Opinion

Matthew D Montez v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Sep 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MATTHEW D. MONTEZ, DOCKET NUMBER

Appellant, DE-844E-19-0432-I-1

OFFICE OF PERSONNEL DATE: September 19, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Steven E. Brown , Esquire, Westlake Village, California, for the appellant.

Albert Pete Alston, Jr. , 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

affirmed the final decision of the Office of Personnel Management (OPM) that

denied his application for disability retirement benefits under the Federal

Employees’ Retirement System (FERS). For the reasons set forth below, we

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

GRANT the petition for review and REVERSE the initial decision. OPM’s final

decision is NOT SUSTAINED.

BACKGROUND

The appellant was employed as a GS-7 Production Controller with the

531st Commodities Maintenance Squadron with the Department of the Air Force.

Initial Appeal File (IAF), Tab 9 at 20. He was responsible for ordering parts to

support various weapons systems throughout the agency, maintaining

spreadsheets to track those orders, providing the shop with the status of part

orders, and routing orders to the shop when they were received. IAF, Tab 9

at 101-02, Tab 17, Hearing Recording (HR) (testimony of the appellant’s

supervisor).

On September 19, 2016, the appellant resigned from his position. IAF,

Tab 9 at 20. Nearly one year later, on September 11, 2017, he submitted an

application for disability retirement benefits under FERS based on major

depressive disorder (MDD). Id. at 46-50, 52-53. In an initial decision, OPM

denied the appellant’s application for disability retirement benefits. Id. at 35-39.

After the appellant requested reconsideration, id. at 28-29, OPM issued an

August 6, 2019 final decision sustaining its initial decision, id. at 21-24. OPM

determined that the evidence failed to establish that his medical condition was

disabling prior to his resignation from his position, that his medical condition was

the cause of his service deficiencies, that his employing agency was unable to

make reasonable accommodation for his medical condition, and that reasonable

accommodation or reassignment was necessary for his medical condition. Id.

at 22-23. Thus, OPM concluded that he failed to meet the criteria requisite for

disability retirement under FERS. Id.

The appellant appealed to the Board challenging OPM’s final decision.

IAF, Tab 1. After holding a hearing, the administrative judge affirmed OPM’s

decision. IAF, Tab 21, Initial Decision (ID). The administrative judge found that

the appellant did not show that, while employed in a position subject to FERS, he

was disabled because of MDD, resulting in a deficiency in performance, conduct,

or attendance, or that his medical condition was incompatible with either useful

and efficient service or retention in his position. ID at 12. Further, he found that

the appellant did not show that accommodation of his disabling condition in the

position held was unreasonable. Id. Therefore, he concluded that the appellant

did not establish that he was entitled to disability retirement benefits under FERS.

ID at 17.

The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. He asserts that the administrative judge failed to

sufficiently credit the opinions of the appellant’s treating Department of Veterans

Affairs (DVA) medical providers and “misinterpreted the medical evidence which

established that the appellant was unable to perform the essential functions of his

official position.” Id. at 6-8, 15. He also asserts that the administrative judge

erred in finding that his inability to work was only “situational” and in requiring

him to prove that he could not be reassigned or accommodated. Id. at 8-9, 11-15.

Finally, he alleges that DVA and Social Security Administration (SSA)

determinations show that he is entitled to disability retirement benefits. 2 PFR

File, Tab 1 at 10, Tab 4 at 9. The agency has responded in opposition, PFR File,

Tab 3, to which the appellant has replied, PFR File, Tab 4.

The appellant asserts that the DVA determination, which stated that he was entitled to

disability benefits based on a 70% rating for major depressive disorder, supports his

claim for FERS benefits. PFR File, Tab 4 at 9; IAF, Tab 9 at 66-68. However, DVA

disability ratings are based on different criteria than those applicable to assessing FERS

disability retirement claims, and they are not binding on the Board in disability

retirement matters. See Hunt v. Office of Personnel Management, 105 M.S.P.R. 264,

¶ 37 (2007). The SSA determination is relevant, but not dispositive, in a FERS

disability retirement appeal when, as here, the conditions underlying both applications

are the same. PFR File, Tab 1 at 10; IAF, Tab 9 at 62-65; see Confer v. Office of

Personnel Management, 111 M.S.P.R. 419, ¶ 6 (2009). Here, the SSA determined that

the appellant was not entitled to disability benefits. IAF, Tab 9 at 62. Based on the

foregoing, we find that the DVA and SSA determinations do not provide a basis for

disturbing the outcome in the instant appeal.

DISCUSSION OF ARGUMENTS ON REVIEW

In an appeal from an OPM decision denying a voluntary disability

retirement application, the appellant bears the burden of proof by preponderant

evidence. Christopherson v. Office of Personnel Management, 119 M.S.P.R. 635,

¶ 6 (2013); 5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for disability retirement

benefits under FERS, an individual must meet the following requirements: (1) he

must have completed at least 18 months of creditable civilian service; (2) while

employed in a position subject to FERS, he must have become disabled because

of a medical condition resulting in a deficiency in performance, conduct, or

attendance, or if there is no such deficiency, the disabling medical condition must

be incompatible with either useful and efficient service or retention in the

position; (3) the disabling medical condition must be expected to continue for at

least 1 year from the date the disability retirement benefits application is filed;

(4) accommodation of the disabling medical condition in the position held must

be unreasonable; and (5) he must not have declined a reasonable offer of

reassignment to a vacant position. Christopherson, 119 M.S.P.R. 635, ¶ 6; see

5 U.S.C. § 8451(a). For the following reasons, we find that the appellant has

proven all of these criteria.

The appellant completed at least 18 months of creditable civilian service.

The administrative judge did not explicitly address the first element of the

appellant’s case. However, the record shows that, at the time of his resignation,

the appellant had FERS-creditable service well in excess of 18 months. IAF,

Tab 9 at 85-90. This issue is undisputed.

The appellant’s condition is incompatible with useful and efficient service or

retention in his position.

An appellant may meet the statutory requirement that he “be unable,

because of disease or injury, to render useful and efficient service in the

employee’s position” through the following: (1) showing that the medical

condition caused a deficiency in performance, attendance, or conduct; or

(2) showing that the medical condition is incompatible with useful and efficient

service or retention in the position. Christopherson, 119 M.S.P.R. 635, ¶ 6.

Under the first method, an employee can establish entitlement by showing that his

medical condition affected his ability to perform specific work requirements,

prevented him from being regular in attendance, or caused him to act

inappropriately. Henderson v. Office of Personnel Management , 117 M.S.P.R.

313, ¶ 16 (2012). Alternatively, the employee can show that his medical

condition is inconsistent with working in general, in a particular line of work, or

in a particular type of work setting. Id. The ultimate question, based on all

relevant evidence, is the following: do the employee’s medical impairments

preclude him from rendering useful and efficient service in his position? Id.,

¶ 20. This question must be answered in the affirmative if the totality of the

evidence makes that conclusion more likely to be true than not true. Id.

Regarding the first method for establishing an inability to render useful and

efficient service, the administrative judge found that, although the medical

records in this case established that the appellant suffered from depression to

some degree while employed by the Air Force, the appellant did not show that his

condition resulted in a deficiency in performance, conduct, or attendance. ID

at 12. The appellant does not challenge this well-reasoned finding on review, and

we discern no basis for disturbing it. Rather, the appellant challenges the

administrative judge’s findings regarding the second method for establishing an

inability to render useful and efficient service. Specifically, he asserts that the

administrative judge failed to attribute proper weight to the medical evidence in

support of his disability retirement application because it was based on his own

description of his conditions or was dated after the end of his Federal

employment. PFR File, Tab 1 at 6-8.

To establish entitlement to disability retirement benefits, an appellant must

have become disabled while employed in a position subject to FERS and not after

his separation from service. Hardy v. Office of Personnel Management,

98 M.S.P.R. 323, ¶ 11 (2005). However, medical documentation prepared

post-separation may be considered if that documentation addresses the appellant’s

condition at the time of his separation. Reilly v. Office of Personnel

Management, 571 F.3d 1372, 1380-82 (Fed. Cir. 2009). “Where proximity in

time, lay testimony, or some other evidence provides the requisite link to the

relevant period the subsequent medical evidence can be very probative of a prior

disability.” Id. at 1382.

Here, the relevant medical documentation was all prepared post-separation.

In an August 23, 2017 letter, a psychologist, R.S., stated that the appellant had

been treated for anxiety and depression at the Salt Lake City Veterans Affairs

Medical Center since June 2013, and that, in September 2016, he reported that he

resigned due to work-related stress. IAF, Tab 9 at 195. R.S. stated that, at the

time of the appellant’s resignation in September 2016, he was being treated with

psychotherapy. Id. In an August 31, 2017 letter, a nurse practitioner, J.L., stated

that the appellant was transferred to her care in April 2017, and, after observing

that he continued to experience anxiety and depression even after psychotherapy

and medications, she opined that he “would benefit from life long mental health

treatment” and is “not employable.” Id. at 194. In a January 4, 2019 evaluation, 3

another psychologist, S.B., stated that, at the time the appellant resigned, “his

depression and anxiety rendered him incapable of performing any of his work

duties.” Id. at 120; HR (testimony of S.B.).

We find that the administrative judge gave these medical opinions proper

weight. The administrative judge found, and we agree, that J.L.’s letter was not

persuasive because she described the appellant’s mental condition nearly a year

after his resignation; she did not begin treating him until well after he resigned;

and he had only been under her care for 4 months at the time she wrote it. ID

at 13; IAF, Tab 9 at 194; see Anderson v. Office of Personnel Management,

While the evaluation was dated January 2019, the date of assessment was

December 22, 2018. IAF, Tab 9 at 120.

96 M.S.P.R. 299, ¶ 14 (2004) (finding that the probative value of the appellant’s

medical evidence was diminished by the fact that her physicians had been treating

her for a relatively short period of time and did not begin treating her until well

after the time when she alleged her disability began), aff’d, 120 F. App’x 320

(Fed. Cir. 2005). Moreover, with the exception of S.B., the appellant’s medical

providers did not explain how his condition affected his work requirements. IAF,

Tab 9 at 120-21; see Alford v. Office of Personnel Management, 111 M.S.P.R.

536, ¶ 11 (2009) (stating that a physician’s conclusion that an employee is

disabled is persuasive only if he explains how the medical condition affects the

employee’s specific work requirements), aff’d, 361 F. App’x 131 (Fed. Cir.

2010).

The administrative judge noted that medical evaluations relying exclusively

on an appellant’s own description of his psychological symptoms are relevant

evidence for purposes of determining disability retirement eligibility. ID at 14.

However, the administrative judge questioned the reliability of the appellant’s

self-reported symptoms because his medical records concerning his mental health

prior to his resignation were sparse and, while they supported the existence of

depression, they were not consistent with the severe nature of the depression

expressed to S.B. ID at 15. Nonetheless, the administrative judge accorded some

weight to S.B.’s evaluation, considered the appellant’s testimony that his

depression interfered with his ability to perform the duties of his position, and

concluded that the appellant’s subjective complaints of disability were supported

by the competent medical evidence of record. 4 ID at 15-16; HR (testimony of the

appellant); see Christopherson, 119 M.S.P.R. 635, ¶ 13 (stating that an

employee’s subjective evidence of disability is entitled to consideration and

The appellant argues that the administrative judge’s finding that his subjective

complaints of disability were supported by the medical evidence contradicts his prior

finding that his self-reported symptoms are not to be believed. PFR File, Tab 1 at 8,

Tab 4 at 8-9. Contrary to the appellant’s allegations, the administrative judge carefully

weighed the relevant evidence, and we do not discern inconsistencies in his findings.

weight in a disability retirement case when it is supported by competent medical

evidence). We discern no reason to disturb these findings.

The administrative judge also found that the appellant did not show that his

MDD was incompatible with either useful and efficient service or retention in his

position based on the fact that his problems at the time he resigned were

situational, that is, apparent only in his work environment, as a result of his

perception of harassment. ID at 16. The appellant disputes this finding and

asserts that the fact that his depression continued after he left his Federal job is

evidence that it was not situational. PFR File, Tab 1 at 11. In support of his

assertion, he cites the Board’s analysis in Yoshimoto v. Office of Personnel

Management, 109 M.S.P.R. 86, ¶¶ 17-19 (2008), and argues that S.B.’s evaluation

demonstrates that his depression affected him at work and outside of work. Id.

at 11-14.

The Board has repeatedly held that job-related stress that results in mental

impairments that prevent an employee from performing the duties necessary in his

job can warrant the granting of disability retirement. Kimble v. Office of

Personnel Management, 102 M.S.P.R. 604, ¶ 14 (2006). The relevant and

dispositive issue is whether the medical condition prevented the employee from

rendering useful and efficient service in his position. Yoshimoto, 109 M.S.P.R.

86, ¶¶ 17-19. Here, the record reflects that the appellant’s work-related stress

exacerbated his depression and anxiety, impeding his ability to render useful and

efficient service in his position. ID at 16-17; IAF, Tab 9 at 120, 195. For

example, S.B. opined that the appellant’s work stress worsened the appellant’s

depression and anxiety and that, due to his medical condition, the appellant was

“incapable of performing any of his work duties.” IAF, Tab 9 at 120-21.

There is also evidence that the appellant’s symptoms were apparent outside

of his work environment. Specifically, in his evaluation, S.B. discussed the

appellant’s long-standing history of depression and anxiety prior to the

appellant’s resignation. IAF, Tab 9 at 117-19; see Kimble, 102 M.S.P.R. 604,

¶ 13 (finding that the appellant was entitled to disability retirement benefits

when, among other things, the medical evidence established that her depression

and anxiety were long-standing and impacted areas of her life outside of her

Federal employment). Moreover, in determining whether the appellant’s

condition was confined to a single work environment, subsequent work history is

relevant. Confer v. Office of Personnel Management, 111 M.S.P.R. 419, ¶ 16

(2009). The appellant testified that, from January to March 2017, he worked as a

Materials Handler 5 at a temporary employment service agency that contracted

with a pharmaceutical company. HR (testimony of the appellant); IAF, Tab 14

at 58. He noted that, in that position, he suffered conflicts with people, which he

attributed to his depression and anxiety. Id. He confirmed that he was terminated

from that position and did not obtain any subsequent employment. Id.

Therefore, notwithstanding the absence of any documented deficiency in

performance, conduct, or attendance, we find that the appellant’s MDD was

incompatible with useful and efficient service or retention in his position, and

became so during the course of his employment.

The appellant’s disabling condition continued for at least 1 year after his

application for disability retirement.

Because he found that the appellant did not suffer from a disabling

condition, the administrative judge did not reach the issue of whether his

disabling condition was expected to persist for more than 1 year after the date of

his disability retirement application. As described above, much of the medical

evidence in this appeal postdates the disability retirement application. In

particular, nurse practitioner J.L. and clinical psychologist S.B. both opined, on

August 31, 2017, and January 4, 2019, respectively, that the appellant’s MDD

continued to render him essentially unemployable. IAF, Tab 9 at 115-21, 194.

As a Materials Handler, the appellant was responsible for “basic warehousing.” HR

(testimony of the appellant). He handled the receipt, storage, distribution, and disposal

of pharmaceutical products, as well as the inputting of that information into the

computer systems. Id.

We therefore find that the appellant’s disabling condition persisted for more than

1 year after his September 11, 2017 disability retirement application, and that he

has proven this element of his case.

Accommodation of the appellant’s condition was not reasonable.

Under FERS, an individual is not eligible for disability retirement benefits

if there is a reasonable accommodation for the disabling condition in the position

held. See Confer, 111 M.S.P.R. 419, ¶ 29. An accommodation is defined as “a

reasonable adjustment made to an employee’s job or work environment that

enables the employee to perform the duties of the position.” 5 C.F.R. § 844.102.

An “accommodation may include modifying the worksite; adjusting the work

schedule; restructuring the job; obtaining or modifying equipment or devices;

providing interpreters, readers, or personal assistants; and retraining the

employee.” Id.

The administrative judge found that the appellant did not show that

accommodation of his disabling medical condition in the position he held was

unreasonable or that he could not be reassigned to another Production Controller

position as a reasonable accommodation. ID at 12, 17. The appellant challenges

this finding on review, asserting that it was error to require a FERS disability

retirement applicant to prove that he could not be reassigned or accommodated.

PFR File, Tab 1 at 9, 14. In support of his argument, the appellant cites Hilal v.

Office of Personnel Management, MSPB Docket No. AT-844E-20-0070-I-1,

Initial Decision (May 14, 2020). 6 Id. at 14. He disagrees with OPM’s statement

that he “failed to complete the accommodation process,” PFR File, Tab 3 at 16,

and he maintains that the agency “effectively denied” him an accommodation

because he was cleared for duty without medical restrictions, PFR File, Tab 4

at 5.

The Board is not bound by initial decisions, and they have no precedential effect. See

Special Counsel v. Greiner, 117 M.S.P.R. 117, ¶ 11 n.5 (2011).

Here, as noted by the administrative judge, the record does not contain a

Certification of Reassignment and Accommodation Efforts, Standard Form

3112D, from the Air Force. ID at 16. However, the record reflects that the

appellant requested reassignment on September 12, 2016, and that the agency

informed him on September 13, 2016, that he would need to be evaluated by

Occupational Medical Services (OMS) for work restrictions so that a reasonable

accommodation could be made. IAF, Tab 9 at 82, 95; HR (testimony of the

appellant). The appellant was evaluated by OMS on September 14-15, 2016, and

OMS cleared him for duty without medical restrictions. IAF, Tab 9 at 196-97.

On September 19, 2016, the appellant resigned from his position. Id. at 20.

For disability retirement purposes, the relevant question is whether the

agency is unable to reasonably accommodate the appellant, not whether it has

refused to accommodate him. Dec v. Office of Personnel Management,

47 M.S.P.R. 72, 79 (1991). Moreover, the burden of proof is on the appellant to

show that he could not be reasonably accommodated in the position held. Confer,

111 M.S.P.R. 419, ¶ 29. In determining whether the appellant has met his burden,

the Board will, among other things, consider the relevant medical evidence and

compare it to the job requirements. See, e.g., Thomas v. Office of Personnel

Management, 54 M.S.P.R. 686, 691 (1992) (finding accommodation unreasonable

by looking to the medical evidence and comparing it to the job requirements).

In assessing this element of the appellant’s case, we are mindful that he is

essentially required to prove a negative. Evidence that a reasonable

accommodation was unavailable is commonly satisfied through the employing

agency’s Certification of Accommodation and Reassignment Efforts. See, e.g.,

Chavez v. Office of Personnel Management, 111 M.S.P.R. 69, ¶¶ 14-15 (2009);

Thieman v. Office of Personnel Management, 78 M.S.P.R. 113, 121 (1998). In

the absence of a concession from the Government that reasonable accommodation

was not possible, the Board will need to look to other evidence and draw

appropriate inferences. We are also mindful of the burden of proof applicable to

the appellant’s claim—he is required to prove by preponderant evidence, i.e.,

more likely than not, that the agency would have been unable to accommodate his

condition. See 5 C.F.R. §§ 1201.4(q), .56(b)(2)(ii). He is not required to prove

the issue definitively.

Considering the record evidence, we find that, more likely than not, the

agency would have been unable to accommodate the appellant in his Production

Controller position, even if it had tried. Although the agency did not attempt to

accommodate the appellant’s condition, this was because its OMS examining

physician opined that the appellant was capable of just performing fulltime duty

in his current position and rendering useful and efficient service without any

accommodations at all. IAF, Tab 9 at 196-97. However, the record contains no

explanation of how the OMS physician made his determination and, as explained

above, the determination was incorrect. The administrative judge found that the

agency could likely have accommodated the appellant by reassigning him to a

Production Controller position outside of the 531st Commodities Maintenance

Squadron. ID at 17. He noted that the appellant requested reassignment because

of stress related to his coworkers and concluded that his disability was

“situational,” i.e., related to the particular individuals with whom he was

working. He found that the appellant could probably have worked as a

Production Controller in another location. ID at 16-17; IAF, Tab 9 at 95, 195.

However, the balance of the evidence shows that the appellant’s disability

prevented him from working in general—not just working with particular people.

As noted above, both S.B. and J.L. stated unequivocally that the appellant was

disabled from working in any position. IAF, Tab 9 at 120-21, 194; see Kimble,

102 M.S.P.R. 604, ¶¶ 6, 12-16 (finding that the appellant’s disabling depression

and anxiety were not situational because the medical evidence showed that these

conditions prevented her from working in any position). The appellant’s failed

attempt to resume employment in early 2017 lends credence to these medical

opinions. The evidence shows that the appellant’s psychological conditions

prevented him from working productively in a different position, with different

coworkers, and for a different employer. IAF, Tab 14 at 58; HR (testimony of the

appellant).

We have considered whether there might have been other accommodations,

such as allowing for additional leave, that could have enabled the appellant to

resume useful and efficient service as a Production Controller. However, the

evidence shows that the time that the appellant spent away from work between

2016 to 2019, receiving regular mental health treatment the entire time, did not

enable him to recover to the point that he could have returned to work. IAF,

Tab 9 at 115-21, 194. Considering the nature of the appellant’s condition and its

deleterious effect on his ability to work in general, and work with others in

particular, we find it more likely than not that the agency could not have provided

him an effective accommodation.

The appellant did not decline a reasonable offer of reassignment.

There is no evidence that the agency ever offered the appellant a

reassignment, reasonable or otherwise. In fact, the record shows that the

appellant requested to try a reassignment, and that the agency denied his request.

IAF, Tab 9 at 95, 196-97. We therefore find that the appellant did not decline a

reasonable offer of reassignment to a vacant position.

Because the appellant has proven all the elements of his case, he is entitled

to the disability retirement benefits he seeks.

ORDER

We ORDER OPM to grant the appellant’s application for disability

retirement. OPM must complete this action no later than 20 days after the date of

this decision.

We also ORDER OPM to tell the appellant promptly in writing when it

believes it has fully carried out the Board’s Order and of the actions it has taken

to carry out the Board’s Order. We ORDER the appellant to provide all necessary

information OPM requests to help it carry out the Board’s Order. The appellant,

if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after OPM tells the appellant it has fully carried out

the Board’s Order, the appellant may file a petition for enforcement with the

office that issued the initial decision on this appeal if the appellant believes that

OPM did not fully carry out the Board’s Order. The petition should contain

specific reasons why the appellant believes OPM has not fully carried out the

Board’s Order, and should include the dates and results of any communications

with OPM. See 5 C.F.R. § 1201.182(a).

This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO

REQUEST ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney

fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS

DECISION. You must file your motion for attorney fees and costs with the

office that issued the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 7

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).

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.

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:

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

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

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