Opinion

Christine Belgum v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jul 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTINE BELGUM, DOCKET NUMBER

Appellant, DE-0752-18-0206-I-1

UNITED STATES POSTAL SERVICE, DATE: July 11, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Hartley D. Alley , Esquire, San Antonio, Texas, for the appellant.

Deborah M. Levine , Esquire, Denver, Colorado, 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

affirmed her removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

supplement the administrative judge’s analysis of the appellant’s disparate

penalty claim, we AFFIRM the initial decision.

BACKGROUND

On June 17, 2016, the appellant, an EAS-20 Postmaster in Holdrege,

Nebraska, accompanied a City Carrier Assistant trainee on a delivery route.

Initial Appeal File (IAF), Tab 8 at 18, 64. The trainee showed signs of

heat-related illness, and he testified 2 that the appellant first encouraged him to

drink more water, and then left him to rest on a customer’s porch for several

minutes while she went to get the delivery vehicle. IAF, Tab 28 at 57-58. The

trainee also testified that the appellant provided him with a hat and took him to

the nearest grocery store to get fluids and popsicles to cool him down before she

took him to the emergency room. IAF, Tab 8 at 43, Tab 28 at 18-19.

The agency issued a January 12, 2018 notice of proposed removal in which

it charged the appellant with two specifications of Unacceptable Conduct. IAF,

The Board reversed the agency’s first attempt to remove the appellant for the

misconduct alleged in this matter on due process grounds. Belgum v. U.S. Postal

Service, MSPB Docket No. DE-0752-17-0120-I-2, Initial Decision (Dec. 12, 2017).

The appellant withdrew her request for a hearing in this appeal of the agency’s second

removal action, IAF, Tab 36 at 4, and, without objection from either of the parties, the

administrative judge cited hearing and deposition testimony from the first removal

action in adjudicating the second one, IAF, Tab 43, Initial Decision (ID) at 10 nn.9-10.

Tab 8 at 18-21. In the first specification, the agency alleged that the appellant

had violated written directives circulated to all Executive and Administrative

Schedule (EAS) employees in the Central Plains District (CPD) by the District

Manager and Manager of Safety, instructing them to call 911 immediately if an

employee shows signs and/or complains of any heat-related symptoms. Id. at 18.

In the second specification, the agency alleged that the appellant had falsely

stated to her manager that she had called 911, and that the trainee was taken to

the hospital as a result. Id. The deciding official issued a March 16, 2018

decision letter sustaining both specifications and removing the appellant. 3 Id.

at 13-17.

The appellant appealed her removal. IAF, Tab 1. She withdrew her

request for a hearing. IAF, Tab 36. In his order closing the record, the

administrative judge found that the agency’s second specification was more

properly construed as a charge of falsification. IAF, Tab 37 at 1-2. He provided

the agency with the elements and burdens of establishing its charges, and

explained the appellant’s burden to establish her affirmative defenses of (1) due

process violation, (2) harmful error, (3) sex discrimination, and (4) retaliation for

her prior Board appeal, in which the Board reversed the agency’s first attempt to

remove her on due process grounds. Id. at 3-9.

On the written record, the administrative judge found that the agency

established the unacceptable conduct charge, determining that the nature of the

charge was one of failure to follow instruction, and that the record showed that

(1) the appellant was given a proper instruction, and (2) she failed to follow it.

IAF, Tab 43, Initial Decision (ID) at 5-14. The administrative judge found that

the agency failed to establish the falsification charge, which he split into two

specifications. ID at 15-22. Regarding the first specification, he found that, even

though the appellant’s statement in a June 17, 2016 email that “911 was called”

Although the decision letter did not set forth an effective date, the administrative

judge found that the agency removed the appellant effective March 21, 2018, the date

she received the decision letter. ID at 3-4 n.5.

was incorrect, preponderant evidence did not establish that she had the intent to

deceive required to establish the charge because her testimony that she meant to

say that “911 was not called” was credible. ID at 15-18. Concerning the second

specification of falsification, the administrative judge similarly found the

agency’s allegations insufficient to establish that the appellant intentionally

falsified an agency accident report to state that 911 was called and that the trainee

was transported to the hospital by ambulance. ID at 18-22.

The administrative judge found that the appellant failed to establish that the

agency violated her right to due process because the appellant did not show that

the deciding official completely failed to consider her written response to the

notice of proposed removal. ID at 22-25. Concerning the appellant’s contention

that the agency conducted a flawed investigation, the administrative judge found

that she failed to identify any regulatory requirement concerning the investigation

that the agency violated, much less show that any such error had a harmful effect

on the outcome of her case. ID at 25. He also rejected the appellant’s claim that

the agency’s failure to identify an effective date for her removal was harmful

error. Id. The administrative judge further found that the appellant failed to

show by preponderant evidence that her removal was motivated by discriminatory

animus based on her sex, or was taken in reprisal for her prior Board appeal, in

which the agency’s action was reversed on due process grounds. ID at 26-31.

The administrative judge found nexus based on the appellant’s failure to

follow instructions. ID at 31-32. Concerning the penalty, the administrative

judge determined that the agency desired the penalty of removal even in the event

that it established only one of the charges. ID at 32. He also determined that the

appellant failed to identify a valid comparator in support of her allegation of

disparate penalties. ID at 36. Ultimately, the administrative judge found that the

deciding official considered the relevant factors and that the penalty of removal

was within the tolerable limits of reasonableness. ID at 36-37.

In her petition for review, 4 the appellant argues that the administrative

judge erred in failing to credit her testimony that she did not know of the

instructions to call 911 immediately when an employee shows any sign of heat

distress. Petition for Review (PFR) File, Tab 3 at 7-8. She asserts that the

administrative judge erred in rejecting her due process and harmful error claims,

and she reiterates her argument that the deciding official failed to consider the

relevant factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280,

305-06 (1981). Id. at 11-14. As mitigating factors, the appellant cites evidence

that the trainee concealed information about his health condition, and contends

that her caring treatment of him shows that she has good potential for

rehabilitation. Id. at 14-15. She also argues that the administrative judge failed

to address certain errors in the agency’s processing of her removal and reiterates

her argument that the agency’s failure to provide an effective date for her removal

in its decision letter means that she was not legally removed from her position.

Id. at 15-17. The agency has filed a response to the appellant’s petition for

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

Tabs 6-7.

DISCUSSION OF ARGUMENTS ON REVIEW

In her petition for review, the appellant does not challenge the

administrative judge’s decision concerning the falsification charge. PFR File,

Tab 3 at 6; ID at 15-22. The agency also does not challenge this finding. We

agree with the administrative judge that the agency failed to establish either

specification of the falsification charge and we discern no reason to upset his

findings on this charge.

The agency established the unacceptable conduct charge.

The administrative judge found, and we agree, that the nature of the acts

alleged in support of the agency’s charge in this matter concerns a failure to

The appellant requested an extension of the time to file her petition for review, and the

Acting Clerk of the Board granted her request. Petition for Review File, Tabs 1-2.

follow instructions. ID at 5-6; IAF, Tab 8 at 18. An agency may prove a charge

of failure to follow instructions by establishing that (1) the employee was given

proper instructions and (2) the employee failed to follow the instructions, without

regard to whether the failure was intentional or unintentional. Archerda v.

Department of Defense, 121 M.S.P.R. 314, ¶ 16 (2014).

The administrative judge found that the agency established the charge. ID

at 5-14. As previously noted, in her petition for review, the appellant argues that

the administrative judge failed to credit her testimony that she did not know of

the instructions to call 911 immediately should an employee show any sign of

heat distress. PFR File, Tab 3 at 7-8. She notes that the administrative judge

found that her hearing testimony in the first appeal of her removal was credible,

and argues on review that she was cleared of any intentional misconduct. Id.

at 6-7. She further argues that the administrative judge failed to explain how he

could find that she did not act intentionally concerning the instructions to call

911, but still find that she failed to follow instructions. Id. at 7. For the

following reasons, we agree with the administrative judge.

Failure to follow supervisory instructions does not turn on proof of intent.

Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 555-56 (1996). The

administrative judge found that the agency issued instructions concerning

heat-related illness, including the instruction to call 911 immediately, on

numerous occasions, including six times during the weeks preceding the June 16,

2016 incident at issue here. ID at 6-8. The record reflects that the agency sent

emails to all EAS-level employees in the CPD containing this instruction on May

24 and June 2, 8, 9, 13, and 15, 2016. Id.; IAF, Tab 8 at 49-52, 68-76, 79-80.

Based on those emails, the administrative judge found that the agency had

instructed the appellant to call 911 immediately when an employee shows signs of

heat-related symptoms. ID at 6-9. The administrative judge went on to find that,

based on the testimony before him, the appellant believed that the trainee was

suffering from heat-related symptoms, but that she failed to call 911. ID

at 10-14.

Regardless of the appellant’s testimony that she did not know of the

instructions to call 911 immediately if an employee shows signs of heat distress,

we agree with the administrative judge that the agency established both elements

of the charge, i.e., that (1) it gave the appellant, who is an EAS-level employee in

the CPD, the instructions at issue, and (2) she failed to follow the instructions.

ID at 14; Archerda, 121 M.S.P.R. 314, ¶ 16.

Accordingly, we affirm the administrative judge’s finding that the agency

established the charge of unacceptable conduct.

The appellant failed to establish her affirmative defenses.

Due process

The appellant argued below that the agency violated her right to due

process because the deciding official failed to review and consider her response

to the notice of proposed removal. IAF, Tab 39 at 6-8. The administrative judge

rejected this claim, citing the deciding official’s statement in the decision letter

that he had received her “paperwork” concerning the notice of proposed removal.

ID at 24; IAF, Tab 8 at 13. The administrative judge found that the absence of

the attachments from the agency file did not constitute preponderant evidence that

the deciding official failed to review all of the appellant’s written response. ID

at 24. He also noted that the deciding official’s use of the term “paperwork” in

his decision letter to describe the appellant’s submission indicated that he had

received more than just her reply letter. Id.; IAF, Tab 8 at 13. Ultimately,

because preponderant evidence established that, at a minimum, the deciding

official considered the appellant’s lengthy and detailed response to the charges,

the administrative judge found that the appellant failed to establish that the

agency violated her right to due process. ID at 25; cf. Hodges v. U.S. Postal

Service, 118 M.S.P.R. 591, ¶ 6 (2012) (finding that a deciding official’s complete

failure to consider an appellant’s written response before issuing a decision

constitutes a violation of minimum due process of law).

On review, the appellant reasserts her argument that the agency’s failure to

provide the attachments to her written reply with the agency file that it submitted

below means that the deciding official failed to review them before making his

decision. PFR File, Tab 3 at 11-12. She contends in her petition for review that

the administrative judge incorrectly concluded that the deciding official

considered all the relevant factors and that, as a result, he erroneously dismissed

her due process and harmful error defenses. Id. at 11-14. The administrative

judge, however, thoroughly analyzed the appellant’s due process claim, ID

at 22-25, and we agree that the evidence failed to show that the deciding official

completely failed to consider her written response, see Hodges, 118 M.S.P.R.

591, ¶ 6. Thus, the appellant failed to show that the administrative judge erred in

rejecting her due process claim.

Harmful error

In her petition for review, the appellant challenges the administrative

judge’s finding that the agency’s failure to specify an effective date for her

removal was not harmful error. 5 ID at 3-4 n.5, 25; PFR File, Tab 3 at 16-17. The

administrative judge found that the decision letter definitively showed that the

agency took a removal action, and determined that the decision was effective the

date that the appellant received it. ID at 3-4 n.5. On review, the appellant cites

Lavelle v. Department of Transportation, 17 M.S.P.R. 8 (1983), in support of her

argument that the agency’s failure to specify an effective date for her removal

means that she was “never actually legally removed,” PFR File, Tab 3 at 16-17.

Lavelle, unlike the instant matter, concerns the issue of jurisdiction over the

As noted above, the appellant also alleged that the agency’s investigation of her

misconduct was flawed. IAF, Tab 40 at 14-15. The administrative judge rejected the

appellant’s claim, finding that she failed to identify any regulatory requirement

concerning the investigation that the agency violated, or show that any error in the

investigation had a harmful effect on its outcome. ID at 25. The appellant does not

challenge this finding on review, and we discern no reason to disturb it.

termination of an individual during a probationary period, specifically addressing

whether the appellants involved in that appeal had completed 1 year of current

continuous employment before the effective date of their terminations. Lavelle,

17 M.S.P.R. at 12-18. The record shows that the appellant has over 18 years of

Government service, and it does not reflect that she was serving in any sort of

probationary period when the agency removed her. IAF, Tab 1 at 1. Thus,

Lavelle is distinguishable from the instant appeal, and the appellant has not

demonstrated that the administrative judge erred in rejecting this affirmative

defense.

Sex discrimination

The administrative judge denied the appellant’s affirmative defense of sex

discrimination, determining that, based on the entirety of the evidence, she failed

to show that her removal was motivated by discriminatory animus. ID at 29 .

Although the appellant initially sought to contest this finding on review, she

subsequently withdrew her challenge as incorrect. PFR File, Tab 3 at 9, Tab 5

at 3. Thus, she does not challenge the administrative judge’s finding on her

affirmative defense of sex discrimination, and we discern no reason to disturb it.

Reprisal for her prior Board appeal

As noted above, this is the agency’s second attempt to remove the appellant

for the misconduct alleged herein because, as discussed above, the administrative

judge dismissed the first action on due process grounds. Belgum v. U.S. Postal

Service, MSPB Docket No. DE-0752-17-0120-I-2, Initial Decision (Dec. 12,

2017). The appellant contended in this appeal that the agency removed her in

retaliation for filing that prior appeal because both actions were close in time and

involved the same deciding official. IAF, Tab 39 at 6. To the extent that the

appellant is reiterating this claim on review, as discussed above, she has provided

no basis to disturb the administrative judge’s findings. For an appellant to prevail

on a contention of illegal retaliation for exercising her rights under 5 U.S.C.

§ 2302(b)(9)(A)(ii), when, like here, she does not allege reprisal for equal

employment opportunity activity protected under Title VII, or seek to remedy

whistleblower reprisal, she must show the following: (1) she engaged in

protected activity; (2) the accused official knew of the activity; (3) the adverse

action under review could have been retaliation under the circumstances; and

(4) there was a genuine nexus between the alleged retaliation and the adverse

action. See Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir.

1986).

The administrative judge found that it was not unusual or wrongful for the

agency to bring a new removal action when the first one was reversed on

procedural grounds. ID at 31. We agree with the administrative judge that the

appellant failed to show a genuine nexus between the alleged retaliation and the

agency’s second attempt to remove her. Warren, 804 F.2d 654, 658; ID at 31.

Moreover, the Board has long held that it is not unusual or wrongful for an

agency to do exactly what happened here—pursue another adverse action based

on the same charges following the reversal of an action on procedural grounds.

Litton v. Department of Justice, 118 M.S.P.R. 626, ¶ 12 (2012); Steele v. General

Services Administration, 6 M.S.P.R. 368, 372 (1981).

Thus, we affirm the administrative judge’s findings concerning the

appellant’s affirmative defenses.

The agency established nexus and the reasonableness of the penalty.

The administrative judge found that there is an obvious nexus between the

failure to follow instructions and the efficiency of the service. ID at 31-32. The

Board has long held this to be true. See Blevins v. Department of the Army,

26 M.S.P.R. 101, 104 (1985) (finding that a failure to follow instructions or abide

by requirements affects an agency’s ability to carry out its mission), aff’d,

790 F.2d 95 (Fed. Cir. 1986) (Table). The parties do not challenge this finding

on review, and we discern no reason to disturb it. Concerning the penalty, the

administrative judge found that the deciding official considered the relevant

factors, and he determined that the penalty did not exceed the bounds of

reasonableness. ID at 36-37.

In her petition for review, the appellant challenges the administrative

judge’s analysis regarding her claim that the agency treated her more harshly than

other similarly situated individuals. Specifically, she argues that the accident

reports that she submitted below identify comparators who also failed to call 911

under similar circumstances, but were not disciplined at all. PFR File, Tab 3

at 8-9, 11, 13-14; IAF, Tab 20 at 14, Tab 30. The administrative judge discussed

the accident reports and he found that, based on the appellant’s statement that

none of the EAS employees involved in those heat-related accident reports were

disciplined, the appellant failed to identify any valid comparators. ID at 36. The

appellant argues that the administrative judge improperly relied on a

nonprecedential Board decision 6 to dispose of her claim on the erroneous basis

that a proper comparator must actually be charged with misconduct. PFR File,

Tab 3 at 10; ID at 36.

An employee need not have been disciplined to be a valid comparator

because “evidence regarding similarly-situated employees who received no

discipline after committing similar misconduct would also support [a] disparate

penalty claim.” Miskill v Social Security Administration, 863 F.3d 1379, 1384

(Fed. Cir. 2017) (quoting Fearon v. Department of Labor, 99 M.S.P.R. 428, ¶ 11

(2005)). Rather, the universe of potential comparators should be limited to those

employees whose misconduct and/or other circumstances closely resemble those

of the appellant. Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 13. Thus, we

agree with the appellant that the administrative judge erred in finding that a

potential comparator must actually be charged with misconduct.

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).

As the Board held in Singh, the relevant inquiry is whether the agency

knowingly and unjustifiably treated employees differently. Id., ¶ 14; see Facer v.

Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988) (providing that a

person does not have a legally protected interest in the evenness of a misconduct

penalty assessed on him compared to that assessed on others unless employees are

knowingly treated differently “in a way not justified by the facts, and

intentionally for reasons other than the efficiency of the service”). Here, because

the appellant failed to show that the agency knowingly and unjustifiably treated

any of her alleged comparators differently, she failed to establish that she was

disparately punished, and the administrative judge’s error did not prejudice her.

Singh, 2022 MSPB 15, ¶ 14; see Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an

initial decision).

In her petition for review, the appellant first identifies an accident report

that she contends shows that a Postmaster with the same first-line supervisor, who

served as the proposing official in the instant matter, was not disciplined under

similar circumstances. PFR File, Tab 3 at 9; IAF, Tab 30 at 57-58. She argues

that this accident report shows that the Postmaster involved did not call 911 when

an employee complained of heat-related distress and instead took the employee to

the emergency room himself. PFR File, Tab 3 at 9. However, this incident

occurred in July 2015. Id. The administrative judge found that the emails which

the agency sent beginning in June 2016, instructing all EAS-level employees in

the CPD to call 911 immediately when anyone shows signs of heat-related illness,

changed and superseded the guidance issued by the CPD in 2015, which did not

instruct employees to call 911 immediately. ID at 8-9. Because this particular

incident happened under the prior 2015 guidance, and not under the 2016

instruction requiring EAS-level employees to call 911 immediately when anyone

shows signs of heat-related illness, the employee is not a proper comparator.

The appellant also argues on review that another of the accident reports she

submitted involved a Postmaster who reported to the District Manager of the

CPD, who was the individual who sent some of the emailed instructions to call

911 immediately when anyone shows signs of heat-related illness. PFR File,

Tab 3 at 11; ID at 6-8; IAF, Tab 8 at 49-50, Tab 30 at 12-13. However, the

District Manager did not serve as the proposing or deciding official in this matter,

IAF, Tab 8 at 13-21, and the record does not show that he had any involvement in

disciplining the appellant. More importantly, the record does not show that the

proposing or the deciding officials knowingly treated the appellant differently

from other employees at the time they proposed and decided the instant matter.

IAF, Tab 30. In fact, the deciding official wrote in his penalty analysis that he

was “unaware of any other postmaster who has failed to follow the District

Manager’s instructions regarding heat-related illness.” IAF, Tab 8 at 15. A

crucial part of the relevant inquiry is whether the agency knowingly treated

employees differently. See Singh, 2022 MSPB 15, ¶ 14. Because the evidence

does not indicate that the proposing and deciding officials knowingly and

unjustifiably treated the appellant differently, the appellant has failed to meet her

burden of showing that the agency treated her more harshly than other similarly

situated individuals. Id.

Concerning the reasonableness of the penalty, the appellant contends on

review that the administrative judge incorrectly concluded that the deciding

official considered all the relevant factors. PFR File, Tab 3 at 11-14. As

previously noted, the appellant argues that the deciding official failed to consider

some mitigating factors, i.e., that the trainee concealed information about his

medical condition and that she treated him with due care and respect. Id.

at 14-15. The administrative judge found that the decision letter sufficiently set

forth the deciding official’s analysis. ID at 33 n.19; IAF, Tab 8 at 14-15. While

the deciding official did not discuss the mitigating factors that the appellant

identifies on review, PFR File, Tab 3 at 14-15; IAF, Tab 4 at 14-15, the

administrative judge discussed them when considering the merits of the appeal,

ID at 13-14. He found that the trainee’s preexisting medical conditions did not

excuse the appellant’s failure to call 911 because she was unaware of them and

should therefore have perceived the trainee’s symptoms as heat-related. ID at 14.

He also discussed exactly what the appellant did for the trainee in response to his

symptoms—providing fluids and popsicles to cool him down and acquiescing to

his request not to call 911. ID at 13-14. We agree with the administrative judge

that the trainee’s preexisting medical conditions, even if the appellant was not

aware of them, do not mitigate her failure to follow the instruction. The appellant

is not a medical professional, and is therefore in no position to second-guess the

instruction. For the same reason, her attempts to address the appellant’s

symptoms, although arguably compassionate, undermined the agency’s clear

instructions to call 911 to seek medical help immediately when anyone exhibits

signs of heat-related illness. Thus, under the circumstances present, we find that

the mitigating effect of these factors is minimal, and is outweighed by the

severity of the appellant’s misconduct.

Thus, we find that the deciding official’s penalty analysis was thorough and

reasonable and that the appellant’s arguments on review do not provide any basis

to mitigate the penalty. PFR File, Tab 3 at 11-14; IAF, Tab 8 at 14-15; see

Douglas, 5 M.S.P.R. at 305-06 (setting forth the factors to be considered in

determining the reasonableness of an agency’s penalty determination).

NOTICE OF APPEAL RIGHTS 7

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

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:

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.

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. 8 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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