Shaun Taylor v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAUN TAYLOR, DOCKET NUMBER
Appellant, CH-844E-19-0004-I-1
v.
OFFICE OF PERSONNEL DATE: February 27, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leah Bachmeyer Kille, Esquire, Lexington, Kentucky, for the appellant.
Linnette L. Scott, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) denying the appellant’s application for a Federal Employees’ Retirement
System (FERS) disability retirement annuity. For the reasons discussed below,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
we GRANT the appellant’s petition for review, REVERSE the initial decision and
OPM’s reconsideration decision, and ORDER OPM to award a disability
retirement annuity to the appellant.
BACKGROUND
¶2 The appellant began working with the U.S. Postal Service (USPS) in 2011
and was converted to a career position covered by FERS in 2014. Initial Appeal
File (IAF), Tab 7 at 79, 91. He was promoted to a Manager of Distribution
Operations (MDO) position in June 2016. Id. at 79-80. His duties as an MDO
involved managing a small- to medium-sized group of employees, meeting with
customers and major mailers, managing on-the-job training, resolving union
disagreements, and monitoring operational performance. Id. at 72.
¶3 In June 2012, the appellant was diagnosed with anxiety, depression, and
attention deficit disorder (ADD). IAF, Tab 17 at 7. In 2014, he submitted a
medical certification of his own serious health condition under the Family and
Medical Leave Act, completed by his treating psychiatrist. Id. at 8-12. The
psychiatrist stated that the appellant would need to be absent from work during
monthly “episodic flare-ups” for 1-2 days per episode, noting that the appellant
“can be non-functional due to anxiety or depression.” Id. at 10. However, at that
time in 2014, his doctor checked “no” when asked whether the appellant was
unable to perform any of his job functions due to the condition. Id. at 9.
¶4 According to the psychiatrist, the appellant “got worse” in March 2017,
and, in addition to maintaining his diagnoses of anxiety, depression, and ADD,
the doctor diagnosed the appellant with “probable Borderline Personality
Disorder.” Id. at 17, 19. Also in March 2017, the appellant requested to be
reassigned from his management position “back into craft as a Clerk or a Mail
Handler.” Id. at 14. The USPS denied this request, citing current excessing of
the Clerks and Mail Handlers. IAF, Tab 7 at 60.
3
¶5 The appellant applied for a FERS disability retirement annuity in August
2017. IAF, Tab 7 at 80-83. In March 2018, OPM issued an initial decision
denying his application, finding that he was not disabled within the meaning of
retirement law. Id. at 47-51. He requested reconsideration of this decision and
included various medical documents and statements from his psychiatrist. Id.
at 16-41. In May 2018, the appellant resigned from his position with the USPS,
citing his “worsening medical conditions” and inability to render useful and
efficient service. IAF, Tab 17 at 15. Beginning in October 2017, and continuing
after his resignation, the appellant was self-employed as a part-time barber. Id.
at 26, 29. On September 6, 2018, OPM issued a reconsideration decision
affirming its initial decision. IAF, Tab 7 at 6-9. In reaching its decision, OPM
found that the medical evidence provided failed to indicate any medical
restrictions on the appellant’s work that would render him unable to provide
useful and efficient service. Id. at 7-8. It further found that the appellant’s
medical evidence failed to demonstrate that his conditions worsened while he was
serving under FERS. Id. at 8.
¶6 The appellant appealed OPM’s reconsideration decision to the Board.
IAF, Tab 1. After a telephonic hearing, the administrative judge issued an initial
decision affirming OPM’s reconsideration decision denying the appellant’s
application for a FERS disability retirement annuity. IAF, Tab 21, Initial
Decision (ID) at 1. The administrative judge found that the appellant failed to
demonstrate how his specific symptoms rendered him unable to perform the
essential functions of his job. ID at 7-9. He also concluded that the appellant
failed to show by preponderant evidence that his medical conditions were
incompatible with useful and efficient service or retention in his position.
ID at 7.
4
¶7 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1 at 4-12. He attaches pictures of various medications he asserts he is
taking. 2 Id. at 11-12, 14-19. The agency has responded. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 In an appeal from an OPM decision denying a voluntary disability
retirement application, the appellant bears the burden of proving entitlement to
benefits by preponderant evidence. 3 Chavez v. Office of Personnel Management,
111 M.S.P.R. 69, ¶ 6 (2009); 5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a
disability retirement annuity under FERS, an employee must show that: (1) he
completed at least 18 months of creditable civilian service; (2) while employed in
a position subject to FERS, he became disabled because of a medical condition,
resulting in a deficiency in performance, conduct, or attendance, or if there is no
such deficiency, the disabling medical condition is incompa tible with either
useful and efficient service or retention in the position; (3) the disabling medical
condition is expected to continue for at least 1 year from the date that the
application for disability retirement benefits was filed; (4) accommodation of the
disabling medical condition in the position held must be unreasonable; and (5) the
employee did not decline a reasonable offer of reassignment to a vacant position.
Chavez, 111 M.S.P.R. 69, ¶ 6.
¶9 The record shows, and it is undisputed, that the appellant had completed
more than 18 months of civilian service creditable under FERS at the time he
2
The appellant submits this evidence for the first time on review. The Board will not
consider evidence submitted for the first time on review absent a showing that it is
material, i.e., it is of sufficient weight to warrant an outcome different from that of the
initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). The
pictures themselves do not support a basis for review because they do not demonstrate
any error on the part of the administrative judge. However, as set forth below, we
reverse the initial decision on other grounds.
3
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
filed his application, his medical condition continued for at least 1 year from the
date of his application, and he did not decline an offer of reassignment to a vacant
position. IAF, Tab 7 at 25, 74, 79, 91. Thus, the appellant’s entitlement to a
disability retirement annuity depends on whether he had a disabling medical
condition and whether accommodation of the disabling medical condition was
unreasonable.
The administrative judge incorrectly determined that the appellant failed to
establish that his medical condition was disabling.
¶10 On review, the appellant argues that the medical documentation and
testimony sufficiently demonstrates that his unsatisfactory conduct was the result
of his medical conditions. PFR File, Tab 1 at 5-6. He also argues that he proved
that his medical conditions are incompatible with useful and efficient service or
retention in the position. Id. at 6-9. The administrative judge found that the
appellant failed to demonstrate how his specific symptoms rendered him disabled
under either of these alternative theories. ID at 7-9. We disagree. Because we
find that the appellant proved, as discussed below, that his medical conditions
were incompatible with useful and efficient service, we find it unnecessary to
make a finding as to whether he connected those conditions with his poor
conduct. See Thieman v. Office of Personnel Management, 78 M.S.P.R. 113, 116
(1998) (explaining that, after an administrative judge found a n appellant did not
prove that he had a conduct or attendance deficiency related to his medical
conditions, the administrative judge should have addressed whether the
appellant’s condition was incompatible under the alternative prong regarding
disability).
¶11 The second element of establishing entitlement to a disability retirement
annuity requires demonstrating that the appellant’s disabling medical condition
either (1) caused a deficiency in performance, attendance, or conduct, or (2) is
incompatible with useful and efficient service or retention in the position.
5 U.S.C. § 8451(a)(1)(B); Jackson v. Office of Personnel Management,
6
118 M.S.P.R. 6, ¶ 7 (2012). As applicable here, under the second method, an
individual can establish entitlement by showing that the medical condition is
inconsistent with working in general, working in a particular line of work, or
working in a particular type of setting. Jackson, 118 M.S.P.R. 6, ¶ 8. An
appellant’s own subjective complaints of disability and inability to work must be
seriously considered, particularly when supported by competent medical
evidence. Balmer v. Office of Personnel Management, 99 M.S.P.R. 199, ¶ 10
(2005). The Board has frequently stated that a physician’s conclusion that an
employee is disabled is persuasive only if the physician explains how the medi cal
condition affects the employee’s specific work requirements. Craig v. Office of
Personnel Management, 92 M.S.P.R. 449, ¶ 10 (2002).
¶12 In Chavez, the Board found that the appellant sufficiently demonstrated that
her personality disorder and depression precluded her from performing her
specific work requirements as a window clerk. Chavez, 111 M.S.P.R. 69,
¶¶ 8-11. There, the appellant’s doctor noted that her conditions specifically
interfered with her ability to interact appropriately with others at work, adapt to
stress, and perform tasks requiring sustained concentration or an ability to
organize. Id., ¶ 8. The doctor therein further testified that the appellant’s
interactions with others and her cognitive functions were negatively affec ted in
any setting involving stress or pressure. Id. The doctor’s report was generally
corroborated by the appellant’s written statements and her supervisor’s statement.
Id., ¶¶ 9-10. As such, the Board held that the appellant produced competent and
unrefuted medical evidence establishing that her conditions precluded her from
performing her specific work requirements, including concentration, organization,
and interaction with others in any stressful environment, which was sufficient to
show that she was precluded from useful and efficient service or retention in her
position. Id., ¶ 11.
¶13 The record here includes a job description for the appellant’s position as an
MDO. IAF, Tab 7 at 72-73. Among other duties, the position requires the
7
incumbent to manage employees and on-the-job training, interact with customers
to resolve problems, and meet with union representatives to resolve
disagreements. Id. at 72. The administrative judge below found that the
appellant’s psychiatrist failed to sufficiently explain how the medical conditions
affected the appellant’s specific work requirements. ID at 8. We disagree.
¶14 The record reflects that the appellant saw his psychiatrist at least 12 times
between March 2017 and April 2018. IAF, Tab 7 at 29-40. The psychiatrist
diagnosed the appellant with depression, anxiety, ADD, and a probable borderline
personality disorder. IAF, Tab 17 at 17, Tab 20, Hearing Compact Disc (HCD)
at 44:02 (testimony of the appellant’s psychiatrist). The symptoms of his
conditions include “[p]eriods of depression, anxiety, mood swings, irritability,
difficulty managing conflict, sensitiv[ity] to crowds, poor concentration/focus,
[and] self-harm.” IAF, Tab 17 at 18 (emphasis in original). His psychiatrist
reviewed the appellant’s position description for his job as an MDO and
concluded that his medical conditions rendered him unable to fully perform
several of the job duties. Id. at 19. Specifically, he found the appellant unable to
manage others or train others, resolve conflicts, and maintain an inflexible
schedule. Id. His psychiatrist testified that the appellant is susceptible to too
much stress, that when under stress he loses the ability to do the basic functions
of his job, and he is prone to act out due to anger issues. HCD at 50:05
(testimony of the appellant’s psychiatrist). He further testified that the
appellant’s position had too much stress for the appellant and that managing
disputes was particularly stressful. HCD at 51:44 (testimony of the appellant’s
psychiatrist).
¶15 The psychiatrist’s treatment notes reflect that the appellant’s work stress
manifested itself in various ways. IAF, Tab 7 at 29-40. In one instance, the notes
reflect that the appellant was stressed and upset from work to the point that he
punched his own car. Id. at 29. The notes reflect another instance of the
8
appellant having to leave work due to the stress. 4 Id. at 31. His psychiatrist
explained that the appellant is able to handle the low stress job of cutting hair,
which does not involve managing others or resolving disputes, but cannot handle
situations such as managing a labor dispute between union representatives and
employees. HCD at 1:03:12 (testimony of the appellant’s psychiatrist).
¶16 The appellant himself explained how his medical conditions rendered him
unable to perform specific work duties. He stated in his disability retirement
application, and also in his testimony, that he could no longer manage groups of
employees, manage job training, meet with union representatives to resolve
disagreements, meet with customers and major mailers to resolve problems, and
generally have the patience or capability to deal with angry or up set people. IAF,
Tab 7 at 58; HCD at 9:07 (testimony of the appellant). He described employee
and union interactions as everyone “always yelling and screaming and getting in
your face,” which made it difficult for him to be around without “blowing up
myself or wanting to walk away or do something inappropriate for the
workplace.” HCD at 9:54 (testimony of the appellant).
¶17 The Supervisor’s Statement accompanying the appellant’s disability
retirement application, completed in August 2017, additionally certified that the
appellant’s conduct at work had become unsatisfactory. IAF, Tab 7 at 60. The
Supervisor’s Statement explained that there “is an ongoing investigation into [the
appellant’s] conduct and discipline is forthcoming.” Id. In October 2017, the
4
To the extent the appellant’s medical evidence fails to include any objective measures
or tests, we find that absence not dispositive. See Confer v. Office of Personnel
Management, 111 M.S.P.R. 419, ¶ 18 (2009) (finding an appellant may prevail in a
disability retirement application based on medical evidence that “ consists of a medical
professional’s conclusive diagnosis, even if based primarily on his/her analysis of the
applicant’s own descriptions of symptoms and other indicia of disability”) ( quoting
Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1041 (Fed. Cir.
2007)); Doe v. Office of Personnel Management, 109 M.S.P.R. 86, ¶ 17 (2008) (finding
an appellant disabled based on her medical documentation, which included doctor’s
notes of therapy and various medications, despite the absence of objective measures and
tests).
9
appellant received a Letter of Warning in Lieu of a 14-day Suspension for
“Unacceptable Conduct – Unscheduled Absences without Leave.” 5 IAF, Tab 17
at 28. The decision letter upholding the discipline warned that the appellant
needed to “improve his work deficiencies or bear further consequences of his
actions.” Id. When a supervisor’s statement accompanying a disability
retirement application certifies that the applicant’s conduct is unacceptable, the
appellant must provide evidence that the disabilit y caused the alleged misconduct.
Johnson v. Office of Personnel Management, 87 M.S.P.R. 192, ¶¶ 14, 19 (2000).
The appellant here did not explicitly state that his medical conditions caused the
Letter of Warning. However, his psychiatrist stated in response to an
interrogatory from the appellant that he “cannot handle inflexible full-time work”
and that he is unable to work an inflexible schedule. IAF, Tab 8 at 39 -40. Also,
the appellant testified that his medical conditions rendered him unable to perform
a full-time schedule. HCD at 9:07 (testimony of the appellant). Thus, the
evidence suggests that this misconduct is in line with the appellant’s assertion
that his medical conditions affect his specific work requirements under the second
method of proving disability.
¶18 Accordingly, we find the appellant’s psychiatrist’s medical documentation
and testimony, combined with the other record evidence, persuasive given that it
explains how the appellant’s medical conditions specifically affect his work
requirements. Compare Craig, 92 M.S.P.R. 449, ¶¶ 10-14 (finding a psychiatric
social worker’s conclusion of disability persuasive when it was corroborated by
other evidence and the social worker tied the medical conditions to the
appellant’s specific work requirements), with Cummins v. Office of Personnel
Management, 117 M.S.P.R. 261, ¶ 8 (2012) (finding an appellant failed to prove
disability when her doctor testified that she was somewhat familiar with the
appellant’s duties but not the details of her position, and she was unwilling to
5
It is unclear whether this discipline is the same discipline referenced in the
Supervisor’s Statement.
10
state that the appellant was unable to perform her duties), and Anderson v. Office
of Personnel Management, 96 M.S.P.R. 299, ¶¶ 14, 20 (2004) (finding the
appellant’s physicians’ opinions regarding the appellant’s disability to be
unpersuasive because they did not show how her conditions affected her specific
job duties and requirements), aff’d per curiam, 120 F. App’x 320 (Fed. Cir.
2005).
¶19 To the extent OPM suggests that the appellant is not entitled to a disability
retirement annuity due to his subsequent employment as a barber, we find that
argument unpersuasive. IAF, Tab 17 at 29-34. An appellant is not entitled to a
disability retirement annuity when his medical condition is based on a single
work environment, such as because of a personal conflict with a supervisor or
from a perceived hostile work environment. Confer v. Office of Personnel
Management, 111 M.S.P.R. 419, ¶ 16 (2009). Subsequent work history is
relevant to whether an individual’s condition is confined to a single work
environment. Id. However, the ability to work in a position with different
responsibilities, and specifically in a position without the particular work
requirements that the appellant could not perform, does not undermine an
appellant’s evidence that he is unable to work in the prior position. See id.,
¶¶ 12-16 (finding an appellant’s subsequent work in a supervisory position in
which she was never alone with patients, when being alone with patients is what
triggered her symptoms, did not undermine her testimony that she was unable to
work in her prior position providing direct nursing care to patients).
¶20 The appellant’s psychiatrist testified that his condition is not tied to
interactions with specific persons at the USPS, but rather, the managerial duties
in his prior position. HCD at 1:02:50 (testimony of the appellant’s psychiatrist).
Moreover, he testified that the appellant is able to handle a low-stress position
such as barbering, but not a more stressful managerial position handling things
such as labor disputes between union representatives and employees.
HCD at 1:03:12 (testimony of the appellant’s psychiatrist). The appellant himself
11
testified that he does not have a lot of clients as a barber , the work is “really laid
back,” he does not deal with any confrontational situations, and if he ever does
get overwhelmed he can just close the shop and go home or not go in at all.
HCD at 17:07 (testimony of the appellant). Accordingly, we find that the
appellant’s subsequent work as a barber does not undermine his evidence that he
is unable to perform the specific work requirements of his prior position as an
MDO.
¶21 Finally, the administrative judge here found that the appellant failed to
demonstrate that he was unable to manage his condition through medication,
occasional time off from work, or mental health counseling. ID at 8. We
disagree. An applicant for disability retirement must establish the extent to which
his disability can or cannot be controlled. Smedley v. Office of Personnel
Management, 108 M.S.P.R. 31, ¶ 23 (2008). When an appellant fails or refuses to
follow or accept normal treatment, his disability flows not from the disease or
injury itself, as the statute requires, but from his voluntary failure or refusal to
take the available corrective or ameliorative action. Id. Here, the appellant’s
psychiatrist responded in the affirmative to an interrogatory from th e appellant
that he was “compliant with all reasonable prescribed medical treatment regarding
his diagnosed conditions.” IAF, Tab 17 at 20.
¶22 Moreover, the psychiatrist testified that, despite the appellant taking
numerous medications to treat his medical conditions, those conditions were not
controlled. HCD at 1:05:25 (testimony of the appellant’s psychiatrist). He
further testified that they would frequently tweak the appellant’s medications in
attempts to control his condition, to no avail. HCD at 1: 05:50 (testimony of the
appellant’s psychiatrist). Although the psychiatrist testified that the appellant
could benefit from mental health counseling, he stated that he did not believe that
would render the appellant capable of returning to his prior posi tion, observing
that counseling in these situations can take several years. HCD at 1:07:27
(testimony of the appellant’s psychiatrist). There is no evidence that the
12
appellant ever refused counseling. HCD at 1:07:54 (testimony of the appellant’s
psychiatrist). Accordingly, we find that the appellant has followed and accepted
normal treatment but remains unable to control his medical conditions such that
he cannot return to his prior position.
¶23 In light of the evidence discussed above, we find that the appellant has
produced competent and unrefuted medical evidence establishing that his
conditions preclude him from performing specific work requirements in cluding
managing small- to medium-sized groups of employees, managing job training,
and resolving problems/disagreements with both customers and union
representatives. See Doe v. Office of Personnel Management, 109 M.S.P.R. 86,
¶ 18 (2008) (finding disability retirement warranted based on a mental condition
exacerbated by job-related stress that prevented the appellant from performing the
duties of her position). Moreover, although absences from work do not
conclusively establish that an employee is incapable of rendering useful and
efficient service, they are nonetheless a factor worthy of consideration in judging
disability. Henderson v. Office of Personnel Management, 117 M.S.P.R. 313,
¶ 25 (2012). Based on the evidence from the appellant’s psychiatrist and his
supervisor, and on his own subjective description of his inability to work, we find
that the administrative judge erred in finding that the appellant did not prove by
preponderant evidence that he is precluded from useful and efficient service or
retention in his position.
The appellant established that accommodation of the disabling medical condition
is unreasonable.
¶24 The administrative judge made no findings as to whether accommodation of
the appellant was unreasonable. The fourth element of establishing entitlement to
a disability retirement annuity requires an appellant to prove that accommodation
of his disabling medical condition is unreasonable. Chavez, 111 M.S.P.R. 69,
¶ 13. When an agency certification that accommodation is unavailable is
unrebutted and the record supports the conclusion that accommodation would not
13
be possible, the Board has held that this criterion for obtaining disability
retirement is met. 6 Id., ¶ 15.
¶25 In this case, the USPS certified that accommodation of the appellant was
not possible, due to the severity of his condition and the requirements of his
position. IAF, Tab 7 at 74-75. This certification is not challenged by OPM.
Moreover, the record supports the conclusion that the appellant cannot perform
the MDO duties, even with accommodation. IAF, Tab 7 at 58, 72, Tab 17 at 19.
As such, we find that accommodation of his disabling medical condition is
unreasonable.
¶26 The appellant has therefore met all the criteria for di sability retirement
under FERS and is entitled to a disability retirement annuity. Accordingly, we
reverse the initial decision and do not sustain OPM’s reconsideration decision.
ORDER
¶27 We ORDER OPM to award the appellant a disability retirement annuity.
OPM must complete this action no later than 20 days after the date of this
decision.
¶28 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
6
OPM suggested below that, in addition to proving his accommodation was
unreasonable, the appellant must also prove that his employing agency was unable to
“reassign him to a vacant position at the same grade or level at the position he last
occupied.” IAF, Tab 17 at 5. However, as our reviewing court held in Gooden v.
Office of Personnel Management, 471 F.3d 1275, 1280 (Fed. Cir. 2006), the inquiry into
whether an appellant is qualified for reassignment to a vacant position is required onl y
by the Civil Service Retirement System, not FERS. Under FERS, the only requirement
regarding a reassignment is that the appellant must not have declined a reasonable offer
of reassignment. Id.14
¶29 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
¶30 This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113(c).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
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 rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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.
15
appropriate for your situation and the rights described below do not represen t 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.
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
16
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
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
17
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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues, 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 revie w 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 re view 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
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.