# Matthew D Montez v. Office of Personnel Management

> Merit Systems Protection Board · September 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10589399

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** September 19, 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- **Precedential status:** Unpublished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

MATTHEW D. MONTEZ, DOCKET NUMBER
Appellant, DE-844E-19-0432-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
3

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.

2
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.
4

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
5

(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,
6

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,

3
While the evaluation was dated January 2019, the date of assessment was
December 22, 2018. IAF, Tab 9 at 120.
7

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

4
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.
8

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,
9

¶ 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.

5
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.
10

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.

6
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).
11

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
12

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
13

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
14

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).

7
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.
15

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.
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.

(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
17

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
8
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
18

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.
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.

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.
19

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/10589399. Public record. Not legal advice.