# Timothy Lybbert v. Department of the Navy

> Merit Systems Protection Board · November 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10748864

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** November 21, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10748864

## How later opinions describe it (automated extraction)

- finding that law enforcement officers are held to a higher standard of conduct than are other Federal employees

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

TIMOTHY D. LYBBERT, DOCKET NUMBER
Appellant, SF-0752-19-0498-I-1

v.

DEPARTMENT OF THE NAVY, DATE: November 21, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Saku E. Ethir , Riverside, California, for the appellant.

Robert Aghassi , Barstow, California, 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 for misconduct. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to account for the fact that the appellant was provoked and his
coworker received a lesser penalty for his part in the same verbal altercation, we
AFFIRM the initial decision.

BACKGROUND
The appellant was a GS-07 Police Officer for the agency. Initial Appeal
File (IAF), Tab 4 at 9. On April 12, 2019, the agency proposed the appellant’s
removal based on one charge of “Use of Racially Offensive Language.” Id. at 26-
28. The agency specified as follows:
On 21 September 2018, while in building 168, your co-worker . . .
stated to you “I can’t believe you haven’t been motherf[---]ing shot
for wearing that shirt,” or words to that effect, in reference to your
Donald Trump related shirt. You responded to [your coworker], “I
am surprised that you haven’t been lynched for being black” or
words to that effect. [2]
Id. at 26. After the appellant responded, the deciding official issued a decision
removing him effective May 16, 2019. Id. at 9-16.

2
The appellant’s coworker, another Police Officer, was suspended for 14 days for his
part in the incident. Hearing Recording 1, Track 1 at 08:40 (testimony of the
appellant’s coworker).
3

The appellant filed a Board appeal, disputing the charge and the penalty. 3
IAF, Tab 1 at 6-7. After a hearing, the administrative judge issued an initial
decision sustaining the appellant’s removal. IAF, Tab 15, Initial Decision (ID).
She found that the agency proved its charge, ID at 6-10, established nexus,
ID at 10-11, and showed that the removal penalty was reasonable, ID at 12-15.
The appellant has filed a petition for review, alleging that the
administrative judge was biased against him, disputing the administrative judge’s
conduct of the hearing, and challenging the penalty determination. Petition for
Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.

ANALYSIS
In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the
burden of proving by preponderant evidence that its action was taken for such
cause as would promote the efficiency of the service. MacDonald v. Department
of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 U.S.C. § 1201.56(b)(1)(ii). To meet
this burden, the agency must prove its charge, establish a nexus between the
charge and the efficiency of the service, and demonstrate that the penalty imposed
was reasonable. Pope v. U.S. Postal Service, 114 F.3d 1144, 1147 (Fed. Cir.
1997).
In this case, the administrative judge found that the agency carried its
burden on these issues. ID at 10-11. The appellant does not dispute these matters
on review, and we find that they are supported by the record.
The appellant’s petition for review focuses on the administrative judge’s
conduct of the hearing, procedural rulings, and alleged bias. PFR File, Tab 1
at 11-15. The appellant also addresses the issue of penalty and the alleged bias of
the deciding official. Id. at 16-19.

3
The appellant also raised an affirmative defense of whistleblower reprisal, but he later
withdrew it. IAF, Tab 1 at 6-7, Tab 11 at 2.
4

The appellant has not identified any improper procedural ruling by the
administrative judge that affected the outcome of the appeal.
An administrative judge has broad discretion to govern the proceedings
before her, including the authority to rule on witnesses and regulate the course of
the hearing. Townsel v. Tennessee Valley Authority, 36 M.S.P.R. 356, 359
(1988); see 5 C.F.R. § 1201.41(b)(6), (8). In this case, the appellant argues that
the administrative judge abused her discretion by disallowing follow-up questions
of the Operations Officer who investigated the underlying incident and by
disallowing the appellant as a witness. PFR File, Tab 1 at 10-15.
We have reviewed the testimony of the Operations Officer in its entirety,
and we see no abuse of discretion in the administrative judge’s ruling not to allow
further examination of this witness. Hearing Recording 1 (HR 1), Tracks 4-5
(testimony of the Operations Officer). After both parties had two rounds of
questioning, the administrative judge asked additional questions of this witness
and then excused her. HR 1, Track 4, Track 5 at 00:00-40:20 (testimony of the
Operations Officer). The appellant’s attorney objected, arguing that she should
be permitted to ask additional questions based on the administrative judge’s
questions, which raised some “significant issues” for the first time. HR 1, Track
5 at 40:30. When the administrative judge asked about these “significant issues,”
the appellant’s attorney identified “training,” “availability of watch
commanders,” “what [the Operations Officer] has done since she completed the
investigation,” “Hatch Act training,” 4 “No FEAR training,” 5 “[the Operations
Officer’s] understanding of what lynching is,” standard operating procedures, and
statements that the Operations Officer took from other employees. Id. at 42:20.
The administrative judge overruled the objection. Id.

4
An Act to Prevent Pernicious Political Activities, Pub. L. No. 76-252, 53 Stat. 1147
(1939), codified as amended at 5 U.S.C. chapter 73, subchapter III.
5
Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,
Pub. L. No. 107-174, 116 Stat. 566.
5

We agree with the administrative judge’s assessment. Although these
issues are relevant to this appeal, the Operations Officer’s testimony about them
was not material to the outcome. The Operations Officer’s testimony on these
issues did not provide any new information that was damaging to the appellant’s
case. For the most part, the administrative judge’s questions opened the way for
testimony that might have been favorable to the appellant, even if it ultimately
was not. A possible exception was the Operations Officer’s testimony concerning
whether the watch commander would be the appropriate person to whom the
appellant should have reported a threat. HR, Track 5 at 28:15 (testimony of the
Operations Officer). The appellant alleged that his coworker had threatened to
shoot him and that his lynching comment was a reaction to that threat, but the
administrative judge found that the appellant’s failure to report the incident to the
watch commander undermined his allegation of threat. ID at 9. However, even if
the watch commander was unavailable at the time the incident occurred, the
evidence would still show that there were other individuals in the immediate
vicinity to whom the appellant could have gone if he had actually felt threatened
by his coworker’s remarks. ID at 9. None of the other issues upon which the
appellant wished to pose follow-up questions figured into the initial decision.
Nor has the appellant explained on petition for review what testimony he hoped to
elicit from further questioning of the Operations Officer or how such testimony
might have been material to the outcome of the appeal. For these reasons, we
find that the administrative judge did not abuse her discretion by disallowing
further examination of this witness and that her ruling in this regard did not
prejudice the appellant’s substantive rights. See Niece v. U.S. Postal Service, 13
M.S.P.R. 99, 102 (1982); Karapinka v. Department of Energy, 6 M.S.P.R. 124,
127 (1981).
We next address the administrative judge’s ruling to disallow the appellant
as a witness. After the last approved witness finished his testimony, the
appellant’s attorney requested that the appellant be permitted to testify in
6

rebuttal. Hearing Recording 2 (HR 2), Track 16 at 00:30. The administrative
judge sustained the agency’s objection to the appellant’s testimony. She found
that neither party had listed the appellant as a witness in their prehearing
submissions, and that the appellant chose not to avail himself of two subsequent
opportunities that the administrative judge afforded him to get on the witness
list. 6 HR 2, Track 17 at 2:20-10:50.
On petition for review, the appellant argues that the administrative judge
abused her discretion in disallowing him as a witness because he stated in his
prehearing submission that he “reserved the right to call additional witnesses,
based on the presentation of the Agency’s case in chief.” PFR File, Tab 1
at 12-14. The appellant also argues that, to the extent that the agency might have
been prejudiced by the administrative judge allowing his testimony, this problem
could have been remedied by allowing the appellant to testify on a future date,
thus giving the agency additional time to prepare its examination. PFR File,
Tab 1 at 14-15.
As an initial matter, we find that the administrative judge did not abuse her
discretion in disallowing the appellant as a witness. See Perez v. Department of
the Air Force, 37 M.S.P.R. 32, 38 (1988) (finding that the administrative judge
did not abuse his discretion in disallowing appellant’s testimony in light of the
appellant’s previous failure, despite numerous opportunities, to indicate his desire
to include himself as a witness). Although there are circumstances that might
warrant the inclusion of previously unforeseen witnesses based upon issues that
might arise during an agency’s case in chief, we do not find those circumstances
present here. Even if prejudice to the agency’s case could have been mitigated by
bifurcating the hearing, we still find that the administrative judge was operating
6
In her prehearing conference summary, the administrative judge wrote, “The appellant
was not listed as a witness by either party. If this was an oversight, please advise the
undersigned by September 12, 2019.” IAF, Tab 11 at 2. Prior to the start of the
September 30, 2019 hearing, the administrative judge again asked whether the appellant
intended to testify, and the appellant’s attorney replied that he did not. HR at 10:25
(the administrative judge and counsel’s witness discussion).
7

well within her authority to conduct orderly and expeditious proceedings.
See 5 C.F.R. § 1201.41(b). Furthermore, the appellant has not shown that he was
prejudiced by the administrative judge’s ruling because he has not explained what
his testimony would have been or how it would have been material to the outcome
of the appeal. See Christopher v. Defense Logistics Agency, 44 M.S.P.R. 264,
269 (1990).
We observe that the appellant couches his arguments in due process terms,
arguing that the administrative judge denied him due process by disallowing
additional examination of the Operations Officer and disallowing testimony from
the appellant himself. PFR File, Tab 1 at 12, 15. Due process in this context
entails a fair opportunity to secure an independent review of an agency’s action,
including a hearing at which the appellant may call and examine witnesses.
See Muzzipapa v. Department of Veterans Affairs , 53 M.S.P.R. 53, 58 (1992).
For the reasons explained above, we discern no violation of due process; the
appellant has not shown that the administrative judge abused her discretion in
regulating the course of the hearing, much less that any of her contested rulings
prejudiced his substantive rights. See Zell v. Department of the Army,
57 M.S.P.R. 86, 88 (1993).

The appellant has not shown that the administrative judge was biased.
The appellant argues that the administrative judge was biased against him,
as evidenced by the way she conducted the hearing. PFR File, Tab 1 at 7-12.
He argues that the administrative judge interrupted his attorney’s examination
multiple times and questioned witnesses favorable to the appellant in an
aggressive and condescending manner, effectively acting as an advocate for the
agency. Id. at 8-12. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
during the course of a Board proceeding will warrant a new adjudication only if
8

the administrative judge’s comments or actions evidence “a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Bieber v.
Department of the Army, 287 F.3d 1358, 1362-63 (Fed.Cir.2002)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
Having considered the appellant’s arguments and reviewed the portions of
the hearing recording that he cites in support, we find that he has not shown that
the administrative judge was biased. We disagree that the administrative judge’s
questioning of witnesses conflicted with her role as a neutral adjudicator.
An administrative judge enjoys broad discretion under our regulations in
controlling the course of the hearing under 5 C.F.R. § 1201.41(b), and may
question witnesses and elicit testimony at hearings in order to assure that the facts
of the case are clearly and fully developed. Clarry v. Department of
Transportation, 18 M.S.P.R. 147, 150 (1983), aff’d, 795 F.2d 1016 (Fed. Cir.
1986) (Table). There is no indication in this case that the administrative judge
knew in advance what the answers to her questions would be. Her questions
could have just as easily elicited testimony favorable to the appellant as
testimony favorable to the agency. HR 1, Track 5 at 10:10-40:20. Our review of
the hearing, including the specific portions that the appellant cites on petition for
review, revealed no statements by the administrative judge suggesting favoritism
toward the agency or any other indication of partiality, much less “deep-seated
favoritism or antagonism that would make fair judgment impossible.” Smets v.
Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011), aff’d per curiam, 498 F.
App’x 1 (Fed. Cir. 2012). We find that the assertive tone and manner with which
the administrative judge conducted the hearing were appropriate and likewise do
not substantiate the appellant’s allegations of bias. See Scoggins v. Department
of the Army, 123 M.S.P.R. 592, ¶ 19 (2016).
9

The appellant has not shown that bias by the deciding official deprived her of
due process.
It appears to be undisputed that the deciding official was involved in prior
disciplinary actions against the appellant, previously made derogatory statements
about the appellant, and said during the investigation of the appellant’s most
recent misconduct that he was going to fire him. ID at 14-15; HR 2, Track 9
at 22:30, 38:50 (testimony of the deciding official). Nevertheless, the
administrative judge found that, however inappropriate the deciding official’s
comments might have been, “his behavior does not prohibit appropriate discipline
being taken against an employee based on their own misconduct in the
workplace.” ID at 15. The appellant disputes this finding, arguing that the
administrative judge erred when she failed to weigh and consider testimony about
these matters. PFR File, Tab 1 at 18-19.
However, as set forth above, the administrative judge did consider
testimony about this matter. ID at 14-15. A deciding official’s familiarity with
the facts of the case and expressed predisposition contrary to the appellant's
interests does not constitute a due process violation or harmful error. Martinez v.
Department of Veterans Affairs, 119 M.S.P.R. 37, ¶ 11 (2012). This is so even if
the deciding official had gone so far as to concur previously in the desirability of
taking the adverse action against the employee. Id. We find that the appellant
has not shown that the agency’s selection of a deciding official made the risk of
unfairness to him intolerably high. See Holton v. Department of the Navy, 123
M.S.P.R. 688, ¶ 30 (2016), aff’d, 884 F.3d 1142 (Fed. Cir. 2018).

The agency proved the reasonableness of the penalty.
Because all the agency’s charges are sustained, the Board’s authority to
review the penalty is limited. Cantu v. Department of the Treasury, 88 M.S.P.R.
253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only
to determine if the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Id.
10

In determining whether the selected penalty is reasonable, the Board gives due
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility but to assure that
management judgment has been properly exercised. Id. Thus, the Board will
disturb an agency’s chosen penalty only if it finds that the agency failed to weigh
relevant factors or that the agency’s judgment clearly exceeded the limits of
reasonableness. Id.
In this case, the administrative judge found that the deciding official
appropriately weighed the relevant factors in arriving at his penalty
determination. ID at 13-14. She agreed with the deciding official that the
appellant’s failure to take responsibility for his misconduct reflected poorly on
his rehabilitative potential, particularly in light of his four prior disciplinary
suspensions. ID at 13-14; IAF, Tab 4 at 73-78. She also considered the deciding
official’s loss of trust and confidence in the appellant and the appellant’s status as
a law enforcement officer as aggravating factors. ID at 13-14; see Watson v.
Department of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995) (finding that law
enforcement officers are held to a higher standard of conduct than are other
Federal employees). The administrative judge acknowledged the appellant’s
length of service and good work performance, but she found that these mitigating
factors did not outweigh the aggravating ones. ID at 14.
In reaching his penalty determination, the deciding official considered the
appellant’s response to the notice of proposed removal, but he found it
unpersuasive. HR 2, Track 5 at 1:04:00 (testimony of the deciding official).
As explained above, the appellant’s explanation for his action was that his
comment about lynching was a reaction to what he perceived as his
coworker’s death threat. According to the appellant, when his coworker saw his
Trump-related shirt, he asked the appellant whether he wanted to get shot, and
later at the end of the exchange, told the appellant, “Stand by to stand by,” which
11

was an allusion to practice at the firing range. IAF, Tab 4 at 44; HR 1, Track 3 at
24:15 (testimony of the Watch Commander). The appellant’s coworker denied
using those words and maintained that he did not threaten the appellant. IAF, Tab
4 at 32; HR 1, Track 1 at 22:00 (testimony of the appellant’s coworker). The
deciding official, who was also the deciding official regarding the coworker’s
14-day suspension, considered both versions of events, but he found the
coworker’s version to be more credible and determined that the appellant was not
responding to a threat. HR 2, Track 5 at 1:04:00, 1:21:30 (testimony of the
deciding official).
On petition for review, the appellant argues that the administrative judge
failed to consider several factors related to penalty. PFR File, Tab 1 at 16-18.
First, the appellant argues that the administrative judge failed to consider several
facts concerning his coworker’s credibility and other facts bearing on whether it
was reasonable for the appellant to feel threatened. Id. at 16-17.
However, regardless of whether the appellant’s coworker actually intended to
make a threat and whether a reasonable person in the appellant’s situation might
have felt threatened, the evidence shows that the appellant did not, in fact, feel
threatened. As the administrative judge explained, the appellant’s actions during
and after the exchange with his coworker were not those of an individual who
actually felt threatened. ID at 9. Rather, we find it most likely that the appellant
made the statement about lynching not out of fear or to deescalate the situation,
but out of anger because he was offended by his coworker’s inappropriate
remarks.
Second, the appellant argues that the administrative judge failed to consider
that his coworker was the instigator of the incident. PFR File, Tab 1 at 17.
The appellant is correct that provocation by others can constitute a mitigating
penalty factor, and we find that it is a mitigating factor in this case. Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305 (1981). The appellant’s coworker
instigated the altercation, and we find that the appellant was justifiably angry at
12

his coworker’s remarks. See, e.g., Wilburn v. U.S. Postal Service, 28 M.S.P.R.
524, 525, 527 (1985) (mitigating a removal for physical assault when, among
other things, the appellant’s misconduct was provoked by a racial slur). There is
no indication that the administrative judge considered this factor in her penalty
analysis, and so we modify the initial decision to account for it.
Third, the appellant argues that the administrative judge failed to consider
that his comments were not racially motivated. PFR File, Tab 1 at 17-18.
We give no credence to the appellant’s assertion that his lynching-related
comment directed at an African American coworker was not racially motivated.
Fourth, the appellant argues that the administrative judge failed to consider
that he and his coworker had previously maintained a professional relationship.
PFR File, Tab 1 at 17. An employee’s past work record, including performance
and ability to get along with fellow workers, is a relevant penalty factor.
Douglas, 5 M.S.P.R. at 305. However, both the deciding official and the
administrative judge considered the appellant’s satisfactory work record and
found that it did not overcome the seriousness of his misconduct, his disciplinary
record, and his lack of rehabilitative potential. ID at 14.
Fifth, the appellant argues that the administrative judge failed to consider
that he had no prior complaints or discipline related to allegations of the same or
similar conduct. PFR File, Tab 1 at 17. We find the appellant’s argument
unpersuasive. The administrative judge correctly found that the appellant’s prior
discipline was an aggravating factor even though it was not based on similar
misconduct. ID at 14. The Board will not discount a prior action considered by
an agency on the basis that the prior action was unrelated in nature to the action
on appeal. Lewis v. Department of the Air Force, 51 M.S.P.R. 475, 484 (1991).
Sixth, the appellant argues that the administrative judge should have
considered the agency’s failure to submit its table of penalties for the record.
PFR File, Tab 1 at 17. We agree with the appellant that the table of penalties was
relevant, but if the appellant believed that information contained in the table of
13

penalties might have undermined the agency’s case, he could have sought it
through discovery. Based on the extant record, we see no reason to doubt the
proposing official’s assertion that the table of penalties allows for removal for a
first offense of discourteous or inappropriate comments. IAF, Tab 4 at 27.
Seventh and finally, the appellant argues that the administrative judge
failed to consider that his coworker suffered only a 14-day suspension for his role
in the incident. PFR File, Tab 1 at 6, 16-17. Among the factors an agency should
consider in setting the penalty for misconduct is “consistency of the penalty with
those imposed upon other employees for the same or similar offenses.”
Douglas, 5 M.S.P.R. at 305. When an employee raises an allegation that he
received more severe discipline than another employee, the proper inquiry is
whether the agency knowingly treated employees differently “in a way not
justified by the facts, and intentionally for reasons other than the efficiency of the
service.” Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir.
1988). In this case, the appellant’s and his coworker’s misconduct was similar to
the extent that it consisted of inappropriate statements that they made during the
same verbal altercation. In addition, the deciding official was clearly aware that
these two individuals received different penalties because he was the deciding
official in both cases. HR 2, Track 5 at 1:04:00 (testimony of the deciding
official). However, we find that the agency justified the disparity in penalties due
to the appellant’s four prior disciplinary suspensions and the racial nature of his
remarks. Moreover, consistency of the penalty is only one factor among many for
an agency to consider in arriving at a penalty determination. Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶ 18.
Having considered the appellant’s arguments on review, we find
insufficient basis to mitigate the removal penalty. Even considering that the
appellant’s coworker instigated the underlying altercation and was given a lesser
penalty, we find that the appellant’s significant disciplinary record, status as a
law enforcement officer, lack of remorse, and continued attempts to rationalize
14

his misbehavior outweigh the mitigating factors, and that the agency’s chosen
penalty is fully supported by the record.

NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).

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

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
16

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
17

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
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

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
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.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10748864. Public record. Not legal advice.