Katherine Fleming v. Department of the Interior

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHERINE L. FLEMING, DOCKET NUMBER
Appellant, AT-1221-11-0460-B-3
v.
DEPARTMENT OF THE INTERIOR, DATE: February 10, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Katherine L. Fleming, Homestead, Florida, pro se.
Vicki V. Mott, Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon 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 remand 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 remand initial decision contains erroneous findings of
material fact; the remand 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 remand 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 and AFFIRM the remand
initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective September 18, 2005, the agency appointed the appellant to a
GS-11 Museum Curator position with the agency’s National Park Service,
Everglades National Park (Everglades), for a term not to exceed October 17,
2006, subject to her completion of a 1-year trial period. Fleming v. Department
of the Interior, MSPB Docket No. AT-1221-11-0460-W-1, Initial Appeal File
(IAF), Tab 5, Subtab 4A. Effective June 24, 2006, the agency terminated the
appellant for unacceptable behavior and unsatisfactory performance. Id.,Subtabs 4B, 4C. After exhausting her remedies with the Office of Special
Counsel, the appellant filed an IRA appeal and requested a hearing, alleging that
her termination was in retaliation for protected whistleblowing activity. IAF,
Tab 1. In support of her appeal, the appellant identified 15 disclosures, including
her statement in a February 6, 2006 memorandum to her second-level supervisor
(who also was the deciding official in the termination action) that she and a
coworker had been exposed to toxic chemicals in October 2005 while painting
3
cannons at the Dry Tortugas National Park (Dry Tortugas) and that she had
suffered injuries. IAF, Tab 13, Tab 15, Subtab O.
¶3 Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction, finding that the appellant’s alleged disclosures either
were not protected or could not have been a contributing factor to the personnel
action. IAF, Tab 16, Initial Decision. The Board vacated the initial decision,
finding that the appellant had nonfrivolously alleged that her February 6, 2006
disclosure was protected and was a contributing factor to her termination under
the “knowledge/timing” test, thus establishing Board jurisdiction. The Board
therefore remanded the appeal for a hearing. Fleming v. Department of the
Interior, MSPB No. AT-1221-11-0460-W-1, Remand Order at 8-12 (Aug. 3,
2012); see Peterson v. Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 8
(2011) (stating that once an appellant establishes jurisdiction over his IRA
appeal, he is entitled to a hearing on the merits of his claim).
¶4 Following a hearing on remand, the administrative judge denied the
appellant’s request for corrective action, finding that the appellant’s February 6,
2006 disclosure was not protected because it revealed information that the
deciding official already knew. Fleming v. Department of the Interior, MSPB
No. AT-1221-11-0460-B-1, Remand File (B-1 RF), Tab 16, Remand Initial
Decision (B-1 RID) at 4. The administrative judge also found that, even
assuming that the disclosure was protected and was a contributing factor to the
appellant’s termination, the appellant was not entitled to corrective action
because the agency proved by clear and convincing evidence that it would have
terminated the appellant during her probationary period e ven in the absence of the
disclosure. B-1 RID at 4-6.
¶5 After the appellant challenged the administrative judge’s decision, the
Board vacated the remand initial decision, finding that, based upon the
Whistleblower Protection Enhancement Act of 2012, the appellant’s February 6,
2006 disclosure was protected even though it revealed information that the
4
deciding official already knew. Fleming v. Department of the Interior, MSPB
No. AT-1221-11-0460-B-1, Remand Order at 1, 4 (July 7, 2014) (B-1 Remand
Order). The Board also found that, in analyzing whether the agency met its clear
and convincing burden, the administrative judge improperly failed to evaluate the
appellant’s evidence and arguments that her supervisor’s assertions about her
performance and conduct were unreasonable, as well as any other evidence that
detracted from the agency’s claim that it terminated the appellant based only on
her performance. Id. at 6-7 (citing Whitmore v. Department of Labor, 680 F.3d
1353, 1368 (Fed. Cir. 2012) (holding that “[e]vidence only clearly and
convincingly supports a conclusion when it does so in the aggregate considering
all the pertinent evidence in the record, and despite the evidence that fairly
detracts from that conclusion”)). Accordingly, the Board remanded the appeal
again for a new determination as to whether the agency proved by clear and
convincing evidence that it would have terminated the appellant even in the
absence of her protected whistleblowing activity. B-1 Remand Order at 6-7.
¶6 Following another hearing on remand, the administrative judge denied the
appellant’s request for corrective action. Fleming v. Department of the Interior,
MSPB Docket No. AT-1221-11-0460-B-2, Remand File, Tab 11, Remand Initial
Decision (B-2 RID) at 1-2, 7. The administrative judge found that the appellant
showed that she made a protected disclosure and that her protected disclosure was
a contributing factor to her termination under the knowledge/timing test . B-2
RID at 3. The administrative judge further found, however, that the agency
showed by clear and convincing evidence that it would have taken the same
personnel action even in the absence of whistleblowing. B-2 RID at 3-7.
¶7 The Board agreed with the administrative judge that the agency had met its
clear and convincing burden and denied the appellant’s petition for review by
final order. Fleming v. Department of the Interior, MSPB Docket No. AT-1221-
11-0460-B-2, Final Order at 2, 11 (Sept. 22, 2015). The appellant filed a petition
for judicial review of the Board’s decision with the U.S. Court of Appeals for the
5
Federal Circuit. Fleming v. Department of the Interior, MSPB Docket
No. AT-1221-11-0460-L-1, Litigation File (LF), Tab 2. The Federal Circuit
affirmed the Board’s final decision in a nonprecedential opinion issued on May 9,
2016. Fleming v. Department of the Interior, 646 F. App’x 994 (Fed. Cir. 2016);
LF, Tab 6.
¶8 On July 15, 2016, the appellant obtained an audio recording of the second
hearing in her Board appeal, which captured a conversation between the
administrative judge and the court reporter during a pause in the hearing. LF,
Tab 8. Based on this conversation, in which the administrative judge expressed
his views on the strength of the appellant’s case, the appellant filed a motion with
the court requesting that it rescind its May 9, 2016 decision and reopen her case.
Id., Exhibit 5. On August 11, 2016, the Board filed a motion asking the court to
vacate its May 9, 2016 decision and remand the case to the Board for further
proceedings on the basis that the discussion between the administrative judge and
the court reporter could give the appearance of bias on the administrative judge’s
part. LF, Tab 9 at 6. The court granted the Board’s motion. Fleming v.
Department of the Interior, No. 2016-1247, slip op. (Fed. Cir. Aug. 30, 2016);
LF, Tab 11. On remand, the Board vacated its September 22, 2015 Final Order in
MSPB Docket No. AT-1221-11-0460-B-2 and remanded the case to a different
administrative judge in a different Board regional office for adjudication.
Fleming v. Department of the Interior, MSPB Docket No. AT-1221-11-0460-M-1,
Remand Order (Nov. 23, 2016); Fleming v. Department of the Interior, MSPB
Docket No. AT-1221-11-0460-B-3, Remand File (B-3 RF), Tab 1.
¶9 During a prehearing conference on remand, the appellant stated that she did
not want an additional hearing. B-3 RF, Tab 10, Remand Initial Decision (B-3
RID) at 2. Based on the written record, the administrative judge denied the
appellant’s request for corrective action, finding that the agency proved by clear
and convincing evidence that it would have terminated the a ppellant absent her
protected disclosure. B-3 RID at 14-15. The appellant has filed a petition for
6
review. Remand Petition for Review (RPFR) File, Tab 1. The agency has not
responded. 2
ANALYSIS
¶10 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider all of the relevant factors, including the
following (“Carr factors”): (1) the strength of the agency’s evidence in support
of its action; (2) the existence and strength of any motive to retaliate on the part
of the agency officials who were involved in the decision; and (3) any evidence
that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Soto v. Department of
Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 3 The Board does not view
2
About 4.5 years after the submission of her petition for review, the appellant has filed
what she titles a “Motion for leave to amend and supplement Petition for Review .”
RPFR File, Tab 4. In this motion, the appellant appears to reassert that the prior
administrative judge showed bias when he was overheard discussing the strength of the
appellant’s case with a court reporter; therefore, she argues that the Board should not
give deference to his credibility findings. Id. at 5-7. She also asserts that she has
amended and supplemental information demonstrating that the administrative judge
improperly evaluated the credibility of the witnesses and improperly weighed the
evidence that detracted from the agency’s claim that it terminated her based only on
her performance in violation of the requirements of Whitmore, 680 F.3d at 1368. Id.
at 7-8. Once the record closes on review, no additional evidence or argument will be
accepted unless it is new and material and was not readily available before the record
closed. Maloney v. Executive Office of the President, 2022 MSPB 26, ¶ 4 n.4; 5 C.F.R.
§ 1201.114(k). The appellant’s concerns about the prior administrative judge’s alleged
bias, credibility findings, and improper weighing of the evidence were already
addressed in the Board’s previous remand orders and resulted in the Board remanding
the case to a different administrative judge in a different office for adjudication. See
B-1 Remand Order at 6-7; B-3 RF, Tab 1. Thus, the information the appellant provides
is not new and concerns matters already addressed and resolved by the Board.
Accordingly, we deny the appellant’s motion.
3
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act (Pub. L. No. 115-195), appellants may file petitions for
7
the Carr factors as discrete elements, each of which the agency must prove by
clear and convincing evidence, but will weigh the factors together to determine
whether the evidence is clear and convincing as a whole. See Mithen v.
Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 36 (2015), aff’d, 652 F.
App’x 971 (Fed. Cir. 2016).
The strength of the agency’s evidence in support of the appellant’s termination.
¶11 Regarding the first Carr factor, the administrative judge reviewed the
relevant documentary evidence and hearing testimony, and determined that there
was strong evidence of the appellant’s conduct and performance deficiencies.
B-3 RID at 14. In making this determination, the administrative judge noted that
the appellant’s immediate supervisor testified in both hearings that the appellant’s
misconduct began shortly after she was hired, and the deciding official
corroborated the supervisor’s testimony that she first approached him with her
concerns about the appellant’s conduct at that time. B-3 RID at 5. The
appellant’s supervisor also described the appellant’s misconduct in great detail in
a January 13, 2006 4 memorandum to the deciding official proposing the
appellant’s termination, and in a January 26, 2006 memorandum to the appellant
proposing to suspend her for 3 days for failure to follow supervisory instructions. 5
IAF, Tab 15, Subtabs 4L, 4N. In her January 13, 2006 memorandum, the
judicial review of Board decisions in whistleblower reprisal cases with any circuit court
of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we must
consider these issues with the view that the appellant may seek review of this decision
before any appropriate court of appeal.
4
Due to an apparent typographical error, the memorandum is incorrectly dated
January 13, 2005. IAF, Tab 15, Subtab 4L.
5
As explained in the remand initial decision, after consulting with the agency’s Human
Resources department, the deciding official determined t hat termination was too drastic
and advised the appellant’s supervisor to propose suspending the appellant for her
misconduct, in the hopes of correcting it. B-3 RID at 6. Accordingly, the appellant’s
supervisor proposed a 3-day suspension, which the deciding official mitigated to a
2-day suspension by letter dated April 26, 2006, after considering the appellant’s
written and oral replies. IAF, Tab 15, Subtabs 4N, 4O, 4S.
8
appellant’s supervisor stated that the appellant was insubordinate, failed to follow
instructions, listened selectively, and ignored requests for information. Id.,Subtab L at 1. She also asserted that the situation had become “untenable” and
that the appellant’s presence was counterproductive to the museu m program. Id.
at 1-2. In her January 26, 2006 memorandum, the appellant’s supervisor cited
numerous examples of the appellant’s alleged misconduct, including the
appellant’s failure to provide her supervisor information for the appellant’s
performance plan, her failure to come to the supervisor’s office when requested,
and her failure to use the format for an inventory project that her supervisor had
requested. IAF, Tab 15, Subtab 4N.
¶12 Moreover, the record shows that the appellant’s misconduct continued even
after the agency notified her of its decision to suspend her for it. As noted by the
administrative judge, both the appellant’s supervisor and the deciding official
testified that, after the agency issued the 2-day suspension, her supervisor
notified the deciding official that the appellant continued to exhibit conduct and
performance issues, including an apparent inability to make adequate progress on
a project to reduce an archival backlog. B-3 RID at 8.
¶13 In addition, the appellant’s supervisor’s concerns about the appellant’s
conduct and performance were shared by an experienced archivist from another
National Park, who reviewed the appellant’s work at the deciding official’s
request. B-3 RID at 8. Following a 5-day site visit to Everglades in May 2006,
the archivist provided an assessment of the appellant’s conduct and performance
in reports issued on May 31 and June 8, 2006. IAF, Tab 5, Subtab 4F at 3-4; B-1
RF, Tab 7, Subtab 13 at 12-16. In her June 8 report, the archivist stated that the
appellant “seem[ed] to want to work in a vacuum” and was resistant to taking
direction and imparting information. IAF, Tab 5, Subtab 4F at 3-4. The archivist
also expressed concern that the Everglades might lose funding due to the
appellant’s slow rate of progress on the archival project. Id. at 4.
9
¶14 In analyzing the strength of the agency’s evidence in support of the
appellant’s termination, the administrative judge also properly considered the
appellant’s arguments, which she reiterates on review, that her conduct and
performance were satisfactory and that any problems with her conduct or
performance are attributable to the stress of working in the hostile environment
that her supervisor created. B-3 RID at 12-13; RPFR File, Tab 1 at 10-11, 19, 22,
24-27. The administrative judge rejected this argument, finding that the deciding
official had strong reasons to credit the supervisor’s account of the appellant’s
conduct and performance problems and their potential impact on the agency’s
mission, especially after her account was closely corroborated in key respects by
an independent archivist. B-3 RID at 13.
¶15 The appellant challenges this finding on review and argues that the
archivist’s evaluation was not an independent assessment of he r work. RPFR
File, Tab 1 at 25. The appellant alleges that the archivist was apparently someone
her supervisor knew and that the agency asked the archivist to review the
appellant’s performance as part of a continuing effort to intimidate her and collect
negative evidence to terminate her. Id. The appellant offers no evidence to
support these bare allegations, and we find that the archivist’s reports strongly
support the agency’s decision to terminate the appellant.
¶16 Based on our review of the record, we agree with the administrative judge
that the evidence in support of the agency’s decision to terminate the appellant
was strong. B-2 RID at 14. The record shows that the appellant’s conduct issues
began shortly after she was hired and continued unabated throughout her 9 -month
tenure with the agency. These deficiencies are set forth in great detail in the
appellant’s supervisor’s memoranda of January 13 and 26, 2006, the archivist’s
reports of May 31 and June 8, 2006, and the deciding official’s June 12, 2006
letter notifying the appellant of his decision to terminate her . IAF, Tab 5,
Subtabs 4B, 4L, 4N; B-1 RF, Tab 7, Subtab 13 at 12-16. Moreover, as noted in
the remand initial decision, during both hearings, the appellant’s supervisor and
10
the deciding official confirmed the statements in the decision letter describing the
appellant’s ongoing conduct and performance issues, and they consistently
testified that these issues were the sole reason for her termination. B-3 RID
at 12. While the appellant clearly disagrees with the administrative judge’s
assessment of the strength of the evidence in support of her termination, she has
shown no reason to overturn his well-reasoned findings.
The existence and strength of any motive to retaliate on the part of agency
officials who were involved in the decision.
¶17 Regarding the second Carr factor, we have found that “[t]hose responsible
for the agency’s performance overall may well be motivated to retaliate even if
they are not directly implicated by the disclosures . . . as the criticism reflects on
them in their capacities as managers and employees.” Wilson v. Department of
Veterans Affairs, 2022 MSPB 7, ¶ 65 (quoting Whitmore, 680 F.3d at 1370);
Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29 (same). The
administrative judge recognized that, given their role as representatives of the
agency’s general institutional interests, the appellant’s supervisor and the
deciding official may have had a motive to retaliate against the appellant. B-3
RID at 14. The administrative judge found, however, that the record did not
contain any affirmative evidence that these officials had a motive to retaliate. Id.We agree that, while these agency officials may have had some motive to
retaliate, the record does not reflect that any such motive was strong. In
particular, the administrative judge found that neither the appellant’s supervisor
nor the deciding official was implicated in the appellant’s disclosure of alleged
safety violations at Dry Tortugas in October 2005, as it is undisputed that the
appellant’s supervisor was not responsible for the cannon painting project, which
was under the command of a separate National Park authority. ID at 14 n.1.
¶18 On review, the appellant alleges that the administrative judge’s
determination that her supervisor was not responsible for the cannon painting
project “belies the facts.” RPFR File, Tab 1 at 17. The appellant claims that,
11
although an official from a different park was responsible for overseeing the
proper treatment of the cannons, her supervisor was “in charge,” as she ordered
the materials for the project, issued work assignments and schedules, and
supervised the Everglades employees working on the project. Id. Even assuming
arguendo that the appellant’s disclosure implicated the appellant’s supervisor to
some extent, we find that the strong evidence in support of the agency’s action
outweighed any possible motive to retaliate on the part of the agency of ficials
who were involved in terminating the appellant.
Evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated.
¶19 As to the third Carr factor, the administrative judge found that there was no
evidence that the agency treated nonwhistleblowing employees differently than
the appellant for similar conduct. B-3 RID at 14. He noted that the only
evidence pertaining to the treatment of similarly situated nonwhistleblowing
employees was the appellant’s contention that her supervisor subjected a
nonwhistleblowing coworker to the same kind of mistreatment that she allegedly
received. Id. The administrative judge found that such evidence indicates that
the appellant’s supervisor’s supervisory depredations were unrelated to the
appellant’s whistleblowing. Id.¶20 The appellant challenges this finding on review, arguing that the
supervisor’s mistreatment of her nonwhistleblowing coworker does not reveal
anything about her supervisor’s motives; only that she was vindictive and highly
likely to retaliate against those whom she supervised. RPFR File, Tab 1 at 21-22.
The key issue in this appeal, however, is not whether the appellant’s supervisor
mistreated the appellant, but whether the alleged mistreatment occurred in
retaliation for the appellant’s whistleblowing activity. Assuming that the
appellant’s allegations that her supervisor mistreated both her and her
nonwhistleblowing coworker are true, such mistreatment indicates that the
supervisor treated her employees poorly regardless of whether they were
12
whistleblowers, i.e., that her purported mistreatment of the appellant was not
based on her whistleblowing. Thus, we agree with the administrative judge’s
analysis of the third Carr factor.
¶21 In sum, although agency officials involved in the termination decision may
have had some motive to retaliate against the appellant for her protected
disclosure, the evidence in support of the decision to terminate her was strong and
there is no evidence that the agency treated nonwhistleblowing employees
differently for similar misconduct. Therefore, we agree with the administrative
judge that the agency established by clear and convincing evidence that it would
have terminated the appellant even in the absence of he r February 6, 2006
disclosure. B-3 RID at 14. Accordingly, we affirm the remand initial decision
denying the appellant’s request for corrective action. 6
NOTICE OF APPEAL RIGHTS 7
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 righ ts, 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.
6
We have reviewed the relevant legislation enacted during the pendency of this app eal
and have concluded that it does not affect the outcome of the appeal.
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
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
14
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. ____ , 137 S. Ct. 1975 (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, th e
address of the EEOC is:
15
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. 8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.