. Id. at 54-58.
¶7 The administrative judge notified the appellant of his burden to establish
jurisdiction over his IRA appeal. Flynn v. Securities & Exchange Commission,
MSPB Docket No. DC-1221-20-0215-W-2, Initial Appeal File (0215-W-2 AF),
5
Tab 5 at 2-8. The agency then moved to dismiss the instant appeal as barred by
the doctrine of res judicata, or alternatively by the doctrine of collateral estoppel.
0215-W-2 AF, Tab 31 at 8 n.3. Because the administrative judge determined that
his decision in the appellant’s 1124 IRA Appeal may be relevant to the issues
raised in the instant appeal, he dismissed the instant appeal without prejudice and
notified the parties that he would issue his decision in the instant appeal after
issuing his initial decision in the 1124 IRA Appeal. 0215-W-2 AF, Tab 40, Initial
Decision. The administrative judge then issued an initial decision in the
appellant’s 1124 IRA Appeal, denying the appellant corrective action based on
his finding that the appellant failed to establish that his disclosures concerning
Rule 900(b) violations were protected. Flynn v. Securities & Exchange
Commission, MSPB Docket No. DC-1221-14-1124-M-5, Appeal File (1124-M-5
AF), Tab 13, Initial Decision (1124-M-5 ID) at 27-37. The appellant then filed a
petition for review of the initial decision, and the Board has issued a separate
decision in that matter. 1124-M-5 Petition for Review (PFR) File, Tab 1; Flynn
v. Securities & Exchange Commission, MSPB Docket No. DC-1221-14-1124-M-
5, Remand Order (Nov. 14, 2024).
¶8 After the instant appeal was refiled, the administrative judge issued an
initial decision granting the agency’s motion and dismissing the appeal as barred
by the doctrine of res judicata. Flynn v. Securities & Exchange Commission,
MSPB Docket No. DC-1221-20-0215-W-3, Appeal File (0215-W-3 AF), Tab 4,
Initial Decision (ID) at 1, 13. In so finding, he determined that the instant appeal
is an identical cause of action with the same parties as the appellant’s 1124 IRA
Appeal because the appellant here alleged that his termination was retaliation for
disclosing violations of the G.P. Memorandum, which the appellant alleged in his
1124 IRA Appeal formed the basis of the agency’s obligations under Rule 900(a).
ID at 9-11. Moreover, he found that because the Board and the Fourth Circuit
found on the merits that the appellant failed to establish that his disclosures of
6
Rule 900(a) violations were protected, those determinations constituted final
judgments on the merits. ID at 10-13.
¶9 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, and the appellant has filed a reply.
PFR File, Tabs 4-5. The appellant has also filed a motion for leave to request a
status report, or alternatively a decision on his petition for review. PFR File,
Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
We find it appropriate to dismiss the appeal on the grounds of
adjudicatory efficiency.
¶10 On review, the appellant challenges the administrative judge’s finding that
his claim that his termination was retaliation for disclosing violations of the G.P.
Memorandum is barred by the doctrine of res judicata. PFR File, Tab 1 at 38-42.
The agency argues that the administrative judge correctly found that the
appellant’s claim is barred by res judicata; however, in the alternative, it reargues
that the appellant’s claim is also barred by the doctrine of collateral estoppel.
PFR File, Tab 4 at 12-13. For the reasons provided below, we find that neither
doctrine applies here, and instead find it appropriate to dismiss this appeal on the
grounds of adjudicatory efficiency.
This appeal is not barred by res judicata or collateral estoppel.
¶11 Res judicata precludes parties from relitigating issues that were, or could
have been, raised in the prior action and is applicable if: (1) the prior judgment
was rendered by a forum with competent jurisdiction; (2) the prior judgment was
a final judgment on the merits; and (3) the same cause of action and the same
parties or their privies were involved in both cases. Peartree v. U.S. Postal
Service, 66 M.S.P.R. 332, 337 (1995). The Board’s regulations define the issue
before the Board in an IRA appeal, or the cause of action, as whether the
appellant has demonstrated that whistleblowing or other protected activity was a
7
contributing factor in one or more covered personnel actions and, if so, whether
the agency has demonstrated by clear and convincing evidence that it would have
taken the same personnel action(s) in the absence of such whistleblowing or
protected activity. 5 C.F.R. § 1209.2(c). The Board has held that generally an
individual who appeals his removal directly to the Board is barred by res judicata
from bringing, after exhausting his administrative remedies, a second
whistleblower appeal challenging the same removal action. Ryan v. Department
of the Air Force, 113 M.S.P.R. 27, ¶ 13 (2009); see Sabersky v. Department of
Justice, 91 M.S.P.R. 210, ¶¶ 2-3, 7-8 (2002) (finding that an individual who
appeals his removal directly to the Board is barred by res judicata from bringing,
after exhausting the OSC process, an IRA appeal alleging that the same removal
action was motivated by whistleblower reprisal), aff’d per curiam, 61 Fed. Appx.
676 (Fed. Cir. 2003). Thus, the cause of action, or personnel action, at issue in
both the appellant’s IRA appeals is his probationary removal.
¶12 As the administrative judge noted, in the appellant’s 1124 IRA Appeal, he
alleged that he was removed in retaliation for his protected disclosures of
Rule 900(a) and (b) violations. ID at 2. In the instant appeal, the appellant
alleged that he was removed in retaliation for his protected disclosures of
violations of the G.P. Memorandum. ID at 5. The administrative judge found
that the cause of action in both appeals was identical because both concerned his
removal and the appellant alleged in his 1124 IRA Appeal that the
G.P. Memorandum formed the basis of the agency’s obligations under
Rule 900(a). ID at 9-11. He concluded that because the first administrative
judge’s initial decision found that the appellant’s Rule 900(a) and (b) disclosures
were not protected on the merits, after which that decision became the Board’s
final decision, and because the U.S. Court of Appeals for the Fourth Circuit
affirmed the finding as to the Rule 900(a) disclosures, then a final judgment on
the same cause of action had been rendered on the merits. ID at 10-11; Flynn,
877 F.3d at 205; Flynn, 123 M.S.P.R. 559, ¶ 1 (2016); 1124-M-4 AF, Tab 20,
8
Order at 5 (Mar. 31, 2022). We disagree. As explained above, although the
Fourth Circuit affirmed the issue that the appellant’s Rule 900(a) disclosures were
not protected on the merits, it ultimately remanded the 1124 IRA Appeal for a
determination of whether the appellant proved by preponderant evidence that he
made protected disclosures concerning the agency’s violation of Rule 900(b), and
if so, whether the agency proved by clear and convincing evidence that it would
have removed the appellant in the absence of his disclosures. Flynn, 877 F.3d at
207-08. Because res judicata requires a final decision on the merits, the doctrine
will not apply if the prior decision was remanded for further adjudication and thus
has not yet become final. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337
(1995).
¶13 Following remand proceedings, the administrative judge issued an initial
decision in July 2023 denying corrective action based on the appellant’s failure to
establish that his disclosures concerning the agency’s violation of Rule 900(b)
were protected. 1124-M-5 ID at 37. The appellant then timely filed a petition for
review of that initial decision. 1124-M-5 PFR File, Tab 1. Thus, although at the
time the administrative judge issued the instant initial decision in November 2023
he had already issued the initial decision in appellant’s 1124 IRA Appeal in July
2023, the appellant’s petition for review of that appeal was still pending before
the Board, and thus it was not a final judgment as to the appellant’s removal
cause of action. See 5 C.F.R. § 1201.113(c) (providing that an initial decision is
not a final decision if a petition for review is timely filed). Thus, the
administrative judge erred in applying res judicata. See McNeil v. Department of
Defense, 100 M.S.P.R. 146, ¶ 11 (2005) (holding that when an appellant files an
appeal that raises claims raised in an earlier appeal after the initial decision in the
earlier appeal has been issued, but before the full Board has acted on the
appellant’s petition for review, it is appropriate to dismiss the subsequent appeal
on the grounds of administrative efficiency, not on the grounds of collateral
estoppel or res judicata).
9
¶14 Moreover, we issued a Remand Order in the 1124 IRA Appeal, vacating the
administrative judge’s finding that the appellant did not establish that his
disclosures of Rule 900(b) violations were protected, and remanding the appeal
for a determination of whether the agency proved by clear and convincing
evidence that it would have removed the appellant in the absence of his
disclosures. Thus, because a final determination on the appellant’s same removal
cause of action has not been made, the doctrine of res judicata still does not apply
here. For this same reason, collateral estoppel would not apply to bar the instant
action. See Wade v. Department of the Air Force, 70 M.S.P.R. 396, 398 (holding
that collateral estoppel may only be applied when there is a final judgment in the
previous litigation), aff’d, 104 F.3d 375 (Fed. Cir. 1996) (Table). Nevertheless,
we find it appropriate to dismiss this appeal based on adjudicatory efficiency.
We dismiss the appeal on grounds of adjudicatory efficiency .
¶15 When an appellant files an appeal that raises the same claims raised in an
earlier appeal before the decision in the earlier appeal has become final, the
Board may dismiss the subsequent claims based upon adjudicatory efficiency.
Bean v. U.S. Postal Service, 120 M.S.P.R. 447, ¶ 5 (2013); Zgonc v. Department
of Defense, 103 M.S.P.R. 666, ¶ 6 (2006) (same), aff’d, 230 F. App’x 967 (Fed.
Cir. 2007). Appeals may be dismissed in the interest of adjudicatory efficiency
when an identity of issues exists and the controlling issues in the appeal will be
determined in a prior appeal. Kinler v. General Services Administration,
44 M.S.P.R. 262, 263 (1990). Thus, the remaining issue is whether the
appellant’s two IRA appeals raise the same claims. We find that they do.
¶16 The administrative judge found that the appellant’s allegation that his
disclosure of alleged violations of Rule 900(a) in his 1124 IRA Appeal was
identical to his allegation that he disclosed violations of the G.P. Memorandum in
this appeal because in his 1124 IRA Appeal the appellant claimed that the case
processing requirements described in the G.P. Memorandum formed the basis of
the agency’s obligations under Rule 900(a). ID at 9-10. As mentioned above, in
10
the 1124 IRA Appeal the Board and the Fourth Circuit determined that the
appellant’s disclosures that the agency violated Rule 900(a) by not issuing
decisions within the stated timeframes were not protected because the timeframes
were merely discretionary guidelines. 1124-W-1 ID at 13-16; Flynn, 877 F.3d
at 205-06. On review, the appellant challenges the administrative judge’s finding
below, arguing that the G.P. Memorandum “imposed mandatory obligations” that
“augment all of Rule 900, not just subsection (a),” and therefore, his disclosures
are not identical to his Rule 900(a) disclosures. PFR File, Tab 1 at 39. We agree
with the administrative judge that the appellant’s claim that the agency violated
the G.P. Memorandum is the same as his claim that the agency violated
Rule 900(a). For instance, Rule 900(a) contains “[g]uidelines for timely
completion of proceedings,” and the entire G.P. Memorandum discusses those
timeframes. The Memorandum states that in order to “complement” those
Rule 900(a) timeframes the Commission proposed “changes [that] must be made
to internal procedures to reduce the time for issuance of decisions,” including
shortening the time periods it provided to parties to brief an appeal, establishing
deadlines for OGC to submit the draft decision to the Commission, and imposing
a deadline on the Commission for issuing a final decision. 0215-W-1 IAF, Tab 1
at 82-85; 17 C.F.R. § 201.900(a)(1)(iii) (2015). In the 1124 IRA Appeal, in
support of his claim that Rule 900(a)’s timelines were mandatory, the appellant
testified that the G.P. Memorandum dictated current procedure under Rule 900(a)
and that it showed the Commission intended to move to mandatory deadlines after
the rule was amended in 2003. HT 5/19/2015 at 119-128 (testimony of the
appellant). For instance, in October 2012, when the appellant first made his
alleged disclosures to the Deputy General Counsel concerning the agency’s
violations of Rule 900(a)’s case processing timeframes, he attached the G.P.
Memorandum to his communication. 0215-W-1 IAF, Tab 89 at 36-40.
¶17 The appellant reargues on review that the G.P. Memorandum was not
considered in his 1124 IRA Appeal by the first administrative judge or by the
11
Fourth Circuit. 0215-W-3 ID at 12-13; PFR File, Tab 1 at 41-42. However, we
agree with the administrative judge that the first administrative judge considered
the appellant’s reliance on the G.P. Memorandum and implicitly found that the
agency had stopped following it sometime prior to the events at issue in this
appeal. 1124-W-1 ID at 8-11; 1124-W-1 IAF, May 20, 2015 Hearing Transcript
(5/20/15 HT) pt. 2 at 71 (testimony of the Deputy General Counsel); 4 1124-W-1
IAF, July 1, 2015 Hearing Transcript (7/1/15 HT) at 207-08 (testimony of K.K.)
at 267-68 (testimony of B.P.). Thus, we agree with the administrative judge’s
finding that the issue here is identical to that involved in the appellant’s
1124 IRA Appeal. Accordingly, we find it appropriate to dismiss this appeal on
grounds of adjudicatory efficiency. 5
¶18 Lastly, the appellant reraises his Appointments Clause and separation of
powers claims regarding the authority of the administrative judge. PFR File,
Tab 1 at 6, 14, 31-34. In the 1124 IRA Appeal, we acknowledged the appellant’s
arguments concerning these constitutional claims and declined to revisit them on
grounds that they were decided in the Board’s interlocutory decision. Flynn v.
Securities & Exchange Commission, 2022 WL 985827, ¶¶ 10-12. Accordingly,
we decline to consider these claims further.
NOTICE OF APPEAL RIGHTS 6
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
4
The transcript of the testimony from May 20, 2015, consists of two parts, both
containing the same pagination and located in the same tab of the record. Here, we
have cited to part 2 (pt. 2).
5
Based on our decision that res judicata does not apply, we need not consider the
appellant’s argument that the agency is judicially estopped from asserting res judicata
in this appeal. PFR File, Tab 1 at 36-38. Additionally, the appellant’s motion for a
status report or a decision on the petition for review is denied.
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.
12
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
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.
13
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
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
14
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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 petition for
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
15
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.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.