Carol Howard v. Department of Justice

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROL H. HOWARD, DOCKET NUMBER
Appellant, SF-1221-15-0609-B-1
v.
DEPARTMENT OF JUSTICE, DATE: June 7, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Yolanda Flores-Burt, Esquire, Hesperia, California, for the appellant.
Stuart Bauch, Esquire, Stockton, California, 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 denied her request for corrective action in this individual right of action
(IRA) appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
VACATE the administrative judge’s alternative finding that the agency proved by
clear and convincing evidence that it would have taken the same action in the
absence of the alleged disclosures or activities, we AFFIRM the initial decision.
¶2 The appellant filed this IRA appeal, concerning her July 2014 removal for
physical inability to perform the duties of her Correctional Treatment Specialist
position. Howard v. Department of Justice, MSPB Docket No. SF-1221-15-0609-
W-1, Initial Appeal File (IAF), Tab 1. After developing the record and holding
the requested hearing, the administrative judge denied the appellant’s request for
corrective action. IAF, Tab 36, Initial Decision (ID). In doing so, his decision
addressed only one disclosure–that her facility was utilizing unlicensed
psychologists. ID at 9, 11. While the administrative judge found that the
appellant presented a prima facie case of whistleblower retaliation, he also found
that the agency met its burden of proving that it would have taken the sa me action
in the absence of the disclosure. ID at 11-23.
¶3 On review, the Board vacated the initial decision and remanded for further
adjudication. Howard v. Department of Justice, MSPB Docket No. SF-1221-15-
0609-W-1, Remand Order (RO) (Sept. 9, 2016). The Board found that the
administrative judge failed to address all of the disclosures or activities the
3
appellant identified as motivating her removal. RO, ¶¶ 8 -12. The remand order
identified the appellant’s disclosures or activities as follows:
1. The lack of a RESOLVE program, allegedly in violation of the
agency’s guidelines;
2. All full-time psychology services were vacated at the camp and staff
were called into work on an as-needed basis, allegedly to save costs
so that the executive staff could receive bonuses;
3. An inmate was not treated appropriately by the Chief of Psychology
after she alleged she had been threatened by other inmates;
4. Reprisal for allegations of discrimination that she raised in 2014 on
behalf of herself and others in her role as a union representative, and
reprisal for her own equal employment opportunity (EEO)
complaints;
5. A particular employee had a degree in philosophy, not psychology,
but was permitted to practice on inmates, which was illegal and
harmful; and
6. The agency hired unlicensed psychologists to practice on inmates.
RO, ¶¶ 9-10.
¶4 On remand, the administrative judge further developed the record, without
holding an additional hearing, then, once again denied the appellant’s request for
corrective action. Howard v. Department of Justice, MSPB Docket No. SF-1221-
15-0609-B-1, Remand Appeal File (RAF), Tab 19, Remand Initial Decision
(RID). The appellant has filed a petition for review. Remand Petition for Review
(RPFR) File, Tab 1 at 4-18.
The administrative judge did not improperly deny the appellant a remand hearing.
¶5 As an initial matter, the appellant argues that the administrative judge
improperly denied her the opportunity to hold another hearing during the remand
proceedings. E.g., RPFR File, Tab 1 at 4. However, despite the appellant’s
suggestion to the contrary, our remand order did not require a hearin g—it
instructed the administrative judge to determine if additional hearing testimony
was necessary. RO, ¶ 13. The administrative judge followed that instr uction and
afforded the parties the opportunity to explain whether additional hearing
4
testimony was needed. RAF, Tab 8 at 3. Although the appellant responded by
indicating that she did wish to elicit additional testimony, the administrative
judge was not persuaded that it was necessary. RAF, Tab 9 at 5, Tab 12 at 1.
The appellant did not, for example, allege that the initial hearing was improperly
limited to the sole disclosure addressed in the initial decision, such that additional
testimony would be required to develop the other disclosures and activities we
identified in our remand order. And while we reviewed both the prehearing
summary and hearing transcript from the original proceedings, we found no such
limitations. IAF, Tab 29, Tab 35, Hearing Recording; Hearing Transcript (HT).
It appears that the administrative judge’s initial hearing in this case afforded the
appellant the latitude to develop any disclosure or activity she wished. E.g., HT
at 45-46. Therefore, we find no impropriety in the administrative judge’s
decision to hold no additional hearing.
The appellant failed to meet her burden of proving that she made a protected
disclosure or engaged in protected activity relevant to this IRA appeal.
¶6 Turning to the substance of the instant appeal, the Board has jurisdiction
over an IRA appeal if the appellant exhausts her administrative remedies befo re
the Office of Special Counsel (OSC) and makes nonfrivolous allegations that:
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
¶7 If an appellant establishes jurisdiction over her IRA appeal, she is entitled
to a hearing on the merits of her claim, which she must prove by preponderant
evidence. Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
If the appellant makes such a showing, the burden shifts to the agency to prove by
5
clear and convincing evidence that it would have taken the same action in the
absence of the disclosure. Id.¶8 In the remand initial decision, the administrative judge found that the
appellant presented nonfrivolous allegations that each of the 6 disclosures or
activities at issue was protected. RID at 13-14. He also found that the appellant
presented nonfrivolous allegations that each was a contributing factor in her
removal through the knowledge/timing test. RID at 14. Therefore, the
administrative judge determined that the appellant met her jurisdictional burden
for each of the six enumerated disclosures or activities. Id. He then turned to the
question of whether the appellant met the higher burden of proving the merits of
her claim, but found that she did not. The administrative judge concluded that the
appellant failed to prove, by preponderant evidence, that she made a prot ected
disclosure or engaged in protected activity. 2 RID at 14-19.
¶9 A protected disclosure is a disclosure of information that the appellant
reasonably believes evidences a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Shannon v. Department of
Veterans Affairs, 121 M.S.P.R. 221, ¶ 22 (2014). The proper test for assessing
whether a protected disclosure occurred is an objective one: Could a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee reasonably conclude that the actions of the
2
The administrative judge further found that, even if the appellant had met her burden
of establishing a prima facie case, the agency met its burden of proving t hat it would
have taken the same action in the absence of her disclosures or activities. RID at 19 -31.
However, as we explained in our remand order, the Board may not proceed to the clear
and convincing evidence test unless it has first made a finding th at the appellant
established her prima facie case. RO, ¶ 14; see 5 U.S.C. § 1221(e)(2); Scoggins v.
Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016). Accordingly, we must vacate
the administrative judge’s alternative findings. See RID at 19-31.
6
Government evidence one of the categories of wrongdoing identified in 5 U.S.C.
§ 2302(b)(8)(A)? Id.¶10 As will be discussed further below, the appellant’s petition for review
contains very little argument pertaining to her disclosures or activities, i.e. ,
whether they were protected and whether they were a contributing factor in her
removal. Moreover, of the limited argument the appellant did present, she
generally failed to support it by identifying specific and relevant evidence from
the record. See 5 C.F.R. § 1201.115(a)(2) (requiring that a petition for review
explain why the challenged factual determination is incorrect and identify
specific evidence in the record that demonstrates the error); Tines v. Department
of the Air Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review
must contain sufficient specificity to enable the Board to ascertain whether there
is a serious evidentiary challenge justifying a complete review of the record).
Disclosure 1
¶11 As described by OSC’s predetermination letter and noted in our remand
order, disclosure 1 involved the lack of a RESOLVE program, allegedly in
violation of the agency’s guidelines. RO, ¶ 9; IAF, Tab 27 at 430. The
administrative judge found that while the appellant did request the program,
which was intended to help inmates deal with trauma that predated their
incarceration, the appellant failed to prove that her request was a protected
disclosure. RID at 15. In doing so, the administrative judge refe renced the email
chain in which the appellant apparently made this disclosure. The email chain
begins with the appellant making a number of suggestions, including the
following: “I believe we are suppose[d] to have a Resolve Program. I have
mentioned this for years and to date there has been no program.” IAF, Tab 18
at 132-33. The recipient responded by indicating that he also wanted the
program, and he had requested it, but there was no timeline yet for receiving it.
Id. at 132.
7
¶12 On review, the appellant provides only a brief argument concerning
disclosure 1. She suggests that there was other evidence in support of this being
a protected disclosure. RPFR File, Tab 1 at 8. However, the appellant failed to
identify what that evidence was or where it may be located in the record. She did
reference a document included with her petition, but it is not apparent how that
document is of any relevance to the apparent lack of a RESOLVE program.
Compare id. at 8 (referencing “Exhibit 5-5b”), with RPFR File, Tab 2 at 4-6 (an
unexplained document identified as Exhibit 5-5b, which appears to be part of a
blog posting that describes life as an inmate at the appellant’s former facility).
¶13 The appellant also argues that “a disinterested observer would find
something wrong with an agency not providing a Trauma Program to female
inmates.” RPFR File, Tab 1 at 8. Even if we agreed that there is “something
wrong” with a correctional facility lacking a trauma program , that is not what the
appellant disclosed. The record shows that she discussed the lack of a very
specific program, and she has presented no basis for us to conclude that the
absence of that particular program reflected a specific type of wrongdoing
described in section 2302(b)(8), or that she reasonably believed it was.
Accordingly, we find no basis for reaching a conclusion contrary to the
administrative judge. The appellant has failed to meet her burden of proving that
disclosure 1 was protected.
Disclosure 2
¶14 As described by OSC’s predetermination letter and noted in our remand
order, disclosure 2 reportedly involved full-time psychology services being
vacated from an agency facility and staff being called into work on an as -needed
basis, allegedly to save costs so that the executive staff could receiv e bonuses.
RO, ¶ 9; IAF, Tab 27 at 430. The administrative judge found that while the
appellant presented testimony alleging that she made a disclosure about this
matter, the appellant failed to prove that she had a reasonable belief that the
8
disclosure described the type of wrongdoing described in section 2302(b)(8).
RID at 16.
¶15 On review, the appellant does not appear to present any particularized
argument about disclosure 2. She does describe an interaction when she
reportedly asked one agency official why her facility lacked funds for drug
programs, the official responded by indicating that the agency did have associated
funding, the appellant asked where the money was, and the official directed her to
another agency official for more information. RPFR File, Tab 1 at 13. The
appellant goes on to state that she “was not aware at that time that the
managers . . . were giving themselves bonuses with the money.” Id. However,
this interaction does not appear to be the alleged disclosure the appellant
discussed below. Compare id., with HT at 49-50, 61 (testimony from the
appellant, suggesting that she contacted Congress to inform them of a unit that
was available but unfilled, possibly to save money and be rewarded with
bonuses). Even if it were, the appellant’s own description on review
demonstrates that she did not disclose any improper use of funding–she merely
asked for more information about funding.
¶16 Although the appellant did not present any particularized arguments about
the disclosure described in her hearing testimony, we note the following, to
bolster the administrative judge’s findings. While the appellant reportedly
disclosed that a unit was available but unfilled, possibly so that agency officials
could save money and be rewarded with bonuses, those allegations are lacking in
detail. See Rzucidlo v. Department of the Army, 101 M.S.P.R. 616, ¶ 13 (2006)
(recognizing that a disclosure must be specific and detailed, not a vague
allegation of wrongdoing regarding broad or imprecise matters). She does not
appear to present, for example, a persuasive argument that the failure to use this
unfilled unit amounted to gross mismanagement or a substantial and specific
danger to public health or safety, rather than purely a discretionary policy
decision. See 5 U.S.C. § 2302(b)(8); O’Donnell v. Department of Agriculture,
9
120 M.S.P.R. 94, ¶ 14 (2013) (holding that an appellant’s alleged protected
disclosure was “exactly the type of fairly debatable policy dispute that does not
constitute gross mismanagement”), aff’d, 561 F. App’x 926 (Fed. Cir. 2014).
Disclosure 3
¶17 As described by OSC’s predetermination letter and noted i n our remand
order, disclosure 3 reportedly involved an inmate being treated inappropriately by
the Chief of Psychology after she alleged she had been threatened by other
inmates. RO, ¶ 9; IAF, Tab 27 at 430. The administrative judge found that while
the appellant presented some testimony alleging that a clinician purposefully
misdiagnosed an inmate, she failed to meet her burden of proof because the
appellant offered nothing else to support the claim or the alleged disclosure. RID
at 16.
¶18 On review, the appellant disagrees with the administrative judge’s findings,
once again suggesting that there was additional documentary evidence in support
of disclosure 3. RPFR File, Tab 1 at 8. However, she has once again failed to
identify what that additional evidence might be or where we might find it in the
record. The appellant merely refers to “Exhibit 4,” which we assume is a
reference to the evidence she attached to her petition, but that evidence consists
only of news articles, blog postings, and an advertisement for legal services, none
of which appear particularly relevant to the appellant’s burden of proof. RPFR
File, Tab 1 at 8, 19, 36-41, Tab 3 at 4-8.
Disclosure or activity 4
¶19 As described by OSC’s predetermination letter and noted in our remand
order, disclosure or activity 4 reportedly involved allegations of discrimination
that she raised in 2014 on behalf of herself and others in her role as a union
representative, and reprisal for her own EEO complaints. RO, ¶ 9; IAF, Tab 27
at 430. The administrative judge found that while the appellant report edly filed
EEO complaints, the substance of those complaints did not seek to remedy
10
whistleblower reprisal, so they did not constitute protected disclosures or
activities for purposes of this IRA appeal. RID at 17; see, e.g., Edwards v.
Department of Labor, 2022 MSPB 9, ¶ 25 (finding that the Board lacked
jurisdiction over the appellant’s EEO reprisal claim under 5 U.S.C.
§ 2302(b)(9)(A)(i) because his EEO complaint sought to remedy Title VII-related
matters, not whistleblower reprisal); cf. Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 7 (2013) (recognizing that under the Whistleblower
Protection Enhancement Act of 2012, the Board’s jurisdiction in IRA appeals was
expanded to cover claims of reprisal for EEO complaints in which the appellant
sought to remedy whistleblower reprisal).
¶20 On review, the appellant asserts that the administrative judge failed to
address her claims of reprisal for assisting a coworker. RPFR File, Tab 1 at 8;
see generally Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶¶ 4-6
(2014) (finding that, in the context of an IRA appeal, the Board has jurisdiction
over claims of retaliation for lawfully assisting a coworker in a grievance
proceeding). But again, the appellant has failed to specifically identify evidence
in support of any such activity. Our remand order did recognize that the
appellant’s correspondence with OSC involved “allegations of
discrimination-related issues [the appellant] raised in 2014 on behalf of others
and [herself] in [her] role as a union representative.” IAF, Tab 27 at 430; RO,
¶ 9. However, we have yet to find a clear articulation of pertinent details, such as
when this activity may have occurred, what it involved, and how it may have
contributed to the personnel action before us. We also are unable to determine
what, if any, pertinent evidence the appellant submitted in support of this activity.
The appellant’s remand petition refers only to “a prior deposition, emails, etc.”
RPFR File, Tab 1 at 8. Absent more information, we will not pour through the
voluminous record or disturb the administrative judge’s findings on disclosure or
activity 4. See 5 C.F.R. § 1201.115(a)(2); Tines, 56 M.S.P.R. at 92.
11
Disclosure 5
¶21 As described by the appellant in response to OSC’s predetermination letter
and noted in our remand order, disclosure 5 reportedly involved an employee
having a degree in philosophy, not psychology, but being permitted to practice on
inmates, which was illegal and harmful. RO, ¶ 10; IAF, Tab 27 at 435. The
administrative judge found that the appellant made the conclusory assertion that
this individual’s employment was “against the law,” but she offered little else on
the matter. RID at 17-18. He further found that, without more, the appellant
failed to meet her burden of proving that this was a protected disclosure. Id. On
review, we are unable to locate any argument about this matter. Therefore, we
will not revisit or disturb the administrative judge’s conclusion.
Disclosure 6
¶22 As described by the appellant in response to OSC’s predetermination letter
and noted in our remand order, disclosure 6 reportedly involved the agency hiring
unlicensed psychologists to practice on inmates. RO, ¶ 10; IAF, Tab 27 at 435.
The administrative judge found that while the appellant did make this disclosure,
agency officials responded by informing her that licenses were not required. RID
at 18-19. He further found that, considering the information readily available to
her, a disinterested observer could not have reasonably concluded that this
disclosure evidences a violation of any of the categories described in
section 2302(b)(8). 3 RID at 19.
¶23 On review, the appellant summarily asserts that a disinterested person
would see wrongdoing in the agency’s use of unlicensed psychologists. RPFR
File, Tab 1 at 7. However, the appellant has not identified any pertinent law,
3
This conclusion is contrary to the administrative judge’s prior c onclusion about the
same disclosure. Compare ID at 11-12, with RID at 18-19. However, we vacated the
entirety of the initial decision, so it was not improper to revisit this disclosure and come
to a different conclusion. See RO, ¶¶ 13-14.
12
rule, or regulation concerning the same. The only sup port she provides is a
reference to evidence attached to her petition. RPFR File, Tab 1 at 7, 36 -41,
Tab 3 at 4-8. But, again, even if we were to consider that evidence, it consists of
news articles, blog postings, and an advertisement for legal services , none of
which appear relevant to the dispositive question of whether disclosure 6 was
protected. Separately, the appellant argues that the agency failed to present any
evidence, aside from hearing testimony, to confirm that licenses were not
required for the agency’s psychologists. RPFR File, Tab 1 at 11. However, it
was the appellant’s burden of proving that disclosure 6 was protected. Supra
¶¶ 6-7. Her conclusory assertion that the use of unlicensed psychologists
amounts to wrongdoing does not satisfy that burden.
The appellant’s remaining arguments and evidence on review are unavailing.
¶24 We recognize that the appellant attached a significant amount of evidence to
her petition, some of which is mentioned above. RPFR File, Tab 1 at 19 -41,
Tab 2 at 4-35, Tab 3 at 4-11. To the extent that the appellant is attempting to
introduce evidence that was not already included in the record below, she has
failed to show that it is new and material. Therefore, we will not consider it
further. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980)
(recognizing that, pursuant to 5 C.F.R. § 1201.115, the Board will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despite the party’s due
diligence); see also Grassell v. Department of Transportation, 40 M.S.P.R. 554,
564 (1989) (explaining that, to constitute new and material evidence, the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed); Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (recognizing that evidence
13
is material when it is of sufficient weight to warrant an outcome different from
that of the initial decision). 4
¶25 The appellant also asserts that she lacked access to the hearing recording
cited by the administrative judge throughout his decision. RPFR File, Tab 1 at 4.
However, the appellant has failed to identify whether or where she noted the same
below and requested access. See id. Moreover, even if she did lack access to the
hearing recording, the appellant has not shown it was consequential, since she did
not similarly allege that she lacked access to the hearing transcript. See HT.
¶26 Next, we also recognize the appellant’s suggestions of bias on the part of
the administrative judge. RPFR File, Tab 1 at 4, 10. However, we are not
persuaded. See Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (stating that an administrative judge’s conduct during the course of a
Board proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible”) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)).
¶27 Finally, we note that the vast majority of the appellant’s petition is
dedicated to arguments concerning whether her removal was justified, i.e. ,
whether the agency proved by clear and convincing evidence that it would have
taken the same action in the absence of her protected activity. E.g., RPFR File,
Tab 1 at 5-14. However, we cannot address whether the agency met its burden of
proof because the appellant failed to first meet hers. See supra ¶ 8 n.2. And
while the appellant’s petition also includes several other assertions of agency
4
For the same reason, we deny the appellant’s motions to submit additional evidence
obtained while awaiting the instant decision. See RPFR File, Tabs 6, 8. According to
the appellant, that additional evidence consists of a new memorandum from a
Congressional subcommittee regarding employee discipline at the Bureau of Prisons,
RPFR File, Tab 6 at 4, and a news article, RPFR File, Tab 8 at 4. However, the
appellant has not given us any reason to believe that the information contained within is
new and material.
14
wrongdoing, such as gender discrimination, inadequate discipline of inmates,
staff shortages, and inappropriate relationships among employees, e.g., RPFR
File, Tab 1 at 14-15, none appear relevant to the limited matters exhausted before
OSC and properly before us in this IRA appeal. 5
NOTICE OF APPEAL RIGHTS 6
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
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropr iate 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 appl icable 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 choic es 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
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
(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 partic ular
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
16
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, t hen 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 th eir 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:
17
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 t he 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.
18
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 lin k below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.