Elizabeth Emond v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH A. EMOND, DOCKET NUMBER
Appellant, DC-831M-12-0383-A-1
v.
OFFICE OF PERSONNEL DATE: August 4, 2022
MANAGEMENT,
Agency,
and
JANICE BURNS,
Intervenor.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John J. Rigby, Esquire, Arlington, Virginia, for the appellant.
Cynthia Reinhold, Washington, D.C., for the agency.
Rebecca Wade, Esquire, Alexandria, Virginia, for the intervenor.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The agency has filed a petition for review of the addendum initial decision,
awarding the appellant attorney fees in the amount of $105,568.80, sought in
connection with her appeal in which she challenged decisions of the Office of
Personnel Management (OPM) that she had been overpaid in former spouse
survivor annuity benefits and that she was not entitled to waiver of collection of
the overpayment. For the reasons discussed below, we GRANT OPM’s petition
for review in part and AFFIRM the addendum initial decision AS MODIFIED,
reducing the award to $85,047.45. Except as expressly MODIFIED by this Final
Order, we AFFIRM the addendum initial decision.
BACKGROUND
¶2 When her former spouse, Mr. Burns, died in 2008, the appellant sought a
survivor benefit based on his Federal service and pursuant to a final decree of
divorce entered into on March 24, 1989, awarding her a for mer spouse retirement
annuity. Emond v. Office of Personnel Management, MSPB Docket
No. DC-831M-12-0383-I-1, Initial Appeal File (I-1 IAF), Tab 4 at 96. OPM
honored the court order and granted the appellant a former spouse survivor
annuity under the Civil Service Retirement System. Id. at 92. On the same day,
OPM advised Mr. Burns’ mother that she was not eligible for survivor benefits as
a result of her son’s death because the appellant, as a former spouse, was entitled
to monthly annuity payments. Id. at 69. The executor of Mr. Burns’ estate
subsequently submitted a certified copy of a final decree of divorce between the
appellant and Mr. Burns, also entered into on March 24, 1989, which differed
from the decree the appellant had submitted in that it did not contain any
language awarding the appellant a survivor annuity, id. at 71-76, and, based on
that decree, Mr. Burns’ mother again sought benefits, id. at 68. On May 26,
2010, OPM issued one decision advising the appellant that, based on the
additional documentation it had received, she was not eligible for a former spouse
3
survivor annuity, id. at 54, and another stating that, accordingly, she had been
overpaid in the amount of $62,739.96, I-1 IAF, Tab 1 at 65-66. In its
reconsideration decision, OPM explained that, based on the certified copy of the
final divorce decree it had received from the court, which did not award the
appellant a survivor annuity, she must return to the Retirement Fund all monies
paid her, I-1 IAF, Tab 4 at 10, and further that, unless she could present
indisputable evidence that the court order she provided was auth entic, OPM could
not honor it, id. at 12. OPM also advised the appellant that she was not totally
without fault in the matter and that, therefore, she did not meet the eligibility
requirements for waiver of collection of the overpayment. Id.¶3 On appeal, the appellant argued that the copy of the divorce decree she
submitted was certified on August 6, 2002, and that there was no information to
indicate that it was in any way invalid. I-1 IAF, Tab 1 at 17. The administrative
judge agreed and reversed OPM’s reconsideration decision. Emond v. Office of
Personnel Management, MSPB Docket No. DC-831M-12-0383-I-2, Appeal File,
Tab 4, Initial Decision (I-2 ID) at 1, 8. Notwithstanding the conflicting order that
the executor of Mr. Burns’ estate had submitted, the administrative judge found
that there was no evidence whatsoever that the appellant’s certified copy was
invalid or in any way illegitimate, that she was entitled to a former spouse
survivor annuity, and that therefore no overpayment had occurred. I -2 ID at 5.
¶4 On petition for review, OPM argued that the administrative judge erred by
not requiring the appellant to prove her entitlement to the benefit she sought and
in not examining or inquiring into the best evidence of the authenticity of
documents. Emond v. Office of Personnel Management, MSPB Docket
No. DC-831M-12-0383-I-2, Petition for Review (I-2 PFR) File, Tab 1.
Determining that the record was not fully developed on the issue of which copy of
the court decree was invalid, the Board directed OPM to obtain an order from the
state court specifically declaring that either the copy of the decree submitted by
the appellant, or the one submitted by Mr. Burns’ estate, was invalid. I-2 PFR
4
File, Tab 11. OPM submitted a number of documents, which it argued
established that the appellant was not awarded a former spouse survivor annuity,
but it did not submit a definitive order from the state court, as directed by the
Board. I-2 PFR File, Tab 14
¶5 The Board determined that the rights and interests of Mr. Burns’ estate
could be affected by the decision in this case and afforded the executor the right
to participate in the appeal as an intervenor. I-2 PFR File, Tab 16. Subsequently,
Mr. Burns’ mother died, and her daughter filed a motion to intervene in the
proceedings. I-2 PFR File, Tab 18. The Board granted the request, ordering the
intervenor to file an order from the state court declaring that the copy of the
divorce decree submitted by the appellant as the basis for her survivor annuity
was invalid or had been set aside. I-2 PFR File, Tab 20. Ultimately, the
intervenor submitted a true, certified copy of an order signed by a judge of the
Circuit Court of Fairfax County, Virginia, after a hearing, finding that the
“alleged Final Decree of Divorce” that was “allegedly ce rtified” by the court on
August 6, 2002 (the copy originally submitted to OPM by the appellant) “is not a
true and accurate copy of this court’s true Order” and that the final decree of
divorce (the copy originally submitted by the executor of Mr. Burns’ e state, by
OPM during these proceedings, and by the intervenor) “is a true and accurate
copy of this Court’s final order and should be given full faith and credit and
enforced as an order of this Court.” I-2 PFR File, Tab 28 at 46-47, 58-61, 63-66.
¶6 Based on this evidence, the Board vacated the administrative judge’s
finding regarding the validity of the decree submitted by the appellant and
affirmed OPM’s reconsideration decision finding that, because she was not , in
fact, eligible for the former spouse survivor annuity she had received, she had
been overpaid. Emond v. Office of Personnel Management, MSPB Docket
No. DC-831M-12-0383-I-2, Final Order at 8 (June 25, 2015). The Board
remanded the appeal for further adjudication, however, directing OPM to prove
by preponderant evidence not only the existence, but also the amount, of the
5
overpayment, and also to consider the issue regarding waiver of collection of the
overpayment. Id. at 8-9. On remand, the administrative judge found it
undisputed that the amount of the overpayment was $62,739.96, Emond v. Office
of Personnel Management, MSPB Docket No. DC-831M-12-0383-B-1, Remand
File (RF), Tab 16, Remand Initial Decision (RID) at 2-3, but that the appellant
was without fault because she performed no act of commission or omission which
resulted in the overpayment, 5 C.F.R. § 831.1402, and that recovery was against
equity and good conscience because repayment would cause her financial
hardship. RID at 4-5. As such, the administrative judge reversed OPM’s decision
denying the appellant’s request for waiver of the overpayment. RID at 5. The
remand initial decision became the Board’s final decision on November 13, 2015,
when neither party filed a petition for review.
¶7 The appellant then filed a timely motion for attorney fees and costs incurred
beginning in March 2010 when it first appeared that her continued right to the
former spouse survivor annuity she was receiving might be in jeopardy, t hrough
the period when the Board decided that she was not, in fact, entitled to the
annuity and had received an overpayment, and continuing until October 2015
when the administrative judge issued the remand initial decision reversing OPM’s
reconsideration decision denying the appellant’s request for waiver of the
overpayment. Emond v. Office of Personnel Management, MSPB Docket
No. DC-831M-12-0383-A-1, Attorney Fees File (AFF), Tabs 1-2. The appellant
sought fees at hourly rates ranging from $465 in 2010 to $568 in 2015, 2 AFF, Tab
1 at 39-40, plus costs, for an award of $61,019.74, which, she contended,
2
For his work beginning in February 2014, and consistent with the retainer agreement,
the appellant’s counsel sought rates under the Laffey Matrix for each period of time at
issue. AFF, Tab 1 at 28-29, 39-40, 80. The Laffey Matrix is a schedule maintained by
the United States Attorney’s Office in the District of Columbia that purports to show
market rates for attorneys in the District of Columbia in cases where a statute permits
the prevailing party to recover “reasonable” attorney fees . Rumsey v. Department of
Justice, 123 M.S.P.R. 502, ¶ 17 n.6 (2016), rev’d and remanded on other grounds by
Rumsey v. Department of Justice, 866 F.3d 1375 (Fed. Cir. 2017).
6
represented time spent through the decision by the administrative judge after
remand by the Board, id. at 40. Subsequently, the appellant submitted a
supplemental motion in the amount of $13,178.91 at the $568 hourly rate for fees
and costs incurred in preparing the fee motion, AFF, Tab 4, and a second
supplemental motion in the amount of $6,532.00 at the $568 rate for fees and
costs incurred in responding to OPM’s opposition to the fee motion and its
request for a time extension, AFF, Tab 10. Finally, the appellant submitted
another motion in the amount of $4,316.80 for fees at the $568 rate and costs
incurred in responding to an order of the administrative judge. 3 AFF, Tab 15. In
response, the agency conceded that the appellant was a prevailing party, that an
attorney-client relationship existed, and that fees were incurred, but it argued that
fees were not warranted in the interest of justice and that, even if they were, the
amount requested was not reasonable. AFF, Tab 8.
¶8 In an addendum initial decision based on the written record, the
administrative judge granted the appellant’s request for fees in full. AFF, Tab 16,
Addendum Initial Decision (AID) at 2, 5. The administrative judge found that an
attorney-client relationship existed in connection with the Board appeal and that
the appellant was the prevailing party. AID at 3. The administrative judge then
found that fees were warranted in the interest of justice, first because the
appellant was substantially innocent of the charges, given the administrative
judge’s finding that she was without fault in creating the overpayment, and
second because OPM knew or should have known that it would not prevai l on the
merits, given that it had reversed itself, without explanation, regarding the
3
With this motion, the appellant also revised upward her request for fees incurred
through the decision of the administrative judge, after remand by the Board, from
$61,019.74 to $81,541.09, making the total requested $105,568.80. AFF, Tab 12. We
will address later in this decision the appellant’s basis for, and the reasonableness of,
the increase in this request.
7
appellant’s fault 4 and also had violated an order compelling discovery during the
remand proceeding. AID at 3-4. As for the reasonableness of the fees requested,
the administrative judge found that the yearly increases in the hourly rates were
provided for in the retainer agreement and were reasonable, AID at 4, as were the
number of hours claimed, AID at 4-5.
¶9 The agency has filed a petition for review arguing solely that fees are not
warranted in the interest of justice, Petition for Review (PFR) File, Tab 1 at 4,
and the appellant has responded in opposition, PFR File, Tab 3.
ANALYSIS
¶10 In retirement appeals, the most relevant categories for determining if an
attorney fee award is warranted in the interest of justice are whether OPM knew
or should have known when it issued its reconsideration decision that it would not
prevail on appeal and whether OPM’s action was clearly without merit. See
Goldbach v. Office of Personnel Management, 49 M.S.P.R. 9, 14-15 (1991);
Kent v. Office of Personnel Management, 33 M.S.P.R. 361, 365-69 (1987).
Fees are warranted in the interest of justice because the agency knew or should
have known that, regarding the issue of waiver, it would not prevail on the mer its.
¶11 In arguing that the administrative judge erred in finding that fees are
warranted under the “knew or should have known” standard, OPM submits that,
when it issued its reconsideration decision, it had reasonable grounds to deny the
appellant’s application for a former spouse survivor annuity and to find that she
was not without fault in creating the overpayment. PFR File, Tab 1 at 21. A
determination that an award is warranted under the “knew or should have known”
standard requires an evaluation of the record before OPM when the
reconsideration decision was made. Goldbach, 49 M.S.P.R. at 19. In determining
if an award is merited under this category, the Board considers whether OPM was
4
In an earlier reconsideration decision, OPM had found that the appellant was not at
fault in causing or contributing to the overpayment. I-1 IAF, Tab 1 at 88.
8
negligent in processing the application, lacked a reasonable or su pportable
explanation for its position, or ignored clear, unrebutted evidence that the
appellant satisfied the criteria for a benefit. See Stewart v. Office of Personnel
Management, 70 M.S.P.R. 544, 548 (1996). The position OPM took in its
reconsideration decision denying the appellant’s request for waiver of the
overpayment was that there was evidence in the file that showed the divorce
decree she had submitted might have been altered for her to claim entitlement to a
survivor annuity benefit and that, therefore, she was not totally without fault in
the matter. RF, Tab 4 at 13. As the administrative judge found, however, there
was no evidence in the file OPM submitted suggesting that the appellant altered
the divorce decree. AID at 3-4. To the extent that such evidence existed, OPM
failed to provide it and failed as well to respond to the appellant’s discovery
request. 5 RF, Tab 12. Further, when the administrative judge ordered OPM to
respond fully, granting the appellant’s motion to compel, RF, Tab 13, the agency
indicated that the file it had earlier submitted was fully responsive to the
appellant’s discovery request, RF, Tab 14 at 6. In addition, the appellant
steadfastly urged that the copy of the divorce decree she submitted was provided
to her by her late husband and was certified by the court, that, based on that
decree, she believed she was entitled to the former spouse survivor annuity
benefit, and that she was unaware of any other version of the decree until
Mr. Burns’ mother submitted her copy. RF, Tab 15 at 28-31. The administrative
judge found that OPM offered no evidence to contradict the appellant’s sworn
version of the facts. RID at 4.
¶12 Under the circumstances, we therefore agree with the administrative judge
that, because OPM failed to show, at the time it issued its reconsideration
decision on waiver, that it had a reasonable explanation for its position regarding
the appellant’s alleged alteration of the divorce decree, it knew or should have
5
The appellant sought all documents regarding communications between individuals in
OPM’s Reconsideration Branch concerning her. RF, Tab 12.
9
known that it would not prevail on the merits of the waiver issue and that
therefore fees are warranted in the interest of justice. 6
¶13 As noted, OPM does not challenge on review the hourly rates charged by
the appellant’s counsel over the years of litigation or the hours expended.
PFR File, Tab 1 at 4. We find that the detailed and thorough billing records
submitted by the appellant’s counsel are not duplicative, padded, or excessive.
AFF, Tabs 1, 4, 10, 15. This includes time spent preparing the fee request,
Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662, ¶ 30 (2011), and replying to
OPM’s opposition and request for an extension of time and to the administrative
judge’s order. OPM does, however, argue that fees should be reduced based on
the appellant’s limited success in the litigation. We agree.
The fees awarded should be reduced to account for the appellant’s limited success
in this litigation.
¶14 In this case, the appellant’s original challenge was to OPM’s decision
finding that, although she had received a former spouse survivor annuity for a
period of time, she was not eligible for it. As to that matter, she was ultimately
not successful. The appellant also challenged OPM’s decision finding that,
6
As noted, the administrative judge also found that fees are warranted in the interest of
justice because the appellant was substantially innocent. AID at 3 -4. The actual
category provides that an attorney fee is warranted in the interest of justice when the
action was clearly without merit or wholly unfounded, or the employee was
substantially innocent of the charges. Allen v. U.S. Postal Service, 2 M.S.P.R. 420,
433-35 (1980). However, the Board has excluded the substantial innocence subcatego ry
of this category from consideration in retirement-related appeals because the concept of
innocence does not apply when no charges of misconduct are leveled against the
individual seeking retirement benefits. Simmons v. Office of Personnel Management,
31 M.S.P.R. 559, 565 (1986). In any event, the Board has held that, once it finds that
fees are warranted in the interest of justice under one Allen category, it need not
consider whether fees are warranted under other Allen categories. Gensburg v.
Department of Veterans Affairs, 80 M.S.P.R. 187, ¶ 17 (1998). Therefore, to the extent
the administrative judge erred in finding that fees are warranted in the interest of justice
because the appellant was substantially innocent, any such error did not prejudice her
substantive rights. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984).
10
having received an overpayment, she was not eligible for waiver, and as to that
matter, she was successful. As such, the appellant received partial, but not full,
relief.
¶15 When a prevailing party makes more than one claim for relief, and the
claims involve a common core of facts or are based on related legal theories, the
fee determination should reflect the overall relief obtained in relation to the hours
reasonably expended. Guy v. Department of the Army, 118 M.S.P.R. 45, ¶ 19
(2012). In a case in which the party seeking fees obtains only “partial or limited”
success, the tribunal awarding fees has discretion to make an equitable adjustment
as to what adjustment is appropriate. Hensley v. Eckerhart, 461 U.S. 424, 436-37
(1983); Guy, 118 M.S.P.R. 45, ¶¶ 19-20. In making an equitable adjustment of
attorney fees on account of a prevailing party’s partial or limited success, the
tribunal may adjust downward the “lodestar,” the hours reasonably spent on the
litigation multiplied by a reasonable hourly rate, by identifying specific hours that
should be eliminated or, in the alternative, by reducing the overall award to
account for the limited degree of success. Hensley, 461 U.S. at 433, 436-37;
Guy, 118 M.S.P.R. 45, ¶¶ 8, 20. The former method should be used when it is
practicable to segregate the hours devoted to any related but unsuccessful claims ;
if that method is not practicable, then a percentage reduction should be imposed.
Guy, 118 M.S.P.R. 45, ¶ 20.
¶16 On review, the agency argues that, because the appellant initially sought
relief from OPM’s denial of her claim for a former spouse survivor annuity, no
fees should be awarded for time expended prior to June 25, 2015, since on that
date the Board issued its decision denying her claim and finding that she was not,
in fact, entitled to that benefit. PFR File, Tab 1 at 14-16. In response, the
appellant contends that portion of the litigation also included consideration of the
issue of whether she was at fault in creating and/or receiving the overpayment , an
11
issue that also is critical in determining if she would have to pay it back. 7 PFR
File, Tab 3 at 9-10. The appellant’s claim is borne out by the record. For
example, in the appellant’s September 16, 2010 request for reconsideration of
OPM’s decision finding that she was not entitled to a former spouse survivor
annuity, she argued that, if OPM did not agree that she was entitled to the
annuity, then repayment was inappropriate and waiver legally required under the
circumstances. I-1 IAF, Tab 1 at 37-42, 50-60. OPM, in its February 27, 2012
reconsideration decision, addressed both issues. I-1 IAF, Tab 4 at 10-12. On
appeal, the administrative judge determined that the sole issues were whether
there was an overpayment and, if so, whether the appellant was entitled to waiver,
I-2 IAF, Tab 8 at 3, and, in his initial decision finding that she was entitled to a
former spouse survivor annuity and therefore was not overpaid , the administrative
judge further found that, even if there was an overpayment, the appellant was
entitled to waiver based on financial hardship, I-2 ID at 4-8.
¶17 We therefore agree with the appellant that both matters were at issue such
that, as stated in his declaration, counsel’s efforts pertained to both matters until
the Board issued its decision on June 25, 2015. AFF, Tab 1 at 21-23.
Nevertheless, it is not practicable to segregate the hours devoted to the
appellant’s unsuccessful challenge to OPM’s denial of her request for a former
spouse survivor annuity from the hours devoted to her successful claim for waiver
of the overpayment. Therefore, we find it appropriate to reduce the overall award
to account for the appellant’s limited degree of success. Hensley, 461 U.S.
at 436-37; Guy, 118 M.S.P.R. 45, ¶ 20. In so doing, we acknowledge that the
Supreme Court has further addressed this issue post-Hensley, for example,
cautioning against “double counting” factors by adjusting the lodestar figure
where the results obtained are fully reflected in the reasonable hourly rate of the
7
To be entitled to waiver of an overpayment, the appellant is required to show that she
was without fault in creating the overpayment and that recovery would be against equity
and good conscience. 5 C.F.R. § 831.1401.
12
attorneys and the reasonable number of hours expended. Blum v. Stenson,
465 U.S. 886, 899-900 (1984). In Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
552-53 (2010), the Court reaffirmed that adjustments to the lodestar may be made
only in “rare” and “exceptional” circumstances and that adjustments are
warranted only where the lodestar figure fails to take into account a relevant
consideration that is not subsumed therein.
¶18 In the instant case, the lodestar figure, which we have not disturbed, fails to
take into account that, while the appellant did succeed in not having to pay back
the money she improperly received as Mr. Burns’ former spouse, on the issue
which formed the basis for her appeal at the outset, her entitlement to maintain
the former spouse survivor annuity she had been receiving, she was not
successful. Because the lodestar figure does not take into account this relevant
consideration, we find that this case presents an exceptional circumstance such
that the factor “amount involved and results obtained” should be considered as a
basis for departure from the lodestar figure. Bywaters v. United States, 670 F.3d
1221, 1230 (Fed. Cir. 2012). We therefore find it equitable to reduce by half the
amount of fees requested for the time spent by counsel before June 25, 2015, and
award the appellant $61,019.74 for this time. 8
¶19 As discussed previously, the appellant is also entitled to $13,178.91 for
preparation of the fee motion, $6,532.00 for responding to OPM’s motions, and
$4,316.80 for responding to the administrative judge’s order. Thus, the appellant
is entitled to a total award of $85,047.45.
8
In fact, the appellant originally sought recovery for only half of the attorney fees and
expenses for the first part of the case, before remand, in “an exercise of billing
judgment,” AFF, Tab 1 at 22, although she subsequently reconsidered he r positon on
this point and requested the full attorney fees and expenses for this part of the case,
AFF, Tab 15 at 11.
13
ORDER
We ORDER the agency to pay the attorney of record $85,047.45 in fees
and costs. The agency must complete this action no later than 20 days after the
date of this decision. See generally title 5 of the United States Code, section
1204(a)(2) (5 U.S.C. § 1204(a)(2)).
We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Orde r and of the
actions it took to carry out the Board’s Order. We ORDER the appellant and the
attorney to provide all necessary information that the agency requests to help it
carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant or the attorney
that it has fully carried out the Board’s Order, the appellant or the attorney may
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorney believes that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS 9
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
9
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.
14
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.
15
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. ____ , 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
16
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. ma il, 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. 10 The court of appeals must receive your petition for
10
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
17
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 Appeal s 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.
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.
18
Contact information for the courts of appeals can be fou nd 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.