Sandra Epley v. Inter-American Foundation

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SANDRA EPLEY, DOCKET NUMBER
Appellant, DC-0432-15-0032-B-1
v.
INTER-AMERICAN FOUNDATION, DATE: July 19, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Debra D’Agostino, Esquire, Washington, D.C., for the appellant.
Andrew David Linenberg and Ravi Kambhampaty, Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which sustained her removal. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error af fected 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).
¶2 The appellant held the Program Administrator position at the
Inter-American Foundation (Foundation). Epley v. Inter-American Foundation,
MSPB Docket No. DC-0432-15-0032-I-1, Initial Appeal File (IAF), Tab 11 at 23.
The Foundation proposed her removal for unacceptable performance. Id. at 5-13.
After the appellant responded, the Foundation issued its decision, removing her
from service, effective September 9, 2014. Id. at 14-23.
¶3 The appellant filed a Board appeal challenging her removal. IAF, Tab 1.
The administrative judge dismissed the appeal for lack of jurisdiction based on
the Foundation’s status as a Government corporation, excluded from chapter 43
of title 5. IAF, Tab 17, Initial Decision. On review, the Board reversed and
remanded. Epley v. Inter-American Foundation, 122 M.S.P.R. 572 (2015). The
Board found that while the Foundation is excluded from chapter 43 coverage, the
Board had jurisdiction over the appellant’s removal under chapter 75. Id., ¶ 5-14.
¶4 On remand, the administrative judge developed the record and held the
requested hearing before sustaining the appellant’s removal. Epley v.
Inter-American Foundation, MSPB Docket No. DC-0432-15-0032-B-1, Remand
File (RF), Tab 36, Remand Initial Decision (RID). She found that the Foundation
met its burden of proving the charge, nexus, and reasonableness of the penalty.
3
RID at 6-37. The administrative judge further found that the appellant failed to
prove her affirmative defenses of harmful procedural error; discrimination on the
bases of gender and national origin; reprisal for equal employment opportunity
activities; and reprisal for testifying on behalf a coworker in a Board appeal, an
activity protected by 5 U.S.C. § 2302(b)(9)(B). RID at 37-48.
¶5 The appellant has filed a petition for review. Epley v. Inter-American
Foundation, MSPB Docket No. DC-0432-15-0032-B-1, Remand Petition for
Review (RPFR) File, Tab 3. The Foundation has filed a response and the
appellant has replied. RPFR File, Tabs 9-10.
The administrative judge properly sustained the charge of unacceptable
performance.
¶6 In or around February 2014, the Foundation completed the appel lant’s
performance appraisal for fiscal year 2013, finding that her performance was
unacceptable in three of four critical elements. RF, Tab 30 at 14-28. As a result,
the Foundation placed the appellant on a 90-day performance improvement plan
(PIP). Id. at 52-58.
¶7 After the appellant’s PIP ended, the Foundation proposed her removal for
unacceptable performance. Id. at 4-12. The proposal provided a lengthy
narrative concerning the appellant’s unacceptable performance in two critical
elements and each of their subparts. 2 Id. at 5-11. The first was (1) Grant
Administration, with subparts of (a) Quality Control of Grant Documents , and
(b) Grant Database Management. Id. at 5-7. The second critical element was
(2) Budget and Financial Management, with subparts of (a) Budget Preparation,
(b) De-obligations, and (c) Liaison with the Bureau of Public Debt (BPD)
Regarding Contract Management. Id. at 7-10. For each subpart, the Foundation’s
2
The proposal to remove the appellant did not rely on the third cri tical element for
which she previously was rated unacceptable—Program Office Management and
Support to the Vice President for Programs. RF, Tab 30 at 24-26.
4
narrative generally follows a similar pattern of alleging that the appellant’s
performance was unacceptable, she was given an opportunity to improve during
the PIP, and her performance remained unacceptable. Id. at 5-10. The deciding
official sustained the appellant’s removal for the same reasons. RF, Tab 19
at 39-47.
¶8 The appellant argues that the administrative judge erred by applying a
chapter 43, instead of a chapter 75, framework to the charge of unacceptable
performance. RPFR File, Tab 3 at 20-21. Contrary to her contention, however,
the administrative judge properly analyzed the agency’s removal action under
chapter 75. RID at 6. Further, the only limit on an agency’s use of chapter 75 for
performance-based actions is a prohibition on its use to circumvent chapter 43 by
charging that the appellant should have performed better than required under the
standards communicated to her in accordance with chapter 43 requirements.
Moore v. Department of the Army, 59 M.S.P.R. 261, 265 (1993). The appellant
does not claim that the agency charged her with failing to perform better than was
required under her performance standards. Nor do we see a basis on which to
conclude the agency held the appellant to a higher standard. RF, Tab 19 at 15-27,
50-58, 73-76. Rather, as discussed below, the appellant disputes whether the
agency proved the specific facts alleged in the proposed removal. RPFR File,
Tab 3 at 20-23.
¶9 The appellant contends that the administrative judge erroneously focused on
her performance as compared to the PIP, rather than her performance as compared
to the allegations described in the proposal notice. RPFR File, Tab 3 at 20-23.
By way of example, the appellant refers to subpart (1)(a), Quality Control of
Grant Documents. Id. at 21. She notes that the PIP required that she review all
funding actions and ensure an error rate of 5% or less. Id.; RF, Tab 30 at 54. She
further notes that her proposed removal alleged that 11 of 21 funding actions she
reviewed during the PIP “contained material errors serious enough to require
returning the packages to the Program Office for correction.” RPFR File, Tab 3
5
at 21; RF, Tab 30 at 6. According to the appellant, only 3 of the 21 funding
actions were actually returned, so the Foundation failed to prove the allegation
contained in her proposed removal, even if the Foundation showed that she failed
to meet the 5% error rate contained in the PIP. RPFR File, Tab 3 at 21. We are
not persuaded.
¶10 A specific standard of performance need not be established and identified in
advance for the appellant in a performance-based action brought under
chapter 75. Shorey v. Department of the Army, 77 M.S.P.R. 239, 244 (1998).
Rather, when an agency takes such an action under that chapter, it merely must
prove that its measuring the appellant’s performance was both accurate and
reasonable and that the appellant’s performance was deficient. See Lovshin v.
Department of the Navy, 767 F.2d 826, 844 (Fed. Cir. 1985) (finding that an
agency proved the appellant’s performance was deficient) ; Shorey, 77 M.S.P.R.
at 244 (discussing the agency’s burden to prove the accuracy and reasonableness
of its performance measurement). An agency is required to prove only the
essence of its charge, however, and need not prove each factual specification
supporting the charge. Burroughs v. Department of the Army, 918 F.2d 170, 172
(Fed. Cir. 1990); Cole v. Department of the Air Force, 120 M.S.P.R. 640, ¶ 8
(2014). For example, if an agency charged an employee with theft of
Government property and the corresponding narrative described a single occasion
on which he stole three items, the charge would not fail if the agency could only
prove that he stole only two of those items. Otero v. U.S. Postal Service,
73 M.S.P.R. 198, 204 (1997).
¶11 Turning to the instant case, the Foundation charged the appellant with
unacceptable performance. RF, Tab 30 at 4-10. For (1)(a), Quality Control of
Grant Documents, the agency’s allegations describe the appellant’s quality
control errors, both before and during the PIP. Id. at 5-6. Although the appellant
would have us construe the allegations pertaining to the PIP per iod in a very
technical manner, supra ¶ 9, we decline to do so. In any event, the record shows
6
that 11 of 21 funding actions the appellant was responsible for reviewing during
the PIP contained errors, despite her review. E.g., RF, Tab 31 at 5-34. As the
administrative judge recognized, many of these errors appeared to be ones that
should have been discovered easily, for example omitting entire sections or
attachments. E.g., id. at 11; RID at 14. The fact that Foundation officials caught
and corrected many errors that the appellant was responsible for, rather than
catching them and returning them for someone else to correct, is not dispositive.
¶12 The appellant presents similarly unavailing arguments pertaining to each of
the other critical element subparts. RPFR File, Tab 3 at 22-23. Regarding (1)(b),
Grant Database Management, the appellant was responsible for reconciling
critical data in the Grant Evaluation and Management System (GEMS). RF,
Tab 30 at 6-7, 16. According to the proposed removal, the appellant had failed to
do so, resulting in a significant discrepancy by January 2014, after which she
repeatedly missed deadlines to resolve the problem. Id. at 6-7. The proposal
further alleged that the February 2014 PIP directed the appellant to keep GEMS
up to date by entering data within 3 days of actions taken, but a subsequent report
showed a GEMS discrepancy of over $155,000 and four altogether missing
entries. RF, Tab 30 at 7, Tab 31 at 54-55.
¶13 On review, the appellant does not dispute those discrepancies or missing
entries, nor does she argue that she performed successfully before or during the
PIP. RPFR File, Tab 3 at 22. Instead, she summarily argues that the proposed
removal referred to the PIP’s 3-day requirement and the Foundation’s report does
not establish that specific delay. Id. We disagree. The appellant’s argument
seems to overlook the fact that the report was run on April 19, 2014, for the
period ending March 30, 2014, thereby including at least 19 days of unreconciled
data. RF, Tab 31 at 54-55. Moreover, this argument similarly suggests that we
should construe the agency’s allegations in a technical manner and one that is
inconsistent with the essence of the agency’s charge, which we will not do.
7
Therefore, the administrative judge properly sustained this specification. RID
at 15-20.
¶14 Regarding (2)(a), Budget Preparation, the appellant was responsible for
preparing and recommending the budget and budget projections for t he
Foundation’s Program Office. RF, Tab 30 at 7, 21. According to the proposed
removal, the appellant’s participation in this process had been passive, included
many errors, and did not demonstrate that she underst ood key steps and
requirements. Id. at 7. The proposal further recognized that, as a result, the PIP
instructed the appellant to develop a robust plan for how she would plan,
schedule, and execute the standards of her Budget and Financial Management
critical element. Id. at 7-8, 54. In other words, the PIP did not instruct the
appellant to develop the next budget, it instructed her to develop a robust plan for
how she would do so. Nevertheless, the appellant reportedly failed to develop an
appropriate plan, despite repeated clarifications of expectations, explanations of
the inadequacies of her drafts, extensions of the associated deadlines, and
definitive guidance from several senior officials. Id. at 7-8.
¶15 On review, the appellant suggests that the administrative judge erroneously
found her performance unacceptable because she failed to produce a budget, and
not because she failed to produce the robust plan required by the PIP. RPFR File,
Tab 3 at 22-23. We disagree. Although the administrative judge did refer to the
appellant’s failure to complete a “budget plan” while discussing (2)(a), she did so
in the context of finding that the appellant failed to meet the PIP’s requirement
for a robust plan. RID at 23-26. The appellant argues that the administrative
judge did not evaluate the third and fourth drafts of the plan she submitted before
the PIP ended. PFR File, Tab 3 at 23. However, that argument also fails because
the administrative judge did in fact discuss drafts submitted on April 3, April 21,
April 23, and May 16, 2014, as well as their inadequacies, as reflected by the
drafts themselves and witness testimony. RID at 24-26.
8
¶16 Regarding (2)(b), De-obligations, and (2)(c) Liaison with the BPD, the
appellant suggests that her supervisor essentially has penalized her for periods of
leave, and the administrative judge failed to recognize as much. RPFR File,
Tab 3 at 23. Once more, we are not persuaded. The proposal to remove the
appellant alleged that, pursuant to (2)(b), the appellant was responsible for , but
altogether failed to prepare, a de-obligation report at any time during the PIP.
RF, Tab 30 at 8-10. It described the appellant’s actions on the report between
March and June 2014, culminating in her departure for vacation without having
completed the de-obligation report or explaining to others how do so. 3 Id.
at 9-10. The proposal also alleged that, pursuant to (2)(c), the appellant was
responsible for, but failed to, develop a plan to keep her supervisor informed of
contract statuses, which ultimately resulted in a failure to timely renew key
contractor bidding. Id. at 10. The agency observed that, despite criticism of the
appellant in her fiscal year 2013 performance evaluation that she failed to keep
her supervisor informed of the need to renew or rebid contract , she repeated her
failure by leaving for vacation without ensuring that support staff was aware of
required timelines on four key contracts. Id. at 10, 23. Under the circumstances,
we find no merit to the appellant’s argument. The Foundation’s allegations
clearly explain that the appellant failed to perform as expected, not because she
took leave, but because she failed to ensure that time -sensitive work was
completed either before or during her vacation.
¶17 Based on the above, we agree with the administrative judge’s conclusion
that the Foundation met its burden of proving the charge.
3
One of the appellant’s subordinates prepared the plan while the appellant was on
vacation. RF, Tab 30 at 10.
9
The administrative judge properly deferred to the Foundation’s selecting removal
as a reasonable penalty.
¶18 When an agency proves its sole charge of poor performance, its p enalty
decision is entitled to deference and is reviewed only to determine whether the
agency responsibly balanced the relevant factors in the individual ca se. Winlock
v. Department of Homeland Security, 110 M.S.P.R. 521, ¶ 20 (2009), aff’d per
curiam, 370 F. App’x 119 (Fed. Cir. 2010); see Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of
factors that may be relevant in selecting an appropriate penalty). 4 In determining
whether the selected penalty is reasonable, the Board defers to the agency’s
discretion in exercising its managerial function of maintaining employee
discipline and efficiency. Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6
(2013). The Board will independently weigh the relevant factors only if the
deciding official failed to demonstrate that he considered any speci fic, relevant
mitigating factors before deciding upon a penalty, or if he clearly exceeded the
4
The Douglas factors include, but are not limited to: (1) the nature and seriousness of
the offense, and its relation to the employee’s duties, position, and responsibilities,
including whether the offense was intentional or technical or inadvertent, or was
committed maliciously or for gain, or was frequently repeated; (2) the employee’s job
level and type of employment, including a supervisory or fiduciary role, contacts with
the public, and prominence of the position; (3) the employee’s past disciplinary record;
(4) the employee’s past work record, including length of service, performance on the
job, ability to get along with fellow workers, and dependability; (5) the effect of the
offense upon the employee’s ability to perform at a satisfactory level and its effect upon
supervisors’ confidence in the employee’s ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or
similar offenses; (7) consistency of the penalty with any applicable agency table of
penalties; (8) the notoriety of the offense or its impact upon the agency’s reputation;
(9) the clarity with which the employee was on notice of any rules that were violated in
committing the offense, or had been warned about the conduct in question;
(10) potential for the employee’s rehabilitation; (11) mitigating circumstances
surrounding the offense such as unusual job tensions, personality problems, mental
impairment, harassment or bad faith, malice or provocation on the part of others
involved in the matter; and (12) the adequacy and effectiveness of alternative sanctions
to deter such conduct in the future by the employee or others. Douglas, 5 M.S.P.R.
at 305-06.
10
limits of reasonableness. Gmitro v. Department of the Army, 95 M.S.P.R. 89, ¶ 8
(2003), aff’d per curiam, 111 F. App’x 610 (Fed. Cir. 2004).
¶19 In this case, the Foundation did not include a Douglas factor analysis in its
proposal to remove the appellant or the subsequent decision letter. RF, Tab 19
at 39-47, Tab 30 at 4-12. In fact, as recognized in the remand initial decision, the
deciding official indicated that his written decision did not discuss each Douglas
factor because he mistakenly believed that he had the authority to effectuate t he
removal under procedures other than those required f or a chapter 75 adverse
action. RID at 37 (citing RF, Tab 34, Hearing Compact Disc (HCD1) (testimony
of the deciding official)); see Lisiecki v. Merit Systems Protection Board,
769 F.2d 1558, 1567-68 (Fed. Cir. 1985) (observing that the Board does not have
authority to mitigate the penalty in a chapter 43 action). Nevertheless, the
deciding official insisted that he considered the relevant Douglas factors. Id.¶20 Before the administrative judge, the appellant argued that the Foundation
committed a harmful error by failing to consider the Douglas factors pertaining to
prior discipline and length of Government service. RF, Tab 26 at 6. The
appellant alleged, based on the deciding official’s statements during a deposition,
that he failed to consider her more than 20 years of Government service and lack
of prior discipline as mitigating factors. Id. at 6, 99. The administrative judge
disagreed. RID at 36-38. She found that while the deciding official did not
explicitly discuss each Douglas factor in his written decision, he testified in a
credible manner that he considered all relevant factors. RID at 38 (citing HCD1
(testimony of the deciding official)). The appellant does not appear to argue
otherwise on review and we find no basis for disturbing the adm inistrative
judge’s conclusion. See Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002) (recognizing that the Board must defer to an administrative
judge’s credibility determinations when they are based, e xplicitly or implicitly,
on observing the demeanor of witnesses testifying at a hearing).
11
¶21 In discussing the appellant’s harmful error claim, the administrative judge
relied, in part, on a nonprecedential Board decision, where in the majority of the
Board found no due process violation in the context of an appeal that was
converted from chapter 43 to chapter 75, somewhat similar to the appeal currently
before us. RID at 38-39 (citing Miller v. General Services Administration, MSPB
Docket No. SF-0752-12-0189-I-1, Final Order (Aug. 29, 2013)). Based largely
on the dissenting opinion in that nonprecedential Miller decision, the appellant
now argues that the deciding official committed a due process violation. RPFR
File, Tab 3 at 24-30. She alleges that the deciding official improperly considered
aggravating Douglas factors without providing her notice and an opportunity to
respond. Id.¶22 As an initial matter, we find no indication that the appellant presented any
argument concerning a denial of due process below. RF, Tabs 26 -27; see Banks
v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the
Board generally will not consider an argument raised for the first time on review
absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence); 5 C.F.R. § 1201.115(d) (reflecting
that the Board generally does not grant a petition for review based on new legal
argument). Moreover, even if she had, we find the appellant’s due process
arguments unavailing.
¶23 Pursuant to the U.S. Court of Appeals for the Federal Circuit’s decisions in
Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone
v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir.
1999), a deciding official violates an employee’s due process rights when he
relies upon new and material ex parte information as a basis for his decisions on
the merits of a proposed charge or the penalty to be imp osed. The court
explained that, if an employee has not been given “notice of any aggravating
factors supporting an enhanced penalty,” an ex parte communication with the
12
deciding official regarding such factors may constitute a constitutional due
process violation. Ward, 634 F.3d at 1280.
¶24 In this case, the appellant attempts to cast virtually all of the deciding
official’s considerations as unnoticed aggravating factors. For example, the
appellant points to the deciding official’s testimony that he considered the nature
and seriousness of the offense, the frequency with which it was repeated , and the
impact on the agency. RPFR File, Tab 3 at 25. The appellant also points to his
considering her job level in “a grade that should have prepared her to be
self-directed in many respects.” Id. (quoting HCD1 (testimony of the deciding
official)). Further, the appellant points to the deciding official’s testimony that
the appellant “was unable to perform during the PIP period and that was a strong
indication that she was unable to perform the job,” as well as his r ecognition that
the appellant “did not seem to take accountability for her performance
deficiencies.” Id. at 26-27.
¶25 Although we have reviewed each of the appellant’s arguments considering
improper considerations by the deciding official, none is persuasive. We find no
indication that the deciding official considered any unnoticed aggravating fac tor
in selecting the appropriate penalty. While the appellant suggests that she lacked
prior notice regarding considerations such as the nature and seriousness of the
offense, the proposed removal is filled with corresponding details concerning her
performance deficiencies and their resulting harm. See RF, Tab 30 at 4-11.
Similarly, while the appellant suggests that she lacked prior notice that the
deciding official would consider the fact that she did not take responsibility for
her actions, the proposed removal specifically discussed her alleged pattern of
shifting blame to others. Id. at 9. Moreover, as recognized in the decision letter,
the appellant responded to her proposed removal by denying all the allegations
and claiming that her performance was satisfactory. RF, Tab 19 at 39, 48; see
also Mathis v. Department of State, 122 M.S.P.R. 507, ¶ 9 (2015) (holding that a
deciding official did not violate an employee’s due process rights by considering
13
issues raised in an appellant’s response). The proposal notice also discussed the
appellant’s past instances of poor performance and the background materials
referred to in the proposal notice reference the expectation that she exhibit
initiative. RF, Tab 30 at 4-5, 18, 25-26.
¶26 Accordingly, we find that the administrative judge properly sustained the
appellant’s removal. 5
NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
5
Because the appellant has not challenged the administrative judge’s other findings,
including those pertaining to her discrimination and reprisal affirmative defenses, we
will not revisit those matters.
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any ma tter.
14
(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
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
15
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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:
16
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
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
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
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.
17
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.