Opinion

Cedric A Killebrew v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Sep 4, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

explaining that the gravamen of the charge was that the appellant “received compensation for services rendered to [the payor] before the Veterans Administration”

How later courts described this case

explaining that the gravamen of the charge was that the appellant “received compensation for services rendered to [the payor] before the Veterans Administration”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CEDRIC A. KILLEBREW, DOCKET NUMBER

Appellant, AT-0752-19-0414-I-2

DEPARTMENT OF DATE: September 4, 2024

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James M. Allen , Esquire, Memphis, Tennessee, for the appellant.

Anna N. Winkle , Esquire, Elizabeth A. Sorrells , Kyle Fields , and Linda

Martin , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

sustained his 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

Prior to his removal, the appellant was employed as a Railroad Safety

Inspector, GS-2121-12, with the Federal Railroad Administration. Killebrew v.

Department of Transportation, MSPB Docket No. AT-0752-19-0414-I-1, Initial

Appeal File (IAF), Tab 8 at 226. On March 15, 2019, the agency removed the

appellant for (1) engaging in outside employment activity that conflicts with

official duties (five specifications, citing 5 C.F.R. § 2635.802 and 18 U.S.C.

§ 203(a)); (2) conduct unbecoming a Federal employee (one specification, based

on an unrelated incident); (3) misuse of government property (three

specifications); and (4) failure to report outside position on financial disclosure

report (one specification, citing 5 C.F.R. §§ 2634.307 and 2634.907). Id. at 226.

The appellant filed a timely appeal on March 25, 2019. IAF, Tab 1.

The initial appeal was dismissed without prejudice and later refiled automatically.

IAF, Tab 14; Killebrew v. Department of Transportation, MSPB Docket No.

AT-0752-19-0414-I-2, Appeal File (I-2 AF), Tab 1. On November 19, 2019,

following a hearing, the administrative judge issued an initial decision sustaining

the removal. I-2-AF, Tab 22, Initial Decision (ID). The administrative judge

found that the agency failed to prove charge (2), but proved charges (1), (3), and

(4) by a preponderance of the evidence. ID at 2-20. He further found that that

the appellant failed to establish his affirmative defenses of race discrimination,

retaliation for equal employment opportunity (EEO) activity, and denial of due

process. ID at 20-23. Finally, he conducted an independent analysis of the

Douglas factors 2 and concluded that the removal penalty was reasonable based on

the sustained misconduct. ID at 24-27.

The appellant timely filed the instant petition for review. Petition for

Review (PFR) File, Tab 1. The agency has filed a response to the appellant’s

petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant argues that the administrative judge made errors

of material fact, specifically, in finding that the appellant did not file an Office of

Government Ethics (OGE) Form 450 (Confidential Financial Disclosure Report)

during the years 2014 through 2016, and also in finding that the appellant

engaged in outside business during the years 2013 through 2015. Id. at 6-7.

The appellant explains that these alleged errors go to the merits of charges (1)

and (4) and the reasonableness of the penalty. Id. at 7-8. The appellant further

argues that the administrative judge misinterpreted 18 U.S.C. § 203(a), and that

the agency failed to demonstrate a violation of the statute, as alleged in charge

(1). PFR File, Tab 1 at 8-13. 3 The appellant also argues that the administrative

judge erred in disallowing testimony by a proposed witness and documentary

evidence of the proposed witness’s statement to the Federal Bureau of

Investigation (FBI). Id. at 13-14. The appellant further argues that the agency

violated his due process rights when the deciding official relied in part on an

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of factors relevant to the penalty determination in

adverse actions.

Pages 9 and 10 are duplicates.

allegation not mentioned in the proposal notice, specifically, that the appellant

had exercised bad judgment by looking the other way when his partner provided

him with information “that a reasonable person would have recognized was

non-public.” Id. at 14-15; IAF, Tab 8 at 119. Finally, the appellant argues that

the deciding official failed to consider or fully consider relevant Douglas factors.

PFR File, Tab 1 at 16-17. The appellant does not challenge the administrative

judge’s findings concerning charge (3) or his affirmative defenses of race

discrimination and retaliation for EEO activity.

The administrative judge did not err in sustaining charge (1).

Under charge (1), the agency alleged that on five occasions the appellant

solicited business on behalf of his own private company, Genesis Professional

Solutions (GPS), offering fee-based Federal Motor Carrier Safety Administration

(FMCSA) compliance services to several companies, including a company used

for the FBI undercover operation. IAF, Tab 6 at 46-49. In two cases, the agency

alleged that the appellant accepted payment on behalf of GPS. Id. In the

background section of the charge, the agency explained that it considered the

appellant to have violated 5 C.F.R. § 2635.802, which prohibits employees from

engaging in outside employment activity that conflicts with their official duties,

because the appellant engaged in activity prohibited by criminal statute 18 U.S.C.

§ 203(a). Id. at 36; see 5 C.F.R. § 2635.802(a) (providing that an activity

conflicts with an employee’s official duties if it is prohibited by statute).

When an agency charges an employee with violation of a specific criminal

statute, the agency must prove the elements of that crime. See Heath v.

Department of Transportation, 64 M.S.P.R. 638, 645-46 (1994). As relevant

here, 18 U.S.C. § 203(a) prohibits a Federal employee from demanding, seeking,

receiving, accepting, or agreeing to receive or accept compensation for any

“representational services” before a Federal agency, in this case, FMCSA.

The essential details of the events are not in dispute. The record reflects,

and the appellant does not dispute, that he offered fee-based FMCSA compliance

services to numerous companies as alleged in specifications (1) through (4).

IAF, Tab 6 at 80, 82, 84, 86, 91-98, 100, 102-103, 106. The record also reflects

that the appellant admits to receiving payment from at least one company and that

he offered services to an FBI undercover agent regarding FMCSA compliance

matters, entered into a contract for those services, and received multiple payments

for those services, though they were never in fact provided. IAF, Tab 6 at 67,

69-73, 75-76, Tab 7 at 72. The appellant argues, however, that his actions did not

violate 18 U.S.C. § 203(a). PFR File, Tab 1 at 8-13.

The appellant concedes that 18 U.S.C. § 203(a) should be construed

broadly, and that the administrative judge was correct in finding that the term

“representational services” encompasses more than serving as an agent or an

attorney. Id. at 8-9; ID at 7. However, he argues that the statute nonetheless

requires “some interaction” with a Federal agency, which did not occur in this

case. PFR File, Tab 1 at 9. In support of his argument, the appellant cites United

States v. Reisley, 35 F. Supp. 102 (D.N.J. 1940), in which the district court

considered the defendant’s motion for a new trial following his conviction for a

violation of 18 U.S.C. § 203 (1934), a conflict of interest statute that preceded the

statute at issue in this case. 4 The defendant, an employee of the Veterans

Administration, had received money for promising to effect an increase in

benefits for the payor, but the increase had in fact already occurred without any

action by the defendant. Reisley, 35 F. Supp. at 103-04. The court found that, in

the absence of evidence of “actual services rendered to [the payor] by the

defendant,” the conviction could not stand. Id. at 104.

The statute at issue in Reisley prohibited any Federal employee from “directly or

indirectly, receiv[ing] or agree[ing] to receive, any compensation whatever for any

services rendered or to be rendered to any person, either by himself or another, in

relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or

other matter or thing in which the United States is a party or directly or indirectly

interested, before any department, court-martial, bureau, officer, or any civil, military,

or naval commission[.]” 18 U.S.C. § 203 (1934); Reisley, 35 F. Supp. at 103.

Unlike the current § 203(a), the predecessor statute did not explicitly forbid seeking

such compensation.

The appellant further argues that, contrary to the administrative judge’s

interpretation, 18 U.S.C. § 203(a) requires “some measure” of intent, which he

asserts the agency failed to demonstrate. PFR File, Tab 1 at 12-13. In support of

that argument, the appellant cites United States v. Project on Government

Oversight, 616 F.3d 544 (D.C. Cir. 2010), in which the circuit court found that a

related statute, 18 U.S.C. § 209, which prohibits making or receiving

contributions “as compensation” for the performance of services as a Federal

employee, requires an element of intent on the part of the payor. Id. at 550.

These arguments are unsuccessful. First, with exceptions not applicable

here, decisions by district courts or circuit courts other than the U.S. Court of

Appeals for the Federal Circuit are not binding on the Board, and are

authoritative only to the extent the Board finds them persuasive. Mynard v.

Office of Personnel Management, 108 M.S.P.R. 58, ¶ 14 (2008). Moreover, we

are not persuaded that Reisley should control, given the existence of case law

holding that a violation of 18 U.S.C. § 203(a), the statute at issue here, does not

require the performance of services or the appearance before a forum enumerated

in the statute. See U.S. v. Freeman, 813 F.2d 303, 306 (10th Cir. 1987) (citing

U.S. v. Evans, 572 F.2d 455, 481 (5th Cir. 1978)). Also, unlike the statute at

issue in Reisley, § 203(a) provides that it is a crime for a Federal employee to

“seek[]” compensation for representational services before an agency, which on

its face does not entail that the employee actually receive such payment or

perform the services in question. 18 U.S.C. § 203(a). Lastly, Reisley is

distinguishable because, in that case, the Government specifically alleged that the

defendant received compensation for “services rendered by him to [the payor].”

35 F. Supp. at 103 (emphasis added); see also id. at 104 (explaining that the

gravamen of the charge was that the appellant “received compensation for

services rendered to [the payor] before the Veterans Administration”)

(emphasis added). The agency did not make such an allegation in this case.

Likewise, we are not persuaded that Project on Government Oversight

should control, given the existence of case law finding that § 203(a), the statute at

issue here, does not include an element of specific intent. See Evans, 572 F.2d

at 481. Additionally, the court in Project on Government Oversight did not find

that a violation of § 209 requires any particular intent on the part of the payee.

Admittedly, Evans involved the statute’s prohibition against receiving

compensation, whereas the alleged violation in this case also involves the

statute’s prohibition against seeking such compensation, which implies the intent

to obtain it. However, it is undisputed and amply clear from the record that the

appellant did intentionally seek payment for assistance in compliance matters

before FMCSA. Accordingly, we discern no error in the administrative judge’s

finding that the agency proved charge (1).

The administrative judge did not err in sustaining charge (4).

Under charge (4), the agency alleged that the appellant failed to report his

position with GPS on the Form 450s for 2013, 2014, and 2015, in violation of

5 C.F.R. §§ 2634.307 and 2634.907. 5 IAF, Tab 6 at 51-52. The appellant

contends that the administrative judge erred in finding that he did not file a Form

450 during the years 2014 through 2016, and in finding that he engaged in outside

business during the years 2013 through 2015. PFR File, Tab 1 at 6-7.

However, contrary to the appellant’s assertions, the administrative judge did not

find that the appellant failed to file a Form 450 during the years 2014 through

2016. Rather, the administrative judge found, and the written record reflects, that

the appellant did file a Form 450 or the equivalent in early 2014 (covering 2013),

Title 5 C.F.R. § 2634.307 provides, with exceptions not applicable here, that a

financial disclosure form (such as Form 450) “must identify all positions held at any

time by the filer during the reporting period, as an officer, director, trustee, general

partner, proprietor, representative, executor, employee, or consultant of any

corporation, company, firm, partnership, trust, or other business enterprise, any

nonprofit organization, any labor organization, or any educational or other institution

other than the United States.” Section 2634.907(e) contains substantially identical

language.

2015 (covering 2014), and 2016 (covering 2015), but did not report his position

with GPS. 6 ID at 19-20; IAF, Tab 7 at 4, 6-8. The administrative judge further

found that the appellant should have reported the position because he conducted

business as the proprietor of GPS during 2013, 2014, and 2015, by soliciting

company representatives, by issuing service orders or contracts, or by receiving

payments. ID at 20; see IAF, Tab 6 at 79-85 (for 2013), 60 (for 2014), 69-70

(for 2015).

The appellant explains that, when he completed the Form 450 in early

2014, he did not list GPS as a position “primarily because he did not consider

GPS to be a going concern.” PFR File, Tab 1 at 7. He states that this position is

supported by the fact that the four proposals he sent in 2013 did not succeed in

generating any business. Id. What matters here, however, is that in his attempts

to solicit such business, the appellant held himself out as the proprietor of GPS,

which is a reportable position under the pertinent regulations. See 5 C.F.R.

§§ 2634.307, 2634.907 (listing “proprietor” as a position that must be reported on

a financial disclosure form). The record further shows that the appellant again

acted as the proprietor of GPS in 2014 and 2015, during his contacts with

undercover FBI agents. IAF, Tab 6 at 67, 69-70, Tab 7 at 72. Thus, the

administrative judge correctly found that, as alleged in charge (4), the appellant

was required by regulation to list his position with GPS on his financial

disclosure forms covering 2013, 2014, and 2015, and failed to do so.

In the Form 450s completed in February 2015 (covering 2014) and February 2016

(covering 2015), the appellant checked “No” next to statement III, “I have reportable

outside positions for myself.” IAF, Tab 7 at 7-8. It appears that in February 2014, the

appellant completed an OGE Form 450-A (covering 2013), in lieu of a Form 450,

certifying that he had no new reportable positions since he filed his last Form 450. IAF,

Tab 7 at 6. In his previous Form 450, completed in January 2013, the appellant had

indicated that he did not have any reportable outside positions. Id. at 4. Thus, if the

appellant was required to list an outside position for 2013, he failed to do so.

The administrative judge did not abuse his discretion in denying testimony by a

proposed witness and the witness’s statement to the FBI.

The appellant argues that the administrative judge erred in disallowing

testimony by a proposed witness and documentary evidence of the proposed

witness’s statement to the FBI. PFR, Tab 1 at 13-14. The appellant asserts that

the proposed witness had direct knowledge of the appellant’s work history and

disciplinary record, as well as direct knowledge of a similarly situated individual

who ran an outside business washing railroad cars but did not face discipline.

Id. at 13-14. The appellant asserts that the testimony and evidence would also

demonstrate that he continued to perform his usual duties during the period

between January 2015, when the proposing official became aware of the

allegations against him, and July 27, 2018, when he was placed on leave pending

resolution of the notice of proposed removal. 7 Id. at 14.

The Board will not reverse an administrative judge’s rulings on discovery

matters absent an abuse of discretion. Wagner v. Environmental Protection

Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993)

(Table). Moreover, an administrative judge has wide discretion under 5 C.F.R.

§ 1201.41(b)(8), (10) to exclude witnesses where it has not been shown that their

testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal

Service, 27 M.S.P.R. 322, 325 (1985). Here, there was no apparent need for the

proposed testimony and evidence, as the agency has never disputed that the

appellant had a history of excellent performance and a clean disciplinary record,

or that he continued to perform his usual duties during the period between

January 2015 and July 2018. Moreover, the fact that another employee ran an

outside business washing railroad cars would not establish that the employee was

similarly situated to the appellant, who was also charged with misuse of

government property and failure to report an outside position on his financial

The appellant states that he was “suspended,” PFR File, Tab 1 at 14, but the record

reflects that he was placed on paid administrative leave pending resolution of the

proposed removal, IAF, Tab 6 at 57.

disclosure reports. See Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 17

(reaffirming holding of Douglas, 5 M.S.P.R. at 305, that similarly situated

employees must have engaged in the same or similar offenses). Thus, the

appellant has not demonstrated that the administrative judge abused his discretion

in denying the testimony and documents in question.

The appellant’s due process claim provides no basis for further review.

The appellant argues that the agency violated his due process rights when

the deciding official relied in part on an allegation not mentioned in the proposal

notice, specifically, that the appellant had exercised bad judgment by looking the

other way when his partner at DOT provided him with information “that a

reasonable person would have recognized was non-public.” PFR File, Tab 1

at 14-15; IAF, Tab 8 at 119. The appellant asserts that he did not have an

opportunity to respond to that allegation. PFR File, Tab 1 at 15.

This is new argument. In his response to the notice of proposed removal,

the appellant implicitly alleged that the agency violated his due process rights

because he was not given adequate time to rebut the allegations against him, was

not provided the opportunity to interview all witnesses, and did not receive all of

the information he requested. IAF, Tab 7 at 75, 77, Tab 8 at 113. In his

pleadings before the Board, the appellant again alleged that the agency denied

him due process, but he did not elaborate on that claim. IAF, Tab 1 at 6; I-2 AF,

Tab 4 at 5-6. As the administrative judge noted, the appellant did not allege that

the deciding official relied on new and material ex parte information as a basis

for his decision on the merits of the charges or the penalty to be imposed. ID

at 23. Thus, the appellant’s new claim that the deciding official’s penalty

analysis relied on ex parte information provides no basis for further review. 8

Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (holding that

In any event, the proposal notice did in fact indicate that the appellant’s failure to

question where his partner obtained non-public information was being considered as an

aggravating factor. IAF, Tab 6 at 52-53, 55-56. Moreover, the appellant specifically

addressed that allegation in his response to the notice. IAF, Tab 7 at 79.

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

review absent a showing that it is based on new and material evidence not

previously available despite the party's due diligence).

The appellant’s objections to the deciding official’s penalty analysis do not

provide a basis for further review.

Finally, the appellant argues that the deciding official failed to consider or

fully consider relevant Douglas factors, including the infrequency of the alleged

misconduct, the availability of lesser sanctions, the appellant’s 14 years of

service, his past performance and work history, and the discipline issued to

employees charged with similar or worse misconduct. PFR File, Tab 1 at 16-17.

If the appellant means to argue that these alleged errors warrant further review,

his argument rests on a misreading of the initial decision. Because the

administrative judge did not sustain all of the charges, he did not defer to the

deciding official’s penalty determination, but instead conducted an independent

analysis of the Douglas factors. ID at 24-27; see Hill v. Department of the Army,

120 M.S.P.R. 340, ¶ 4 n.4 (2013) (conducting an independent penalty analysis

when only one of two charges was sustained). Thus, the appellant’s objections to

the deciding official’s penalty analysis are moot, and provide no basis for further

review. The appellant has not argued that the administrative judge erred in his

own penalty analysis, and we discern no error in the administrative judge’s

reasoning or in his conclusion that the penalty of removal was reasonable for the

sustained misconduct. 9

In his penalty analysis, the administrative judge cited Boucher v. U.S. Postal Service,

118 M.S.P.R. 640, ¶ 24 (2012), which in turn cites Lewis v. Department of Veterans

Affairs, 113 M.S.P.R. 657, ¶ 15 (2010), for the proposition that consistency of the

penalty requires enough similarity between both the nature of the misconduct and other

factors to lead a reasonable person to conclude that the agency treated similarly situated

employees differently. ID at 25. During the pendency of this petition for review, the

Board issued its decision in Singh, which overruled Lewis to the extent it is contrary to

Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988), in which the

U.S. Court of Appeals for the Federal Circuit held that the proper inquiry is whether the

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

intentionally for reasons other than the efficiency of the service,” Singh, 2022 MSPB

NOTICE OF APPEAL RIGHTS 10

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).

15, ¶14. As noted above, Singh also reaffirmed the standard set forth in Douglas,

5 M.S.P.R. at 305, which requires that similarly situated employees must have engaged

in the same or similar offenses, and overruled case law to the contrary. Singh,

2022 MSPB 15, ¶ 17. Because the record contains no evidence of other employees who

engaged in the same or similar conduct, including the conduct described in charges (3)

and (4), the issuance of Singh does not affect the administrative judge’s assessment of

this factor.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 11 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