John Surowiecki v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN SUROWIECKI, DOCKET NUMBER

Appellant, SF-0752-18-0678-I-1

v.

DEPARTMENT OF HOMELAND DATE: July 8, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.

Cary Elizabeth Zuk , San Francisco, California, 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

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

sustained his removal for misconduct. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 with respect to the administrative judge’s analysis of the first charge

and to address the deciding official’s failure to afford proper weight to the

applicable mitigating penalty factors, we AFFIRM the initial decision.

BACKGROUND

¶2 Effective July 10, 2018, the agency removed the appellant from his GS-13

Supervisory Detention and Deportation Officer position based on three charges:

(1) conduct unbecoming (five specifications); (2) violation of agency policy on

Government-issued mobile device (one specification); and (3) lack of candor (two

specifications). Initial Appeal File (IAF), Tab 5 at 14-25, 106-13. Charge 1

pertained to the appellant’s harassing actions toward his ex-girlfriend in the wake

of their breakup, Charge 2 pertained to the appellant using his Government-issued

cellphone to send a pornographic image to his ex-girlfriend, and Charge 3

pertained to the appellant’s responses to a Seattle Police Department inquiry

regarding his actions toward his ex-girlfriend. Id. at 107-09.

¶3 The appellant filed a Board appeal challenging the removal and raising

affirmative defenses of harmful error and denial of due process. IAF, Tab 1.

After a hearing, the administrative judge issued an initial decision affirming the

removal. IAF, Tab 41, Initial Decision (ID). He sustained each of the three

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charges at issue, although only three specifications of Charge 1. ID at 3-17. He

found the affirmative defenses to be unproven and the penalty to be reasonable.

ID at 17-26.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 10. The agency has filed a response in opposition to the petition for

review, and the appellant has filed a reply to the agency’s response. 2 PFR File,

Tabs 12-13.

ANALYSIS

The administrative judge did not abuse his discretion in ruling on discovery

matters.

¶5 The appellant asserts on review that the administrative judge erred by

denying his motion for a subpoena duces tecum. PFR File, Tab 10 at 9-10; IAF,

Tab 2 at 2-3, Tab 17 at 1, Tab 24. An administrative judge has broad authority in

discovery matters, and absent an abuse of discretion, the Board will not substitute

its judgment for that of an administrative judge. Bayne v. Department of Energy,

34 M.S.P.R. 439, 443 (1987), aff’d, 848 F.2d 1244 (Fed. Cir. 1988); see 5 C.F.R.

§ 1201.41(b)(4). We find that the administrative judge did not abuse his

discretion in denying the appellant’s motion for a subpoena duces tecum because,

as the administrative judge correctly noted, IAF, Tab 30 at 2-4, the motion did not

include the information required under 5 C.F.R. § 1201.73(c)(1). See Morrison v.

Department of the Navy, 122 M.S.P.R. 205, ¶ 12 (2015) (finding that the

administrative judge did not abuse her discretion in denying a motion to compel

that failed to comply with the procedural requirements of 5 C.F.R. § 1201.73).

The administrative judge correctly sustained Charge 1.

¶6 The agency brought five specifications under Charge 1. PFR File, Tab 5

at 107-08. The decision letter, however, only expressly sustained Specification 1.

IAF, Tab 5 at 16. The appellant argued below that Specification 1 is the sole

2

The agency has moved for leave to file an additional pleading regarding issues raised

in the appellant’s reply. PFR File, Tab 14. The agency’s motion is denied.

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specification for the Board to adjudicate. IAF, Tab 39 at 4-7. The administrative

judge considered the appellant’s argument, but found that the language of the

decision letter as a whole made it clear that the deciding official sustained all five

specifications, sustaining specifications 2, 4, and 5, all of which pertained to texts

and emails that the appellant sent to his ex-girlfriend after they broke up. ID

at 5-11.

¶7 On review, the appellant renews his argument that the deciding official only

sustained specification 1 of Charge 1, and he disputes the administrative judge’s

analysis of the issue. PFR File, Tab 10 at 11-13. We find, for the reasons

explained in the initial decision, that the deciding official sustained all five

specifications of Charge 1. ID at 4-5; IAF, Tab 5 at 16. In discussing that

charge, the deciding official specifically stated that the appellant “used a

government iPhone to send a pornographic image to [his] ex-girlfriend” and

contacted her “multiple times after she asked [him] to stop contacting her.” IAF,

Tab 5 at 16. This discussion is clearly referring to specifications 2 through 5 and

leaves no doubt that the deciding official found that the appellant engaged in the

misconduct alleged therein. IAF, Tab 5 at 16, 107-08. The appellant has not

advanced any other plausible interpretation of this language.

¶8 The administrative judge found that “the appellant himself understood that

specifications 2-5 had been sustained, in addition to specification 1, as he

testified about each of them at hearing.” ID at 4-5. The appellant persuasively

argues that the administrative judge improperly gave him the choice between

staying silent on these specifications and risking a tacit admission or defending

against those specifications and waiving his argument that the deciding official

had not sustained them. PFR File, Tab 10 at 13. Parties to a Board appeal are

permitted to plead in the alternative, Tompkins v. Department of the Navy,

80 M.S.P.R. 529, ¶ 9 (1999), and we do not construe the appellant’s arguments on

the merits of these specifications to constitute any sort of waiver. We do find,

however, that the appellant’s arguments in this regard show that he was not

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unfairly surprised that these specifications were at issue in the proceedings

below.

¶9 The appellant does not contest the administrative judge’s factual findings

regarding specifications 2, 4, and 5, and for the reasons explained in the initial

decision, we agree with the administrative judge that the agency proved these

specifications. ID at 7-11. Thus, the administrative judge properly sustained

Charge 1. See Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed.

Cir. 1990) (finding that, when more than one event or factual specification

supports a single charge, proof of one or more, but not all, of the supporting

specifications is sufficient to sustain the charge).

The administrative judge correctly sustained Charges 2 and 3.

¶10 Under Charge 2, the agency alleged that the appellant violated U.S.

Immigration and Customs Enforcement policy by using his Government-issued

cellphone to transmit a pornographic image to his ex-girlfriend. IAF, Tab 5

at 109. The deciding official sustained this charge and so did the administrative

judge. IAF, Tab 5 at 16; ID at 11-12. The appellant does not dispute this charge

on review, and for the reasons explained in the initial decision, we find that the

agency proved Charge 2. ID at 11-12.

¶11 Charge 3 is a lack of candor charge, IAF, Tab 5 at 109, which requires proof

that: (1) the employee gave incorrect or incomplete information; and (2) he did

so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17

(2016). The agency brought two specifications under this charge. Under

specification 1, the agency alleged that a detective from the Seattle Police

Department asked the appellant whether he used his work phone to send the

pornographic image to his ex-girlfriend, and the appellant deceptively responded

“Um . . . No, it was sent from my laptop to her.” IAF, Tab 5 at 109. Under

specification 2, the agency alleged that the appellant told this same detective that

his ex-girlfriend asked him to send her the image, but in reality, she only asked

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him to send her a link to the image after he had already sent her the image itself

and suggested that it was of her. Id.

¶12 On review, the appellant argues that the information that he provided the

detective was true and that he did not knowingly attempt to deceive the detective.

PFR File, Tab 10 at 21-24. We have carefully reviewed the record and find the

appellant’s argument unpersuasive because it conflates the transmission of the

image with the transmission of a link to the image. ID at 13-15; IAF, Tab 6

at 66-67; PFR File, Tab 10 at 22-23. The detective’s initial question was whether

the appellant used his Government-issued cellphone to transmit the image, which

the appellant flatly and inaccurately denied. 3 IAF, Tab 6 at 36-37, 67. It was not

until the detective asked the appellant about the link that the appellant stated he

could not remember how he sent it. Id. at 67. Therefore, the administrative judge

correctly found that the appellant provided inaccurate information with respect to

his transmission of the image itself. ID at 14-15; IAF, Tab 5 at 109.

¶13 While they were still talking about the image, the appellant volunteered to

the detective that his ex-girlfriend asked him to send it. IAF, Tab 6 at 67. This

again was inaccurate. The record clearly shows that the appellant sent this image

unsolicited and that his ex-girlfriend was surprised at receiving it. Id. at 36-38.

It was not until the appellant represented to his ex -girlfriend that the image was

of her that she requested a link to it. Id. at 38-39. Therefore, the administrative

judge correctly found that the appellant inaccurately represented to the detective

that his ex-girlfriend requested the image. ID at 16-17; IAF, Tab 5 at 109.

¶14 Having established that the appellant gave the detective incorrect

information as charged, the next question is whether he conveyed this information

knowing that it was incorrect or incomplete. Parkinson v. Department of Justice,

815 F.3d 757, 765-66 (Fed. Cir. 2016, aff’d in part and rev’d in part, 874 F.3d

3

The appellant asserts that “How he sent the picture is neither material nor germane in

the context of a lack of candor analysis.” PFR File, Tab 10 at 23. However, under

Charge 3, specification 1 as worded, the appellant’s method of transmitting the image is

the very crux of the matter. IAF, Tab 5 at 109.

7

712 (Fed. Cir. 2017) (en banc). On review, the appellant argues that receiving

this call from the detective rattled him and that he sent a large number of text

messages during the time period at issue, both of which made it difficult for him

to recall certain details. PFR File, Tab 10 at 21, 23. He points out that he

suggested that the detective examine his ex-girlfriend’s cellphone, where a

definitive answer to the detective’s questions could be found, and he argues that

such behavior is inconsistent with a knowing concealment of the truth. PFR File,

Tab 10 at 22-23; IAF, Tab 6 at 67. The administrative judge thoroughly

considered these arguments and found them unpersuasive based at least in part on

his assessment of the appellant’s credibility. ID at 15-16. The appellant has not

proffered sufficiently sound reasons to set aside the administrative judge’s

findings. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.

2002) (finding that the Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on the observation of

the demeanor of witnesses testifying at a hearing).

¶15 The appellant further argues that the detective himself understood that the

appellant could not recall how he had transmitted the image. PFR File, Tab 10

at 22; HT at 99 (testimony of the detective). The detective’s opinion as to

whether the appellant was truthful during his interview is not particularly relevant

because the Board reviews the evidence de novo. In any event, if the appellant

could not recall how he had transmitted the image, a truthful answer would have

been “I cannot recall,” not a false statement that he transmitted the image from

his laptop.

¶16 Finally, the appellant argues that an honest but mistaken representation does

not constitute a lack of candor, citing Ludlum v. Department of Justice, 278 F.3d

1280, 1284 (Fed. Cir. 2002). PFR File, Tab 10 at 23-24. However, the

administrative judge expressly found that the appellant’s misrepresentations

during the police interview were not honest mistakes. ID at 15-17. For these

reasons, we affirm the administrative judge’s findings with respect to Charge 3.

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The agency established a nexus between the appellant’s misconduct and the

efficiency of the service.

¶17 The appellant also argues on review that the administrative judge erred by

finding a nexus between his misconduct and the efficiency of the service. PFR

File, Tab 10 at 13-16. However, the administrative judge correctly found that the

appellant’s use of his Government-issued cellphone to transmit the text messages

at issue in Charge 2 and specifications 2 and 4 of Charge 1 establishes the

requisite nexus between the described misconduct and the efficiency of the

service. ID at 20; see Lowell v. Department of the Air Force, 11 M.S.P.R. 453,

454-55 (1982) (finding nexus where the appellant’s off-duty misconduct occurred

on agency property). As to the appellant’s lack of candor, the agency has

demonstrated that it requires its law enforcement officers to be honest and

trustworthy and that it can no longer trust the appellant because he has

demonstrated an absence of those qualities and a lack of judgment. Hearing

Transcript (HT) at 173 (testimony of the deciding official); see Canada v.

Department of Homeland Security, 113 M.S.P.R. 509, ¶¶ 10-11 (2010) (finding

nexus in light of the appellants’ supervisory law enforcement positions and the

lack of judgment exhibited by their off-duty conduct); Austin v. Department of

Justice, 11 M.S.P.R. 255, 259 (1982) (finding nexus between a law enforcement

officer’s off-duty shoplifting and the efficiency of the service because the

misconduct had a significant effect on his reputation for honesty and integrity).

The penalty of removal is within the bounds of reasonableness.

¶18 When, as here, all of the agency’s charges are sustained but some of the

specifications are not, the agency’s penalty determination is entitled to deference

and should be reviewed only to determine whether it is within the parameters of

reasonableness. Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). The

Board will disturb the agency’s chosen penalty only if it finds that the agency

failed to weigh relevant factors or that the agency’s judgment clearly exceeded

9

the limits of reasonableness. Toth v. U.S. Postal Service, 76 M.S.P.R. 36, 39

(1997); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981).

¶19 In this case, the deciding official found the lack of candor charge to be the

most serious of the sustained charges, especially considering the appellant’s

status as a law enforcement officer in an agency that handles sensitive

information. HT at 173 (testimony of the deciding official). In particular, she

found that this matter would be subject to disclosure under Giglio v. United

States, 405 U.S. 150 (1972), should the appellant ever be called to testify in his

official capacity. Id. (testimony of the deciding official). In light of these and

other factors, the deciding official found that removal was the most appropriate

penalty. IAF, Tab 5 at 17, 22-25. The administrative judge upheld the penalty,

finding that the deciding official considered the relevant penalty factors and

exercised her discretion within the tolerable limits of reasonableness. ID

at 23-26. The appellant alleges on review that the penalty of removal is

excessive. PFR Fie, Tab 10 at 16-19.

¶20 We agree with the appellant that the deciding official failed to give proper

consideration to his nearly 20 years of discipline-free service. PFR File, Tab 10

at 17; IAF, Tab 5 at 23. In her penalty factors review sheet, the deciding official

acknowledged that the appellant had no disciplinary record, but she did not

indicate how this factored into her decision. IAF, Tab 5 at 23. At the hearing,

she testified that the appellant’s lack of prior discipline was a “neutral” factor.

HT at 182 (testimony of the deciding official).

¶21 The Board has repeatedly held that long service without prior discipline is a

significant mitigating factor. See, e.g., Von Muller v. Department of Energy,

101 M.S.P.R. 91, ¶¶ 2, 23 (finding that the appellant’s lack of prior discipline

over 21 years of service was a significant mitigating factor) , aff’d,

204 F. App’x 17 (Fed. Cir. 2006); Lloyd v. Department of the Army , 99 M.S.P.R.

342, ¶ 14 (2005) (finding that 19 years of discipline-free service was a significant

mitigating factor), aff’d per curiam, 180 F. App’x 911 (Fed. Cir. 2006); Gibb v.

10

Department of the Treasury, 88 M.S.P.R. 135, ¶ 33 (2001) (considering 20 years

of discipline-free service in mitigating the removal penalty). In Chin v.

Department of Defense, 2022 MSPB 34, ¶¶ 26-27, the Board found that the

agency’s penalty determination was not entitled to deference because the deciding

official failed to consider the appellant’s 30 years of satisfactory service,

characterizing these factors as “neutral.” As we did in Chin, we find that the

deciding official here did not seriously consider the most significant mitigating

factors in this case and that her penalty analysis was therefore not sufficiently

substantive. Chin, 2022 MSPB 34, ¶ 27; see Stulmacher v. U.S. Postal Service,

89 M.S.P.R. 272, ¶ 24 (2001) (finding that it was appropriate not to defer to the

deciding official’s penalty determination because his treatment of the mitigating

factors was not sufficiently substantive); Omites v. U.S. Postal Service,

87 M.S.P.R. 223, ¶ 11 (2000) (finding that the administrative judge correctly did

not defer to the agency’s penalty determination because the agency failed to

seriously consider the relevant Douglas factors). Accordingly, we decline to

defer to the agency’s penalty determination and will instead independently assess

the penalty in light of the relevant Douglas factors. See Brown v. Department of

the Treasury, 91 M.S.P.R. 60, ¶ 17 (2002).

¶22 We find the lack of candor charge to be serious, particularly in light of the

appellant’s position as a supervisory law enforcement officer. See Jackson v.

Department of the Army, 99 M.S.P.R. 604, ¶¶ 1, 6 (2005) (finding supervisory

police officers’ lack of candor to be a serious offense); McManus v. Department

of Justice, 81 M.S.P.R. 672, 676 (1999) (finding that supervisory law

enforcement officers are properly held to a higher standard of conduct); Wayne v.

Department of the Navy, 55 M.S.P.R. 322, 330 (1992) (finding that the

seriousness of a falsification offense is increased when the appellant is a law

enforcement officer). We also find that the charges concerning the appellant’s

off-duty harassing behavior and the misuse of his Government-issued cellphone

are significant because they call into question his judgement and his ability to

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follow the rules. See Martin v. Department of Transportation, 103 M.S.P.R. 153,

¶ 13 (2006) (finding that misuse of a Government computer was serious

misconduct for a supervisor who was required to enforce against his subordinates

the very policies he had violated), aff’d, 224 F. App’x 974 (Fed. Cir. 2007);

Lindsay v. Department of Justice, 9 M.S.P.R. 55, 58 (1981) (finding that the

appellant’s position required a high degree of judgment and that her off-duty

misconduct indicated a failure in the exercise of that judgment). We also find

that the appellant’s likely Giglio impairment weighs in favor of a sterner penalty.

HT at 173 (testimony of the deciding official).

¶23 In addition, we find that the appellant’s 20 years of service at a high level

of performance and with no disciplinary record are significant mitigating factors.

IAF, Tab 32 at 5-147. We have therefore considered whether a lesser penalty

might offer sufficient correction while allowing him to continue providing useful

and efficient service to the agency. See Douglas, 5 M.S.P.R. at 306 (identifying

the availability and effectiveness of lesser alternative sanctions as a relevant

penalty factor). Nevertheless, we find that the appellant’s lack of remorse for his

misconduct casts serious doubt on his rehabilitative potential, and for that reason,

we strike the ultimate balance in favor of removal. See Wiley v. U.S. Postal

Service, 102 M.S.P.R. 535, ¶ 18 (2006) (finding that the appellant’s failure to

take responsibility for his misconduct and his lack of remorse demonstrated a lack

of rehabilitative potential), aff’d, 218 F. App’x 1001 (Fed. Cir. 2007). Although

the appellant apologized for his harassing behavior at the hearing, he rationalized

it in the same breath as an attempt to recover some of his property, which was

only partly true. 4 HT at 222-23 (testimony of the appellant); see Neuman v. U.S.

Postal Service, 108 M.S.P.R. 200, ¶ 26 (2008) (“[The deciding official] did not

err in considering that the appellant’s rationalizations and lack of remorse

indicated little rehabilitation potential and were aggravating factors.”).

4

The administrative judge did not sustain the two specifications relating to the

appellant’s attempts to recover his property. ID at 5-7, 8-9.

12

Furthermore, the record indicates that the first time that the appellant expressed

remorse for how his conduct adversely affected others was at the Board hearing,

which further diminishes its value. 5 See Saiz v. Department of the Navy,

122 M.S.P.R. 521, ¶ 13 (2015). Notably, the appellant has not expressed any

remorse regarding his lack of candor. We acknowledge that the appellant has

been making some attempts at self-improvement, HT at 223-24 (testimony of the

appellant), but we find that this evidence is insufficient to tip the balance in favor

of a lesser penalty.

¶24 We have considered the appellant’s remaining arguments on review and find

that none of them warrant disturbing the initial decision, Accordingly, the

appellant’s removal is affirmed.

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 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

5

In reply to the notice of proposed removal, the appellant stated that he “realize[d]

some of [his] behavior in these situations need[ed] improvement,” and he expressed

regret at how his behavior had negative repercussions for him and his career. IAF,

Tab 5 at34.

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.

13

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

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.

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(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.

15

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. 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).

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.

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If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.