# Christopher Sampson v. Department of Homeland Security

> Merit Systems Protection Board · August 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10563790

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 28, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

CHRISTOPHER SAMPSON, DOCKET NUMBER
Appellant, DA-0752-22-0059-I-1

v.

DEPARTMENT OF HOMELAND DATE: August 28, 2024
SECURITY,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Veronica Harte , Esquire, and Christopher Forasiepi , Esquire, Dallas, Texas,
for the appellant.

Eileen Dizon Calaguas , Esquire, San Francisco, California, for the agency.

Edward Kelley , Chicago, Illinois, 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
affirmed his removal from Federal service and denied his affirmative defenses.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to VACATE the administrative
judge’s alternative findings concerning the appellant’s whistleblower reprisal
affirmative defense, we AFFIRM the initial decision.

BACKGROUND
¶2 The appellant was a Transportation Security Inspector (TSI) with the
Transportation Security Administration (TSA) from 2015 until November 3,
2021, when the agency removed him from Federal service. Initial Appeal File
(IAF), Tab 20 at 25-35. TSIs conduct regulatory inspections and investigations
and support criminal investigations. IAF, Tab 26 at 304 . TSA utilizes a system
called Performance and Results Information Systems (PARIS) to store data
concerning investigations, inspections, and incidents, including Enforcement
Investigative Reports (EIR). Id. EIRs are treated as privileged information and
are generally not released outside of the agency. IAF, Tab 31 at 7.
¶3 The appellant’s fiancé, J.F., was employed by Envoy Air, a subsidiary of
American Airlines. IAF, Tab 26 at 112, 182-83. On March 27, 2021, J.F.
reported to work at Dallas Fort Worth Airport when TSA discovered that he had
3

carried a firearm into a sterile area. Id. at 112. TSA opened an incident report
and EIR in PARIS concerning this incident. Id.
¶4 On or about April 5, 2021, TSA issued J.F. a Letter of Investigation (LOI)
alleging that he had violated a Federal regulation by carrying a loaded firearm
into the airport. IAF, Tab 28 at 58-59, Tab 31 at 7. J.F. was not entitled to a
copy of the EIR after receiving the notification. IAF, Tab 26 at 113. Typically,
an alleged violator is entitled to a copy of the EIR after the agency’s counsel,
known as Field Counsel, has issued a Notice of Proposed Civil Penalty. Id.
¶5 On or about April 11, 2021, the appellant accessed PARIS to view a TSA
incident report involving J.F. IAF, Tab 31 at 7. On the same day, the appellant
accessed PARIS to view an EIR concerning J.F. Id. The appellant obtained
knowledge of privileged information when he reviewed the unredacted copy of
the EIR and its attachments. Id. J.F. was not entitled to view that information.
IAF, Tab 26 at 113. On April 27 and 29, 2021, the appellant again accessed
PARIS to view an EIR concerning J.F. Id. at 182-83. On April 29, 2021, the
appellant engaged another TSI, D.R., in discussion of the EIR involving J.F. Id.
at 113. He showed her a copy of the EIR and told her perceived weaknesses in
the report. Id. In particular, he stated that a Federal regulation cited in the EIR
did not apply to the circumstances of J.F.’s case. Id. at 132-33.
¶6 On the following day, D.R. accessed a copy of the EIR in PARIS. Id.
at 134. She asserted that she wanted to verify the case number and her suspicion
that the case involved the appellant’s fiancé before reporting him for misconduct.
Id. Later that day, she reported to a supervisor that she believed the appellant had
engaged in misconduct by accessing PARIS for personal use. Id.
¶7 On April 30, 2021, the agency placed the appellant on administrative leave.
Id. at 180. On September 2, 2021, it issued a notice of proposed removal based
on charges of unauthorized use of Government property, misuse of position, and
inappropriate comments. Id. at 110-121. On November 3, 2021, the agency
4

issued a decision sustaining the several specifications of the first two charges and
removing him from Federal service. Id. at 25-38.
¶8 The appellant filed a Board appeal and, after a hearing, the administrative
judge found that the agency proved its charges of unauthorized use of
Government property and misuse of position, denied the appellant’s affirmative
defenses of sex discrimination and whistleblower reprisal, and found that the
penalty of removal was reasonable. IAF, Tab 43, Redacted Initial Decision (ID). 2
The appellant has filed a petition for review, the agency has filed a response, and
the appellant has filed a reply. Petition for Review (PFR) File, Tabs 3, 5-6.

DISCUSSION OF ARGUMENTS ON REVIEW
¶9 On review, the appellant challenges the administrative judge’s findings
regarding the charges and the affirmative defenses. As set forth below, we agree
with the administrative judge that the agency proved its charges of unauthorized
use of Government property and misuse of position, that the appellant did not
prove his affirmative defenses, and that the penalty of removal is reasonable.

We agree with the administrative judge that the agency proved its unauthorized
use of Government property charge.
¶10 To establish a charge of unauthorized use of Government property, the
agency must establish that the employee used Government property and the use of
the property was not authorized. See Quarters v. Department of Veterans Affairs,
97 M.S.P.R. 511, ¶¶ 2-4 (2004). An agency is not required to prove intent to
sustain the charge. Id., ¶ 4. As the administrative judge noted in the initial
decision, the appellant stipulated that he used Government property when he
accessed PARIS to view TSA’s incident report and EIR regarding his fiancé, J.F.
ID at 9 (citing IAF, Tab 19 at 1). The administrative judge found that the
appellant’s use of PARIS was not within the scope of his law enforcement duties
because he was not assigned to investigate any matter pertaining to J.F. and, in
2
All references to the initial decision in this order refer to the redacted initial decision.
IAF, Tab 43.
5

fact, was prohibited from doing so, and his access was therefore unauthorized. 3
ID at 11.
¶11 On review, the appellant disputes, like he did before the administrative
judge, that his use of the PARIS system was unauthorized. PFR File, Tab 3
at 8-9. He has asserted that agency officials testified at a hearing that they did
not view D.R.’s use of PARIS as unauthorized and, by implication, his use was
not unauthorized. Id. We disagree. The conduct of comparators will be
considered in assessing the reasonableness of the penalty but is not relevant to
whether the agency met its burden of proof to establish each element of the
charge. See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 332 (1981)
(explaining that consistency of the penalty with those imposed upon other
employees for the same or similar offenses is one factor that must be considered
in determining whether the agency’s selected penalty is reasonable). The
appellant also argues on review that the agency’s decision not to charge him with
providing information to J.F. precludes it from proving the charge. PFR File,
Tab 3 at 10. On this point, he has cited Scherer v. Department of the Treasury,
12 M.S.P.R. 476, 479-80 (1982), for the purported proposition that removal is not
appropriate for unauthorized use of Government property when there is no
personal gain. PFR File, Tab 3 at 10-11. However, Scherer does not stand for
the proposition that personal gain is an element of proof in an unauthorized use
charge; rather, the lack of personal gain was merely one of the Douglas factors
referenced by the Board in discussing mitigation of the penalty. Scherer,
12 M.S.P.R. at 479. We agree with the administrative judge that the agency has
met its burden of proof as to this charge.

3
In its letter sustaining the notice of proposed removal, the agency reiterated TSA’s
ethics rules, which state, “You have a duty to protect and conserve Government
property and may not use such property for other than authorized purposes.” IAF,
Tab 26 at 31.
6

We agree with the administrative judge that the agency proved its misuse of
position charge.
¶12 To prove a charge of misuse of position, an agency must prove that the
appellant misused his Government position resulting in private gain. See
Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 11 (2016),
clarified by Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 23-24. To prove its charge, the Board has held that the agency must show that
the appellant actually received private gain, not just the appearance of private
gain. See Mann v. Department of Health and Human Services , 78 M.S.P.R. 1, 8
(1998); Burnett v. U.S. Soldiers’ and Airmen’s Home , 13 M.S.P.R. 311, 313-15
(1982).
¶13 The appellant stipulated that he accessed PARIS to view an EIR concerning
J.F. and that, by doing so, he obtained knowledge of privileged information. ID
at 12-13. He disputed, before the administrative judge and again on review, that
he received private gain by doing so. PFR File, Tab 3 at 13-15. On this point,
the administrative judge considered and rejected the appellant’s testimony that he
did not access PARIS for the purpose of assisting J.F. ID at 13. She found the
appellant’s contentions—that he did not provide nonpublic information to J.F.
and that he did not provide substantive assistance in preparing J.F.’s response to
the LOI—to be “inherently implausible and unworthy of belief.” 4 ID at 14. This
finding was based, in part, on the appellant’s testimony, which reflected
similarities to J.F.’s written response. ID at 14 n.8. However, the administrative
judge clarified that she need not decide whether the appellant inserted specific

4
The appellant appears to assert that, because the agency did not charge him with
providing information to J.F., the administrative judge was precluded from making a
finding on this issue. We disagree. See Spithaler v. Office of Personnel Management,
1 M.S.P.R. 587, 589 (1980) (stating that an initial decision must identify all material
issues of fact and law, summarize the evidence, resolve issues of credibility, and
include the administrative judge’s conclusions of law and his legal reasoning); see also
5 C.F.R. § 1201.111(b)(1)-(2) (stating than an initial decision must contain findings of
fact and conclusions of law upon all material issues and the reasons or bases for those
findings).
7

privileged information that he viewed in PARIS into J.F.’s response to the LOI
because, in any event, he derived a personal benefit by learning the status of the
agency’s investigation, reviewing the full internal records and privileged
information that was not available to J.F., and assisting J.F. in preparing a
response. ID at 14. She found that the appellant furthered his own private
interests relating to his personal relationship with J.F. ID at 14-15. The Board
has found private gain in similar circumstances. See, e.g., Baker v. Department of
Health and Human Services, 41 M.S.P.R. 363, 366 (1989) (finding that the
appellant’s disclosure of confidential information to a subcontractor concerning
finalists for a contract benefited the appellant’s private interest, namely, his
friendship with the subcontractor’s employee), aff’d, 912 F.2d 1448 (Fed. Cir.
1990).
¶14 On review, the appellant asserts that the agency admitted that the appellant
did not disclose information to J.F. PFR File, Tab 3 at 13. We disagree. The
agency asserted that it did not charge the appellant in its notice of proposed
removal with providing information to J.F.; it did not admit that the appellant did
not provide information to J.F. IAF, Tab 31 at 18-20. The appellant also
emphasizes on review that J.F.’s response to the LOI did not contain any
information that was not publicly available and, therefore, the appellant did not
receive any private gain from his access to PARIS. PFR File, Tab 3 at 14-15.
That the appellant attempted to hide his unauthorized access by not highlighting
the information he wrongfully obtained in J.F.’s response to the LOI does not
negate that he furthered his relationship with J.F. by obtaining the information in
the first place. The appellant has provided no reason to disturb the administrative
judge’s well-reasoned credibility findings discussed above and we decline to do
so. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(explaining that the Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing and the Board may only overturn
8

such determinations when it has sufficiently sound reasons for doing so). We
find that the agency has proved the misuse of position charge.

We agree with the administrative judge that the appellant failed to prove his
affirmative defenses.
¶15 The administrative judge found that the appellant failed to prove his
affirmative defenses of sex discrimination and whistleblower reprisal. ID
at 15-26. The appellant has challenged those findings on review. PFR File,
Tab 3 at 15-24. We address each in turn below.

Sex Discrimination
¶16 The appellant alleged that the agency’s decision to remove him was the
result of sex discrimination because D.R., a female coworker, engaged in the
same behavior but was not disciplined. ID at 17. The appellant testified that he
once heard a supervisor refer to D.R. as his “perfect little angel.” Id.
Additionally, he testified that D.R. once screamed at a supervisor and was not
disciplined. Id. The administrative judge found that the appellant failed to
demonstrate that D.R. was similarly situated to him for purposes of a
discrimination affirmative defense and that, considering the remaining evidence
in the record, the appellant failed to prove that his sex was a motivating factor in
his removal. ID at 18-19; see Pridgen, 2022 MSPB 31, ¶ 23 (describing the
methods by which an appellant may prove a discrimination affirmative defense).
¶17 To be similarly situated, a comparator must have reported to the same
supervisor, been subjected to the same standards governing discipline, and
engaged in conduct similar to the appellant, without differentiating or mitigating
circumstances. Pridgen, 2022 MSPB 31, ¶ 27. Although D.R. and the appellant
reported to the same supervisor and engaged in similar conduct, we find that the
agency adequately explained why the appellant was disciplined and D.R. was not.
The individual who supervised the appellant and D.R. testified that he did not
discipline D.R. because she looked at PARIS records to verify that the case the
appellant had improperly accessed involved the appellant’s fiancé before
9

reporting him for misconduct. Hearing Record (testimony of C.S.). He stated
that D.R. was validating information before reporting misconduct and there was
no reason to discipline her for that access. Id. Although the appellant reasserts
on review that his access, like D.R.’s, was intended to investigate waste, fraud,
and abuse, the administrative judge found that his explanation was unworthy of
belief. ID at 13-14; PFR File, Tab 3 at 18-19. We agree with the administrative
judge that, even considering the remaining evidence in the record, the appellant
has failed to meet his burden to prove that his sex was a motivating factor in his
removal. ID at 18-19; see Pridgen, 2022 MSPB 31, ¶¶ 21-22 (explaining that, to
obtain any relief, the appellant must show, at a minimum, that the prohibited
consideration was a motivating factor in the personnel action).

Whistleblower Reprisal
¶18 The appellant has alleged, both before the administrative judge and again on
review, that the agency removed him in retaliation for his protected whistleblower
disclosures. In relevant part, the appellant’s disclosures concerned his
communications to D.R. and to an agency investigator that he believed TSA
applied incorrect regulations in the EIR concerning J.F., and that the proposed
civil penalty in the EIR and LOI was too high. 5 ID at 20-21; PFR File, Tab 3
at 20-23. The administrative judge found that the appellant failed to prove that
his disclosures are protected by 5 U.S.C. § 2302(b)(8). ID at 20-24.
Alternatively, she found that, assuming there was a protected disclosure, the
appellant proved that it was a contributing factor in the agency’s decision to
remove him but, in any event, the agency proved by clear and convincing
evidence that it would have removed him in the absence of his protected
whistleblowing. ID at 24-26. The appellant challenges these findings on review
5
Before the administrative judge, the appellant alleged that he engaged in additional
whistleblowing by communicating with the Office of Inspector General, the Office of
Special Counsel, and a congressional representative. The administrative judge found
that this whistleblowing occurred after the removal decision and therefore could not
have been a contributing factor in the decision. ID at 24. The appellant has not
challenged that finding on review and we find no reason to disturb it.
10

and appears to reassert that he disclosed abuse of authority and a violation of law,
rule, or regulation. PFR File, Tab 3 at 21-22.
¶19 We agree with the administrative judge that the appellant’s purported
disclosures are not protected under whistleblower protection laws. ID at 21-24.
Following his improper access of an investigative report and other predecisional
materials concerning his fiancé, the appellant voiced his disagreement with the
agency’s investigation. ID at 22. However, pursuant to the agency’s policies,
after TSA completed the investigation and J.F. responded to the LOI, the case
would be referred to Field Counsel, who would review and request changes
before issuing a final proposed civil penalty. Id. At each step in the process, and
particularly in the agency’s predecisional and deliberative investigative report,
the agency has the authority to exercise discretion. The files viewed by the
appellant contained the investigator’s opinions and recommendations. IAF,
Tab 26 at 29. We therefore agree with the administrative judge that the
appellant’s disclosures evidenced mere disagreement with debatable policy
decisions and that the appellant did not reasonably believe he was disclosing an
arbitrary and capricious exercise of power or that TSA violated any law, rule, or
regulation. ID at 21-24; see 5 U.S.C. § 2302(b)(8)(A)(i) (stating that a protected
disclosure is one that the employee reasonably believes evidences a violation of
law, rule, or regulation); Herman v. Department of Justice, 115 M.S.P.R. 386,
¶ 11 (2011) (stating that, to prove abuse of authority, an appellant must prove by
preponderant evidence that he disclosed an arbitrary or capricious exercise of
power by a Federal official that adversely affects the rights of any person or
results in personal gain or advantage to himself or other persons); see also Webb
v. Department of the Interior, 122 M.S.P.R. 248, ¶ 12 & n.6 (2015) (finding that
disclosures concerning a proposed policy were not protected by whistleblower
protection laws). The appellant’s arguments on review are insufficient to warrant
a different outcome. PFR File, Tab 3 at 20-23.
11

¶20 Because we agree with the administrative judge that the appellant did not
prove that he made a protected whistleblower disclosure pursuant to 5 U.S.C.
§ 2302(b)(8), we vacate the administrative judge’s alternative findings that the
appellant proved contributing factor and that the agency proved it would have
removed the appellant in the absence of any protected whistleblowing. See
Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014),
aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).

We agree with the administrative judge that the agency’s selected penalty of
removal is reasonable.
¶21 The Board will review an agency-imposed penalty only to determine if the
agency considered all the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. In
reviewing the agency-imposed penalty, the Board must give due weight to the
agency’s primary discretion in maintaining employee discipline and efficiency.
Id. at 302. On review, the appellant asserts, as he did before the administrative
judge, that removal is not warranted because the agency did not discipline D.R.
for her access of J.F.’s records on PARIS. PFR File, Tab 3 at 15-17.
¶22 The Board recently addressed the consideration of comparators in analyzing
the reasonableness of a penalty in Singh v. U.S. Postal Service, 2022 MSPB 15.
The Board cautioned that it should not attempt to weigh the relative seriousness
of various offenses to determine whether two employees who committed different
acts of misconduct were treated disparately. Id., ¶ 17. It also reiterated that the
consistency of the penalty with those imposed upon other employees for the same
or similar offenses is simply one of a nonexhaustive list of 12 factors that should
be considered in determining the appropriateness of a penalty. Id., ¶ 18. In this
case, the deciding official testified that D.R.’s access of PARIS was a
“completely different situation” from the appellant’s situation because D.R.
accessed PARIS solely for the purpose of reporting the appellant’s misconduct.
ID at 28. D.R. reported the appellant’s misconduct on the same day she accessed
12

PARIS to verify the case number. IAF, Tab 26 at 134. Although the appellant
has repeatedly asserted that he accessed PARIS to investigate waste, fraud, and
abuse, he did not report such waste, fraud, and abuse to any management official
until after he was being investigated for misuse of Government property. Id.
at 141. For the reasons set forth in the initial decision, we find that removal does
not exceed the bounds of reasonableness. ID at 27-29.

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
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.
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

Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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,
14

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
15

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

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.

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.
16

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10563790. Public record. Not legal advice.