Opinion

Dongwook Lee v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jul 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

holding that summary judgment is not available in Board proceedings

How later courts described this case

holding that summary judgment is not available in Board proceedings

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONGWOOK LEE, DOCKET NUMBER

Appellant, AT-0752-19-0251-I-1

DEPARTMENT OF THE ARMY, DATE: July 3, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant.

Anne M. Norfolk , Esquire, Fort Benning, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his involuntary resignation appeal for lack of jurisdiction. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

Effective December 14, 2018, the appellant resigned from his position as a

GS-14 Clinical Psychologist (Neuropsychology) in the Traumatic Brain Injury

Clinic (clinic) at Martin Army Community Hospital in Fort Benning, Georgia.

Initial Appeal File (IAF), Tab 8 at 4, Tab 11 at 13. In his resignation letter, the

appellant stated that he was resigning due to a “continuous hostile and

discriminatory work environment.” IAF, Tab 8 at 4.

The appellant filed an appeal with the Board and requested a hearing,

alleging that his resignation was involuntary. IAF, Tab 1. On his Board appeal

form, the appellant claimed that he was forced to resign due to an ongoing hostile

work environment, racial discrimination, and retaliation for his whistleblowing

and protected equal employment opportunity (EEO) activities. Id. at 4. He also

stated that he was forced to resign because management was planning on

removing him. Id. at 5.

The administrative judge issued an order informing the appellant that a

resignation is presumed to be voluntary and that he would be granted a hearing

only if he made allegations of duress, coercion, or misrepresentation supported by

facts which, if proven, could show that his resignation was involuntary. IAF,

Tab 2 at 2. The administrative judge ordered the appellant to submit evidence

and argument constituting a nonfrivolous allegation that his involuntary

resignation claim is within the Board’s jurisdiction. Id. at 3. Both parties filed

responses on the jurisdictional issue, IAF, Tabs 5, 10, and the agency moved to

dismiss the appeal for lack of jurisdiction, IAF, Tab 10.

Without holding a hearing, the administrative judge issued an initial

decision that dismissed the appeal for lack of jurisdiction, finding that the

appellant failed to nonfrivolously allege that his resignation was involuntary.

IAF, Tab 18, Initial Decision (ID) at 9.

The appellant has filed a petition for review and a motion to accept the

petition for review as timely or to waive the time limit. 2 Petition for Review

(PFR) File, Tabs 1, 5. The agency has filed a response in opposition to the

petition for review. PFR File, Tab 6.

ANALYSIS

The administrative judge correctly dismissed the appellant’s involuntary

resignation appeal for lack of jurisdiction.

Generally, the Board lacks the authority to review an employee’s decision

to resign, which is presumed to be a voluntary act. Brown v. U.S. Postal Service,

115 M.S.P.R. 609, ¶ 9, aff’d sub nom. Brown v. Merit Systems Protection Board ,

469 F. App’x 852 (Fed. Cir. 2011). An involuntary resignation, however, is

tantamount to a removal and is therefore subject to the Board’s jurisdiction.

Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). An

employee may overcome the presumption of voluntariness by showing that his

resignation was the product of misinformation or deception by the agency, or of

coercive acts by the agency, such as intolerable working conditions or the

Because we are denying the appellant’s petition for review on the merits, we find it

unnecessary to consider the timeliness of the petition for review.

unjustified threat of an adverse action. SanSoucie v. Department of Agriculture,

116 M.S.P.R. 149, ¶ 14 (2011). The Board addresses allegations of

discrimination and reprisal in connection with an alleged involuntary resignation

only insofar as those allegations relate to the issue of voluntariness and not

whether they would establish discrimination or reprisal as an affirmative defense.

Vitale, 107 M.S.P.R. 501, ¶ 20. If the employee makes a nonfrivolous allegation

of jurisdiction, i.e., an allegation that, if proven, could establish the Board’s

jurisdiction, he is entitled to a hearing at which he must prove jurisdiction by a

preponderance of the evidence. Id., ¶ 18.

When, as here, an employee alleges that the agency took actions that made

working conditions so intolerable that he was forced to resign, the Board will

find his resignation involuntary only if he demonstrates that the agency engaged

in a course of action that made working conditions so difficult or unpleasant that

a reasonable person in his position would have felt compelled to resign.

Markon v. Department of State, 71 M.S.P.R. 574, 577 (1996). The doctrine of

coerced involuntariness is “a narrow one” that applies when a decision to resign

“was the result of improper acts by the agency” and not merely when an employee

resigns because “he does not want to accept [measures] that the agency is

authorized to adopt, even if those measures make continuation in the job so

unpleasant for the employee that he feels that he has no realistic option but to

leave.” Staats v. U.S. Postal Service, 99 F.3d 1120, 1124 (1996). “[T]he fact

than an employee is faced with an unpleasant situation or that his choice is

limited to two unattractive options does not make his decision any

less voluntary.” Id. The touchstone of the voluntariness analysis is whether,

considering the totality of the circumstances, factors operated on the

employee’s decision-making process that deprived him of freedom of choice.

Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12 (2010).

In his response to the jurisdictional order, the appellant recounted a series

of events that purportedly forced him to resign. IAF, Tab 5. In particular, the

appellant alleged as follows:

During a meeting on April 11, 2018, a primary care physician (PCP)

demanded that all of his referrals to Neuropsychology receive a comprehensive

evaluation and that the appellant change the format and content of his

neuropsychology reports. IAF, Tab 5 at 7. The appellant told the PCP that

asking him to write an important clinical document to the PCP’s own liking was

unprofessional and insulting. Id. When the appellant challenged the PCP’s

“clinical practice,” the PCP yelled at the appellant, saying, “You do whatever you

want, and I am not going to talk to you anymore,” and the PCP then left the room.

Id. at 8. The appellant’s supervisor did not intervene on his behalf; instead, she

stated that the appellant should comply with the PCP’s demands. Id.

On August 8, 2018, the appellant discovered that the PCP was sending

Attention Deficit Hyperactivity Disorder (ADHD) evaluation requests to a

Caucasian clinical psychologist who was not qualified to perform neurocognitive

evaluation, and whose scope of practice did not include ADHD evaluation,

thereby bypassing and undermining the appellant, who performed neurocognitive

evaluations as his primary service, and whose scope of practice included ADHD

evaluation. Id. at 8-9.

During a meeting on August 29, 2018, the appellant’s supervisor approved

a treatment plan proposed by a Caucasian occupational therapist with no expertise

or training in neurocognitive evaluation over the appellant’s objections that the

plan could result in a waste of resources. Id. at 9-10.

During an October 2, 2018 meeting, the appellant informed his supervisor

and the clinic administrator that a psychology technician (PT), who also attended

the meeting, had erroneously sent treatment notes pertaining to the appellant’s

biofeedback patients to the PCP for signature/approval instead of the appellant,

and had failed to provide the appellant updates on his biofeedback patients, as he

had repeatedly requested. Id. at 10-13. The appellant’s supervisor concluded that

the appellant’s dispute with the PT was a matter of miscommunication and

ignored his request to correct the PT’s errors and lack of cooperation. Id. at 13.

On November 5, 2018, six days after the appellant’s supervisor was

interviewed by an EEO counselor regarding the appellant’s EEO claim, she issued

him a Letter of Warning, IAF, Tab 8 at 35-36, citing his conduct during the

August 29 and October 2, 2018 meetings and threatening further disciplinary

action. IAF, Tab 5 at 13-14.

The appellant was not interviewed during a staff assistance visit (SAV)

conducted on November 6-7, 2018, and the hospital commander ignored his

request that the SAV be conducted by staff who had no previous contact with

clinic leadership. Id. at 15.

On several occasions, the appellant notified clinic management that the

PCP had engaged in malpractice; however, they failed to address his concerns.

Id. at 14. He also informed his second-level supervisor that his immediate

supervisor had sided with the PCP against him and that his work environment was

discriminatory and hostile based on his race and national origin. Id.

In his response to the jurisdictional order, the appellant further claimed

that: he felt helpless when he realized that the agency was acting against him and

“tried to get rid of him”; he feared that he could lose his license due to the PT’s

misconduct; two of his colleagues were forced to leave their positions due to

discrimination; and the stressful situation at work caused him to suffer chronic

headaches, insomnia, and chronic fatigue, and was harmful to his family,

spiritual, and emotional life. Id. at 16-17.

In the initial decision, the administrative judge considered the

circumstances described by the appellant and concluded as follows: “I do not

find that the facts as alleged by the appellant made working conditions so

difficult or unpleasant that a reasonable person in his position would have felt

compelled to resign.” ID at 9 (citing Markon, 71 M.S.P.R. at 577-78). In making

this finding, the administrative judge observed that the appellant’s complaints

largely result from management’s decisions concerning his field and that he was

“undeniably frustrated” when his coworkers disagreed with his recommendations

as to how the clinic should conduct neurocognitive evaluations. ID at 8.

However, the administrative judge found that the agency has the right to make

these decisions and the appellant’s strong disagreement with these decisions does

not make his resignation involuntary. Id.

In addition, the administrative judge found unpersuasive the appellant’s

arguments that he was forced to resign because his supervisor was “trying to get

rid of” him or that he “could lose his license.” Id. The administrative judge

found that both of these allegations were based on mere supposition. Id.

Moreover, the administrative judge explained that, if the agency had taken an

actual removal action against him, he could have appealed that action to the

Board. Id. (citing Garcia v. Department of Homeland Security, 437 F.3d 1322,

1329 (Fed. Cir. 2006) (en banc) (stating that a resignation is not involuntary if the

employee had a choice of whether to resign or contest the validity of the agency

action)).

As for the appellant’s allegations of discrimination, the administrative

judge found that most of these allegations were based on suppositions that

minority coworkers were subjected to discriminatory animus and the mere fact

that some of the neurocognitive evaluation work was sent to a Caucasian. ID

at 8. The administrative judge concluded that these facts alone do not show that

the appellant was subjected to intolerable working conditions. ID at 8-9. The

administrative judge also found that, although the appellant did not like working

at the clinic, his allegations did not show that his resignation was the result of

improper pressure, intimidation, or coercion by the agency. ID at 9.

Accordingly, the administrative judge found that the appellant failed to make a

nonfrivolous allegation of facts which, if proven, could show that his resignation

was involuntary. Id.

The appellant challenges this finding on review and reiterates his argument

from below that he was forced to resign due to intolerable working conditions. 3

PFR File, Tab 1 at 10-25; IAF, Tab 5 at 6-18. He alleges that, in addressing his

allegations of intolerable working conditions, the administrative judge omitted or

mischaracterized several relevant facts 4 and failed to consider the totality of the

circumstances from April to December 2018, which culminated in his resignation,

in order to conclude: “While I understand that the appellant was increasingly

frustrated with the clinic’s policy and processes in neuropsychology, I do not find

that the facts as alleged left him no choice but to resign.” PFR File, Tab 1 at 18

(quoting ID at 7-8).

The appellant argues that, by characterizing the circumstances that

precipitated his resignation as mere “policy and process” issues, the

administrative judge grossly misrepresented the facts while entirely ignoring

“incompetence, mismanagement, mishandling of patients[,] and medical

treatments bordering on medical malpractice and seriously posing a risk to [the]

[a]ppellant’s own medical license and professional reputation.” Id. at 19.

The gist of the appellant’s arguments regarding the jurisdictional issue is

that, by omitting some facts and mischaracterizing others, the administrative

judge minimized the difficulty and unpleasantness of his working conditions so

that she could find that he failed to nonfrivolously allege that his working

conditions were so difficult or unpleasant that a reasonable person in his position

would have felt compelled to resign. Id. at 10-24.

These arguments provide no basis to disturb the initial decision. It is well

settled that the administrative judge’s failure to mention all of the evidence of

The portion of the petition for review challenging the administrative judge’s

jurisdictional determination is largely the same as the appellant’s response to the

jurisdictional order. Compare PFR File, Tab 1 at 11-18, 20-24, with IAF, Tab 5 at 7-17.

For example, the appellant asserts that the administrative judge “entirely neglected” to

mention the “medical deterioration [and] the social and emotional degradation [he]

suffered as a result of the intolerable working conditions.” PFR File, Tab 1 at 22.

record does not mean that she did not consider it in reaching her decision.

Marques v. Department of Health and Human Services, 22 M.S.P.R. 129, 132

(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

Moreover, based on our review of the record, we agree with the

administrative judge that the appellant failed to make a nonfrivolous allegation of

Board jurisdiction over this appeal. ID at 9. An employee is not guaranteed a

working environment free of stress. Dissatisfaction with work assignments, a

feeling of being unfairly criticized, or difficult or unpleasant working

conditions are generally not so intolerable as to compel a reasonable person to

resign. Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000).

Further, as the administrative judge correctly found, the appellant’s

allegation that management officials were planning to remove him at the time he

resigned does not render his resignation involuntary. ID at 8. The appellant did

not allege that the agency had even proposed such an action when he resigned.

Thus, instead of resigning based on his speculation that such an action might

occur in the future, the appellant clearly had an option of contesting an action he

thought was invalid if and when it did occur. See Garcia, 437 F.3d at 1329.

Also, even if the appellant genuinely felt that he had no alternative but to

resign, in part due to his medical conditions, he failed to make a sufficient

allegation of a coercive or improper act on the part of the agency that could have

left a reasonable person in his position with no other choice but to resign. See

Brown, 115 M.S.P.R. 609, ¶ 17 (finding that, even if the appellant’s medical

condition left her no alternative but to retire, she failed to tie her circumstances to

an improper agency act that could have left a reasonable person in her position

with no choice but to resign). Therefore, we find that the administrative judge

properly dismissed this appeal for lack of jurisdiction. ID at 9.

The appellant’s remaining arguments on review provide no basis to disturb the

initial decision.

The appellant’s petition for review contains several other arguments that

are unavailing. For example, the appellant argues that the administrative judge

erred by allowing the agency to file pleadings without designating its

representative. PFR File, Tab 1 at 6-7. However, he has failed to articulate how

this purported error relates to his jurisdictional burden in the instant appeal.

For the first time on review, the appellant objects to the deadlines set forth

in the acknowledgement and jurisdictional orders dated February 15, 2019. Id.

at 5-9; IAF, Tabs 2-3. In particular, the appellant contends that the administrative

judge abused her discretion by requiring him to submit evidence and argument

establishing a nonfrivolous allegation of Board jurisdiction by February 25, 2019,

yet affording the agency until March 7, 2019, to submit the agency file and

respond to the jurisdictional order. PFR File, Tab 1 at 5-7. The appellant asserts

that not having the opportunity to review the agency file before responding to the

jurisdictional order “gravely prejudiced” him because, without knowing the

agency’s position regarding the circumstances that allegedly forced him to resign,

his response to the order was not as effective as it could have been had he been

allowed to obtain the agency file before submitting his response. Id. at 7.

The Board will not consider an argument raised for the first time in a

petition for review absent a showing that it is based on new and material evidence

not previously available despite the party’s due diligence. Banks v. Department

of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant did not raise any

objection below to the deadlines set by the administrative judge and presents no

evidence, let alone new and material evidence, to support his argument that he

was prejudiced by those deadlines. PFR File, Tab 1. Therefore, we do not

consider the appellant’s new argument. See Banks, 4 M.S.P.R. at 271.

The appellant also reiterates his argument from below that the agency file

is untimely because it was due on March 7, 2019, but the Board did not receive it

until March 11, 2019. PFR File, Tab 1 at 6; IAF, Tab 15. The agency file was

submitted by mail and we are unable to determine the postmark date because

the record does not include a copy of the envelope in which the agency’s file was

mailed. IAF, Tab 11 at 1. Therefore, the agency’s file is timely under

5 C.F.R. § 1201.4(l) (providing that the date of a filing by mail is the postmark

date and, if no legible postmark date appears on the mailing, the submission is

presumed to have been mailed 5 days before its receipt (excluding days on which

the Board is closed for business)).

The appellant argues that the administrative judge’s statement that “there is

no factual dispute bearing on the jurisdictional issue” suggests that she dismissed

the appeal by summary judgment, which the Board does not allow. PFR File,

Tab 1 at 9; see Crispin v. Department of Commerce, 732 F.2d 919, 922 (Fed. Cir.

1984) (holding that summary judgment is not available in Board proceedings).

The initial decision clearly shows that the administrative judge dismissed the

appeal for lack of jurisdiction based on her finding that the appellant failed to

make a nonfrivolous allegation of facts which, if proven, could show that his

resignation was involuntary. ID at 1, 9.

The appellant further alleges that the administrative judge erred by

dismissing his hearing request without providing him an adequate opportunity to

engage in discovery, and he contends that the jurisdictional questions could have

been better resolved by conducting a hearing. PFR File, Tab 1 at 8. An appellant

is not entitled to a hearing on the issue of Board jurisdiction over an appeal of an

alleged involuntary resignation unless he makes a nonfrivolous allegation casting

doubt on the presumption of voluntariness. Searcy, 114 M.S.P.R. 281, ¶ 12. The

Board has also found that an appellant is not entitled to discovery when he fails to

raise a nonfrivolous allegation of the Board’s jurisdiction. See Sobczak v.

Environmental Protection Agency, 64 M.S.P.R. 118, 122 (1994) (finding that the

administrative judge properly denied discovery because the appellant failed to

plead facts sufficient to establish jurisdiction). As discussed above, the appellant

failed to make a nonfrivolous allegation of Board jurisdiction regarding his

involuntary resignation claim. Thus, the appellant was not entitled to either a

jurisdictional hearing or discovery based on that claim.

NOTICE OF APPEAL RIGHTS 5

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.

(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).

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.

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

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:

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. 6 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